Lee v. Colson

Levine, J., delivered the opinion of the Court. This appeal arises from an action for personal injuries brought by appellant in the Circuit Court for Prince George’s County. Although a jury awarded him damages, appellant is apparently dissatisfied with the amount. On appeal, he presents the narrow contention that because of the inadvertent failure of the trial judge to strike one of the four jurors whom appellant had peremptorily challenged at ⁶⁰⁰ the commencement of the trial, a new trial should be granted.

We granted certiorari prior to consideration of the case by the Court of Special Appeals. The facts are simple and can be stated briefly. Among the four jurors appellant claims to have stricken in the exercise of his peremptory challenges was one “Joseph F. Gasiewicz” whose occupation was listed as “Criterion Underwriter GEICO.” 1 Nevertheless, Gasiewicz was among the 12 jurors whose names were called by the clerk, acting at the direction of the court, to take their seats in the jury box. The jury was sworn and the trial commenced, concluding on the following day.

Shortly after the jury had retired to deliberate, counsel became engaged in the post mortem discussion which customarily takes place at this juncture of the proceedings. It was then that counsel for appellant claims to have become initially aware of Mr. Gasiewicz’s presence on the jury. At no time during the two hours the jury deliberated before reaching its verdict did appellant inform the court of these developments. It was only in his motion for a new trial that appellant, for the first time, advised the court of its inadvertent failure to strike the juror’s name from the list of those called to be sworn.

In denying the motion, Judge Powers ruled that by failing to raise the question earlier, appellant had waived any possible error committed by the court. We agree. The effect of the ruling below, appellant argues, is to impose a requirement, where none presently exists, that a formal exception be taken to the court’s error in failing to strike a juror. See Rule 522 a.

Assuming without deciding that the act of exercising a peremptory challenge is the equivalent of an objection, appellant’s argument is ⁶⁰¹ undermined by his failure to