State v. Jones (Slip Opinion), 156 N.E.3d 872

Jones was charged with theft; during jury selection the prosecutor waived the state’s final peremptory strike, then the defense used its final strike and prospective juror M.W. was seated.
At sidebar before empanelment the prosecutor claimed he had been denied his last strike; the trial court, acknowledging a mistake, excused M.W. and seated the alternate over Jones’s objection. Jones moved for mistrial and was denied.
At trial the jury acquitted Jones of theft but convicted him of complicity; he was sentenced and appealed arguing the extra state strike required automatic reversal as structural error.
The First District held the trial court erred in permitting the out-of-sequence strike but treated the error as nonconstitutional and harmless, and certified a conflict with the Tenth District’s Holloway decision.
The Ohio Supreme Court held that misallocating peremptory strikes in good faith is trial error, not structural error; harmless-error review applies, with the State bearing the burden to prove no prejudice.
Applying that standard, the Court found the error harmless on this record (juror’s voir dire showed impartiality and the evidence against Jones was strong) and affirmed the conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether allowing the state to exercise an extra/out-of-sequence peremptory strike is structural error requiring automatic reversal	Jones: the misallocation violated his right to trial by an impartial jury and permeated the trial’s framework, so reversal is required	State: peremptory strikes are procedural (not constitutional); misallocation is trial error subject to harmless-error review	Held: Not structural. Good-faith misallocation is trial error subject to harmless-error review
Who bears burden on harmless-error review after an objection to the error	Jones: argued error is per se reversible, so no harmlessness inquiry needed	State: conceded error but argued it was not structural and harmless	Held: State bears burden to prove the error did not affect the outcome; here it met that burden and error was harmless

Rivera v. Illinois, 556 U.S. 148 (2009) (no federal constitutional right to peremptory challenges; mistaken denial not automatically structural)
State v. Greer, 39 Ohio St.3d 236 (1988) (Ohio Constitution does not guarantee peremptory strikes; number/manner are procedural)
State v. Fisher, 99 Ohio St.3d 127 (2003) (harmless-error standard and distinction between trial and structural errors)
State v. Perry, 101 Ohio St.3d 118 (2004) (appellate standards: burden on State in harmless-error review; plain-error vs harmless-error)
Arizona v. Fulminante, 499 U.S. 279 (1991) (structural-error framework vs trial-error)
Chapman v. California, 386 U.S. 18 (1967) (certain constitutional errors are never harmless)
Neder v. United States, 527 U.S. 1 (1999) (structural error discussion)
State v. Hill, 92 Ohio St.3d 191 (2001) (structural errors are intrinsically harmful and require automatic reversal)