State v. Latour12/13/2005
Circuit recognized, exclusion of jurors under those circumstances could never be harmless, because, even when "the excluded jurors are of a different race than [the defendant's] . . . racial discrimination in jury selection casts doubt on the integrity of the judicial process and places the fairness of a criminal proceeding in doubt." (Internal quotation marks omitted.) Id., 240. In Tankleff, the trial court impropriety potentially could have had a direct impact on the jury that decided the defendant's guilt.
There are cases holding that structural error analysis is appropriate when addressing a case in which the trial court refused to allow the defendant to exercise a challenge to a juror who ultimately was seated and not excused. See, e.g., United States v. McFerron, 163 F.3d 952, 956 (6th Cir. 1998); United States v. Annigoni, 96 F.3d 1132, 1143 (9th Cir. 1996) (en banc); United States v. Broussard, 987 F.2d 215, 221 (5th Cir. 1993). There is a critical distinction, however, between such cases and one in which the improperly seated juror remains an alternate and, therefore, had no possible impact on the deliberative process, as in the present case. See, e.g., Carter v. Kemna, 255 F.3d 589, 592-93 (8th Cir. 2001) ("if no alternate deliberates on the verdict, a court could reasonably believe the improper exclusion of an alternate juror is not a structural error because it is clear the error never affected the makeup of the petit jury that decided to convict the defendant"); United States v. Evans, 848 F.2d 1352, 1357 (5th Cir.) (because neither of two alternate jurors served on jury, fact that defendant was denied right to use peremptory challenge against one of them could have no effect on trial), modified in part on other grounds and rehearing en banc denied, 854 F.2d 56 (1988); State v. Bonnett, 348 N.C. 417, 436, 502 S.E.2d 563 (1998) (any error in trial court's denial of defendant's challenge for cause to alternate juror was harmless as alternate did not serve as one of twelve jurors who decided defendant's case), cert. denied, 525 U.S. 1124, 119 S.Ct. 909, 142 L.Ed. 2d 907 (1999); Commonwealth v. Stafford, 450 Pa. 252, 257, 299 A.2d 590 (defendant not harmed by court's refusal to remove allegedly biased juror because juror was seated as alternate and excused after trial court's charge), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed. 2d 404 (1973); State v. Green, 301 S.C. 347, 354, 392 S.E.2d 157 (any error in qualification of venireperson as alternate juror was harmless beyond reasonable doubt in light of fact that it never became necessary to use alternates), cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed. 2d 183 (1990). In such cases, the alternate juror who should not have been included on the panel had no "pervasive effect on the trier of fact . . . ." People v. Rodriguez, 50 Cal. App. 4th 1013, 1035, 58 Cal. Rptr. 2d 108 (1996) (holding that improper exercise of peremptory challenge by state during selection of alternate jurors was subject to harmless error analysis because " ith the benefit of hindsight, we can determine whether the defendant suffered any harm as a result of the trial court's error"), cert. denied, 1997 Cal. LEXIS 962 (February 19, 1997). In the present case, because K.N. had no opportunity to sit as a fact finder and, therefore, to influence the deliberative process, the impropriety is subject to a harmless error analysis and, indeed, was harmless.
The judgment is affirmed.
In this opinion the other justices concurred.
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