State v. Berry

267 N.E.2d 775, 25 Ohio St. 2d 255, 54 Ohio Op. 2d 374, 1971 Ohio LEXIS 541
CourtOhio Supreme Court
DecidedMarch 17, 1971
DocketNo. 70-404
StatusPublished
Cited by54 cases

This text of 267 N.E.2d 775 (State v. Berry) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Berry, 267 N.E.2d 775, 25 Ohio St. 2d 255, 54 Ohio Op. 2d 374, 1971 Ohio LEXIS 541 (Ohio 1971).

Opinion

Duncan, J.

Appellant sets forth five basic contentions, and we deal with them in the order presented.

I.

It is urged that the trial court erred in allowing the state to exercise its sixth peremptory challenge on a juror after the prosecutor had expressed satisfaction with the jury as it was then constituted. Appellant argues that the prosecutor had forfeited the use of a peremptory challenge on a juror who had been seated at the time he made the statement.

We do not believe that the prosecutor’s statement, “the state is satisfied with the jury as it is now constituted,” made after he had exercised five peremptory challenges, can reasonably be interpreted as a waiver or forfeiture of the right to exercise the state’s remaining peremptory challenge.

A number of factors are generally evaluated by trial counsel in the exercise of peremptory challenges. Among these are the character and balance of a jury, which counsel may view as substantially alterable by the removal or addition of any one person. Such an alteration might serve to change a litigant’s view as to the propriety of allowing any particular juror to remain seated, even though that juror’s presence had been approved as the jury was then constituted.

We understand the prosecutor’s words of satisfaction with the jury, as then constituted, to imply that should the prospective jury membership change, the remaining peremptory challenge might be exercised.

If, as appellant urges, a peremptory challenge must [259]*259actually be used to dismiss a juror when the alternate opportunity to challenge is presented, express words of reservation, no matter how explicit, of the right to reserve the exercise of a challenge could not be effective to extend that right beyond the time of the first declination. That argument assumes that once a party “passed” his alternate turn to peremptory challenge, the right could not thereafter be resurrected, even to challenge a newly seated juror. Such a view of the utilization of challenges, which we reject, would be a marked departure from the well-established practice in Ohio trial courts.

Appellant contends further that the provision in R. C. 2945.21, that “challenges shall be exercised alternately,” is in such conflict with the provision of the same section prohibiting a party from being deprived of any of the challenges by reason of the order of exercising the same, or the time and manner of exercising the same, that the statute is unconstitutional.

R. C. 2945.21 suffers no constitutional infirmity. We are obligated to uphold the validity of an act of the General Assembly whenever possible. Reckner v. Warner (1872), 22 Ohio St. 275, 294; Wilson v. Kennedy (1949), 151 Ohio St. 485, 492; State, ex rel. Mack, v. Guckenberger (1942), 139 Ohio St. 273, 277. Moreover, our commitment is to attempt to construe a statute in such a way as to preserve its validity should it have more than one possible interpretation. See Panama Rd. Co. v. Johnson (1924), 264 U. S. 375, 390; Bratton v. Chandler (1922), 260 U. S. 110, 114.

R. C. 2945.21 clearly provides: “Neither the state nor a defendant may be deprived of any of the challenges by reason of such order of exercising the same, or the time and manner of exercising the same.” Even prior to the original enactment of this statute in 1929 (113 Ohio Laws 123, 183), in Koch v. State (1877), 32 Ohio St. 352, this court held that a defendant was granted the absolute right to his statutory number of peremptory challenges, in spite of his failure to exercise one in turn.

[260]*260The provision of the statute that such challenges “shall be exercised alternately” furnishes a procedural device to be employed by a trial judge in conducting the selection and seating of a jury. We do not believe that the General Assembly, in enacting the statute, intended to prohibit a party from “passing” an alternate turn which would foreclose the use of any remaining peremptory challenges. It is uncommon for the General Assembly to insulate a granted right by articulating such well-chosen words of protection. Not only does the statute provide (1) the state and the defendant each with six peremptory challenges, but also provides (2) that “neither the state nor a defendant may be deprived of any of the challenges by reason of such order of exercising the same, or the time or manner of exercising the same.” Such strong language needs no interpretation and must be afforded our highest regard.

We therefore hold that under R. C. 2945.21, while the parties shall alternately exercise their peremptory challenges, the passing of a turn does not operate as an absolute waiver, precluding a party from later making use of his full statutory number of challenges. The statute is complied with as long as the opportunity to challenge peremptorily is alternately offered to the parties by the court.

n.

Appellant urges that the state’s evidence consisted of inferences based upon inferences, and should not be allowed to sustain a conviction. Apparently appellant raises the issue of whether the verdicts of guilty were against the manifest weight of the evidence.

In State v. Martin (1955), 164 Ohio St. 54, 57, it was stated:

“It has been established, as a general policy, that the Supreme Court will not determine as to the weight of the evidence.
“This court may, however, examine the record with a view of determining whether the proper rules as to thu weight of the evidence and degree of proof have been applied.” . ;

[261]*261See, also, State v. Stewart (1964), 176 Ohio St. 156, 160; State v. Cliff (1969), 19 Ohio St. 2d 31, 33.

In keeping with onr general policy, we have reviewed the record and the court’s instructions to the jury. Obviously, the state’s case consists solely of circumstantial evidence. Nevertheless, from the evidence adduced we find that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt, and that the question was properly one for determination by the jury. See State v. Antill (1964), 176 Ohio St. 61.

III.

Appellant complains that the trial court’s refusal to excuse juror Rogers for cause deprived him of a fair and impartial jury. He argues that he then was forced to exercise a peremptory challenge on Rogers which could have been used otherwise.

A defendant is prejudiced by the refusal to allow a proper challenge for cause only when he has exhausted his peremptory challenges before the full jury is seated. Hartnett v. State (1885), 42 Ohio St. 568, paragraph four of the syllabus. We find no error, however, in the trial court’s refusal to excuse juror Rogers for cause. The record discloses that this juror had, at one time, a casual business relationship with a person named Juanita Perkins, but the voir dire

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Cite This Page — Counsel Stack

Bluebook (online)
267 N.E.2d 775, 25 Ohio St. 2d 255, 54 Ohio Op. 2d 374, 1971 Ohio LEXIS 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berry-ohio-1971.