# Grant v. State > Court of Criminal Appeals of Oklahoma · March 23, 2009 · 205 P.3d 1 URL: https://www.frixlaw.com/law-library/cases/9787225 ## Case - **Full name:** Donald Anthony GRANT, Appellant v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** March 23, 2009 - **Citations:** 205 P.3d 1; 2009 OK CR 11; 2009 Okla. Crim. App. LEXIS 11; 2009 WL 738270 - **Precedential status:** Published - **Opinion:** Dissent by Chapel - **Judges:** Johnson, Lumpkin, Lewis, Chapel - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9787225 ## How later opinions describe it (automated extraction) - finding no prejudice where allegedly "unacceptable" juror was not challengeable for cause; had encountered some police officers during recent restaurant employment who had no connection to this case; and had assured the court that these brief contacts had no impact on her abil… ## Opinion text CHAPEL, J., Dissenting. ¶ 1 I agree with the majority that Panelist A should have been excused for cause after refusing to answer questions on the issue of mental illness. I cannot agree that this error requires no relief. In a capital case, one juror can mean the difference between life and death. Because Panelist A was not excused for cause, Grant had to use a peremptory challenge he would have used against another juror. In consequence, Grant was unfairly denied a peremptory challenge. According to our ease law, the case must be reversed. ¶ 2 In Golden v. State, this Court held that a peremptory challenge is a structural component of the trial; denial of a preemptory challenge is not subject to harmless error analysis, prejudice is presumed, and the error warrants reversal. 1 In concluding in Grant’s case that no relief is required, the Court not only disregards, but violates this precedent. The majority concludes that Grant has not shown that the jury which heard his case was less than fair and impartial. There is no legitimate basis for this conclusion in this case. The majority relies on Ross v. Oklahoma. 2 In Ross, a defendant used a peremptory challenge on a panelist who should have been excused for cause, but neither asked for extra peremptory challenges nor named any sitting juror he would have excused. A narrow majority of the United States Supreme Court held that, under these circumstances, appellate review focuses on whether the jury which heard the case was fair and impartial. The Ross opinion emphasizes that Ross does not claim any sitting juror was or could have been unfair or partial. 3 This test in Ross simply does not apply to cases such as Grant’s. As the majority acknowledges, Oklahoma requires a defendant to preserve a claim that a juror *26 should have been excused for cause by naming, at trial, an unacceptable sitting juror he would have excused with another peremptory challenge. 4 As this was not an issue in Ross, the Supreme Court never discussed in any way the appropriate standard of review where a defendant named a sitting juror he would have excused, and thus alleged that his jury was not fair and impartial. ¶ 3 I note that in reaching its conclusion the majority independently, and improperly, reviews the record concerning the juror on whom Grant would have used the lost peremptory, determining that Grant has not shown she was less than fair or impartial. This procedure misstates our law preserving denial of a peremptory challenge for review. 5 Worse, it puts a burden of proof on Grant which is inappropriate for a claim in which no showing of prejudice is required. ¶ 4 Grant preserved this issue for review. After examining the record, the Court found that Panelist A should have been excused for cause. Grant claims he was denied a peremptory challenge. The Court agrees. Under Golden, this finding requires reversal. Given our holding in Golden, the majority’s conclusion that his sitting jury was fair and impartial is simply irrelevant. ¶ 5 I also disagree with the majority’s analysis of Proposition XI. The language of the uniform instruction defining mitigating evidence has been amended since Grant’s trial. The majority states that, in Harris v. State, 6 we rejected the argument that the instruction and the prosecutor’s argument were misleading and unfairly limited the jury’s consideration of mitigating evidence. On the contrary, Harris found that the instruction, combined with a strikingly similar argument from the prosecutor, encouraged jurors to disregard evidence which was clearly appropriate in mitigation and unfairly limited jurors’ consideration of mitigating evidence. This prompted the Court to request a clarifying amendment to the instruction. While the previous language is not in itself erroneous, and this error standing alone would not require relief, I must say that, following Harris, the combination of the instruction and argument here were error. . 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988). . 487 U.S. at 86 , 108 S.Ct. at 2277 . . See, e.g., Browning v. State, 2006 OK CR 8 , 134 P.3d 816, 830 ; Warner v. State, 2001 OK CR 11 , 29 P.3d 569, 574 . . I state above the procedure for preserving this issue for review. Where this purely procedural requirement is followed, as it was here, the issue is preserved. Further substantive analysis of the "unacceptable” juror by this Court is both unnecessary and inappropriate. See Jones v. State, 2009 OK CR 1 , 201 P.3d 869 (Chapel, J., dissenting). . 2007 OK CR 28 , 164 P.3d 1103, 1114 , cert. denied, - U.S. -, 128 S.Ct. 1717 , 170 L.Ed.2d 524 (2008). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9787225. Public record. Not legal advice.