Metropolitan News-Enterprise


Thursday, September 23, 2004


Page 1


S.C. to Rule on How Late Peremptory Challenge May Be Used


By a MetNews Staff Writer


The California Supreme Court yesterday agreed to review a Third District Court of Appeal decision that reversed a conviction because the judge would not allow the defense to make a peremptory challenge between the swearing of the jurors and the alternates.

The vote to hear People v. Cottle, C043594, was 6-0 with Chief Justice Ronald M. George absent from the weekly conference.

Kevin L. Cottle was convicted of four counts of assault with a deadly weapon after he hit four people with his car. The victims, according to testimony at the Sacramento Superior Court trial, had been in a fight with the defendant, stemming from the fact Cottle was dating the girlfriend of another man involved in the fight.

One witness said Cottle appeared to be trying to leave the scene. Another said he deliberately tried to run the victims over.

It took counsel less than two days to select a jury for the December 2002 trial. The defense exercised eight of its 10 peremptory challenges.

‘Mental Block’

After the jurors were sworn, but before alternates were sworn—although they had been selected—a juror asked to speak to Judge Lloyd Connelly in chambers. In the presence of counsel, the juror told the judge he had a “mental block” about sitting in a criminal case and might not be able to vote for conviction.

But after the judge asked him whether he could vote “guilty” if the evidence warranted, he said he would “try to.” And when the judge explained that the verdict had “to be based on the evidence and the law and not on some sense of sympathy,” the juror commented “right” and said he would be fair and impartial, although he added he would still be more comfortable hearing a civil case.

Connelly responded that he, too, sometimes felt more comfortable hearing civil cases but that criminal cases have to be tried by juries as well.

The judge allowed counsel to question the juror. In response to a question by Cottle’s attorney, he acknowledged that there was a “possibility” that his verdict would be influenced for sympathy for the victims.

Connelly rejected a defense motion to excuse the juror for cause, as well as the motion to reopen jury selection so as to allow the defense to make its ninth peremptory. Peremptory challenges, the judge reasoned, cannot be made after “the twelve in the box have been sworn.”

But Justice Ronald Robie, in his June 8 opinion for the Court of Appeal, disagreed. The defendant, he said, had been deprived of an important right.

“Here, defendant was unable to intelligently exercise this right prior to the time that Juror No. 12 came forward and revealed important information about himself that would have informed the parties in their exercise of their peremptory challenges during the initial jury selection,” Robie wrote.  “This obviously frustrated the critical purpose underlying the right to the peremptory challenge.  These facts give rise to good cause to reopen jury selection.  The magnitude of the right to exercise peremptory challenges, the nature of the information provided by Juror No. 12, and the absence of a lack of diligence on defendant’s counsel’s part, all dictate that good cause existed here.”

The ruling was not subject to harmless-error analysis, Robie concluded.

Tyson Case

In other action at the conference, the justices declined to review a First District, Div. One ruling allowing a citizens group to sue Tyson Foods, Inc. for false advertising based on its claim that its chicken meat is a “heart-healthy” food that may be eaten “as often as you like.”

The plaintiff, Physicians Committee for Responsible Medicine, claims that most Tyson products “contain substantial levels of fat and cholesterol, the consumption of which will not only fail to reduce the risk of heart disease, but is actually likely to increase such risk.”

A San Francisco Superior Court judge struck the complaint under the anti-SLAPP law. But the appeals court, in an opinion by Justice Douglas E. Swager, said the suit had to be allowed to proceed under a legislative amendment making the anti-SLAPP law  inapplicable to suits based on advertising activity.

The amendment applies to all cases not yet final as of its effective date, Jan. 1 of this year, Swager said. Tyson unsuccessfully argued that the amendment applies only to cases filed after that date.


Copyright 2004, Metropolitan News Company