State v. Woods

BURNETT, Justice:

I respectfully dissent. While Juror B did not respond to two voir dire questions, the record does not support the majority’s conclusion that she intentionally concealed information from the parties. Accordingly, I would reverse the decision of the Court of Appeals granting respondent a new trial. State v. Woods, 338 S.C. 561, 527 S.E.2d 128 (Ct.App. 2000).

During voir dire, the trial judge asked the following question (Question 1):

Now can you tell me are you friends or casual acquaintances with any of them [i.e., the attorneys involved in the trial] or business associates of social acquaintances with any of them ... ?
No juror responded.
The trial judge later inquired (Question 2):
Ladies and gentlemen, are any of you contributors to or supporters of any organization which has as its primary function the promotion of law enforcement or protection of victim’s rights such as MADD, SADD, CAVE, or the like ... ?

At the new trial hearing, the trial judge informed Juror B the parties were interested in her participation as a victim advocate with the Solicitor’s Office. Juror B stated she had volunteered as a victim advocate with the Solicitor’s Office. When defense counsel referred generally to the voir dire, Juror B stated: “I may have misunderstood or didn’t hear [the trial judge] but he didn’t mention anything about an advocate that I heard. You know, being an advocate you’re not eligible and so forth, not for this particular trial.”

Defense counsel then questioned Juror B specifically about her responses to the voir dire questions. At first, Juror B *592agreed she heard the trial judge ask Question 1, but did not believe it applied to her as a victim’s advocate. Thereafter, she stated she did not recall Question 1 being asked. Finally, after defense counsel showed her the transcript from the voir dire, Juror B stated:

Yes. Well see, that wouldn’t, that didn’t phase [sic] me. I was under the impression that you were talking about, you know, the victim or you all because I don’t have anything to do with. Like I never spoken to you.

Regarding whether she recalled the trial judge asking Question 2, Juror B responded:

No, if I had I would have stepped up. I heard some things on the second time that they called me to be a juror and then I stood up ... I don’t know. It just didn’t synchronize if I heard it, but I’m not doubting that it hadn’t been said but it just didn’t synchronize because I came into court with a clear mind. And I have no problems. I cannot associate one thing with another. And I had no association with that at all.

Finding Juror B did not intentionally refuse to respond to the voir dire questions, the trial judge denied respondent’s motion for a new trial.

A trial judge’s denial of a new trial motion will not be disturbed on review absent an abuse of discretion. State v. Kelly, 331 S.C. 132, 502 S.E.2d 99 (1998). Where a juror fails to respond to voir dire questions:

[A new trial] is required only when the court finds the [intentionally] concealed information would have supported a challenge for cause or would have been a material factor in the use of the party’s peremptory challenges. The inquiry must focus on the character of the concealed information, not on the mere fact that a concealment occurred.

Id. at 146, 502 S.E.2d at 106 (brackets in original) quoting Thompson v. O’Rourke, 288 S.C. 13, 15, 339 S.E.2d 505, 506 (1986).

The question before the Court is whether Juror B intentionally concealed the fact that she had volunteered as a victim advocate with the Solicitor’s Office. Juror B’s responses to defense counsel’s inquiries do not suggest that she intentional*593ly refused to inform the parties about her victim advocate experience. Juror B’s response that Question 1 “didn’t phase [sic] her” did not necessarily imply, as the majority assumes, that she intentionally chose to conceal information. Her response just as easily implies that she did not believe an affirmative response was required because, although she had worked in conjunction with the Solicitor’s Office, she did not know the prosecutor involved with the trial. Juror B had justification for not responding to the question. Compare State v. Savage, 306 S.C. 5, 409 S.E.2d 809 (Ct.App.1991) (trial judge did not err by refusing to grant mistrial where juror refused to disclose relationship as result of an honest mistake) with State v. Gulledge, 277 S.C. 368, 287 S.E.2d 488 (1982) (trial judge should have granted mistrial where juror failed to provide any justification for failing to disclose relationship with witness). Further, as she acknowledged, Juror B’s failure to respond to Question 2 was due to her inattentiveness, not to an intentional refusal to respond to the inquiry. State v. Savage, supra.

I concur with the majority’s assertion that whether a juror’s failure to respond to a particular voir dire question is “a fact intensive determination which must be made on a case by case basis.” Where a decision rests on a “fact intensive determination,” the Court should defer to the trial judge’s assessment of the juror’s credibility. State v. Harris, 340 S.C. 59, 530 S.E.2d 626 (2000) (trial judge is in the best position to determine the credibility of thé jurors). Here, the trial judge had the opportunity to assess Juror B’s candor and he determined she did not intentionally conceal information from the parties. I would affirm the trial judge’s refusal to grant a new trial. State v. Loftis, 232 S.C. 35, 100 S.E.2d 671 (1957) (refusing to interfere with the discretion of a trial judge in matters involving the jury because trial judge has opportunity to consider credibility of jurors).