Allowing a prosecutor to remove a juror after the prosecution waived its final juror challenge is an error, but does not violate a criminal defendant’s constitutional rights. If the error occurs and the defendant objects to it in the trial court, the state must prove the error did not affect the outcome of the trial , the Ohio Supreme Court ruled today.

A Supreme Court majority affirmed the conviction of Seante Jones for complicity related to the theft of $37.97 in merchandise from a Cincinnati-area store. Jones argued he was denied a right to a fair trial because a Hamilton County assistant prosecutor waived his last challenge to a juror, but later asserted that the court had denied the state its opportunity to remove a juror. Jones felt that the juror was sympathetic to his claim of innocence, but the court excused the juror.

Writing for the Court majority, Justice Sharon L. Kennedy stated that the right of parties in criminal trials to exercise peremptory challenges is not a constitutional right but is one granted by statute. The time and sequence in which the challenges are used at trial is governed by a rule for criminal cases, she added.

The Court affirmed the First District Court of Appeals decision upholding Jones’ conviction. The First District ruled that Jones failed to prove he was harmed by the change in jurors.

The Court decision resolved a conflict among state courts of appeals. In one district, the court had ruled that granting the prosecution an “extra” challenge is a structural error that calls for automatic reversal of a conviction and the granting of a new trial. The Court today ruled that such an error does not necessarily require a new trial and that the state, not the defendant, must prove the outcome of the case would not have changed had the error not been made.

Chief Justice Maureen O’Connor and Justices Judith L. French, Patrick F. Fischer, R. Patrick DeWine, and Michael P. Donnelly joined the opinion.

Justice Melody J. Stewart concurred in part and dissented in part. She agreed with the majority’s opinion that Jones’ case was subjected to a “harmless-error” analysis and that the First District failed to do the correct analysis. She disagreed, though, with the Supreme Court conducting the harmless-error analysis and wrote that she would remand the case to the First District to conduct the appropriate review.

Shoplifting Charge Contested
Jones was initially charged with theft based on the allegation of shoplifting clothing and a watch from a Burlington Coat Factory near Cincinnati in 2016.

At his trial, a store employee testified that he watched from a camera room as Jones and Ricardo Scott entered the store. He observed Jones taking a shirt and pair of shorts to the fitting room, and then saw Jones place several clothing items on a rack before leaving the store without buying anything. The associate checked the rack and did not see the shirt and shorts. He saw Jones get into a car with Scott, wrote down the license plate number, and called the Springdale Police Department.

A police officer testified that he saw Jones and Scott leave the store, stopped the car, and searched the two men. He found the stolen merchandise from Burlington Coat Factory, but he could not remember if the items were found on Scott or Jones.

Jones testified that he arranged a ride with an unlicensed taxi driver to Tri-County Mall with Scott. The Burlington Coat Factory was located on the way to the mall, and Jones said he agreed to stop there first. Jones said he walked around the store for five minutes, left, and waited in the car for 20 minutes for Scott. He said Scott stole the merchandise.

The trial court instructed the jury about the offenses of theft and complicity. The jury found Jones not guilty of theft, but guilty of complicity. He was sentenced to 180 days in jail (of which 177 were suspended), ordered to pay a $200 fine and court costs, and placed on six months of community control.

Jury Selection Challenged
During jury selection, each side was granted three peremptory challenges. Rule 24 of the Ohio Rules of Criminal Procedure governs jury selection and requires the state to make a peremptory challenge first, with each side alternating.

The prosecutor used two challenges and told the court he was waiving his final challenge. Jones’ attorney used his final challenge, which led to the placement of a prospective juror, identified as M.W., on the jury. Prior to being seated, M.W. had been interviewed by the attorneys. M.W. stated his feeling about police officers were “split 50/50,” explaining that he believed there were both “good cops” and “bad cops” in law enforcement. He also said national attention on police-officer-involved shootings got his attention, and it seemed in his opinion that “things just wasn’t adding up.” However, he agreed he could set aside those issues and remain fair and impartial as a juror.

Just before the jury was empaneled, the prosecution claimed it was denied its right to use its final peremptory challenge. The trial judge “reviewed the transcript,” and stated that the court failed to give the state its last challenge. Jones’ lawyer objected, arguing the prosecution waived its last challenge. The judge allowed M.W. to be removed from the jury and replaced.  Jones’ attorney objected to the excusal of the juror.

Jones then asked the judge to declare a mistrial. The attorney argued that Crim.R. 24 did not allow the prosecution to remove M.W. after it waived its last challenge and that the state used it only because M.W. appeared to be “a potentially friendly juror” to Jones.

The trial court refused to declare a mistrial, and Jones was subsequently convicted of complicity.

Jury Selection Error Debated
Jones appealed to the First District, arguing the trial court made an error by allowing the prosecution to make a challenge out of sequence. He argued that the error deprived him of his constitutional right to a fair trial and was a “structural error.” Because it was a structural error, he argued, he was entitled to a new trial without having to prove he was actually harmed by the trial court’s mistake.

The First District agreed that the trial court was wrong to allow the prosecutor to use a challenge after waiving it. But the appeals court found it was not a constitutional error, so it was not a structural error. Because Jones failed to prove he was prejudiced by the error, the court ruled it was harmless and affirmed the conviction.

The First District also certified that its decision was in conflict with a 1998 Tenth District Court of Appeals decision (State v. Holloway). The Supreme Court agreed to consider Jones’ conviction and the conflict.

Jury Selection Error Analyzed
A structural error is limited to circumstances involving fundamental constitutional rights, such as the denial of the right to an attorney or the failure to inform the jury that guilt must be proven beyond a reasonable doubt, the Supreme Court explained.

The opinion stated that peremptory challenges are not constitutional rights. The challenges are granted in Ohio by state law, R.C. 2945.21, and Crim.R. 24 defines how courts are to apply them.

Because allowing challenges out of sequence was not unconstitutional, the state had to prove that Jones was not harmed by the error, the Court stated. The opinion explained that the flaw in Jones’ argument is that he did not assert that any of the remaining jurors on the panel were biased against him, and that Jones had no constitutional right to a “panel with jurors who appeared friendly or who were skewed in his favor.”

The Supreme Court noted that the First District analyzed the case as if Jones had not objected to the trial court’s decision, which he did. The First District required that Jones prove he was harmed by the error of the trial court but found the error did not affect the outcome.

The Supreme Court explained that the First District was incorrect to make Jones prove he was prejudiced. The Court ruled the First District should have conducted a “harmless-error analysis,” which makes the prosecution – and not Jones -- prove the error was harmless.

The Court conducted its own harmless-error review and found that nothing indicated that juror M.W. would have voted to acquit Jones because M.W. said he could be impartial. The majority opinion also found the evidence against Jones to be “overwhelming” and stated that the First District’s error of using the wrong analysis was itself “harmless.”

2019-0187. State v. Jones, Slip Opinion No. 2020-Ohio-3051.

View oral argument video of this case.

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