State v. Swift

2014 Ohio 4041

Opinion

[Cite as State v. Swift, 2014-Ohio-4041.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27084

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE KEVIN B. SWIFT COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 13 02 0561

DECISION AND JOURNAL ENTRY

Dated: September 17, 2014

MOORE, Judge.

{¶1} Defendant, Kevin Swift, appeals from the judgment of the Summit County Court

of Common Pleas. This Court affirms.

I.

{¶2} In 2013, Mr. Swift was indicted on charges of rape, gross sexual imposition, and

domestic violence, stemming from an incident involving his ex-girlfriend. The indictment was

later amended to include charges for violating a protection order and intimidation of a crime

victim or witness. Mr. Swift pleaded not guilty, and the case proceeded to jury trial. The jury

found Mr. Swift guilty of the charges, except for violation of a protection order. The trial court

sentenced him to seven years in prison. Mr. Swift timely appealed, and he now raises one

assignment of error for our review. 2

II.

ASSIGNMENT OF ERROR

[MR. SWIFT’S] RIGHT TO A FAIR TRIAL WAS PREJUDICIALLY COMPROMISED BY THE TRIAL COURT’S FAILURE TO EXCUSE PROSPECTIVE JURORS FOR CAUSE DURING THE VOIR DIRE PROCESS.

{¶3} In his sole assignment of error, Mr. Swift argues that the trial court erred in not

removing several venirepersons for cause because they disclosed by their answers during voir

dire that they could not be fair and impartial. We disagree.

{¶4} In Hall v. Banc One Mgt. Corp., 114 Ohio St.3d 484, 2007-Ohio-4640, ¶ 30-33,

the Ohio Supreme Court distinguished the standard of review for “principal challenges”

contained in former R.C. 2313.42(A)-(I) and “challenges to the favor,” pursuant to former R.C.

2313.42(J). If a principal challenge is found valid, “the court [must] dismiss the prospective

juror, [and may] not [] rehabilitate or exercise discretion to seat the prospective juror upon the

prospective juror’s pledge of fairness[.]” Id. at ¶ 36. Challenges to the favor are made pursuant

to former R.C. 2313.42(J), now R.C. 2313.17(B)(9), which provides it is a good cause challenge

to a potential juror where the person “discloses by the person’s answers that the person cannot be

a fair and impartial juror or will not follow the law as given to the person by the court.” The

determination of a challenge to the favor requires an exercise of judicial discretion. Hall at ¶ 38;

State v. Maxwell, 139 Ohio St.3d 12, 32, 2014-Ohio-1019, ¶ 94. Therefore, on a challenge to a

potential juror made pursuant to R.C. 2313.17(B)(9), “[t]he determination whether a prospective

juror should be disqualified for cause is a discretionary function of the trial court, and the trial

court’s determination will not be reversed on appeal unless there has been an abuse of

discretion.” State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-649, ¶ 99, citing Berk v. Matthews,

53 Ohio St.3d 161 (1990), syllabus; Hall at ¶ 38. An abuse of discretion connotes that the trial 3

court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219 (1983). “As long as a trial court is satisfied, following additional

questioning of the prospective juror, that the juror can be fair and impartial and follow the law as

instructed, the court need not remove that juror for cause.” State v. Moss, 9th Dist. Summit No.

24511, 2009-Ohio-3866, ¶ 11.

{¶5} “However, a defendant who does not present a challenge for cause ‘waive[s] any

alleged error in regard to [that] prospective juror.’” State v. Mammone, 139 Ohio St.3d 467,

2014-Ohio-1942, ¶ 78, quoting State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 39.

“Under those circumstances, plain-error review applies.” Mammone at ¶ 78, citing State v. Hale,

119 Ohio St.3d 118, 2008-Ohio-3426, ¶ 89-90.

{¶6} Pursuant to Crim.R. 52(B), a plain error or defect that affects a substantial right

may be noticed although it was not brought to the attention of the trial court. “A plain error must

be obvious on the record, such that it should have been apparent to the trial court without

objection.” State v. Kobelka, 9th Dist. Lorain No. 01CA007808, 2001 WL 1379440, *2 (Nov. 7,

2001). As notice of plain error is to be taken with utmost caution and only to prevent a manifest

miscarriage of justice, the decision of a trial court will not be reversed due to plain error unless

the defendant has established that the outcome of the trial clearly would have been different but

for the alleged error. Kobelka at *2, citing State v. Waddell, 75 Ohio St.3d 163, 166 (1996), and

State v. Phillips, 74 Ohio St.3d 72, 83 (1995). Because plain error review is available where the

defendant has failed to challenge a juror for cause, we will refer to the error as having been

“forfeited” instead of having been “waive[d].” See Mammone at ¶ 78, and Kiewel v. Kiewel, 9th

Dist. Medina No. 09CA0075-M, 2010-Ohio-2945, ¶ 17. 4

{¶7} In his merit brief, Mr. Swift has challenged the trial court’s failure to excuse six

jurors (Jurors No. 8, 11, 13, 14, 16, and 25) for cause. Of those jurors, the defense only sought to

excuse Juror No. 8 for cause. In regard to Juror No. 8, during voir dire, the juror requested to

speak with the court and counsel at sidebar. During their conversation, the juror informed the

court that his mother had been raped and had been involved in a domestic violence situation.

The juror then explained:

I’m like, I mean, the fact that I’m here, I couldn’t wait to be here, you know, where I could be – I couldn’t wait to be a part of the process, and I’d like to remain a part of the process. I think I can be fair, but I just thought you folks should know that. It’s part of my history. It’s part of who I am. It’s part of what’s molded me as a solid father for my two kids and I ain’t going anywhere, you know. It’s a tragic situation. My mom’s life. And the guy was incarcerated, but not for the rape of my mom, but for the rape of my – my aunt, you know. And so it’s just – it’s disgusting, but as belief – I believe that you should all know that. I believe I can be fair, you know. * * *

The following exchange then occurred:

[THE STATE]: * * * Do you think, even though that’s hard for you based on just the – I read your body language and the way you spoke on so sincerely, do you think you can put that aside and base this case and the verdict on the evidence that is presented?

JUROR NO. 8: I believe so, I’m 27 years removed from the incident, but I’m never removed from it, but I think I can absolutely be fair.

{¶8} Thereafter, the juror explained, “I’ll never forget. But I just want to be fair. And

I can be. I believe I can be. I just thought everybody should know my makeup, I guess.”

{¶9} Defense counsel challenged Juror No. 8 for cause, during which the following

exchange took place:

[DEFENSE COUNSEL]: And, Judge, I just – with regard to No. 8, I think it was the one we just had in the back, I mean, he was near tears that whole time he was back there. He was visibly shaking. He said he could be fair and impartial, but I think the facts of what happened to him are too similar to this case. I think once we get further in he’s going to find it more difficult.

THE COURT: Well, I’m not going to excuse him for cause. 5

[DEFENSE COUNSEL]: All right.

THE COURT: But, of course, you can use your peremptory.

Thereafter, defense counsel exercised a peremptory challenge with regard to Juror No.8, and he

exhausted all peremptory challenges, except as to the alternates. See Hale, 2008-Ohio-3426, at ¶

87.

{¶10} On appeal, Mr. Swift argues that the trial court erred in refusing to excuse Juror

No. 8 for cause because his responses raised a suspicion of prejudice or partiality, and he relies

on R.C. 2313.17(B)(9) in support. R.C. 2313.17(B)(9) sets forth that a venireperson who

“discloses by the person’s answers that the person cannot be a fair and impartial juror or will not

follow the law as given to the person by the court” provides good cause for a challenge.

{¶11} However, as set forth in our recitation of the responses of Juror No. 8 above, he

indicated that he could be fair. Although he at times phrased this sentiment in terms that he

thought or believed that he could be fair, the juror expressed no indication that he could not be

fair or impartial. Mr. Swift argues that any answer by a venireperson “suggesting” that he cannot

be fair and impartial will be enough to disqualify him, even if he specifically answers in the

affirmative to the direct question that he believes he can be fair and impartial. Mr. Swift

maintains that this reading of the statute is required because “It is virtually axiomatic that no

person (unless intentionally trying to escape jury service) would admit to not being fair and

impartial.” Mr. Swift does not cite any authority for the proposition that any answer given by a

juror which conceivably could be construed to suggest partiality requires dismissal. See App.R.

16(A)(7) (appellant’s brief to contain “the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the contentions, with

citations to the authorities, statutes, and parts of the record on which appellant relies”). Our 6

research has uncovered no authority standing for this proposition. To the contrary, we note that a

similar proposition was advanced in State v. Allen, 73 Ohio St.3d 626, 628-629 (1995). There

the appellant argued that a juror’s belief in his own impartiality is insufficient to support a trial

court’s determination that the juror is unbiased. The Ohio Supreme Court rejected this argument

reasoning that “the trial judge saw and heard [the juror] and could legitimately validate [the

juror’s] statements.” Id. at 629. Accordingly, we decline to read the statute in the manner

advanced by Mr. Swift. The trial court did not abuse its discretion in failing to remove Juror No.

8 for cause.

{¶12} Next, in regard to Juror No. 13, although Mr. Swift states that “it is clear that

Juror [No.] 13 became [Juror No.] 1,” the record reveals that the trial court excused Juror No. 13

prior to the exercise of the parties’ peremptory challenges, based upon hardship due to the juror’s

child care and work issues. Accordingly, Mr. Swift’s argument pertaining to Juror No. 13, which

is premised upon the juror being seated on the jury, lacks merit.

{¶13} Because Mr. Swift did not challenge the remaining jurors for cause, his arguments

regarding the remaining jurors are forfeited except for plain error review. See Mammone, 2014-

Ohio-1942, at ¶ 78. However, Mr. Swift did not advance a plain error argument in regard to any

jurors other than Juror Nos. 13 and 14. However, as set forth above, Juror No. 13 was excused

for hardship by the trial court. As Mr. Swift did not challenge Jurors No. 11, 16, or 25 for cause,

and he did not present a plain error argument in regard to these jurors on appeal, we will limit

our plain error review to the purported plain error pertaining to Juror No. 14. See State v.

Hairston, 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925, ¶ 11 (this Court will normally not

sua sponte undertake a plain-error analysis if a defendant fails to do so). 7

{¶14} In regard to Juror No. 14, this juror informed the trial court during voir dire that

he/she had been a victim of an armed robbery. The following exchange then occurred:

[DEFENSE COUNSEL]: Was being the victim of that crime, would that make it hard for you to be fair on this jury?

JUROR NO. 14: I would like to say yes, but I really can’t honestly say that. I feel terrible saying that, but –

[DEFENSE COUNSEL]: Why should you? I mean, Mr. Swift would rather know, that, hey, I might have a hard time with this, you know, the streets are getting bad in Akron. We want to know that. If that’s the way you feel, it’s good that you’re honest. Thank you.

{¶15} In his brief, Mr. Swift reads the statement of Juror No. 14 to interpret it as the

juror admitting that based upon his/her experience, it “would be hard for him/her to be fair.”

This is not what Juror No. 14 stated. Instead, in response to whether his/her experience would

make it hard for him/her to be on a jury, the juror responded that he/she honestly could not say

that it would make it hard to be fair. Counsel did not attempt to clarify the question or the

response, even though the juror did not complete his/her sentence. As Mr. Swift’s plain error

argument as to Juror No. 14 is premised upon his interpretation of the juror’s answer which is

contrary to the literal meaning of the answer provided, his argument lacks merit. Kobelka, 2001

WL 1379440, at *2 (plain error “must be obvious on the record”).

Therefore, Mr. Swift’s sole assignment of error is overruled.

III.

{¶16} Accordingly, Mr. Swift’s sole assignment of error is overruled, and the judgment

of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 8

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

BELFANCE, P. J. WHITMORE, J. CONCUR.

APPEARANCES:

BRIAN J. WILLIAMS, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.