State v. Hartwig

BURNETT, Judge,

dissenting in part.

I respectfully disagree with Part I of the Court’s opinion, relating to the jury selection process. In my view, the Court predicates error upon a ground not factually developed in the record.

It is important to recognize the narrow basis of the Court’s decision. The Court rejects appellant’s broad attack upon advance jury selection. As the Court explains, advance selection does not infringe upon the constitutional right to an impartial jury so long as the jurors may be questioned at trial about any possible bias or cause for disqualification that has arisen since the selection occurred. The dispositive question in this case is whether appellant was denied the opportunity to make such an inquiry. The Court evidently thinks that he was. I believe the record indicates otherwise. The record contains no ruling or statement by the judge that voir dire at trial would be prohibited. Indeed, the record reveals that appellant made no attempt to conduct — nor did he ask leave to conduct — voir dire when the trial convened. He simply repeated his earlier objection to the advance selection process. Appellant hardly can complain that the trial court deprived him of something he did not request.

Having made no effort below to develop the pertinent facts, appellant now is unable to identify any juror who might have become biased against him as a result of prior jury service. He invites us, in essence, to presume that any juror who has participated in a criminal case harbors a bias against defendants. The law entertains no such sweeping presumption. I would hold that appellant has failed, upon this record, to establish error in the selection of the jury.