From Casetext: Smarter Legal Research

Hankison v. Brown

Court of Appeals of Ohio
Dec 1, 1981
3 Ohio App. 3d 249 (Ohio Ct. App. 1981)

Summary

In Hankison v. Brown, 3 Ohio App.3d 249, 444 N.E.2d 1059 (10th Dist.1981), the juror specifically stated that she could not be fair and impartial in the type of case before the jury.

Summary of this case from State v. Cooper

Opinion

No. 81AP-80

Decided December 1, 1981.

Trial — Jury — Voir dire — Challenge for cause — Improperly overruled, when.

O.Jur 2d Jury § 106.

Where, during voir dire, by her answers to questions posed by counsel for plaintiffs and defendants, a prospective juror expressly stated that she could not be a fair and impartial juror in the case, the trial court erred in overruling the challenge for cause with respect to this prospective juror. (R.C. 2313.42 and 2313.43, applied.)

APPEAL: Court of Appeals for Franklin County.

Messrs. Wolske Blue, Mr. Gerald S. Leeseberg and Mr. Rick Blawer, for appellants.

Messrs. Baldwin, Menapace Sheppard and Mr. William A. Gardner, for appellees.


Plaintiffs appeal from a judgment of the Franklin County Court of Common Pleas and raise a single assignment of error, as follows:

"The trial court erred to the substantial prejudice of plaintiffs in denying plaintiffs' challenge for cause of prospective juror, Carol Schumacher."

The record reflects that plaintiffs used all of their peremptory challenges, the second with respect to prospective juror Schumacher, after the trial court overruled a challenge for cause. Prospective juror Schumacher was called to replace a prospective juror peremptorily challenged by plaintiffs.

During voir dire, counsel for plaintiffs asked prospective juror Schumacher whether this was "the right kind of case" for her. Her response was, "I don't feel it is because I don't approve of children riding minibikes." The witness further gave a negative response to a question posed by counsel for defendants as to whether she felt she could "be fair and impartial on this particular case," answering, "No, sir, I do not." The record reflects that counsel for plaintiffs then requested that prospective juror Schumacher be excused for cause which was denied by the trial court without explanation, it stating merely, "that request will not be granted." R.C. 2313.42 provides in pertinent part as follows:

"The following are good causes for challenge to any person called as a juror:

"* * *

"(J) That he discloses by his answers that he cannot be a fair and impartial juror * * *."

By her answers to the questions posed by both counsel for plaintiffs and counsel for defendants, prospective juror Schumacher expressly stated she could not be a fair and impartial juror in this case. The record reflects no basis for a contrary conclusion, even assuming that the trial court felt prospective juror Schumacher was merely attempting to avoid jury duty. Of significance is R.C. 2313.43, which provides that jurors may be challenged for reasons in addition to those stated in R.C. 2313.42 and that a challenge shall "be sustained if the court has any doubt as to the juror's being entirely unbiased." The trial court erred in overruling the challenge for cause with respect to prospective juror Schumacher under the circumstances herein involved.

While, under some circumstances, error in overruling a challenge for cause may not be prejudicial, we find no basis for so finding in this case. The record indicates that plaintiffs utilized all of their peremptory challenges. The verdict for defendants was concurred in by only six of the eight members of the jury. No contention is made that this was not a case which could have been decided either for plaintiffs or for defendants upon the evidence adduced. Cf. State v. Berry (1971), 25 Ohio St.2d 255 [54 O.O.2d 374]. See, also, Palmer v. State (1885), 42 Ohio St. 596, and Dew v. McDivitt (1876), 31 Ohio St. 139. Accordingly, the assignment of error is well taken predicated upon the record before us demonstrating no basis for overruling a challenge for cause, the prospective juror having expressly stated she could not be fair and impartial and having indicated a prejudice against children who ride minibikes, and the complaint indicating that plaintiff Lisa Hankison was riding a minibike at the time of the accident involved.

For the foregoing reasons, the assignment of error is sustained, and the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this decision.

Judgment reversed and cause remanded.

REILLY and NORRIS, JJ., concur.


Summaries of

Hankison v. Brown

Court of Appeals of Ohio
Dec 1, 1981
3 Ohio App. 3d 249 (Ohio Ct. App. 1981)

In Hankison v. Brown, 3 Ohio App.3d 249, 444 N.E.2d 1059 (10th Dist.1981), the juror specifically stated that she could not be fair and impartial in the type of case before the jury.

Summary of this case from State v. Cooper
Case details for

Hankison v. Brown

Case Details

Full title:HANKISON, A MINOR, ET AL., APPELLANTS, v. BROWN ET AL., APPELLEES

Court:Court of Appeals of Ohio

Date published: Dec 1, 1981

Citations

3 Ohio App. 3d 249 (Ohio Ct. App. 1981)
444 N.E.2d 1059

Citing Cases

Akron v. Wendell

Indeed, one court was found to have abused its discretion by failing to exclude a potential juror who made a…

State v. Cooper

Similar issues apply in State v. Strong, 119 Ohio App. 31, 196 N.E.2d 801 (5th Dist.1963) where the juror…