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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DEWELL WAYNE PEARCE, )
) Court of Appeals No. A-5915
Appellant, ) Trial Court No. 3VA-94-139 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1569 - January 9, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Valdez, Glen C. Anderson, Judge.
Appearances: Michael D. Dieni, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Cynthia L. Herren, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Joannides, District Court Judge.
MANNHEIMER, Judge.
This case presents an unusual issue that arose during jury
selection. The selection process was complete, in the sense that
the parties had waived their remaining peremptory challenges and had
accepted a panel of twelve jurors, but the court adjourned for the
evening without requiring the twelve selected jurors to take their
trial oath. During this evening adjournment, the defense attorney
received new information about one of the jurors. Based on this
information, the attorney wished to challenge the juror in question.
For this purpose, he asked the trial judge to allow him to exercise
one of the remaining peremptory challenges that he had waived the
day before.
The trial judge refused to allow this. For the reasons
explained below, we conclude that the judge should have granted the
defense attorney's request. We therefore reverse the defendant's
conviction and remand this case for a new trial.
Dewell Wayne Pearce was being tried for attempted
kidnapping, third-degree assault, and third-degree misconduct
involving weapons (felon in possession of a concealable firearm).
AS 11.41.300(a)(1)(C), AS 11.41.220(a)(1)(A); AS 11.61.200(a)(1).
Jury selection lasted throughout the first day of trial. During the
selection process, Superior Court Judge Glen C. Anderson addressed
several questions to the prospective jurors as a group. Some of
these questions involved the jurors' feelings about the kind of
charges that would be litigated at Pearce's trial. Specifically,
Judge Anderson asked the prospective jurors to indicate if they or
a member of their immediate family had "been the victim of a crime,
particularly one similar to the kind that is alleged in the
complaint kidnapping, attempted kidnapping, or assault". A little
later, the judge asked the prospective jurors if they felt any
prejudice against Pearce, or believed they would have difficulty
being impartial, based on the nature of the allegations against him.
By the end of the day, voir dire was complete. The
parties indicated that they would not exercise their remaining
peremptory challenges and would accept the twelve people seated in
the jury box. Due to the lateness of the hour, Judge Anderson chose
to delay administering the trial oath to the jurors; instead, he
released the jurors, unsworn, for the night.
Later that evening, Pearce's attorney received an
anonymous telephone call. The caller told the defense attorney that
a woman juror had not been "completely honest" during voir dire; in
particular, this woman juror had expressed strong feelings about
assaults. According to the caller (as related by the defense
attorney), the woman juror declared that she had been able to
conceal her feelings about assaults because the voir dire questions
had not been specific enough to force her to reveal this
information.
When the parties appeared in court the next morning,
Pearce's attorney informed Judge Anderson of this telephone call.
The woman juror in question was identified as D.C.. Judge Anderson
called D.C. into court for additional voir dire.
During D.C.'s initial voir dire (the day before), D.C. had
told Judge Anderson that her answer was "no" to the questions the
judge had posed as to whether she or a family member had been the
victim of a crime, and as to whether she would have difficulty being
impartial in a trial involving attempted kidnapping and assault.
Now, when D.C. was questioned by Pearce's attorney, she gave the
following answers:
DEFENSE COUNSEL: Have you ever been
assaulted?
D.C.: No. Well, no.
DEFENSE COUNSEL: Has anyone in your
family ever been assaulted?
D.C.: No.
DEFENSE COUNSEL: Okay. ... You said
"well". What does that mean? Does that mean that something did
occur?
D.C.: An incident when I was very, very
young, but I ... guess I I would not classify that as an assault.
DEFENSE COUNSEL: Okay. When you were a
child. Can you go on can you explain that further?
D.C.: I was molested when I was was a
youngster.
DEFENSE ATTORNEY: Okay.
D.C.: But not violently. ... More
coerc[ion] than violence.
D.C. then described the incident:
I was maybe 11 [or] 12 years old, and [I] was
molested by the parent of the children I was baby-sitting for. It
was a one-time deal; it was never reported; and I just [made sure]
to not further associate with that family.
D.C. declared that she had not been violently assaulted or
physically coerced; rather, she had been "talked into it". D.C.
again assured the court and the attorneys that she could be
impartial, and she denied that she had said anything to the contrary
to anyone else.
Following this additional voir dire of D.C., Pearce's
attorney asked Judge Anderson to allow him to peremptorily challenge
D.C.. The defense attorney told the judge that he would have
challenged D.C. if this information had been revealed during the
original voir dire. The State opposed the defense request, arguing
that D.C.'s prior experience of sexual abuse would not impair her
ability to act impartially as a juror in Pearce's trial.
Judge Anderson denied the defense request to re-open
peremptory challenges. The judge concluded that D.C. had answered
the previous day's questions truthfully that none of the questions
posed to D.C. the day before had necessarily required her to reveal
the sexual abuse she experienced as a child. The judge based this
conclusion on the fact that D.C. had been asked to reveal only
"similar" crimes and "information [the parties] should be concerned
with". The judge found that D.C. could have answered such questions
in good faith without revealing her experience of sexual abuse. The
judge therefore held the defense attorney to his previous decision
to waive his remaining peremptory challenges. A few minutes later,
the twelve jurors took the trial oath, and presentation of the case
began.
A trial judge has considerable discretion in deciding what
to do when problems arise during jury selection. For example, the
judge has discretion to grant or deny a request for additional
peremptory challenges. Graybill v. State, 672 P.2d 138, 139 n.1
(Alaska App. 1983), rev'd on other grounds, 695 P.2d 725 (Alaska
1985); Ketzler v. State, 634 P.2d 561, 566 (Alaska App. 1981). The
decision confronting Judge Anderson in this case whether to allow
an attorney to retract a previous waiver of their remaining
peremptory challenges is similarly entrusted to the judge's
discretion. On appeal, we are obliged to defer to that discretion.
However, under the facts of this case, we conclude that Judge
Anderson should have granted the defense attorney's request to re-
open peremptory challenges (so that the defense attorney could use
one of his remaining challenges against juror D.C.).
Peremptory challenges must be exercised in a timely manner
or they are waived. In Pearce's case, the defense attorney
announced that he did not intend to exercise any of his remaining
peremptory challenges against the twelve selected jurors. Under
Alaska Criminal Rule 24(d), the attorney's decision constituted a
waiver of his right to peremptorily challenge those jurors.
However, the Alaska Supreme Court has stated that the door
truly closes on peremptory challenges when the jurors are sworn.
Grimes v. Haslett, 641 P.2d 813, 816 (Alaska 1982). In Pearce's
case, Judge Anderson did not require the jurors to take the trial
oath at the end of the day of jury selection; instead, he put this
off until the following day. The jurors were still unsworn the
following morning when the defense attorney unsuccessfully sought
to peremptorily challenge juror D.C.. We thus conclude that Judge
Anderson retained the discretion to release the defense attorney
from his waiver of peremptory challenges if there was good cause for
doing so.
It is true that the defense attorney had previously
announced himself satisfied with D.C. and the other eleven jurors.
However, in light of D.C.'s answers during the next morning's voir
dire, there was good reason to allow the defense attorney to re-
evaluate that decision. Even though Judge Anderson found that D.C.
had not lied during voir dire, the record demonstrates a strong
possibility that D.C. had purposely shaded her answers to avoid
revealing information about her background information that she
knew, or reasonably should have known, was pertinent to the voir
dire inquiry and would be considered important by the lawyers.
D.C.'s answers were sufficient to raise a significant
doubt concerning her ability to be fair. This doubt was perhaps not
sufficient to establish legal cause for D.C.'s removal, but it was
sufficient to demonstrate that the defense attorney was acting in
good faith, and for good cause, when he sought to exercise his
previously-waived peremptory challenge. We note, moreover, that
granting the peremptory challenge would not have disrupted or
delayed Pearce's trial, since an alternate juror was available to
take D.C.'s place.
For these reasons, we conclude that the trial judge abused
his discretion when he denied the defense attorney's request to
exercise a belated peremptory challenge to juror D.C.. Compare
Nelson v. State, 781 P.2d 994, 998 (Alaska App. 1989) (indicating
that when a party's peremptory challenges have been exhausted and
there is significant doubt about a remaining juror's ability to be
fair, a trial judge should be lenient in granting a request for an
additional peremptory challenge).
The judgement of the superior court is REVERSED. Pearce
is entitled to a new trial.
