State v. Jones (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jones, Slip Opinion No. 2020-Ohio-3051.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2020-OHIO-3051THE STATE OF OHIO, APPELLEE, v. JONES, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Jones, Slip Opinion No. 2020-Ohio-3051.]
Criminal law—A trial court’s good-faith error in allowing the state to exercise a
peremptory challenge out of sequence is not structural error but rather is
trial error and subject to harmless-error review—Court of appeals’
judgment affirmed.
(No. 2019-0187—Submitted February 11, 2020—Decided May 27, 2020.)
CERTIFIED by the Court of Appeals for Hamilton County,
No. C-170358, 2018-Ohio-4754.
_______________________
KENNEDY, J.
{¶ 1} The First District Court of Appeals has certified a conflict between its
decision in this case and a decision from the Tenth District Court of Appeals on the
following question of law:
SUPREME COURT OF OHIO
“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?”
155 Ohio St.3d 1418, 2019-Ohio-1315, 120 N.E.3d 865, quoting 1st Dist. Hamilton
No. C-170358 (Jan. 11, 2019). The answer to both parts of that question is no.
{¶ 2} A structural error is a violation of the basic constitutional guarantees
that define the framework of a criminal trial; it is a fundamental constitutional
defect in the proceeding that is presumptively prejudicial and not susceptible to
harmless-error review. See State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761,
789 N.E.2d 222, ¶ 18. However, the right to exercise peremptory challenges is not
guaranteed by either the United States Constitution or the Ohio Constitution but
rather is provided by a statute, R.C. 2945.21. Moreover, it is the Rules of Criminal
Procedure that regulate the number and manner of exercising peremptory
challenges. See Crim.R. 24(D) and (E). Accordingly, while a trial court’s good-
faith misallocation of peremptory strikes is an error, the error does not cause a
fundamental constitutional defect within the framework of the trial-court
proceedings that should be classified as structural error. Like other trial errors, it
is subject to harmless-error review and a reviewing court may disregard the error
upon a determination that it did not affect the outcome of the trial-court
proceedings.
{¶ 3} In this case, the First District correctly held that the trial court
erroneously allowed the state to strike a juror from the panel after the state had
waived its final peremptory challenge. But that error is not structural and therefore
does not require the automatic reversal of appellant Seante Jones’s conviction for
complicity to theft. However, when the First District analyzed the error, it
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incorrectly required Jones to demonstrate that the error affected the outcome of the
trial. Under the harmless-error standard of review, the state always bears the burden
of demonstrating that the error did not affect the outcome of the trial-court
proceedings. Nonetheless, because the record demonstrates that allowing the state
to exercise an additional peremptory strike did not affect the outcome of Jones’s
trial, the appellate court’s error is itself harmless.
{¶ 4} Accordingly, we affirm the appellate court’s judgment.
Facts and Procedural History
{¶ 5} The state charged Jones with theft based on an allegation that he had
shoplifted clothing items and a watch valued at $37.97 from a Burlington Coat
Factory store in Springdale, Ohio.
{¶ 6} During jury selection, the state chose not to exercise its third and final
peremptory strike. Jones then used his final peremptory challenge, causing
prospective juror M.W. to be brought into the jury box and seated as the final juror.
In his individual voir dire, prospective juror M.W. admitted that his feelings about
police officers were “split 50/50,” meaning that he believed there were “good cops”
and “bad cops.” He also said that police-officer-involved shootings in the national
news had “gotten [his] attention” and that “it just seemed like, in [his] opinion,
things just wasn’t adding up.” But on further questioning, prospective juror M.W.
agreed that he could set those issues aside, listen to the evidence presented in the
courtroom, keep an open mind until a verdict was reached, and remain fair and
impartial to Jones and to the state. The state did not challenge him for cause. E.R.
was then selected as the alternate juror, and both parties agreed that they were
satisfied with the jury.
{¶ 7} At a sidebar conference, however, before the jury was empaneled, the
assistant prosecuting attorney claimed that the state had been denied an opportunity
to use its final peremptory strike on juror M.W. The trial court “reviewed the
transcript” and said that it had failed to offer the state the chance to use its last
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challenge, and over defense counsel’s objection, it excused juror M.W. and seated
juror E.R. as the final juror. Jones moved for a mistrial, asserting that Crim.R. 24
did not permit the state to use its third and final peremptory challenge after having
waived it and that juror M.W. appeared to be “a potentially friendly juror” for the
defense. The trial court denied the request for a mistrial.
{¶ 8} At trial, Steve Seiter, a loss-prevention associate for the Burlington
Coat Factory store, testified that on June 29, 2016, he watched from the camera
room as Jones and Ricardo Scott entered the store. Seiter testified that Jones
appeared to be looking around the store to see if anyone was paying attention to
him and that that behavior was concerning because it made Seiter feel like Jones
was “doing something that [was] out of the ordinary or * * * suspicious in [a]
possible theft act.” Seiter observed Jones select clothing from the racks, including
a red shirt and a pair of black shorts, and take those items into a fitting room.
According to Seiter, Jones left the fitting room, placed several clothing items back
on a rack, and then walked out of the store in a hurry, without paying for anything.
However, Seiter could not find the red shirt and black shorts. Seiter then checked
the fitting room and ascertained that the red shirt and black shorts were missing.
Jones got into a tan Hyundai Sonata with Scott. Seiter took down the license-plate
number and reported the theft to the Springdale Police Department.
{¶ 9} Officer Joseph Robers testified that he was dispatched to respond to
the call, saw Jones and Scott leave the store, and stopped the Sonata as it pulled out
of the parking lot. Jones and Scott received pat-down searches, during which
merchandise belonging to the store was found. At trial, however, Officer Robers
could not remember whether the merchandise belonging to the store was found on
Jones or Scott. Subsequently, the car was searched and additional merchandise was
found, including a red shirt and black shorts with Burlington Coat Factory stickers
on them. Seiter arrived and identified the clothing as items that had been stolen
from the store.
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{¶ 10} Jones testified in his own defense, explaining that he had arranged a
“bootleg trip”—a ride with an unlicensed taxi driver—to Tri-County Mall with
Scott, someone Jones had connected with on social media. Burlington Coat Factory
was on the way to the mall, and Jones agreed to stop there first, even though he
“was not interested in anything at Burlington Coat Factory.” He said they walked
inside the store and he looked around for about five minutes before returning to the
car, where he waited for Scott for another 20 minutes. According to Jones, Scott
got back in the car and “start[ed] pulling stuff out of his pants, tucking it away.”
Jones testified that he told Scott, “I’m not going to jail for you.” As Scott drove
out of the parking lot, the police pulled the car over and ordered Jones and Scott
out of the car. At trial, Jones testified that none of the clothing, which he admitted
had been stolen, was found on him.
{¶ 11} The trial court instructed the jury on the offenses of theft and
complicity. The jury found Jones not guilty of theft but guilty of complicity. The
trial court imposed a jail sentence of 180 days (with 177 days suspended), a $200
fine, court costs, and six months of community control.
{¶ 12} Jones appealed, asserting that the error in allowing the state to
exercise a peremptory challenge out of sequence was structural in nature and
therefore per se reversible. The court of appeals recognized that the trial court erred
in allowing the state to use a peremptory strike that it had already waived, but it
held that the error was not a constitutional error and therefore could not amount to
a structural error. 2018-Ohio-4754, 124 N.E.3d 439, ¶ 21-23. It then determined
that the error was harmless, because Jones had failed to demonstrate that he had
been prejudiced by it. Id. at ¶ 37. After rejecting other assignments of error not at
issue here, the court of appeals affirmed Jones’s conviction and sentence. Id. at
¶ 52. Subsequently, the First District certified that its decision was in conflict with
State v. Holloway, in which the Tenth District held that “as a matter of law, the
defendant was not required to make a showing of actual prejudice where the state
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is granted an ‘extra’ peremptory challenge,” 129 Ohio App.3d 790, 798, 719 N.E.2d
70 (10th Dist.1998).
{¶ 13} We determined that a conflict existed. 155 Ohio St.3d 1418, 2019-
Ohio-1315, 120 N.E.3d 865.
Positions of the Parties
{¶ 14} Jones maintains that granting the state’s request for an “extra”
peremptory strike violated his right to a trial by an impartial jury, as guaranteed by
Article I, Sections 5 and 10 of the Ohio Constitution and as implemented by
Crim.R. 24. He contends that by improperly allowing the peremptory challenge,
the trial court “unfairly skewed the trial process in favor of the state,” so that the
error permeated the whole trial. Jones cites Lewis v. United States, 146 U.S. 370,
13 S.Ct. 136, 36 L.Ed. 1011 (1892), and decisions from the Fourth, Tenth, and
Eleventh District Courts of Appeals for the proposition that a violation of the right
to exercise a preemptory strike “is a significant error that traditionally has required
automatic reversal.” He also argues that regardless of whether the error is
constitutional in nature, permitting the state to exercise an out-of-sequence
peremptory challenge affected the whole framework of Jones’s trial and therefore,
because it is impossible to know whether excusing the juror changed the outcome
of Jones’s trial, the error should not be subject to a harmless-error analysis. A
contrary holding, Jones urges, would make the mandatory language of Crim.R. 24
unenforceable.
{¶ 15} The state concedes that the trial court erred in allowing the out-of-
sequence peremptory strike but maintains that the error was not structural. It
contends that the United States Supreme Court has disavowed cases like Lewis
because they predated the harmless-error rule. Citing to State v. Greer, 39 Ohio
St.3d 236, 530 N.E.2d 382 (1988), the state notes that this court has already held
that there is no state or federal constitutional right to peremptory challenges. The
state further asserts that when a state does provide for the right—as Ohio does—
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the number of challenges that are allowed is solely a matter of procedure. The state
challenges Jones’s attempt to bootstrap peremptory challenges to the state and
federal constitutional right to an impartial jury, pointing out that not only may
biased jurors be removed for cause but that an erroneous excusal of a juror does not
compromise a jury’s impartiality. The state asks this court to follow the decisions
of other state courts of last resort and hold that an error related to peremptory
challenges is not a structural error.
{¶ 16} Accordingly, this case presents a single question: whether a trial
court’s error in allowing the state to exercise a peremptory challenge after having
waived it is structural error and therefore per se prejudicial.
Law and Analysis
Plain, Harmless, and Structural Error
{¶ 17} Ohio’s criminal law distinguishes between errors that a defendant
objects to at trial and those that he or she fails to raise at trial. State v. Perry, 101
Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14; Crim.R. 52. When the
defendant forfeits the right to assert an error on appeal by failing to bring it to the
trial court’s attention in the first instance, an appellate court applies plain-error
review. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860,
¶ 21-22. Under this standard, 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. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d
900, ¶ 16. An appellate court has discretion to notice plain error and therefore “is
not required to correct it.” Rogers at ¶ 23.
{¶ 18} In contrast, when a defendant objects to an error, an appellate court
applies harmless-error review. Perry at ¶ 15. Under that standard, the state “bears
the burden of demonstrating that the error did not affect the substantial rights of the
defendant.” Id. Whether the defendant’s substantial rights were affected depends
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on whether the error was prejudicial, i.e., whether it affected the outcome of the
trial. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, at ¶ 7. An
appellate court is required to reverse the conviction when the state is unable to meet
its burden. Perry at ¶ 15.
{¶ 19} We have recognized that when a defendant is represented by counsel
and tried by an impartial fact-finder, there is a strong presumption that all errors—
constitutional and nonconstitutional—are subject to harmless-error review. Id. at
¶ 17. Nonetheless, this court and the United States Supreme Court have held that
certain errors are never harmless. Weaver v. Massachusetts, ___ U.S. ___, 137
S.Ct. 1899, 1907-1908, 198 L.Ed.2d 420 (2017); Perry at ¶ 17.
{¶ 20} Structural errors are “constitutional defects that ‘ “defy analysis by
‘harmless error’ standards” because they “affect[] the framework within which the
trial proceeds, rather than simply [being] an error in the trial process itself.” ’ ”
(Brackets sic.) Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at
¶ 17, quoting Fisher at ¶ 9, quoting Arizona v. Fulminante, 499 U.S. 279, 309-310,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). “ ‘Errors of this type are so intrinsically
harmful as to require automatic reversal (i.e., “affect substantial rights”) without
regard to their effect on the outcome.’ ” State v. Hill, 92 Ohio St.3d 191, 196, 749
N.E.2d 274 (2001), quoting Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827,
144 L.Ed.2d 35 (1999). They are “so fundamental that they obviate the necessity
for a reviewing court to do a harmless-error analysis.” Id. at 199.
{¶ 21} “The purpose of the structural error doctrine is to ensure insistence
on certain basic, constitutional guarantees that should define the framework of any
criminal trial.” Weaver at ___, 137 S.Ct. at 1907. Structural error has therefore
been recognized only in limited circumstances involving fundamental
constitutional rights, including the denial of counsel to an indigent defendant, the
denial of counsel of choice, the denial of self-representation at trial, the denial of a
public trial, and the failure to instruct the jury that a defendant’s guilt must be
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proved beyond a reasonable doubt. Id. at ___, 137 S.Ct. at 1908; United States v.
Davila, 569 U.S. 597, 611, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013)
{¶ 22} Therefore, the threshold issue in determining whether an error is
structural is whether the error deprives the accused of a constitutional right. Perry
at ¶ 21; see also State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d
306, ¶ 18 (“all structural errors are by nature constitutional errors”); State v.
Esparza, 74 Ohio St.3d 660, 662, 660 N.E.2d 1194 (1996) (“the trial-
error/structural-error distinction is irrelevant unless it is first established that a
constitutional error has occurred” [emphasis sic]).
The Right to Peremptory Challenges
{¶ 23} The Supreme Court of the United States has held that under federal
law, the erroneous but good-faith denial of a defendant’s peremptory challenge is
not a structural error requiring automatic reversal of the defendant’s conviction.
Rivera v. Illinois, 556 U.S. 148, 157-158, 162, 129 S.Ct. 1446, 173 L.Ed.2d 320(2009). The court explained that “there is no freestanding constitutional right to
peremptory challenges,” id. at 157, and that “[b]ecause peremptory challenges are
within the States’ province to grant or withhold, the mistaken denial of a state-
provided peremptory challenge does not, without more, violate the Federal
Constitution,” id. at 158. And it concluded:
Absent a federal constitutional violation, States retain the
prerogative to decide whether such errors deprive a tribunal of its
lawful authority and thus require automatic reversal. States are free
to decide, as a matter of state law, that a trial court’s mistaken denial
of a peremptory challenge is reversible error per se. Or they may
conclude * * * that the improper seating of a competent and
unbiased juror does not convert the jury into an ultra vires tribunal;
therefore the error could rank as harmless under state law.
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Id. at 161-162.
{¶ 24} Similarly, this court has held that the Ohio Constitution does not
require peremptory challenges to be provided in a criminal trial. Greer, 39 Ohio
St.3d at 245, 530 N.E.2d 382. Rather, we have explained that while the substantive
right to peremptory strikes is provided by R.C. 2945.21, the number of strikes
allowed and the time and manner of their exercise is a procedural matter governed
by Crim.R. 24. Greer at 245-246. In Greer, we rejected the argument that a trial
court’s denial of the lawful number of peremptory challenges to a defendant “is
reversible error without any demonstration of prejudice.” Id. at 244-245. We noted
that not only had the accused failed to demonstrate that he was entitled to 24
peremptory strikes in a death-penalty case (double the amount provided by statute
and four times that allowed by Crim.R. 24(C)), but because he used only five of the
six challenges granted to him, he was also unable to demonstrate “actual prejudice.”
Id. at 245.
{¶ 25} Although Greer holds that there is no state constitutional right to
peremptory strikes, Jones nonetheless contends that the error in allowing the state
to exercise an out-of-sequence peremptory challenge violates his right to an
impartial jury as guaranteed by Article I, Sections 5 and 10 of the Ohio
Constitution. We acknowledged in Greer that “[w]hen utilized in conjunction with
the challenge for cause, the peremptory challenge aids in the provision of an
impartial jury.” Id. But the flaws in Jones’s argument are that he does not assert
that any of the jurors who served on the panel were biased against him and he passed
on the opportunity to challenge each one of them for cause. 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. See State v. Coley, 93
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Ohio St.3d 253, 258-259, 754 N.E.2d 1129 (2001). The right to an impartial jury
is not implicated in these circumstances.
{¶ 26} The trial court did, however, violate a procedural rule dictating the
manner in which peremptory challenges are to be made. Crim.R. 24(E) provides
that “[p]eremptory challenges shall be exercised alternately, with the first challenge
exercised by the state. The failure of a party to exercise a peremptory challenge
constitutes a waiver of that challenge, but does not constitute a waiver of any
subsequent challenge.” For this reason, when the assistant prosecuting attorney
failed to exercise the state’s third and final peremptory challenge, he waived it, and
the trial court erred in permitting him the opportunity to subsequently exercise it
against any juror. But that error does not implicate one of those “constitutional
rights so basic to a fair trial that their infraction can never be treated as harmless
error.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705(1967). Instead, a violation of Crim.R. 24(E) is “ ‘simply * * * an error in the trial
process itself,’ ” Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, at
¶ 9, quoting Fulminante, 499 U.S. at 310, 111 S.Ct. 1246, 113 L.Ed.2d 302.
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.
Harmless Error
{¶ 27} The court of appeals concluded that allowing the state to exercise an
out-of-sequence peremptory challenge was harmless error because Jones had failed
to demonstrate that he suffered any actual prejudice because of it. However, as we
have explained, the state—not Jones—bears the burden on harmless-error review,
and it had to show that the error did not affect the outcome of Jones’s trial. Fisher
at ¶ 7; Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 15.
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Accordingly, the court of appeals improperly shifted the burden to Jones to show
that the trial court’s error affected the outcome of his trial.
{¶ 28} Nonetheless, the record demonstrates that the error was harmless.
First, nothing in the colloquy with juror M.W. indicates that he would have voted
to acquit Jones or that he would have disregarded his oath to serve impartially.
Although juror M.W. did say that his feelings about police officers were “split
50/50” and that there were “good cops” and “bad cops,” he also said that media
coverage of police-involved shootings had “gotten [his] attention” and that “it just
seemed like, in [his] opinion, things just wasn’t adding up.” But on further
questioning, juror M.W. swore that he would set aside those thoughts, listen to the
evidence introduced in the case, keep an open mind until a verdict was reached, and
remain fair and impartial to Jones and to the state.
{¶ 29} Second, the evidence in this case was overwhelming. Seiter, the
loss-prevention associate, testified that he saw Jones enter Burlington Coat Factory,
act suspiciously, and take a red shirt and black shorts into a fitting room before
leaving in a hurry and without paying for anything. The red shirt and black shorts
Jones had selected were not found in the fitting room, and it is undisputed that
police officers found those items of clothing—which Jones admitted had just been
stolen from the store—minutes later after stopping the Sonata. At the same time,
Jones’s excuse for being in the store—that he had arranged a ride to the Tri-County
Mall with an unlicensed taxi driver who decided to stop and shoplift for 25 minutes
at Burlington Coat Factory before taking Jones to his destination—defies
credibility.
{¶ 30} For these reasons, it is manifest that the error in excusing juror M.W.
did not affect the outcome of the trial.
Conclusion
{¶ 31} We are asked to determine whether a trial court’s error in allowing
the state to exercise a peremptory challenge of a prospective juror in violation of
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the Rules of Criminal Procedure rises to structural error. That question is answered
by our precedent and caselaw from the United States Supreme Court—only
constitutional defects may be structural errors, and misallocating peremptory
strikes is a trial error, not a constitutional one. For this reason, we resolve the
certified-conflict question by holding that a good-faith error in allowing the state to
exercise a peremptory challenge out of sequence is not structural error but rather is
trial error and subject to harmless-error review.
{¶ 32} And because we are convinced from the record that the trial court’s
error did not affect the outcome of Jones’s trial and is therefore harmless, we affirm
the judgment of the First District Court of Appeals.
So answered.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
STEWART, J., concurs in part and dissents in part, with an opinion.
_________________
STEWART, J., concurring in part and dissenting in part.
{¶ 33} I agree that a trial court’s error in its application of Crim.R. 24(D)
and (E) is not structural in nature and is subject to a harmless-error analysis on
review. I also agree that the First District Court of Appeals improperly shifted the
burden to appellant, Seante Jones, to show that the trial court’s error affected the
outcome of his trial. I disagree, however, with this court’s decision to conduct a
harmless-error analysis in the first instance.
{¶ 34} This court should not conduct a harmless-error analysis of a trial
court’s actions in the first instance. See McFadden v. United States, ___U.S.___,
135 S.Ct. 2298, 2307, 192 L.Ed.2d 260 (2015); Shelly Materials, Inc. v. Streetsboro
Planning & Zoning Comm., ___ Ohio St.3d. ___, 2019-Ohio-4499, ___ N.E.3d
___, ¶ 25; State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688,
¶ 29. This is particularly so when, as here, neither party briefed the issue of whether
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the court of appeals erred in its application of the harmless-error standard. State v.
Martin, 156 Ohio St.3d 503, 2019-Ohio-2010, 129 N.E.3d 437, ¶ 18; State v. Tate,
140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21.
{¶ 35} Accordingly, I would remand this case to the court of appeals so that
court may conduct a harmless-error analysis in the first instance.
_________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott
Havlin, Assistant Prosecuting Attorney, for appellee.
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffmann, Assistant Public Defender, for appellant.
_________________
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