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Smith v. State12/22/2000
o warrant a conclusion that L.Y. was biased against the prosecution. To find absolute bias here, one would have to resort to pure speculation. Even if there were a hint of bias, we would agree with the defense counsel's assessment: it would not be ground for a challenge for cause, but would more properly be a reason for a peremptory challenge.
The prosecutor also challenged L.W. on the ground that she had not been truthful in her answers. When L.W. was questioned individually by the prosecutor, she stated that she had heard on television and from a neighbor that someone named David Bennett had been killed. She elaborated that she did not know any of the people involved, had not discussed the case with anyone or heard any other discussions about the case, and had no knowledge of the case. Neither the trial court nor the prosecutor asked any question relating to the possibility of bias or prejudice on the part of this veniremember. In response to a question from defense counsel, L.W. stated that she had no bias against the prosecution and that she could sit on the jury and render a verdict based solely on the evidence.
We find that the evidence is insufficient to warrant a conclusion that L.W. was biased against the prosecution. The facts behind her removal for cause were insufficient to trigger her removal from the venire. They do not support a conclusion that she deliberately withheld information or that she lied. A more likely explanation for her failure to respond initially during the general questioning of the venire was the confusing nature of the question, i.e., the stringing together of several separate questions into one.
As we explained supra, because no statutory ground existed to excuse the veniremembers in question for cause, some absolute bias on their part must have been shown. However, the evidence of the voir dire examination falls short of proving any bias on the part of the veniremembers in question, much less an absolute bias that would have prevented them from rendering a fair and impartial verdict. Further questioning was required before the trial court could determine, first, whether the three potential jurors harbored prejudice or bias against the prosecution (or the defense for that matter) and second, assuming such prejudice or bias existed, whether they could lay it aside, follow the court's instructions, and render an impartial verdict. We find that, under the circumstances here, the trial court abused its discretion in granting the prosecution's challenges for cause of these veniremembers.
However, the improper removal of a prospective juror for cause is subject to a harmless error analysis. See State v. Evans, [Ms. 1990416, May 19, 2000] __ So. 2d __ (Ala. 2000), and Rule 45, Ala.R.App.P. A party arguing on appeal that the trial court improperly removed a prospective juror for cause, must prove not only that the trial court erred, but also that the error probably injuriously affected the party's substantial rights. In addressing the identical issue in the recent case of State v. Evans, __ So. 2d at __, the Alabama Supreme Court stated:
"Evans argues that the trial court's error in excusing E.F.W. violated his right to a trial by an impartial jury, a right guaranteed by Amendments 6 and 14 of the United States Constitution and § 6 of the Alabama Constitution. However, the United States Supreme Court has held that a defendant's federal right to an impartial jury was not automatically violated merely by an erroneous ruling on a challenge for cause. Ross v. Oklahoma, 487 U.S. 81, 87-88 (1988); see also United States v. Martinez-Salazar, U.S. , 120 S.Ct. 774 (2000). As long as the jury that heard the case was impartial, the right guar
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