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State v. Owens4/10/2002
hasis added). There is, however, no "right" or "requirement" that prospective jurors be individually examined out of the presence of other jurors. State v. Tapio, 459 NW2d 406, 413 (SD 1990); State v. Bad Heart Bull, 257 NW2d 715, 723 (SD 1977). Individual voir dire is only a "precautionary procedure which may be permitted, in the discretion of the trial court . . . ." (emphasis added). Bad Heart Bull, 257 NW2d at 723.
[ .] Moreover, Owens fails to recognize that a potential juror's high degree of familiarity with a case is not, by itself, dispositive. SDCL 23A-20-13.1(11) allows a challenge for cause only if a prospective juror with knowledge of some or all of the material facts of the case also has "an unqualified opinion or belief as to the merits of the case." (emphasis added).
[ .] In this case, the trial court granted Owens' request for two juror questionnaires: the first addressed general background information, and the second dealt with pretrial publicity and the jurors' familiarity with the case. Defense counsel was then allowed to question a prospective juror individually if doing so was justified by his or her responses to the questionnaires or voir dire. The actual voir dire was exhaustive, and individual voir dire was permitted where justified. The trial court's procedure permitted a meaningful inquiry of each prospective juror. The denial of Owens' motion for individual-sequestered voir dire of all prospective jurors was not an abuse of discretion.
[ .] 2. Whether the trial court should have granted additional peremptory challenges.
[ .] Owens argues that the nature of the case and the pre-trial publicity required the grant of additional peremptory challenges. The trial court granted Owens one additional peremptory challenge. Owens, however, contends that he should have received ten additional peremptory challenges. He alleges prejudice because he was forced to use his peremptory challenges to remove other potential jurors who he contends expressed opinions concerning his guilt.
[ .] We have recently overruled prior authority which permitted the establishment of prejudice simply by a defendant's use of all peremptory challenges. State v. Verhoef, 2001 SD 58, , 627 NW2d 437, 440 (overruling State v. Etzkorn, 1996 SD 99, 552 NW2d 824). A defendant must now show prejudice arising from the seating of jurors who actually served. Id. at , 627 NW2d at 440. In this case, the mere fact that Owens used all of his peremptory challenges fails, without more, to establish prejudice.
[ .] Owens also failed to establish trial court error. It is the trial court's responsibility to ensure that a fair and impartial jury is selected. Id. at , 627 NW2d at 440. To assist in that endeavor, SDCL 23A-20-21 provides that " or good cause shown, a court may grant such additional challenges as it, in its discretion, believes necessary and proper." This decision is within the discretion of the trial court. State v. Iron Necklace, 430 NW2d 66, 77 (SD 1988); People v. Fort, 618 NE2d 445, 453 (IllApp3d 1993), cert. denied, 510 US 1134, 114 SCt 1110, 127 LEd2d 421 (1994).
[ .] A review of the voir dire reflects no abuse of discretion in this case. All prospective jurors who served indicated that they could be fair and impartial. They also indicated that they could set aside any preconceptions and focus only on the evidence presented at trial. Other jurors who expressed difficulty in setting aside preconceived opinions were excused for cause. After observing the jurors respond to questions in voir dire, the trial court observed:
I think that the jurors that you have challenged for cause . . . who I have denied have all indicated t
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