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State v. Owens4/10/2002
ust be based upon the whole voir dire examination. Moeller, 2000 SD 122 at , 616 NW2d at 435; State v. Blem, 2000 SD 69, , 610 NW2d 803, 809; Garza, 1997 SD 54 at , 563 NW2d at 409. We have repeatedly stated that "single isolated responses are not determinative." Moeller, 2000 SD 122 at , 616 NW2d at 435; Garza, 1997 SD 54 at , 563 NW2d at 409; Darby, 1996 SD 127 at , 556 NW2d at 320.
[ .] A very recent decision of this Court is also instructive. In Verhoef, we reviewed a trial court's failure to remove challenged jurors. 2001 SD 58, 627 NW2d 437. One of the challenged jurors was acquainted with the defendant, the victim, and another family member. The other challenged juror had "strong feelings" about sexual contact cases. In reviewing the challenges, we considered direct and rehabilitation evidence. We observed that " lthough a potential juror may express a predetermined opinion during voir dire, once [the juror] has declared under oath that [the juror] can act fair and impartial, [the juror] should not be disqualified . . . ." Id. at , 627 NW2d at 440 (citing State v. Knoche, 515 NW2d 834, 840 (SD 1994)). We decline to adopt a different rule that would preclude a trial and examination of all evidence relevant to a juror's qualifications.
[ .] (b) Prior Jury Service
[ .] Owens next contends that fourteen potential jurors should have been removed for cause because they had prior jury service. Each juror's prior service occurred within two years of Owens' trial, but the prior service was within each juror's same term of jury duty in Minnehaha County.
[ .] SDCL 23A-20-13.1(13) authorized a challenge for cause "if the prospective juror previously served as a juror in the county within years." Owens contends that, even though the prior service was within the same term of jury duty, a literal reading of the rule allowed the challenge because the prospective jurors had served at any time within two years of Owens' trial.
[ .] We do not, however, reach this issue because Owens has failed to establish prejudice. As previously noted, a defendant challenging jurors on appeal must establish both error and prejudice. Verhoef, 2001 SD 58 at -14, 606 NW2d at 440. See also SDCL 23A-44-14 (error plus prejudice is required for reversal). Therefore, Owens must establish not only that there was error, but also that the twelve jurors who heard the evidence and convicted him were not impartial. Verhoef, 2001 SD 58 at , 606 NW2d at 442.
[ .] In this case, only three of the fourteen challenged jurors actually served in Owens' case, and all three indicated that they could be impartial. Additionally, we note that prior jury service does not impair the ability of jurors to decide a defendant's case fairly and impartially. As the Supreme Court of New York observed, the essential qualities necessary for fair jury service are not vitiated by prior jury service. "A disqualification of [this] type . . . is essentially 'technical' in nature, for it merely reflects the public policy view that excessive jury service should not be imposed and a class of professional jurors should not be created." People v. Foster, 473 NYS2d 978, 981 (NYAppDiv 1984) (internal citations omitted), aff'd as modified by 490 NYS2d 726 (1985), cert. denied sub nom Foster v. New York, 474 US 857, 106 SCt 166, 88 LE2d 137 (1985). Consequently, Owens has failed to establish prejudicial error.
[ .] 4. Whether the trial court should have excluded evidence of the assault on Poppenga.
[ .] Owens argues that the trial court erred in admitting the evidence of his assault on his girlfriend a short time before Ross' death. The trial court concluded the evidence was adm
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