Civil Practice – Peremptory Challenge – Jury Impanelment

The trial court erred by allowing Defendants to exercise a peremptory challenge after the jury had been impaneled.

We vacated the trial court’s judgment and remanded the matter to the trial court for a new trial. Because we lack the authority to review the trial court’s order denying Plaintiffs’ motion for judgment notwithstanding the verdicts, we dismissed the appeal of that issue.

This appeal addressed an issue of first impression: whether the trial court in a civil case may re-open jury voir dire after the jury had been impaneled and allow a party to exercise a peremptory challenge. Plaintiffs appealed from the judgment entered upon the jury’s verdicts finding Defendants not liable for the negligence per se, trespass to real property, and nuisance claims asserted against them by Plaintiffs and finding Plaintiffs liable to Defendants for counterclaims asserted against them for nuisance, trespass to real property, and trespass to personal property. Plaintiffs argued the trial court erred by re-opening jury voir dire after the jury had been impaneled and allowing Defendants to exercise a peremptory challenge.

The matter came on for trial and the jury was impaneled. Toward the end of Plaintiffs’ case-in-chief, Defendants informed the trial court that they believed juror number 12 had been dishonest during voir dire about his knowledge of and connection to Plaintiffs. Defendants asked the trial court to inquire into the juror’s relationship with Plaintiffs and whether the juror had spoken to anyone about the trial. Plaintiffs objected on the ground that “[t]his is trying to reopen the jury[.]” After questioning the juror, the trial court did not find cause to remove him. Defendants asked the trial court if the juror’s friend was an employee on Plaintiffs’ farm. The trial court, in turn, asked Plaintiffs if the juror’s friend was Plaintiffs’ employee. Plaintiffs told the trial court that the juror’s friend is retired but does help on Plaintiffs’ farm. Defendants stated, “And, based on that information, Your Honor, we move to strike this juror and [impanel] the alternate.” Defendants exercised a peremptory challenge on the juror; the trial court allowed the challenge and replaced the juror with an alternate. Plaintiffs again objected. The trial court excused juror number 12 and noted the decision was made in its discretion pursuant to N.C. Gen. Stat. § 15A-1214. At the close of the evidence, Plaintiffs moved for a directed verdict; the motion was denied. The jury returned verdicts finding Defendants not liable on all three of Plaintiffs’ claims and finding Plaintiffs liable on all three of Defendants’ claims. The trial court entered judgment on the jury’s verdicts.

On appeal, Plaintiffs argued that the trial court erred by allowing Defendants to exercise a peremptory challenge after the jury had been impaneled and the trial had commenced. Plaintiffs’ argument is meritorious. We held that after the jury has been impaneled, “any further examination of them is not a matter of right but of discretion in the court. If on such examination good challenge for cause is presented the court may allow the juror to be challenged therefor.” However, upon the trial court’s reopening the jury voir dire after the jury has been impaneled, the trial court may not allow a peremptory challenge of a juror. Here, the jury was duly impaneled. The trial court, in its discretion, found good cause to reopen the jury voir dire. Upon examination of juror number 12, the trial court did not find that good challenge for cause had been presented; accordingly, juror number twelve should not have been stricken. The trial court, however, erroneously allowed Defendants to exercise a peremptory challenge on juror number twelve and replaced that juror with an alternate juror. This was reversible error.

The trial court found N.C. Gen. Stat. § 15A-1214(g) authorized it to allow Defendants’ peremptory challenge after the jury had been impaneled. This is not correct. This statute did not provide the trial court the requisite authority. However, given the “significant role that the free exercise of peremptory challenges plays in a trial of a criminal case,” where liberty and life are often at stake, a body of criminal caselaw has developed allowing the trial court the discretion to re-open examination of a juror after the jury has been impaneled and, upon doing so, requiring the trial court to allow each party to exercise any remaining peremptory challenges to excuse such a juror. No parallel body of caselaw has developed in North Carolina as to civil actions, and the life and liberty considerations underpinning the criminal caselaw are not at issue here. For these reasons, the trial court erred by relying on N.C. Gen. Stat. § 15A-1214 for the authority to allow Defendants’ peremptory challenge after the jury had been impaneled.

Vacated and remanded in part, dismissed in part.

Warren v. Bonner (Lawyers’ Weekly No. 011-346-25, 11 pp.) (Allegra Collins, J.) Appealed from Sampson County Superior Court (Robert C. Roupe, J.) Daughtry, Woodard, Lawrence, & Starling, by Luther D. Starling, Jr., for Plaintiffs-Appellants; Hutchens Law Firm LLP, by J. Haydon Ellis and J. Scott Flowers, for Defendants-Appellees. North Carolina Court of Appeals