Westcom v. Meunier

• Citation: 674 A.2d 1267,164 Vt. 536
• Decision Date: 12 January 1996
• Docket Number: No. 93-559,93-559
• Parties: Harold WESTCOM v. Robert E. MEUNIER and Lisa M. (McMillan) Meunier.
• Court: United States State Supreme Court of Vermont

Page 1267

674 A.2d 1267

164 Vt. 536

Harold WESTCOM v. Robert E. MEUNIER and Lisa M. (McMillan) Meunier.

No. 93-559.

Supreme Court of Vermont.

Jan. 12, 1996.

On Appeal from Franklin Superior Court February Term, 1995; Linda Levitt, J.

William T. Counos, II, of Kissane, Yarnell & Cronin, St. Albans, for plaintiff-appellant.

Robert B. Luce and Kevin P. Moriarty of Downs Rachlin & Martin, Burlington, for defendants-appellees.

Before ALLEN, C.J., GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

GIBSON, Justice.

Plaintiff Harold Westcom appeals a jury verdict in favor of defendants Robert and Lisa Meunier in a negligence action in Franklin Superior Court. The jury found the Meuniers not liable for injuries plaintiff received when the Meuniers' vehicle struck his car from behind. On appeal, plaintiff claims the trial court erred in denying him his sixth peremptory challenge and in instructing the jury on the sudden emergency doctrine. Because we agree that the court should have allowed plaintiff to exercise a sixth peremptory challenge, we reverse.

Plaintiff sued defendants for negligent driving, alleging that Robert Meunier had failed to stop his vehicle during a heavy snowfall and had struck plaintiff's vehicle from behind, causing permanent physical injuries to plaintiff. Defendants asserted that the circumstances of the collision demonstrated a sudden emergency that relieved them of liability for plaintiff's injuries. Plaintiff's claims were tried before a jury in Franklin Superior Court.

During juror voir dire, the parties exercised their peremptory challenges in alternating order, with plaintiff's counsel challenging first, then defendants' counsel, then plaintiff's counsel, and so on. The parties proceeded in this manner until each side had exhausted five peremptory challenges. On his next turn, plaintiff's counsel attempted to pass, which prompted the following exchange with the court:

MR. COUNOS: If we pass, your Honor.

THE COURT: That's lost.

MR. COUNOS: It's lost.

THE COURT: Yes. Then I would have just said one two three four five six is all gone. None left.

MR. COUNOS: Okay. Pass.

(Emphasis added.)

Defendants' counsel then exercised his sixth peremptory challenge, and the court replaced the challenged panel member. With the new member now on the panel, plaintiff's counsel attempted to exercise his sixth peremptory challenge. The record shows the following exchange:

MR. COUNOS: Your Honor, for the record I made five challenges and would like to exercise my sixth challenge.

THE COURT: Okay. But as of course I said once passed forever lost. As I understand it you're just making a record.

MR. COUNOS: Right.

With the jury panel thus constituted, the court administered the jury oath, and the trial proceeded to a defense verdict.

Vermont recognizes the right to exercise peremptory challenges both by statute and by rule. 12 V.S.A. § 1941; V.R.C.P. 47(c). Long ago, this Court noted that the opportunity "to assert and exercise the right of challenge given [a party] by the statute, is, no doubt, essential to the full enjoyment of [that party's] right to a jury trial." State v. Mercier, 98 Vt. 368, 371, 127 A. 715, 716 (1925). For over a century, we have consistently held that "the right to peremptorily challenge jurors given by [statute] continues until the jurors are sworn." State v. Spaulding, 60 Vt. 228, 233, 14 A. 769, 771 (1887). More recently, we stated that "[i]f another party changes the composition of that panel by challenge, the first party of course has a new opportunity to challenge, if he wishes." Masterson v. State, 139 Vt. 106, 107, 423 A.2d 845, 846 (1980) (emphasis added). Under our longstanding precedents, the trial court should have granted plaintiff's request to exercise a sixth peremptory challenge after defendants had changed the composition of the panel; the court's failure to do so was error requiring reversal.

Defendants contend, however, that plaintiff waived his right to a sixth peremptory challenge by passing after exercising his fifth peremptory challenge. We disagree. A pass does not constitute a waiver until the jurors are sworn. ^* See, e.g., State v. Berry, 25 Ohio St.2d 255, 267 N.E.2d 775, 778 (1971) (rejecting argument "that once a party 'passed' his alternate turn to peremptory challenge, the right could not thereafter be resurrected, even to challenge a newly seated juror"). Defendants advocate the rule, accepted in some jurisdictions, that a venire member cannot be challenged peremptorily as a matter of right after being accepted by the challenging party. See Walczak v. Daniel, 148 Conn. 592, 172 A.2d 915, 917 (1961) (party has no right to peremptory challenge after he has accepted juror upon conclusion of his examination); see generally Annotation, Peremptory Challenge After Acceptance of Juror, 3 A.L.R.2d 499, 501-04 (1949) (collecting cases). Such a rule, which we reject, would be a marked departure from the well-established practice in the Vermont trial courts. Cf. Annot., supra, 3 A.L.R.2d at 504-08 (collecting cases from states, including Vermont, following rule that accepted juror may be challenged peremptorily until juror or jury is sworn to try case).

Defendants also contend that plaintiff has not shown how he was prejudiced by the denial of a sixth peremptory challenge. We recently held that a party need not show actual prejudice when the trial court erroneously denies a party's request to exclude a juror by peremptory challenge. State v. Santelli, 159 Vt. 442, 446, 621 A.2d 222, 224-25 (1992). In Santelli, we wrote, "If we were to accept the actual prejudice rule, the trial court's errors would become unreviewable because the focus of the appellate inquiry would not be on the court's error, but on the qualifications of the juror subject to the lost peremptory challenge." Id. The whole purpose of peremptory challenges is to allow each party an opportunity to dismiss a fixed number of jurors without cause or explanation. Id. The faulty denial of that opportunity creates prejudice that should need no elucidation. See id. at 446-47, 621 A.2d at 225.

Plaintiff was entitled to exercise his sixth peremptory challenge before the jury was impaneled. Any other rule invites the use of stratagems to disrupt the fair and orderly selection of a panel to which the parties do not object. See Masterson, 139 Vt. at 107, 423 A.2d at 846.

Because plaintiff should not have had to proceed with the jury as impaneled, we need not reach the remaining issues raised on appeal.

Reversed and remanded.

ALLEN, Chief Judge, dissenting.

While I agree that the majority holding is in accord with our past precedents, I also believe that it will, in the words of Masterson, "invite the use of stratagems designed to defeat the fair balance of the rule." Masterson v. State, 139 Vt. 106, 107, 423 A.2d 845, 846 (1980). Adherence to a rule that permits peremptory challenges until the jury is sworn will permit a party to "pass," "waive," or remain "content," while the opponent exhausts all peremptory challenges and then alter the composition of up to one-half the jury panel. I agree with Justice Morse and a majority of federal courts that, at the least, a pass should result in forfeit of a challenge. I would go one step further and forbid "back-strikes" altogether in the absence of something to suggest that the competency of a juror underwent any change after acceptance.

Applying these views to the facts presented requires an affirmance of the trial court's initial ruling that a pass would result in the loss of the last peremptory challenge, unless that challenge was to the replacement resulting from the defendants' last challenge. United States v. Echavarria-Olarte, 904 F.2d 1391, 1395 (9th Cir.1990) (acceptance of panel cannot be deemed waiver of peremptory challenge in respect of person who was not member of panel at time jury was accepted). Because plaintiff failed to direct his challenge to the replacement juror, I would affirm on the jury issue.

MORSE, Justice, dissenting.

The Court today perpetuates the exercise of peremptory challenges in the manner of another era, over a century ago, when practice in our courts was more like a gentlemen's game than the "just, speedy, and inexpensive determination of every action" contemplated by our modern rules of civil procedure. V.R.C.P. 1. The Court's decision runs counter to V.R.C.P. 47(c) governing jury selection and the growing trend to discourage the practice of packing a jury. I respectfully dissent.

I.

Contrary to its assertion, the Court is not required by any case precedent in Vermont to reach its result. The Court relies on dictum in Masterson v. State: "If another party changes the composition of that panel by challenge, the first party of course has a new opportunity to challenge...." 139 Vt. 106, 107, 423 A.2d 845, 846 (1980) (per curiam). This dictum is based on old Vermont case law which holds that, until the jury is sworn, a party may use peremptory challenges to remove any juror, even one that was previously accepted. State v. Mercier, 98 Vt. 368, 371, 127 A. 715, 716 (1925); State v. Spaulding, 60 Vt. 228, 233, 14 A. 769, 771 (1887). This practice, however, well predates, and was significantly refined by, V.R.C.P. 47(c)(2), which states, "In any action in which there are two parties, peremptory challenges shall be exercised one by one, alternatively [sic], with the plaintiff exercising the first challenge."

The holding of Masterson, in contrast to the dictum, is as follows: "When a panel of twelve jurors is presented to a party and he makes no challenge to that panel, he accepts it, unless some special circumstance becomes apparent justifying a trial court to permit him to withdraw the acceptance." Masterson, 139 Vt. at 107, 423 A.2d at 846. This holding, not dictum based on outdated case law, governs this case. Plaintiff here accepted the twelve-juror panel. We should follow common sense and the lead of Maine...