Westcom v. Meunier

Annotate this Case

WESTCOM_V_MEUNIER.93-559; 164 Vt 536; 674 A.2d 1267

[Filed 12-Jan-1996]

NOTICE: This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.

No. 93-559

Harold Westcom Supreme Court

v. On Appeal from
Franklin Superior Court
Robert E. Meunier and
Lisa M. (McMillan) Meunier February Term, 1995

Linda Levitt, J.

William T. Counos, II, of Kissane, Yarnell & Cronin, St. Albans, for
plaintiff-appellant

Robert B. Luce and Kevin P. Moriarty of Downs Rachlin & Martin,
Burlington, for defendants-appellees

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

GIBSON, J. Plaintiff Harold Westcom appeals a jury verdict in favor
of defendants Robert and Lisa Meunier in a negligence action in Franklin
Superior Court. The jury found the Meuniers not liable for injuries
plaintiff received when the Meuniers' vehicle struck his car from behind.
On appeal, plaintiff claims the trial court erred in denying him his sixth
peremptory challenge and in instructing the jury on the sudden emergency
doctrine. Because we agree that the court should have allowed plaintiff to
exercise a sixth peremptory challenge, we reverse.

Plaintiff sued defendants for negligent driving, alleging that Robert
Meunier had failed to stop his vehicle during a heavy snowfall and had
struck plaintiff's vehicle from behind, causing permanent physical injuries
to plaintiff. Defendants asserted that the circumstances of the collision
demonstrated a sudden emergency that relieved them of liability for
plaintiff's injuries. Plaintiff's claims were tried before a jury in
Franklin Superior Court.

During juror voir dire, the parties exercised their peremptory
challenges in alternating order, with plaintiff's counsel challenging
first, then defendant's counsel, then plaintiff's

counsel, and so on. The parties proceeded in this manner until each side
had exhausted five peremptory challenges. On his next turn, plaintiff's
counsel attempted to pass, which prompted the following exchange with the
court:

MR. COUNOS: If we pass, your Honor.

THE COURT: That's lost.

MR. COUNOS: It's lost.

THE COURT: Yes. Then I would have just said one two three
four five six is all gone. None left.

MR. COUNOS: Okay. Pass.

(Emphasis added.)

Defendant's counsel then exercised his sixth peremptory challenge and
the court replaced the challenged panel member. With the new member now on
the panel, plaintiff's counsel attempted to exercise his sixth peremptory
challenge. The record shows the following exchange:

MR. COUNOS: Your Honor, for the record I made five challenges
and would like to exercise my sixth challenge.

THE COURT: Okay. But as of course I said once passed forever
lost. As I understand it you're just making a
record.

MR. COUNOS: Right.

With the jury panel thus constituted, the court administered the jury
oath and the trial proceeded to a defense verdict.

Vermont recognizes the right to exercise peremptory challenges both by
statute and by rule. 12 V.S.A. § 1941; V.R.C.P. 47(c). Long ago, this
Court noted that the opportunity "to assert and exercise the right of
challenge given [a party] by the statute, is, no doubt, essential to the
full enjoyment of [that party's] right to a jury trial." State v. Mercier,
98 Vt. 368, 371, 127 A. 715, 716 (1925). For over a century, we have
consistently held that "the right to peremptorily challenge jurors given by
[statute] continues until the jurors are sworn." State v. Spaulding, 60
Vt. 228, 233, 14 A. 769, 771 (1887). More recently, we stated that "[i]f
another

party changes the composition of that panel by challenge, the first party
of course has a new opportunity to challenge, if he wishes." Masterson v.
State, 139 Vt. 106, 107, 423 A.2d 845, 846 (1980) (emphasis added). Under
our longstanding precedents, the trial court should have granted
plaintiff's request to exercise a sixth peremptory challenge after
defendants had changed the composition of the panel; the court's failure to
do so was error requiring reversal.

Defendants contend, however, that plaintiff waived his right to a
sixth peremptory challenge by passing after exercising his fifth peremptory
challenge. We disagree. A pass does not constitute a waiver until the
jurors are sworn.(DN1) See, e.g., State v. Berry, 267 N.E.2d 775, 778 (Ohio
1971) (rejecting argument "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"). Defendants advocate the rule, accepted
in some jurisdictions, that a venire member cannot be challenged
peremptorily as a matter of right after being accepted by the challenging
party. See Walczak v. Daniel, 172 A.2d 915, 917 (Conn. 1961) (party has no
right to peremptory challenge after he has accepted juror upon conclusion
of his examination); see generally O.C. Sattinger, Annotation, Peremptory
Challenge After Acceptance of Juror, 3 A.L.R. 2d 499, 501-04 (1949)
(collecting cases). Such a rule, which we reject, would be a marked
departure from the well-established practice in the Vermont trial courts.
Cf. Sattinger, supra, 3 A.L.R. 2d at 504-08 (collecting cases from states,
including Vermont, following rule that accepted juror may be challenged
peremptorily until juror or jury is sworn to try case).

Defendants also contend that plaintiff has not shown how he was
prejudiced by the denial

of a sixth peremptory challenge. We recently held that a party need not
show actual prejudice when the trial court erroneously denies a party's
request to exclude a juror by peremptory challenge. State v. Santelli, 159
Vt. 442, 446, 621 A.2d 222, 224-25 (1992). In Santelli, we wrote, "If we
were to accept the actual prejudice rule, the trial court's errors would
become unreviewable because the focus of the appellate inquiry would not be
on the court's error, but on the qualifications of the juror subject to the
lost peremptory challenge." Id. The whole purpose of peremptory
challenges is to allow each party an opportunity to dismiss a fixed number
of jurors without cause or explanation. Id. The faulty denial of that
opportunity creates prejudice that should need no elucidation. See id. at
446-47, 621 A.2d at 225.

Plaintiff was entitled to exercise his sixth peremptory challenge
before the jury was impaneled. Any other rule invites the use of
stratagems to disrupt the fair and orderly selection of a panel to which
the parties do not object. See Masterson, 139 Vt. at 107, 423 A.2d at 846.

Because plaintiff should not have had to proceed with the jury as
impaneled, we need not reach the remaining issues raised on appeal.

Reversed and remanded.

FOR THE COURT:

__________________________________________
Associate Justice

----------------------------------------------------------------------------
Footnotes

FN1. The dissent assumes, without further analysis, that our
decision "makes it easier for a party to pack a jury based on invidious
discrimination." Post, at 3. Although the dissent's assumption may once
have had force, the long line of United States Supreme Court decisions
cited by the dissent squarely resolves the dissent's concern. See, e.g.,
J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419, 1430 (1994) (prohibiting
jury selection based on gender); Edmondson v. Leesville Concrete Co., 500 U.S. 614, 628 (1991) (prohibiting jury selection based on race). We need
no longer assume that peremptory challenges will be used for invidious
discrimination, because the Court's decisions assure that peremptory
challenges cannot constitutionally be so used.

-------------------------------------------------------------------------
Dissenting

No. 93-559

Harold Westcom Supreme Court

v. On Appeal from
Franklin Superior Court
Robert E. Meunier and
Lisa M. (McMillan) Meunier February Term, 1995

Linda Levitt, J.

William T. Counos, II, of Kissane, Yarnell & Cronin, St. Albans, for
plaintiff-appellant

Robert B. Luce and Kevin P. Moriarty of Downs Rachlin & Martin,
Burlington, for defendant-appellee

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

ALLEN, C.J., dissenting. While I agree that the majority holding is
in accord with our past precedents, I also believe that it will, in the
words of Masterson, "invite the use of stratagems designed to defeat the
fair balance of the rule." Masterson v. State, 139 Vt. 106, 107, 423 A.2d 845, 846 (1980). Adherence to a rule that permits peremptory challenges
until the jury is sworn will permit a party to "pass," "waive," or remain
"content," while the opponent exhausts all peremptory challenges and then
alter the composition of up to one-half the jury panel. I agree with
Justice Morse and a majority of Federal courts that, at the least, a pass
should result in forfeit of a challenge. I would go one step further and
forbid "back-strikes" altogether in the absence of something to suggest
that the competency of a juror underwent any change after acceptance.

Applying these views to the facts presented requires an affirmance of
the trial court's initial ruling that a pass would result in the loss of
the last peremptory challenge, unless that challenge was to the replacement
resulting from the defendant's last challenge. United States v.
Echararria-Olarte, 904 F.2d 1391, 1395 (9th Cir. 1990) (acceptance of panel
cannot be deemed waiver of peremptory challenge in respect of person who
was not member of panel at time jury was accepted). Because plaintiff
failed to direct his challenge to the replacement juror, I would affirm on
the jury issue.

_______________________________________
Chief Justice

-------------------------------------------------------------------------
Dissenting

No. 93-559

Harold Westcom Supreme Court

On Appeal from
v. Franklin Superior Court

Robert E. Meunier and February Term, 1995
Lisa M. (McMillan) Meunier

Linda Levitt, J.

William T. Counos, II of Kissane, Yarnell & Cronin, St. Albans, for
plaintiff-appellant

Robert B. Luce and Kevin P. Moriarty of Downs Rachlin & Martin,
Burlington, for defendant-appellee

PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

MORSE, J. dissenting. The Court today perpetuates the exercise of
peremptory challenges in the manner of another era, over a century ago,
when practice in our courts was more like a gentlemen's game than the
"just, speedy, and inexpensive determination of every action" contemplated
by our modern rules of civil procedure. V.R.C.P. 1. The Court's decision
runs counter to V.R.C.P. 47(c) governing jury selection and the growing
trend to discourage the practice of packing a jury. I respectfully
dissent.

Contrary to its assertion, the court is not required by any case
precedent in Vermont to reach its result. The Court relies on dictum in
Masterson v. State: "If another party changes the composition of the panel
by challenge, the first party of course has a new opportunity to
challenge." 139 Vt. 106, 107, 423 A.2d 845, 846 (1980) (per curiam). This
dictum is based on old Vermont case law which holds that, until the jury is
sworn, a party may use peremptory challenges to remove any juror, even one
that was previously accepted. State v. Mercier, 98 Vt. 368, 371, 127 A. 715, 716 (1925); State v. Spaulding, 60 Vt. 228, 233, 14 A. 769, 771
(1888). This practice, however, well predates, and was significantly
refined by, V.R.C.P.

47(c)(2), which states, "In any action in which there are two parties,
peremptory challenges shall be exercised one by one, alternatively [sic],
with the plaintiff exercising the first challenge."

The holding of Masterson, in contrast to the dictum, is as follows:
"When a panel of twelve jurors is presented to a party and he makes no
challenge to that panel, he accepts it, unless some special circumstance
becomes apparent justifying a trial court to permit him to withdraw the
acceptance." Masterson, 139 Vt. at 107, 423 A.2d at 846. This holding,
not dictum based on outdated case law, governs this case. Plaintiff here
accepted the twelve-juror panel. We should follow common sense and the
lead of Maine law, upon which V.R.C.P. is based. See Reporter's Notes,
V.R.C.P. 47 (Vermont Rule 47 is based in relevant part on Maine Rule 47);
State v. Lizotte, 249 A.2d 874, 878 (Me. 1969).

The circumstances in Lizotte were as follows: after exercising two
challenges, the defendant indicated that when the vacancies were filled he
might wish to challenge one of the original twelve venire members. The
court advised him that "any challenges not then made to those among the
twelve first drawn would not thereafter be allowed." Id. at 876. The
defense objected to that procedure but then exercised two more peremptory
challenges. Subsequently, after the vacancies were filled, and the state
passed, the defense challenged one of the original twelve. The court
denied this challenge. Thus, though filling the vacancies changed the
composition of the panel, the defendant was allowed to challenge only the
new jurors, not the original ones. The court's ruling was affirmed on
appeal because "[t]here [was] nothing to suggest that the competency of any
of [the original jurors] underwent any change during the minutes between
the Court's warning and the time the deferred challenge was offered." Id.
at 878. The rule the court interpreted in Lizotte, Me.R.Crim.P. 24(c), is
virtually identical to V.R.C.P. 47, as is the relevant language of
Me.R.Civ.P.

According to this rule, plaintiff was eligible to challenge only the
newly appointed juror. He did not do so. His cryptic creation of a record
did not include any reason for his objection. He did not indicate that his
objection was grounded on a change in jury composition or that the new
juror was unsatisfactory. His remarks were oriented solely toward creating
an issue for appeal rather than to pointing out prejudicial error to the
court. I would affirm on that basis.

Furthermore, although the issue need not be reached, I believe that
allowing a party to pass without forfeiting a challenge is a violation of
the express language of Rule 47(c)(2). As I have previously noted,
V.R.C.P. 47(c)(2) requires that "peremptory challenges shall be exercised
one by one," alternately. Masterson, 139 Vt. at 107, 423 A.2d at 846.
This requirement entails not only the obligation to exercise a challenge in
turn, but also the right to have your opponent exercise his peremptory
challenge in the prescribed order. The Court's holding skews the rule by
permitting a party to skip a turn and allow an opponent to challenge twice
in a row. The express language of the rule, however, treats a pass as an
exercise of one challenge. See Carr v. Watts, 597 F.2d 830, 832 (2d Cir.
1979) (common practice in federal courts to treat pass as waiver of one
challenge). Otherwise, as in this case, the parties are not exercising
challenges "one by one, alternat[]ely."

The Court's interpretation also makes it easier for a party to pack a
jury based on invidious discrimination. See J.E.B. v. Alabama ex rel.
T.B., 114 S. Ct. 1419, 1430 (1994) (peremptory challenges may not be used
to exclude jurors solely on basis of gender); Georgia v. McCollum, 505 U.S. 42, 59 (1992) (criminal defendant may not exercise peremptory challenges to
exclude jurors solely on basis of race); Edmonson v. Leesville Concrete
Co., 500 U.S. 614, 628 (1991) (private litigant in civil action may not use
peremptory challenges to exclude jurors solely on basis of race): Batson v.
Kentucky, 476 U.S. 79, 84 (1986) (state may not use peremptory challenges
to exclude jurors solely on basis of race). The very peremptory nature of
the peremptory challenge makes prohibited discrimination hard to detect.
Permitting the accrual of challenges makes it possible for a party to pass
until his opponent's challenges are exhausted and, thereafter, to make a
series of challenges, filling the jury with people having a

certain desired characteristic.

II.

Because I would affirm on the first issue, I will address the other
issue raised by plaintiff. Plaintiff contends that a jury instruction on
the sudden emergency doctrine should not have been given. The instruction
related to the following fact pattern: During a heavy snowfall, plaintiff
exited from the northbound lane of Interstate 89 at St. Albans. The exit
ramp falls in a descending curve and crosses underneath the Interstate.
Plaintiff came to a stop behind a snowplow in the middle of the exit ramp.
From points higher up, this section of the road is obscured by rock
outcroppings that line both sides of the ramp.

Defendant exited the Interstate, following plaintiff, and slowed to a
speed of approximately ten to fifteen miles per hour. Upon noticing that a
car had gone off the road, he slowed further to a speed he estimated to be
eight miles per hour. When he saw the vehicles ahead of him, from a
distance of approximately 175 feet, he took his foot off the gas pedal. A
few moments later he realized that the vehicles were not moving and applied
his brakes, but he was unable to stop before hitting the rear of
plaintiff's car.

The court instructed the jury as follows:

The law recognizes that an otherwise careful person, when faced with
unexpected danger, may fail to use his best judgement or may not choose the
best method of dealing with the situation. He will not be found negligent
if he acted as other careful persons would in facing what reasonably
appeared to be an emergency. He will not be found negligent even if injury
resulted from his actions.

The Defendant must prove by a preponderance of the evidence that there
reasonably appeared to be a sudden emergency, that the emergency was not of
Defendant's own making (that is, he was not operating carelessly or too
fast for the road conditions), and that a careful person would have reacted
like he did in dealing with the emergency.

Plaintiff argues that the accident was a consequence of defendant's
negligence and, therefore, no emergency existed as a matter of law, and
that the instruction was prejudicial and should not have been given. The
jury, however, had a straightforward question to answer; did defendant
driver reasonably react to the blocked highway on a snowy day? Driving
conditions and visibility were poor. The plow and plaintiff's car were in
the middle of an exit ramp --

hardly a typical place to stop -- and defendant initially did not see that
the vehicles ahead of him were stationary. By the time defendant realized
that the car and plow ahead of him were not moving, there was little
opportunity for thoughtful deliberation. The instruction on sudden
emergency did not distract the jury from the question of negligence.
Nothing in the instruction was a misstatement of the applicable law. The
facts did not rule out a sudden emergency. "Suddenness" of the appearance
of the danger and precautionary measures (defensive driving techniques)
were all considerations of fact for the jury.

Throughout its history the sudden emergency doctrine has served
largely to complicate the judicial task and create unnecessary fodder for
appeals; parties appeal whether the instruction is given (FN2) or not.(FN3)
I agree with Dunleavy v. Miller, 862 P.2d 1212 (N.M. 1993), that instructing
a jury on the sudden emergency doctrine is redundant, and therefore,
unnecessary.

The instruction is unnecessary because the standard of care is
adequately stated in the [ordinary negligence charge] -- that is, the care
a reasonably prudent person would use in the conduct of the person's own
affairs, considered in light of all the surrounding circumstances. If one
of the circumstances affecting the actor's conduct is the presence of an
emergency limiting time for reflection on the wisest course of action, then
that fact can and should be brought to the jury's

attention by counsel.

Id. at 1218.

Moreover, the sudden emergency doctrine is really not a "doctrine,"
that is, "a principle of law." Webster's New Collegiate Dictionary 336
(1977). It is, rather, an observation about human nature; a person facing
sudden danger is ordinarily not as collected as he would otherwise be.
Such a statement of common sense need not be included in instructions to a
jury. Observations about human behavior, as they arguably apply to the
facts of a case, belong in closing arguments.

The sudden emergency doctrine, as a jury instruction, should be
avoided, because it does not enhance the jury's ability to decide the
merits of a claim of negligence.

____________________________________
Associate Justice

FN1. Indeed, it is evident that V.R.C.P. 47(c) was based directly on
these Maine Rules, because all three share the same error -- each
mistakenly uses "alternatively" instead of "alternately."

FN2. See Newkirk v. Towsley, 134 Vt. 237, 238, 357 A.2d 117, 118
(1976) (instruction on sudden emergency doctrine appealed); Melford v.
Rossi, 131 Vt. 219, 228, 303 A.2d 146, 150-51 (1973) (same); Sheldon v.
Brooks, 130 Vt. 95, 96, 286 A.2d 889, 889 (1971) (same); Connor v. McGill,
127 Vt. 19, 21-22, 238 A.2d 777, 779-80 (1967) (same); Hebert v. Stanley,
124 Vt. 205, 208-09, 201 A.2d 698, 701 (1964) (same); Ryalls v. Smith, 124
Vt. 14, 17-18, 196 A.2d 494, 496 (1963) (same); State v. Hogback Mountain
Ski Lift, 122 Vt. 8, 11, 163 A.2d 851, 854 (1960) (same); Gregoire v.
Willett, 110 Vt. 459, 464, 8 A.2d 660, 662-63 (1939) (same); Luce v.
Chandler, 109 Vt. 275, 281-82, 195 A.2d 246, 248-49 (1937) (same) Healy,
Admr. v. Moore, 108 Vt. 324, 339-40, 187 A. 679, 686 (1936) (same);
Mattison v. Smalley, 122 Vt. 113, 119, 165 A.2d 343, 348 (1960) (wording of
instruction on sudden emergency doctrine appealed).

FN3. See Girroir v. Carpenter, 136 Vt. 290, 292, 388 A.2d 831, 833
(1978) (failure to charge on sudden emergency doctrine appealed); State v.
Graves, 119 Vt. 205, 213-14, 122 A.2d 840, 846 (1956) (same); Kremer v.
Fortin, 119 Vt. 1, 7, 117 A.2d 245, 249 (1955) (same); Chamberlain v.
Delphia, 118 Vt. 193, 195-96, 103 A.2d 94, 95 (1954) (same); Paquin v. St.
Johnsbury Trucking Co. 116 Vt. 466, 474, 78 A.2d 683, 688 (1951) (same);
French v. Nelson, 111 Vt. 386, 389-90, 17 A.2d 323, 324 (1941) (same); Rich
v. Hall, 107 Vt. 455, 461, 181 A. 113, 115-16 (1935) (same); Steele v.
Fuller, 104 Vt. 303, 310, 158 A. 666, 668-69 (1932) (same); Landry v.
Hubert, 100 Vt. 268, 280-82, 137 A. 97, 102-03 (1927) (same).

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