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Court rejects juror dispute claim from convicted rapist

ANNIE YAMSON
Special to the Legal News

Published: October 1, 2014

In the 9th District Court of Appeals, a panel of three judges recently ruled that the Summit County Court of Common Pleas properly included several potential jurors in a rape trial despite the defendant’s claims that they could not be fair and impartial.

The case began with the indictment of Kevin Swift last year on charges of rape, gross sexual imposition and domestic violence stemming from an incident involving his ex-girlfriend.

The indictment was later amended to include charges for violating a protection order and intimidation of a crime victim or witness.

Swift pleaded not guilty and, following a jury trial, was found guilty of all charges with the exception of the protection order violation. He was sentenced to seven years in prison.

Upon his direct appeal to the 9th District, Swift presented only a single assignment of error, arguing that the Summit County court erred by not removing several venirepersons, or potential jurors, because the answers they disclosed during voir dire indicated that they were biased.

“We disagree,” wrote Judge Carla Moore in the opinion she authored on behalf of the reviewing panel. “As long as a trial court is satisfied, following additional questioning of (a) prospective juror, that the juror can be fair and impartial and follow the law as instructed, the court need not remove that juror for cause.”

If a defendant does not present a challenge for cause, he or she waives any alleged error in regard to the prospective juror, according to the appellate panel. In that case, a court of appeals reviews for plain error.

“Pursuant to Crim.R. 52(B), a plain error or defect that affects a substantial right may be noticed although it was not brought to the attention of the trial court,” wrote Judge Moore. “A plain error must be obvious on the record, such that it should have been apparent to the trial court without objection.”

In his brief on appeal, Swift challenged the trial court’s failure to excuse six jurors.

However, the defense only sought to excuse one, Juror Eight, for cause.

According to the record of the voir dire proceedings, Juror Eight requested to speak with the court and counsel at a sidebar.

During that conversation, he informed the parties that his mother had been raped and had been the victim of domestic violence.

“I couldn’t wait to be part of the process and I’d like to remain part of the process,” Juror Eight told the court. “It’s part of who I am ... It’s a tragic situation, my mom’s life, and the guy was incarcerated but not for the rape of my mom, but for the rape of my aunt. And so it’s just disgusting but ... I believe that you all should know that.”

The state then questioned Juror Eight based on this disclosure.

“I read your body language and the way you spoke so sincerely, do you think you can put that aside and base this case and the verdict on the evidence that is presented?” the state asked.

Juror Eight replied that he is “27 years removed from the incident but I’m never removed from it.”

The juror then assured the court, “I think I can absolutely be fair.”

Swift’s counsel proceeded to challenge the juror for cause, telling the trial court that the juror was “visibly shaking” while telling his story and close to tears.

“He said he could be fair and impartial but I think the facts of what happened to him are too similar in this case,” Swift’s attorney stated. “I think once we get further in he’s going to find it more difficult.”

The trial court refused to excuse Juror Eight for cause but informed defense counsel that he could use his last peremptory challenge. Swift’s attorney did so but was unsuccessful.

“On appeal, Mr. Swift argues that the trial court erred in refusing to excuse Juror Eight for cause because his responses raised a suspicion of prejudice or impartiality,” wrote Judge Moore.

But the appellate panel noted that Juror Eight indicated several times that he could be fair.

“Although at times he phrased this sentiment in terms that he thought or believed that he could be fair, the juror expressed no indication that he could not be fair or impartial,” wrote Judge Moore.

Swift contended that any answer by a potential juror that merely suggests the possibility of impartiality requires dismissal, but the court of appeals found that he did not cite any authority that would uphold his assertion.

“To the contrary,” wrote Judge Moore. “A similar proposition was advanced in State v. Allen. There ... the Ohio Supreme Court rejected this argument reasoning that ‘the trial judge saw and heard the juror and could legitimately validate the juror’s statements.’”

In regard to the other five jurors whose inclusion on the jury Swift opposed, the court of appeals noted that Swift did not challenge any of them for cause during voir dire.

In the absence of any obvious plain error on the part of the trial court, the appellate panel upheld its decision to include the jurors.

“Accordingly, Mr. Swift’s sole assignment of error is overruled and the judgment of the Summit County Court of Common Pleas is affirmed,” Judge Moore concluded.

Presiding Judge Eve Belfance and Judge Beth Whitmore concurred.

The case is cited State v. Swift, 2014-Ohio-4041.

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