Gretchen Getter v. Wal-Mart Stores, Inc.

H19 objectively expecta- reasonable not have an erode 1987) can (“Extenuating circumstances bag.2 privacy expectation tion of privacy the reasonableness is not constitu- the interest that to the extent contends Defendant

tionally protected.”). Conclusion stranger bag his to entrusted that when he objec- an did not have Because defendant expec- legitimate airport he retained an expectation privacy, tively reasonable conclude bag. We privacy in that tation of bag not violate the Fourth of his did search not. that he did AFFIRM the Amendment. We therefore care of bag in the left his motion Defendant of defendant’s district court’s denial possession Hollis; thus, in lawful Hollis was suppress evidence. at 827 Benitez-Arreguin,

of it. See legal possession

(holding that a bailee in legitimate expecta has a of a suitcase

control contents). Hollis had privacy in its

tion of authority to ex bag and the

control of bag. Id. at 828. to the others’ access

clude however, to authority, also had

Hollis object in his lawful access others

allow leaving bag posses By his possession. GETTER, Plaintiff-Appellant, Gretchen Hollis, assumed defendant and control sion v. the authori Hollis allow the risk v. States bag. United access to the ties Cf. INC., STORES, WAL-MART 109, 117, Jacobsen, 466 U.S. Defendant-Appellee. (“It is well 80 L.Ed.2d 85 No. 93-3210. pri reveals that when individual settled another, assumes the he information vate Appeals, United States Court reveal that infor his confidant will risk Tenth Circuit. authorities, occurs to the mation prohibit Amendment does Fourth Sept. 1995. information.”); use of governmental Mithun, 634 n. States v. United Cir.) (“[The assumed the defendant] employees would discover that hotel risk information to and reveal that

contraband denied, 869,

authorities.”), cert. (1991). Here, 116 L.Ed.2d

S.Ct. access only governmental allowed

Hollis Although it. defen bag requested but to turn over for Hollis did not intend

dant bag airport police, he voluntari

care ability to

ly do so. gave Hollis transaction precipitous

“the nature inference

hardly supports reasonable precautions to main took normal

[defendant] Kentucky, 448 Rawlings privacy,” his

tain 98, 105, 100 U.S. (1980), that defendant did we conclude Most, required to surren- all customers store where the relies on Defendant entry (D.C.Cir.1989), support to the packages his conten- condition as a F.2d 191 der their privacy Here, expectation voluntarily was reason- tion that his Id. at 199. store. Most, disagree. held that the court We able. any bag conditions or relinquished his without expectation legitimate retained the defendant agreements. clerk, bag a store privacy he left with

H21 (Karen Halbrook, of Cleary J. R. John MO, City, Kansas Eppenberger, Husch & briefs), Eppen- & of Husch with him MO, defendant-ap- for City, berger, Kansas pellee. (William Pickett, of H. Wil- T. Greis

David MO, P.C., City, with Pickett, Kansas liam H. Pickett, briefs), H. of William him on the MO, P.C., City, plaintiff-appel- for Kansas lant. TACHA, and Circuit ANDERSON

Before CAMPOS,’*’Senior District Judges, and Judge.

TACHA, Judge. Circuit

Background brought this di- Getter Plaintiff Gretchen alleging that she sustained versity action negligence of defen- injuries due to sonal Stores, alleges Inc. Plaintiff dant Wal-Mart slipped she injured when that she store of defendant’s the vestibule fell in 20,1989. Af- Atchison, on December Kansas trial, returned three-day ter a moved Plaintiff then for defendant. verdict denied trial, the district new for a appeals to this now Plaintiff the motion. jurisdiction pursuant We exercise court. affirm. § 1291 and 28 U.S.C. to a that she entitled contends Plaintiff erred district court because the new trial challenge to (1) denying plaintiffs for-cause (2) excluding Agin, juror prospective John Vidal, ad- Keith expert witness plaintiffs Emma opinion testimony lay mitting the Gee, allowing Cynthia Bramble Jean plaintiff into whether inquire defendant prevent pregnancy, had measures taken No. (5) submitting Jury Instruction ef- the cumulative alleges that also Plaintiff her unfairly prejudiced errors these fect of Mexico, * designation. sitting by New Dis- District Santiago Campos, Senior E. The Honorable District for Judge, United States trict against jury’s questioned by plaintiffs verdict tial. later and that the When counsel, weight Agin of the evidence. Mr. assured counsel he support against could verdict Challenge Denial For-Cause presented evidence trial warranted Prospective Juror Nevertheless, such a result. when the dis- Agin trict court refused to dismiss Mr. for “We the district court’s refusal review cause, plaintiff peremptory challenge used a cause for abuse of to strike jury. him from remove discretion, keeping in mind that ‘the district position in the best to observe the court is Despite Agin’s Mr. his im- assurances of first-hand and make a evaluation partiality, the district court abused its discre- ability Vasey v. his to be fair.’” Martin by denying tion plaintiffs Corp., 29 F.3d Marietta to ownership cause. Due his stock and his Cir.1994) (citation omitted) (quoting Wilson Agin’s employment, wife’s Mr. financial well- Corp., Johns[on]-Manville v. Sales 810 F.2d being dependent upon towas some extent (5th Cir.), denied, 1358, 1361 cert. 484 U.S. type precisely defendant’s. This is (1987)). 828,108 97, S.Ct. 98 58 relationship that requires the district court to grant challenge district must a for presume prospective bias and dismiss the however, cause, prospective juror if a shows juror Vasey, 1460; for cause. 29 See F.3d prejudice actual or bias. Id. bias can Actual Gladhill, (“ 743 F.2d at 1050 ‘That a stock- juror’s be either shown own admission company party holder in a is [a] to a “by proof specific of bias facts which incompetent juror lawsuit is to sit as a is so juror show the has such a connection close to ”) well settled as to black law.’ be letter presumed.” the facts at trial that bias is Id. Co., (quoting v. Ford Chestnut Motor 445 decision, Vasey In our recent we noted (4th Cir.1971)). 967, F.2d 971 presumed that “courts have in bias extraordi- Having concluded that the district court nary juror prospective a situations where has by refusing grant erred plaintiffs to for- had a direct financial interest in the trial’s challenge juror Agin, eause to prospective we examples outcome.” Id. at 1468. As of such next must determine whether this error war- situations, extraordinary we a cited case in argues rants reversal. Plaintiff an that erro- juror prospective which a was a stockholder challenge neous denial a re- employee corporation in or that was a litigant versible error forces because it to party to the Id. (citing suit. Gladhill v. peremptory challenge. exercise a We note (4th Corp., General Motors 743 1049 F.2d that circuits some consider the loss of a Cir.1984); Co., Francone v. Pac. Southern peremptory challenge per se er- reversible (5th Cir.1944)). 145 732 F.2d “In these situa- See, Cambara, e.g., ror. United v. States tions, relationship prospec- between (1st Cir.1990) 144, (stating F.2d that juror ‘point[s] tive and a to the lawsuit “restricting defendant’s use of the lawful sharply juror’ so in particular [the] bias peremptory challenges number of is revers- juror’s that even the own assertions of im- ible error if a for cause is errone- partiality ruling must be discounted in on a denied”); ously Ruuska, United (quoting Id. cause.” (3d Cir.1989) 262, (“[T]he denial or Nell, (5th 1223, States v. 526 F.2d 1229 n. 8 impairment of right peremptory chal- Cir.1976)). lenges per is reversible error se.... [It] challenged prospective juror harmless.”) (citations in cannot be dismissed as omitted). Agin, during view, John however, disclosed voir In our recent Su- dire that he corpo preme owned stock defendant compel application Court decisions employed ration and that analysis. his wife was then of harmless error See Ross v. Oklahoma, questioned 88, defendant. 2273, The district court 487 U.S. 108 S.Ct. Agin Mr. regarding ability (1988); his be a McDonough fair 101 L.Ed.2d 80 light Greenwood, Equip., his connections Power Inc. v. 464 U.S. Agin 548, 553, responded 845, 848, defendant. Mr. that he 104 S.Ct. 78 L.Ed.2d 663 (1984). (“[C]ourts had impar- no doubt that he could fair and ignore ... should errors Thus, apply- statute. See U.S.C. essential fairness do not affect the trial.”). Ross, ing right process plaintiffs to due not violated. Because the district court’s Boss, punish capital a state court plaintiffs chal- erroneous denial of for-cause erroneously case, the trial court re ment lenge did not violate Fifth Amendment juror for cause. As fused dismiss Amendment, must Seventh examine result, was forced use the defendant whether district court’s erroneous denial juror. challenge to remove the peremptory plaintiffs challenge—re- for-cause “long Stating recognized it had gardless plaintiffs perempto- of its effect on challenges are of constitu peremptory ry challenges—was harmless error. dimension,” rejected “the tional the Court chal notion that the loss of Because the here nonconsti lenge of the constitu constitutes violation tutional, we harm determine whether was Ross, impartial jury.” to an tional using less the standard established Kottea “[s]o at 2278. U.S. kos v. United long impartial, fact sits (1946). 90 L.Ed. 1557 United States had to use a Cir.1990).2 Rivera, challenge to that result does achieve un non-constitutional error is harmless “A violated.” mean the Sixth Amendment was less it had a ‘substantial influence’ on the Id.1 ‘grave or one in [of trial] outcome leaves examined whether Court next to such effect.” Id. Ross doubt’ as whether had Kotteakos, 765, process right (quoting to due was at 328 U.S. at the defendant’s 1469 juror process. by the selection Un- at violated 66 S.Ct. law, required to the defendant was der state case, juror challenged In not this did challenge the trial peremptory a to cure

use jury plaintiff a serve on because used to a refusal excuse court’s erroneous peremptory challenge to Plain- remove him. preserve in order to the issue for for cause allege jury tiff not as seated does 89, appeal. at 108 S.Ct. at 2278-79. Id. Thus, was biased. the district court’s refusal challenges Noting “peremptory are a Agin Mr. did not have a to remove cause required by statute and are not creature of on outcome” of the “substantial influence Constitution,” id., held the Court trial, grave us “in nor does it leave doubt all defendant “received because the it had to whether such effect.” him, process ... allowed his due [state] law impartial jury not plaintiffs right to an was fail[ed],” 91, at challenge id. infringed by district court’s erroneous 2279-80. challenge, hold denial of the for-cause we case, McIntyre, See plaintiff that the error was harmless.3 In the instant received challenges n. 7. by allowed 997 F.2d 698 all the denied, Kotteakos."), analysis cert. recognize was with the set forth in 1. We that Ross concerned (1994). Amendment, Amendment, U.S.-, 114 126 L.Ed.2d 699 S.Ct. Sixth not Seventh view, however, right jury. trial In our to applies analogy to the in- rationale of holding one of our 3. We are troubled that result Moreover, is reason to stant case. there no be- may a to formidable barrier be creation provide lieve that the Seventh Amendment appellate of for-cause chal- review of denials this a broader than the Sixth Amendment in litigant's right to an lenges. a Unless Battin, Colgrove v. context. infringed, jury of for-cause erroneous denials Cf. 2448, 2453-54, 37 522 challenges probably A liti- are harmless errors. (1973) (relying on Sixth Amendment case to gant challenges prospective juror who juries constitutionality of sustain the six-member unlikely remain to allow such to trials). in civil jury chal- will exercise a on the argue litigant lenge. not be able to will partial. case appropriate decided the recently that the 2. This reiterated the court course, may be in which there instances States v. Of ness of the Kotteakos standard in United 1993) (10th that the denial McIntyre, n. Cir. can show erroneous F.2d substantially ("Because the out- affected a for-cause for-cause the erroneous denial of instance, however, is an of a trial. Such does not to the level of constitu come rise violation, apply before us in this case. the harmless error not tional Evidentiary understanding testimony Decisions District Court’s the witness’ or the determination of a fact issue.” Fed. third, second, Plaintiffs and fourth lay R.Evid. 701. The determination of a allegations question the trial of error court’s qualification testify witness’s a matter admissibility of rulings on the certain evi opinion within the sound discretion of general, rulings In dence. district court’s Collectramatic, trial Randolph court. admissibility on will be evidence Inc., 590 F.2d appeal on absent an dis disturbed abuse of testimony challenged of each Bank, Ragland cretion. Shattuck Nat’l requirements witness meets the of Rule 701. (10th Cir.1994). Accordingly, the court district did not abuse challenges Plaintiff first the district in allowing its discretion Bramble and Gee to plaintiffs safety court’s refusal to allow ex opinions. their offer pert testify. may district A court allow remaining evidentiary Plaintiffs scientific, expert testimony expert’s] [the “[i]f per claim is that the district court erred technical, specialized knowledge or other will mitting inquire, on exami cross assist fact the trier of to understand the nation, plaintiff undergone whether had a fact in evidence to determine issue.” prevent procedure pregnancy. sterilization judge’s ruling “[A] Fed.R.Evid. 702. argues inquiry Plaintiff improp expert the admission or exclusion testimo probative er because its value was substan ny will not be unless it overturned is mani tially outweighed by danger of unfair festly erroneous abuse discretion.” prejudice plaintiff. Works, Ltd., See Fed.R.Evid. 403. Werth v. Makita Elec. (or admit) (10th Cir.1991). “The decision to Here, exclude evidence the district [Rule 403] under is within the sound discre expert plaintiffs proffered excluded court, tion of the trial and will testimony re “the experi because normal life versed this court absent clear abuse of qualifications jury ences and of the Trucking discretion.” K-B permit Co. Riss Int’l toit draw its own con conclusions Corp., 763 F.2d floor, safety of cerning upon the the based plaintiff objected When ques to this lay eyewitnesses.” line testimony the This trial, tioning at the district court asked both ruling manifestly was neither nor erroneous approach counsel to the bench. an Defendant abuse of discretion. argued question that the was relevant be argues Plaintiff also that defense plaintiffs complaint included claim and witnesses Bramble Gee should not have for lost consortium. While the district court permitted been opinions to offer their that plaintiff question, allowed to answer the the the plain vestibule was safe at the time of court also admonished defendant not dwell tiffs fall. Each these witnesses related subject. on the say We cannot that the eyewitness her concerning observations the clearly district court abused its discretion vestibule’s condition. Each also witness allowing this evidence. opined that the vestibule was safe at time the plaintiff that slipped and fell. The Federal Jury Instructions provide lay Rules of Evidence witness may testify opinion in form of the if the Jury Plaintiff asserts that In “(a) opinion rationally percep is based on the improper struction No. 11 was because was (b) tion helpful of the and duplicative, witness to a clear vague, confusing jury.4 to the challenged jury 4. The is set instruction forth here a result of the fault of defendant Wal-Mart in full: Stores, Inc., following in one or more of the sets This instruction forth the the claims of respects: respective parties, as stated in case. These (1) covering Defendant failed have mats by you claims are be not to considered store; wet floor in the vestibule of the allegations evidence in the case. The replace Defendant failed to wet mats in respective parties must be established and manner; timely the vestibule in a proved by the evidence. danger- failed Defendant to eliminate the Getter, plaintiff, In this case Gretchen claims timely ous condition of wet in a floors manner. injured damages that she was and sustained Enters., Inc., Black Hieb 's jury instruc- reviewing a evidence. When (10th Cir.1986). 805 F.2d tions, look the instructions as we must bar, they properly of the trial record case our review to determine whether whole County support Sch. reveals substantial evidence Lutz v. Weld state the law. (10th Cir.1986) jury’s the verdict is not clear No. 784 F.2d verdict. Dist. curiam). ly, decidedly, overwhelmingly against not An need be (per instruction every judg- find abuse respect. in Id. We therefore no faultless evidence. only “a in denial of if we have discretion the district court’s should be disturbed ment fairly jury plaintiffs new trial. whether motion doubt substantial (internal guided in deliberations.” Id. its omitted). of the quotations Upon review Conclusion whole, we jury as a conclude instructions herein, judg- For the stated reasons fairly guid- stated the law and they properly is AFFIRMED. ment of the district court jury in its deliberations. ed the CAMPOS, Judge, District Senior Sufficiency Error and Cumulative part. in concurring part dissenting Evidence only one we find that places pivotal case rulings challenged by plaintiff Oklahoma, district court’s reliance on Ross v. error, sole error was harm (1988). 2273, 101 L.Ed.2d 80 While less, allegation of cumulative plaintiffs may and this case the same Ross analysis should “[C]umuIative-error universe, fails. peremptory challenges, only of matters deter evaluate the effect and, planets are on these two cases different error, the cumulative effect mined to be not years, certainly light miles and miles Rivera, at 1471. non-errors.” specifically apart. told And the Ross court majority’s leap from Ross us that. The does argument that the Plaintiffs final ground on other side quite reach against weight of the jury verdict case rests. of the chasm where this “A motion for a new trial made evidence. involved an state court ground Oklahoma verdict first-degree normally murder conviction. Oklahoma weight of the evidence against (9) peremptory challenges provided law law nine presents question of fact and not of pro- parties capital trials. One the trial to both to the discretion of addressed ques- juror, Huling, responded to spective City Albuquerque, court.” Richardson of (10th Cir.1988). the prompted in a de- tions manner challenge him The Okla- to for cause. of a motion fense the district court’s denial review challenge. The trial denied the for “a manifest homa court ground for trial on this new employed “inquiry then his sixth Our fo defense of discretion.” Id. abuse subsequently Huling to and clearly, dismiss the decid cuses on whether verdict (9) peremptory chal- weight all nine of his overwhelmingly against of exhausted edly or the (1) failing proper plaintiff proving keep to her In lookout bears the burden of probably than not claims are more true her safety; own true. failing was to and see what In look operated the admits that it The defendant plain- nothing prevent sight, being plain there Kansas, County, Wal-Mart Store in Atchison floor; seeing the from tiff December store had a vestibule on the in which she walked manner the 20, 1988, and exit. for customers enter through in view the inclem- the vestibule area of Getter Wal-Mart also admits Gretchen conditions. ent weather the time of in its store at was business visitor proving the burden The defendant has question. the occurrence in part plaintiff on the that its claims fault all claims of The defendant denies other probably than not true. more true are plaintiff. portion emphasized challenges only the Plaintiff Further, plaintiff the claims that the instruction. damages, injury sustained fault of following plaintiff re- in one more spects: lenges. appeal, On the Oklahoma Court of rights cess under the Fourteenth Amend- Appeals Criminal found ment, Supreme Court focused on the law committed error dismissing in not Huling for of Oklahoma which it interpreted as condi- found, nevertheless, cause but “by the error tioned requirement that the defen- did not warrant reversal: dant must use challenges those to cure erro- by neous The failure of trial court the trial court excuse remove a refusals jurors for cause.

prospective juror We who think there is unequivocally nothing states arbitrary or irrational unwilling that he is about require- such a follow the law dur- ment, which ing penalty phase subordinates the by absolute considering free- a life dom to use a peremptory challenge sentence is error. The record as one reflects that goal wishes to the of empaneling defense challenged impartial counsel prospective Ross, jury.” 90,108 cause, U.S. at and when the court S.Ct. at 2279 denied added). (emphasis challenge, defense counsel used a emptory challenge. All [petitioner’s] Supreme clearly Court and explicitly peremptory challenges were subsequently viewed the peremptory challenge in the State used; but as nothing there is in the record Oklahoma as one burdened with the re- any juror to show that who sat on the trial quirement that it be used to “cure erroneous objectionable, we are unable to discov- refusals.” It found impediment no any grounds er for reversal. United States Constitution to Ross, 487 U.S. at challenges 108 S.Ct. at thus by burdened a state statute (quoting State, Ross v. 717 P.2d and state court interpretation empan- (citations (Okla.Crim.App.1986) omitted)). eling impartial of an jury. The majori- ty concluded: “As required by Oklahoma appeal, On Supreme the Unit- law, petitioner exercised one of his perempto- ed split in a decision, 5 to 4 affirmed ry challenges rectify error, the trial court’s the decision of the Oklahoma Court of Crimi- and consequently he only retained eight per- nal Appeals. agreed It that the trial court emptory challenges to use in his unfettered erred when it refused to prospective strike discretion. he But received all that Okla- Huling for cause. Two thrusts were homa him, law allowed his due against directed the decision therefore Oklahoma process Ross, Court of U.S. Criminal Appeals fails.” upholding the con- 90-91, 108 (emphasis 2279-80 add- viction: ed). 1. That right Petitioner’s to an The Ross Court did not decide guaranteed issue him the Sixth Four- we deal with here nor did it intimate what teenth Amendments to the Constitution was the correct result in this cause should abridged; be. This is leap taken which, majority 2. That Petitioner’s process to due in this Here, falls short. under the was, Fourteenth Amendment like- citing Ross and McDonough Power Equip., wise, abridged. Greenwood, Inc. v. 464 U.S. Supreme The addressed, Court firstly, the 78 (not L.Ed.2d 663 a peremptory claim infringement of of right Petitioner’s challenge case), compulsion senses a apply an impartial jury under the Sixth and Four- “harmless analysis.” Whatever com- teenth Amendments. The Court concluded: pulsion Ross imparts to majority the here is reject “[W]e the notion that the loss aof misinterpreted and leads to an it erroneous peremptory challenge constitutes a violation result. footnote 4 Supreme the Court in of the right constitutional to an terms clear as clearest sky tells us: jury. long We have recognized that peremp- We need not decide the question broader tory challenges are not of constitutional di- whether, in the absence of Oklahoma’s lim- Ross, mension.” 487 U.S. at 108 S.Ct. at ‘right’ itation the to exercise perempto- 2278. ry challenges, ‘a impairment’ denial or of Turning to the claim that the refusal to the exercise peremptory of challenges oc- strike for cause violated Petitioner’s pro- due curs the defendant uses one or more

H27 party purposes for single as a considered should jurors who to remove challenges may allow the court challenges or making of cause. for excused have been permit challenges and peremptory additional n. 2280 4, 108 S.Ct. n. Ross, 91at jointly. separately exercised them to be challenge in peremptory to a right But the presents which is the case here The case of from source courts emanates the federal and addressed not question” the “broader judicia- the apart from power governmental majority the by Here Ross. decided not United is right this the The fountain ry. wholeheartedly, that the I concur agrees, and Congress. refusing to in discretion abused court trial Agin, who juror, John prospective Ross the question” which excuse The “broader Wal- in defendant a stockholder ad- only must be was not avoided specifically was, time of at the Mart, stated, wife whose Simply but here. answered and dressed Wal-Mart. same of the trial, employee chal- a peremptory this: Is it is clearer be much cannot of discretion of the § Abuse one 1870 28 U.S.C. lenge under challenge here, for after Plaintiff than this. parties” under of the rights “substantial using per- rebuffed, put was it must The conclusion § 2111? U.S.C. prospective challenge to remove emptory is, case federal attested be, it and that excused have been should juror “who Perhaps the best early on. very from law addressed question broader cause.” charac- history, and nature exposition us. We before squarely thus in peremptorily is right to ter tiptoe it. cannot eyes to We our close cannot remains Swain yet viable contained it. jump over fly or We cannot it. around Alabama, U.S. should And we it. under burrow cannot We touching (1965). Observations foxhole “harmless error” flop into the pertinent, as as challenge are peremptory they judges when beckons sometimes which of this revealing of essence as timely and but are their ears singing about bullets hear after they before and today were as “right” are those missiles from where tell unable Kentucky, in Batson modified Swain launched. 90 L.Ed.2d 79, 106 S.Ct. U.S. and to the error” Swain (1986). only overruled at “harmless us look Let Batson this they as relate exercise challenges prohibits emptory extent Supreme Court vio- by the which and viewed reasons peremptory case Court, the Courts of the guarantees protection equal late for the circuits. of other White Appeals Justice Mr. Constitution. chal- peremptory wrote Swain error, 28 U.S.C. Touching “harmless” of the essence reveal words lenge. His any hearing of “On the provides: in con- provided challenge any of certiorari writ appeal or rights relating to gressional enactments examina- after an judgment give shall criminal of both in the trial litigants errors regard to without record tion cases: civil substantial not affect do which defects 1870 of Section parties.” their rights of peremptories persistence cases civil “[i]n part, long provides, U.S.C. use demonstrate extensive peremp- to three entitled chal- shall be each belief widely held jury. challenges.” tory necessary part of lenge is a in the Consti- nothing Although ‘[t]here right created here dealing with areWe requires States the United tution of of Congress by the a given to grant States] [or Congress by a right created It States. United chal- nonetheless challenges,’ emptory interpreta- molded legislature state of the important most of is ‘one lenge the United courts state of tion The denial to the accused.’ rights secured had done found Oklahoma Court Supreme reversible impairment or by a federal right created of is not a It Ross. showing prejudice. without error of 28 enough, U.S.C. under True court. arbitrary says, an is, Blackstone ‘For may plaintiffs or several defendants several 1128 right; and capricious and it must be exer- is error itas a party forces to use peremp- freedom, cised with full or it fails of its tory full challenge.” Hopkins v. Comity Lara-

purpose.’ mie, Wyo., (10th Cir.1984). F.2d ciations,’ questioning conceive exercised designated or demonstrable. While challenges or imagined partiality that and legally cognizable basis out being subject to the court’s control. challenge is that it is one exercised without reason another,’ The essential nature of the peremptory- jurors unaccountable ^[******] upon stated, on a narrowly specified, provable upon upon juror’s upon [a the bare juror’s] permits rejection for a real without inquiry and with- the feeling that ‘the prejudices ‘sudden looks and indifference ‘habits and asso- permit we are impressions It is often less partiality, rejection gestures apt easily bare United States v. may (3rd tion to opposite pole from less. therefore, cannot be dismissed as harm- the accused of that right, must be con- demned.’) barrasses the impaneling right to peremptory challenges is revers- ible say that the authority that culminated with Swain to The majority opinion We Cir.1989) (citations error misinterpreting read the per denial or full, Ruuska, long se. jury impairment holdings unrestricted line of (‘Any in this Ross, omitted). The Sev impairment 883 F.2d prevents system for the Supreme stands at the other circuits. exercise this in addi- or em- right, Court provoke sometimes (Em- a resentment.’ enth Circuit has followed the Third Circuit in added.) phasis respect, this stating that “[i]t is reversible deny error to a party Alabama, trial Swain U.S. at peremptory challenges to which S.Ct. at the rules 835-836. procedure him, entitle although it will rarely Batson, placing while equal protection if ever possible be to show that the trial strictures on peremptory challenges, never would have come out differently with a dif clearly theless recognized important inherent ferent jury.” Olympia Hotels Corp. v. John values in litigants’ fair rights trial son Wax Dev. Corp., 1363, 1369(7th challenge: recognize, “While we course, Cir.1990). the peremptory challenge occupies an important position in our procedure, trial somewhere, Somehow and out of the swirls do not agree that our decision today will whirls of twenty-five pages major- undermine the contribution the challenge ity opinion and three pages of dissent in generally makes jus administration of Kotteakos v. Batson, tice.” 98-99, 106 476 U.S. at S.Ct. at (1946), L.Ed. 1557 a conclusion seems to have been that, reached usually, unless the error is one of This constitutional di- long perceived has impor- mension, a “harmless analysis error” tant must dimension and rock hard substance of engaged. Thus, the majority relies Kot- challenge. Judge Murrah, in support teakos foray its Court, into for the harmless in United States Chapman, error. (10th girds further its Cir.1946) F.2d 417 harm- addressed the less error analysis by reminding issue. us that While announcing that error excus- Court has recently given a nod of ing approval discharging qualified juror was not Kotteakos in United States v. McIntyre, reversible error he found that the refusal to 698 n. 7 sustain a challenge for cause was error in that case and that such required rever- McIntyre, that, this Court held in sal. Id. at 421. case, “the refusal grant a for-cause dis- Judge Breitenstein, while finding that the missal was not an abuse of discretion.” 997 judge did not abuse discretion in deny- F.2d at 698. It is to this holding that foot- ing challenges cause, “general- noted that note 7 is appended. Footnote 7 from McIn- ly an improper denial of a challenge for tyre part: reads in following need At least the Oklahoma, n. 7. at 698 Id. Ross v. in Court Supreme

The this footnote: about said 2273, 101 81, 108 S.Ct. 487 U.S. violation are relating is no Ross (1988), there held that observations 1. The amend necessary Fourteenth the or whatever the Sixth not dicta either obiter erroneously abuse did not has court a trial court the trial that holding ments when challenge refusing grant for-cause a for-cause discretion denied aof through the use challenge. struck subsequently con challenge. The peremptory Ross suffers interpretation 2. chal peremptory of a loss ‘the cluded been has infirmity which same from the a violation eonstitute[ ] not] lenge [does above. and demonstrated treated impartial to an constitutional Cir- opinions of Tenth published If 3. ‘Any 2278. 88, at 108 S.Ct. at jury.’ Id. McIntyre cuit between ... impartial not jury was claim that forth set conclusions have reached ultimate jurors who on the ... must focus claims, court footnote, McIntyre as the in the ‘So at 2277. 86, 108 S.Ct. Id. at ly sat.’ to locate unable been herein has the writer impartial, jury that sits long them.1 per to use had the defendant fact that Kot- out point pertinent it is And result to achieve emptory 1946, move did not teakos, in decided supra, Amendment the Sixth mean does not through Mr. speaking Supreme Court 2278. 88, at 108 S.Ct. Id. at violated.’ the “harm- engage in 1965 White Justice Tenth Circuit opinions Subsequent Swain, supra, was analysis when error” less conclusions. have similar reached decided. chal of a for-cause denial the erroneous requires a analysis “harmless error” aof consti the level rise to lenge does con- error” “non-constitutional party, violation, the harmless apply tutional had a the error showing that text, amake v. in Kotteakos analysis set forth error or the outcome on influence” “substantial 1239, 328 U.S. it as to whether doubt” “grave in one leaves (1946). ‘A non-constitution 90 L.Ed. Rivera, v. States effect. United such had “sub had a it unless is harmless al error (10th In the 1462, 1469 F.2d the outcome influence” stantial must party challenge scenario peremptory to whether “grave doubt” one leaves set one showing that while thus make Riv v. effect.’ United it had such slight- it a set against juror brains decided Cir.1990) (10th era, decided have juror brains ly different Kotteakos, at (citing making and means processes it. The the defendant 1248). ease In the instant at course, are, non-existent. showing such a peremptory use allege that the does not this formulation starting line resulted challenges on wall impregnable to hit forces any him in disadvantaged jury or impartial This is goes off. gun starting before if the even find that Accordingly, we way. sophistry. denied, improperly challenge was for-cause First, I believe is twofold. My conclusion harm resulting therefrom any error challenge because losing peremptory less. McIntyre footnote supports the cases opinion. Scales unpublished pre-McIntyre A1. convic state Isiah involve Scales assertion. 92-1008, at *1 Norton, WL No. present case. inapposite in the are thus 1992), tions citation without (10th June Cir. hold cases these Notwithstanding fact that "the loss analysis, the assertion contains trials, aof that, loss court in state exer might have been challenge that not con does error through justify constitutional is not elsewhere cised right to an constitutional a violation stitute An overturning court conviction.” a state ing as to issue they not address jury, do Tansy, No. opinion, Isiah unpublished other deprivation court such a federal whether June *3 Cir. 1994 WL deprives a error because reversible constitutes cites proposition and 3, 1994), the same states 28 U.S.C. right” under a “substantial parly of supporting it. Isiah McIntyre as Ross and be one thus could post-McIntyre and of an erroneous refusal to excuse for cause is deprivation property pro- without due Jeffrey BENNETT, W. Petitioner, cess of law in contravention of the Fifth impacts upon

Amendment. It the processing litigant’s action, cause of litigant’s NATIONAL TRANSPORTATION SAFE- “property,” in federal court. I would TY BOARD and Federal Aviation engage in a analysis harmless error Administration, Respondents. the majority Second, does. even if an erro- No. 94-9543. neous denial aof cause does not implicate Amendment, the Fifth still the Appeals, States Court of emptory challenge litigants accorded in 28 Tenth Circuit. § is, U.S.C. nevertheless, a statutory Sept. right or privilege 1995. which carries with it all the essence, stature dignity of the “substan- rights”

tial subject are the of 28 U.S.C.

§ History 2111. and law teach that it has a

rightful place in and marches with that com-

pany. When a put to exhausting all

peremptory challenges, one which is used remedy an erroneous denial of a challenge cause, occurred in this such ruling denigrates and diminishes this statuto-

ry right is, therefore, reversible error.

The majority does not dedicate the mildest

whisper as to whether the erroneous denial

of a challenge for which deprives

party of a peremptory challenge in a federal

jury trial touches Amendment, the Fifth § U.S.C. 28 U.S.C. 1870. I am I,

convinced it does therefore, dissent on

the peremptory challenge issue.2 I grant reverse and a new trial on this

issue, I do not reach the other issues decided

in the opinion. Except for the Fifth Amendment observations Except for the writer's views on the herein, last paragraphs two partial Amendment, treat, Fifth which Kirk does not Kirk dissent April was drafted August 1995. On partial and this dissent precisely are on the same 29, 1995, the writer learned that the Third Cir regarding track Ross and its non-applicability to cuit opinion, 27, 1995, had issued its July erroneous challenges denials of for cause in a Industries, Ray Inc., Kirk v. (3rd mark trial in federal court.

Case Details

Case Name: Gretchen Getter v. Wal-Mart Stores, Inc.

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 21, 1995

Citation: 66 F.3d 1119

Docket Number: 93-3210

Court Abbreviation: 10th Cir.