State v. Fire

Alexander, C.J.

(concurring) — I agree with Justice Sanders that under Washington law a defendant in a criminal case is presumed to be prejudiced if that person is forced to use his or her last peremptory challenge in order to remove a juror who should have been removed for cause by the trial court. State v. Parnell, 77 Wn.2d 503, 508 , 463 P.2d 134 (1969). See also dissent at 177 n.8 (citing McMahon v. Carlisle-Pennell Lumber Co., 135 Wash. 27, 28 , 236 P. 797 (1925); State v. Stentz, 30 Wash. 134 , 70 P. 241 (1902); State v. Rutten, 13 Wash. 203 , 43 P. 30 (1895)). In other words, a defendant need not show that he was prejudiced in order to obtain reversal of a conviction that followed the defendant’s use of his or her last peremptory challenge to overcome the *166 wrongful denial of a challenge to a juror for cause. In this regard I am in accord with the dissent’s view that our decision in Parnell has not been undermined and remains good law in Washington.

I nevertheless concur in the result reached by the majority. I do so because, in my view, our decision in Parnell should be abandoned. We should, instead, adopt the better rule that has been enunciated by the United States Supreme Court in United States v. Martinez-Salazar, 528 U.S. 304, 307 , 120 S. Ct. 774 , 145 L. Ed. 2d. 792 (2000), a case in which that Court was faced with the question of whether a defendant, who elects to exercise a peremptory challenge in order to cure a trial court’s error in not granting a challenge for cause, is deprived of any rule-based or federal constitutional right if he or she is subsequently convicted by a jury on which no biased juror sat. The Court observed there that although peremptory challenges play an important role in reinforcing a defendant’s right to trial by an impartial jury, a defendant’s due process rights are not violated simply because the defendant uses his or her last peremptory challenge to cure an erroneously denied for-cause challenge. The Court said “such challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension.” Martinez-Salazar, 528 U.S. at 311 (citing Ross v. Oklahoma, 487 U.S. 81, 88 , 108 S. Ct. 2273 , 101 L. Ed. 2d 80 (1988); quoting Stilson v. United States, 250 U.S. 583, 586 , 40 S. Ct. 28 , 63 L. Ed. 1154 (1919) (“ ‘There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges.’ ”)).

In concluding that Martinez-Salazar was not deprived of a peremptory challenge, but rather used it “in line with a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury,” the United States Supreme Court reasoned that a “hard choice is not the same as no choice.” Id. at 316, 315. It concluded *167 therefore, that without a showing of prejudice, the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury.

The Court’s decision in Martinez-Salazar makes perfect sense to me and is a far better rule than that which we enunciated in Parnell . More importantly, the rule does not trample on any constitutional rights guaranteed by the Sixth Amendment to the United States Constitution or Washington Constitution article I, sections 21, 22.

The Sixth Amendment ensures that criminal defendants “ ‘enjoy the right to . . . trial, by an impartial jury.’ ” State v. Latham, 100 Wn.2d 59, 62 , 667 P.2d 56 (1983); see Irvin v. Dowd, 366 U.S. 717, 722 , 81 S. Ct. 1639 , 6 L. Ed. 2d 751 (1961). This right is the right to receive a fair trial by a panel of impartial, indifferent jurors. Latham, 100 Wn.2d at 62 -63 (citing Irvin, 366 U.S. at 722 ). The language of article I, section 22 of our state constitution is similar to that of the Sixth Amendment and has been construed to ensure and protect one’s right to a fair and impartial jury. State v. Davis, 141 Wn.2d 798, 855 , 10 P.3d 977 (2000). In addition, Washington Constitution article I, section 21 states that a defendant has a right to be tried by an impartial 12-person jury. State v. Gentry, 125 Wn.2d 570, 615 , 888 P.2d 1105 (1995) (applying Wash. Const, art. I, § 21). Neither provision provides that a person has a right to a jury containing a particular juror or jurors. I subscribe to the view that these constitutional rights are not infringed when a defendant exercises a peremptory challenge to cure an erroneously denied for-cause challenge. Like the United States Supreme Court, I would hold that unless a defendant can show prejudice, the mere fact that one uses his or her peremptory challenge to cure a wrongfully denied for-cause challenge does not establish a constitutional violation.

While I would not depart from the rule we established in Parnell if it were constitutionally based, it is clear that it is not the case. As the concurring judge at the Court of Appeals observed here, the rule we enunciated in that case *168 is based not on any constitutional guaranty but, rather, is based on the “broader purpose of peremptory challenges: to allow a party to exclude a potential juror ‘for which no reason need be given.’ ” State v. Fire, 100 Wn. App. 722, 731 , 998 P.2d 362 (Cox, J., concurring) (quoting RCW 4.44.140), review granted, 141 Wn.2d 1024 (2000).

Although the common law should be slow to change, “we have never hesitated to do so when, upon reconsideration, we have concluded that they were in error.” In re Estate of Bordeaux, 37 Wn.2d 561, 593 , 225 P.2d 433 (1950). The common law should avoid becoming an “unchanging compendium of desiccated maxims.” Halvorson v. Birchfield Boiler, Inc., 76 Wn.2d 759, 766 , 458 P.2d 897 (1969) (Finley, J., dissenting).

In my opinion, the time has come to discard the rule enunciated in Parnell and adopt the better-reasoned rule set forth by the United States Supreme Court in Martinez-Salazar .