Metropolitan News-Enterprise


Friday, July 28, 2006


Page 3


Court May Not Reopen Jury Selection After Jury Is Sworn—S.C.


By TINA BAY, Staff Writer


A trial court lacks discretion to reopen jury selection proceedings after the 12-member jury has been impaneled, even if alternates have not yet been sworn, the Supreme Court ruled yesterday.

In a unanimous opinion, the high court reversed a Third District Court of Appeal ruling that a judge wrongly precluded Kevin Lamar Cottle from exercising his right to challenge a juror he found unacceptable.

Cottle was convicted in Sacramento Superior Court of four counts of assault with a deadly weapon after he struck four people with his car. The incident occurred after Cottle fought with a man over the fact that Cottle was dating the man’s girlfriend, according to trial testimony. One witness said Cottle appeared to be leaving the fight scene, while another claimed he deliberately tried to run the victims over.

During the two-day jury selection process for Cottle’s December 2002 trial, the defense exercised eight of the ten peremptory challenges to which Cottle was entitled pursuant to Code of Civil Procedure Sec. 231(a).

After the 12 trial jurors were sworn, but before the alternates were sworn, the last sworn juror—a man identified as “Juror No. 12”—asked to speak with the court in chambers. Juror No. 12 had expressed no reservations during voir dire about his ability to serve, but in chambers told Sacramento Superior Court Judge Lloyd Connelly he had a “mental block” about sitting in a criminal case.

When Connelly asked the juror whether he would be able to vote for a guilty verdict if warranted by the evidence, the juror said he would “try to.” Connelly explained that the juror had to be fair and impartial, basing his decision on evidence and law rather than sympathy.

The juror responded “yeah” but reiterated that he would feel more comfortable hearing a civil case. Connelly replied that criminal cases also needed to be tried by juries and the juror said “right.”

After the juror expressed he would “probably” be swayed by sympathy for the victims, Connelly further clarified his obligation to be impartial. The juror ultimately agreed to “do [his] best to analyze the data.”

Connelly subsequently denied Cottle’s motion to dismiss Juror No. 12 for cause.

When Cottle moved to reopen jury selection so he could use an unused peremptory challenge to dismiss the juror, Connelly denied the motion on the basis that Cottle was not entitled to reopen jury selection because the 12 jurors had been sworn.

The Court of Appeal said that Cottle was entitled to challenge Juror No. 12 before the alternates were sworn, because the information on which his challenge was based surfaced only after the jury had been impaneled. There was, therefore, “good cause” to reopen jury selection so that Cottle could exercise his important right of peremptory challenge, the court ruled.

The high court disagreed, holding that the Trial Jury Selection Act does not authorize the reopening of jury selection after the trial jury has been sworn.

The act, effective January 1989, repealed former Penal Code Sec. 1068, which the Court of Appeal in People v. Armendariz (1984) 37 Cal. 3d 573 construed to permit peremptory challenges after jurors were sworn but before the jury was “completed”—provided the party could show “good cause” for why it failed to exercise the challenge earlier.

The high court concluded that the Legislature overruled Armendariz by repealing Sec. 1068 and replacing it with Code of Civil Procedure Sec. 226, which provides that a challenge to an individual juror may be made only before the jury is sworn

Pointing to various statutory provisions differentiating between “jurors” and “alternate jurors,” the justices rejected Cottle’s argument that “the jury” means regular jurors and alternates together and that Sec. 226 therefore allows peremptory challenges up until the time that alternates are sworn.

Justice Carol A. Corrigan, writing for the court, explained:

“[T]he statutes make clear that alternate jurors are treated distinctly under the code, thus supporting the conclusion that ‘the jury is sworn’ is a phrase relating only to the 12 trial jurors and not the alternates. Among other important points of differentiation, alternate jurors do not participate in deliberations unless ordered to do so. A court may make such an order only after the discharge of a juror, upon a showing of good cause that the original juror is unable to perform his or her duty. Those sitting only as alternate jurors never determine questions of fact. They do not participate in the returning of a verdict unless they join ‘the jury’ in place of an original trial juror.”

Permitting peremptory challenges after impaneling would encourage “gamesmanship,” Corrigan added.

“For example, if a favorable juror was selected as an alternate, a party would then try to challenge a member of the jury so that the alternate could replace the juror,” she said.

Corrigan noted that, in the event a juror became unable to serve, courts could invoke their authority to remove the juror upon a showing of good cause pursuant to , she Code of Civil Procedures 223 and 234 and Penal Code Sec. 1089.

The case is People v. Cottle, 06 S.O.S. 3922.


Copyright 2006, Metropolitan News Company