Filed: May 31, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-20062 _ DUANE TARRANT; JUDITH A. RAVEN, Plaintiffs-Appellants, versus KELLER INDUSTRIES, INC.; HOME DEPOT OF TEXAS, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas (93-CV-2691) _ May 15, 1996 Before POLITZ, Chief Judge, JONES, and BARKSDALE, Circuit Judges. PER CURIAM:* Having received an adverse judgment, Duane Tarrant and his wife Judith Raven (the Plaintiffs) challenge t
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-20062 _ DUANE TARRANT; JUDITH A. RAVEN, Plaintiffs-Appellants, versus KELLER INDUSTRIES, INC.; HOME DEPOT OF TEXAS, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas (93-CV-2691) _ May 15, 1996 Before POLITZ, Chief Judge, JONES, and BARKSDALE, Circuit Judges. PER CURIAM:* Having received an adverse judgment, Duane Tarrant and his wife Judith Raven (the Plaintiffs) challenge th..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20062
_____________________
DUANE TARRANT; JUDITH A. RAVEN,
Plaintiffs-Appellants,
versus
KELLER INDUSTRIES, INC.; HOME DEPOT OF TEXAS, INC.,
Defendants-Appellees.
________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(93-CV-2691)
________________________________________________
May 15, 1996
Before POLITZ, Chief Judge, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Having received an adverse judgment, Duane Tarrant and his
wife Judith Raven (the Plaintiffs) challenge the denial of their
motion to excuse a prospective juror for cause. We AFFIRM.
I.
In August 1993, the Plaintiffs sued Keller Industries, Inc.,**
and Home Depot of Texas, Inc., in Texas state court, seeking
damages for injuries sustained by Duane Tarrant upon falling from
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
**
Because Keller Industries, Inc., recently filed a voluntary
petition for relief under Chapter 11 of the United States
Bankruptcy Code, this action as to Keller is automatically stayed.
11 U.S.C. ยง 362(a).
a ladder manufactured by Keller and sold by Home Depot. The action
was removed to federal court.
As noted, the sole issue here involves the denial of the
Plaintiffs' motion to excuse a prospective juror, Juror Number 7,
for cause. The Plaintiffs so moved after Juror Number 7 stated on
voir dire that she had become "very angry" about the filing of
frivolous lawsuits; that she was a member of Citizens Against
Frivolous Lawsuits; and that, as a result of her views regarding
frivolous lawsuits, she would "come [to the trial] with a bias for
the defendant". When asked by Plaintiffs' counsel whether she
would need to be convinced beyond a reasonable doubt in order to
decide for the Plaintiffs, she responded affirmatively.
Juror Number 7 stated repeatedly, however, that, despite any
initial bias, she would listen to the evidence presented by the
Plaintiffs and reach a just decision. She stated also that (1) if
she "heard the evidence and ... thought that what [the Plaintiffs]
had to say was valid", then she "could be fair"; (2) she thought
that she "could be fair based on the evidence"; and (3) she thought
that she could be generally "fair and impartial". Furthermore, she
indicated on at least three different occasions that she could
follow the instructions of the court.
After the court refused to excuse Juror Number 7 for cause,
the Plaintiffs used one of their peremptory challenges to remove
her. They contend that, as a result, they were forced to accept
another juror who would have been the subject of a peremptory
challenge had Juror Number 7 been excused for cause.
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The jury returned a verdict adverse to the Plaintiffs, and the
district court entered judgment on the verdict. The Plaintiffs
moved unsuccessfully for a new trial, renewing their objection to
the refusal to excuse Juror Number 7.
II.
It is well established that "`[t]he judge's determination as
to actual bias by jurors is reviewed for manifest abuse of
discretion'". United States v. Bryant, 991 F.2d 171, 174 (5th Cir.
1993) (quoting United States v. Mendoza-Burciaga,
981 F.2d 192,
197-98 (5th Cir. 1992), cert. denied,
114 S. Ct. 356 (1993));
Mu'Min v. Virginia,
500 U.S. 415, 427 (1991) (concluding that
appellate courts must afford wide discretion to trial courts in
conducting voir dire of jurors); Wilson v. Johns-Manville Sales
Corp.,
810 F.2d 1358, 1361 (5th Cir.), cert. denied,
484 U.S. 828
(1987); Smith v. Shell Oil Co.,
746 F.2d 1087, 1097 (5th Cir.
1984). We have emphasized that "the adequacy of voir dire is not
easily subject to appellate review .... [The trial judge] must
reach conclusions as to impartiality and credibility by relying on
... evaluations of demeanor evidence and of responses to
questions."
Bryant, 991 F.2d at 174 (quoting
Mu'Min, 500 U.S. at
424) (internal quotations omitted); see also
Wilson, 810 F.2d at
1361; United States v. Barber,
668 F.2d 778, 786 (5th Cir.), cert.
denied,
459 U.S. 829 (1982). The fact that a prospective juror has
indicated that she would find it difficult to be impartial is "not
... automatically disqualifying".
Wilson, 810 F.2d at 1361; see
3
also United States v. Apodaca, 666 F.2d 89, 94 (5th Cir.), cert.
denied,
459 U.S. 823 (1982).
Juror Number 7 stated that she (1) would listen to the
evidence; (2) could be fair based on that evidence; and (3) could
follow the instructions of the court. The court credited these
statements. It also specifically discounted any indication by
Juror Number 7 that she would need to be convinced beyond a
reasonable doubt in order to decide for the Plaintiffs. Noting
that the Plaintiffs had framed their question to her in a manner
that "dictate[d] what the burden is", the district court concluded
that excusing Juror Number 7 on the basis of her response would be
"a little bit deceptive and misleading ... because ... [the wrong
b]urden of proof was given to her".
The fact that Juror Number 7 acknowledged an initial bias for
the defendants during voir dire is undeniably troubling.
Nevertheless, that fact alone does not dictate the conclusion that
she should have been excused. Wilson, 810 F.2d at 1361; see also
Apodaca, 666 F.2d at 94. Viewing the voir dire -- including the
testimony of Juror Number 7 that she could be fair and follow the
instructions of the court -- in its entirety, and recognizing that
"[t]he district judge, present in the courtroom, must deal in
inflections, nuances and evanescent impressions not preserved for
an appellate bench",
Barber, 668 F.2d at 786, we conclude that the
refusal to remove Juror Number 7 did not constitute a manifest
abuse of discretion.
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III.
For the foregoing reasons, the judgment is
AFFIRMED.
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