“The good-faith error in misallocating peremptory challenges did not deny Jones the right to a panel of impartial, indifferent jurors, and he had no constitutional right to a panel with jurors who appeared friendly or who were skewed in his favor.”

Justice Kennedy, majority opinion

“This court should not conduct a harmless-error analysis of a trial court’s actions in the first instance.”

Justice Stewart, partial dissent

On May 27, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Jones, 2020-Ohio-3051. The case was accepted on conflict certification. In an opinion written by Justice Kennedy, joined by Chief Justice O’Connor, and Justices French, DeWine, Fischer, and Donnelly, the Court held that erroneously permitting the state to exercise an extra peremptory challenge is not structural error requiring per se reversal, and that any error in allowing the extra juror in this case was harmless.  Justice Stewart concurred in part and dissented in part. The case was argued February 11, 2019.

Case Background

Jones was charged with theft, arising from allegations of shoplifting clothing from a Burlington Coat Factory store in Springdale, Ohio. Jones blamed the theft on a social media acquaintance who had given him a ride to a local mall. The driver wanted to stop at Burlington Coat Factory first, although Jones claimed he did not, and both went into the store where the theft took place. Both were stopped by the police while attempting to leave the parking lot and store merchandise found during a search of the men and the car.   

At trial, during jury selection, the state waived its final peremptory challenge. Jones then used his last peremptory challenge, and juror M.W. was seated as the final juror. During voir dire, M.W. admitted to some ambivalent feelings about police officers, but agreed he could set aside those feelings and remain fair and impartial. The state did not challenge M.W. for cause. E.R. was chosen as the alternate juror and both sides agreed they were satisfied with the jury.

Before the jury was empaneled, at a sidebar conference the assistant prosecutor claimed, erroneously as it turned out, that the state had been deprived of its final peremptory strike on juror M.W. The trial court told counsel it had failed to give the state a chance to use its last peremptory challenge. Over the defense objection, the court removed M.W. from the jury and seated alternate juror E.R. as the final juror. 

The trial court instructed the jury on both theft and complicity. The jury found Jones not guilty of theft, but guilty of complicity. Jones was sentenced to 180 days in jail with 177 suspended, a $200 fine, court costs and six months of community control.

The Appeal

In a unanimous decision, the First District Court of Appeals affirmed Jones’s conviction and sentence. In so holding, the court of appeals recognized that the trial court erred in granting the State an additional peremptory challenge that had already been waived. But the appeals court ruled that the error was not a structural error because the error did not involve a constitutional right. Therefore, the court held that Jones had to show that he had been prejudiced by the error but failed to do so.

The First District certified a conflict between its decision and the Tenth District’s opinion in State v. Holloway, 129 Ohio App.3d 790  (10th Dist. 1998).

Certified Conflict Question

Where the state is permitted to exercise more than its allotted number of peremptory challenges in a criminal prosecution, does that circumstance constitute structural error requiring automatic reversal of a conviction, or is the defendant-appellant required to demonstrate that prejudice has resulted from the error?

Answer to the Certified Question

No, to both parts. No to the second part because it is the state that has the burden to show no prejudice, which it did in this case.

Certified Conflict Case

State v. Holloway, 129 Ohio App.3d 790, (10th Dist. 1998) (“[A]s a matter of law, [a] defendant [is] not required to make a showing of actual prejudice where the state is granted an ‘extra’ peremptory challenge.”)

Read the oral argument preview of the case here and an analysis of the argument here.

Key Precedent

Crim.R. 24 (All parties must receive the same number of peremptory challenges.)

Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”)

State v. Greer, 39 Ohio St.3d 236 (1988) (There is no federal or state constitutional requirement that peremptory challenges be provided in a trial. The right to peremptory challenges is controlled by Crim.R. 24.)

State v. Fischer, 2003-Ohio-2761 (Before a reviewing court may correct a trial court’s error, the reviewing court must first determine whether an error occurred. Next, the reviewing court must analyze the trial court record to determine whether the error was prejudicial and affected the outcome of the trial. Structural errors mandate automatic reversal.)

State v. Perry, 2004-Ohio-297 (When determining whether an alleged error is structural, the threshold inquiry is whether the error involves a deprivation of a constitutional right. During a harmless-error inquiry, the state has the burden of proving that the error did not affect the substantial rights of the defendant. Additionally, when a defendant has been represented by counsel and tried by an impartial factfinder, there is a strong presumption that all errors are subject to harmless-error review.)

Rivera v. Illinois, 556 U.S. 148 (2009) (An error is structural when the error necessarily renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. A mistaken denial of a state-provided peremptory challenge does not violate the U.S. Constitution.)

State v. Quarterman, 2014-Ohio-4034 (Under plain-error review, the defendant bears the burden of “showing that but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.”

State v. Rogers, 2015-Ohio-2459 (When a defendant forfeits the right to assert an error on appeal by failing to bring it to the trial court’s attention, an appellate court applies plain-error review.)

Merit Decision

Executive Summary

Inadvertently giving the state an extra peremptory challenge is error, but not structural error. In this case the error was harmless.

Position of the Parties

Jones argues that giving the state an extra peremptory challenge violated his right to trial by an impartial jury as guaranteed by Article I, Sections 5 and 10 of the Ohio Constitution as implemented by Crim.R. 24. Jones maintains that by giving the state the extra challenge, the trial court unfairly skewed the trial in favor of the state. The error permeated the entire trial, thus requiring automatic reversal, regardless of whether the error is a constitutional error. Allowing the state to use this extra challenge out of turn affected the entire framework of the trial. Because it is impossible to determine whether excusing that juror changed the outcome of the trial, the error should not be subject to harmless-error review.  To hold otherwise would make the mandatory language of Crim.R. 24 unenforceable.

The state concedes the error by the trial court, but argues it is not structural error.  It is settled law that there is no state or federal constitutional right to peremptory challenges. In Ohio, the number of challenges allowed is strictly a matter of procedure.

Analysis

Plain, Harmless, and Structural Error

If a defendant fails to object to an error at trial, and raises it on appeal, the appeals court applies plain-error review and that review is discretionary.

When a defendant does object to an error, the appeals court applies harmless-error review. Under that standard the state bears the burden of proving that the error did not affect the substantial rights of the defendant. Whether the defendant’s substantial rights were affected depends on whether the error was prejudicial, meaning did it affect the outcome of the trial.

Some errors are never harmless. Those are known as structural errors. They are so intrinsically harmful that they require automatic reversal. These are constitutional errors that affect the entire framework of the trial process. Some examples are denial of counsel to an indigent defendant, denial of counsel of choice, denial of self-representation at trial, denial of a public trial, and failing to instruct a jury that guilt most be proven beyond a reasonable doubt.

No Structural Error Here

The threshold issue in deciding if an error is structural is to determine whether the error deprives the accused of a constitutional right. Both the U.S. Supreme Court in Rivera and the Supreme Court of Ohio in Greer have held that the mistaken denial of a lawful peremptory challenge to a defendant is not structural error. Greer also held there is no state constitutional right to peremptory challenges.  

Despite the holding in Greer, Jones argues that the error in giving the state an out-of-turn peremptory challenges violates his jury trial rights under the Ohio Constitution. The Court rejects this argument because Jones doesn’t allege that any of the jurors who served on the panel were biased against him, and he passed on challenging any of them for cause.

There Was Error, Though

The trial court violated Crim.R. 24 (E) which controls the way peremptory challenges should be made. The state’s failure to use its last peremptory challenge was a waiver of that challenge, and the trial court erred in letting the assistant prosecutor use another one.

“Because a trial court’s good-faith mistake in controlling the parties’ use of their peremptory strikes does not violate the basic constitutional guarantees setting the framework of a criminal trial as a whole, the error is not structural in nature and therefore is not presumptively prejudicial. Consequently, it is subject to harmless error review,” wrote Kennedy.

Harmless Error….by the Appeals Court, Too

The appeals court concluded that letting the state have that extra out-of-turn peremptory challenge was harmless error because Jones failed to demonstrate any actual prejudice because of it. But it is the state, not the defendant, that bears the burden on harmless-error review. It was the state that had to show that the error did not affect the outcome of this trial. So, the appeals court improperly shifted the burden to Jones to show prejudice. That was wrong, but harmless.

Here’s why the Court finds the appellate error harmless. Nothing in the colloquy with juror M.W. suggests that he would have voted to acquit Jones or that he would have ignored his oath to serve impartially. He indicated as much in the colloquy. Second, the Court finds the evidence in the case in support of the conviction overwhelming. You can read the details for yourself.

Bottom Line

Only constitutional defects can be structural errors, and inadvertently allowing an extra peremptory challenge is a trial error, not a constitutional one, subject to harmless-error review. This error was harmless.

Justice Stewart’s Position

Justice Stewart agrees that the error in this case was not structural, and agrees that the First District improperly shifted the burden to Jones to show prejudice. She disagrees with the Court’s decision to do the harmless-error analysis in the first instance, particularly where neither party briefed the issue. She was send the case back to the appeals court to do the harmless-error analysis.

Case Disposition

The judgment of the court of appeals is affirmed, as corrected.

Trial Court (Erred, but Harmlessly; Affirmed)

Hamilton County Municipal Court Judge Ted Berry, Jr.

First District Panel (Also Erred, but Harmlessly; Affirmed)

Opinion authored by Judge Penelope R. Cunningham, and joined by Judges Beth A. Myers and Charles M. Miller

Concluding Observations

Here’s what I wrote after the argument:

“I think Jones is going to lose this case in a number of possible ways.

“The Court is definitely not going to find structural error here, finding no Constitutional violation. Nor do I think the Court will agree with Jones’ counsel that a Constitutional violation arose from a violation of Crim. R. 24 in this case.  Or maybe the Court will decide there really isn’t a conflict at all, since apparently Holloway doesn’t discuss structural error.

“The entire issue of who has the burden of proof in a harmless error analysis was embarrassing all around. First of all, Jones’ lawyer should have picked that up. But it is probably more embarrassing that the First District (Justice Fischer’s old stomping ground, and mine, many years ago) got it wrong in the certified question, as Fischer pointed out. And the trial court shouldn’t have made the mistake in the first place.

“Despite all of this, it seems this was, in the Chief’s words, just a goof that didn’t prejudice anyone (regardless of who has the burden of proof), especially since the extra juror had been okayed by both sides at one point. Whether the case gets sent back for the state to prove the lack of prejudice in a harmless error analysis, or the high court decides this from the existing record without a remand is uncertain, but either way I don’t think Jones will ultimately prevail.”

I guess that pretty much said it all. Justice Fischer was all over the prejudice prong at oral argument, about both the trial court and the appeals court wrongly putting the burden on the defendant to show prejudice. The assistant prosecutor wisely conceded the error.

And Justice DeWine’s questioning mirrored a lot of what became part of the Court’s opinion, asking whether it wasn’t settled law that structural error has to be constitutional error, and that this wasn’t a constitutional error, but a procedural one, governed by the criminal rules.

Student contributor Maria Ruwe agreed that the state made the better argument here despite the burden of proof error, but thought the Court would remand the case to determine whether the government could meet its burden on the prejudice prong. So, she joins Justice Stewart in her concern.