Submitted October 5, 2018
Multnomah County Circuit Court 15CR17089; Kelly Skye, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Eric Johansen, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Cecil A. Reniche-Smith, Assistant Attorney
General, fled the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
appeals a judgment of conviction for rape in the first
degree, ORS 163.375; sodomy in the first degree, ORS 163.405;
and strangulation, ORS 163.187. Defendant challenges the
trial court's refusal to strike a potential juror for
cause, arguing that the juror evidenced clear bias.
Held: Although defendant exhausted all peremptory
challenges, nothing in the record-either by statement of
defense counsel or otherwise-evidences that the seated jury
was objectionable to defendant. As such, the Court of Appeals
cannot conclude that the trial court's decision not to
strike the potential juror for cause resulted in prejudice to
Or.App. 773] JAMES, J.
appeal, defendant challenges his convictions of rape in the
first degree, ORS 163.375; sodomy in the first degree, ORS
163.405; and strangulation, ORS 163.187; raising two
assignments of error. We reject defendant's second
assignment of error without discussion, and write only to
address the first. There, defendant challenges the trial
court's refusal to strike a potential juror for cause,
arguing that the juror evidenced clear bias. We conclude that
defendant failed to create a record establishing prejudice
and, accordingly, affirm.
light of our disposition in this case, we need not relate the
facts underlying the offense, or the statements given by the
prospective juror in voir dire, in detail. For
purposes of our decision, it suffices to say that the
prospective juror related that her friend had been the victim
of a sexual assault that shared qualities with the
allegations in this case. After the juror disclosed this,
defense counsel moved that she be struck for cause from the
panel. The trial court did not find a basis to excuse the
potential juror for cause, so defense counsel used a
peremptory challenge on the potential juror. Ultimately,
defendant used all six of his peremptory challenges.
now appeals, assigning error to the trial court's refusal
to strike the potential juror for cause. We review a trial
court's decision to strike a potential juror for cause
for abuse of discretion, giving due deference to the trial
court's judgment in light of its advantage of observing a
prospective juror's demeanor, apparent intelligence, and
candor. State v. Montez, 309 Or. 564, 574-75, 789
P.2d 1352 (1990); State v. Mannix, 263 Or.App. 162,
172, 326 P.3d 1236 (2014).
a series of cases stretching back nearly a century, Oregon
courts have established that a party seeking challenge to a
trial court's denial of a for-cause challenge to a
potential juror must create a record establishing prejudice
in two distinct respects. First, a party must
exhaust all peremptory challenges. "A party whose
peremptory challenges have not been exhausted is not in a
position [294 Or.App. 774] to complain of the overruling of
his challenge for cause to a juror who afterwards serves on
the panel." Lambert v. Srs. of St. Joseph, 277
Or. 223, 229, 560 P.2d 262 (1977); Mount v. Welsh et
al., 118 Or. 568, 579, 247 P 815 (1926); State v.
Humphrey, 63 Or. 540, 128 P 824 (1912).
even after a party exhausts all peremptory challenges, the
litigant must create a record that he or she "was
compelled to accept an objectionable juror." State
v. Megorden,49 Or. 259, 263-64, 88 P 306 (1907). As
Megorden noted, "[t]he simple question, after
the peremptory challenges are exhausted, is: Is the jury
which finally tries the case impartial? If so, we cannot
imagine that the accused has any just ground of complaint
with regard to it." Id. at 264 (internal
quotation marks omitted); see also State v. Farrar,309 Or. 132, 158, 786 P.2d 161, cert den, 498 U.S.
879, 111 S.Ct. 212, 112 L.Ed.2d 171 (1990) ("Defendant
acknowledges that he removed the juror thereafter from the
jury panel through his use of a peremptory challenge.
Consequently, the juror did not actually sit on the jury that
was empaneled for trial. * * * Defendant did not and does not
argue that any member of the jury panel that actually decided
his guilt should have been excused for cause.");
State v. Rathie, et al.,101 Or. 339, 349, 199 P 169
(1921), overruled in part on other grounds by State v.
Brewton,238 Or. 590, 395 P.2d 874 (1964) ("It ...