CONSIDERED ON BRIEFS ON MARCH 19, 2018
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BON
HOMME COUNTY, SOUTH DAKOTA THE HONORABLE CHERYLE W. GERING
RAVNSBORG of Harmelink, Fox & Ravnsborg Law Office
Yankton, South Dakota Attorneys for petitioner and appellant.
J. JACKLEY Attorney General
MARNETTE Assistant Attorney General Pierre, South Dakota
Attorneys for respondent and appellee.
In this habeas appeal, defendant asserts that the circuit
court's errors in the jury selection process are
structural rather than procedural and warrant a new trial.
Defendant also claims that his counsel was ineffective at
trial and on direct appeal regarding the errors in the jury
selection process. We affirm.
On January 30, 2013, a jury found Chris Miller guilty of the
second- degree murder and aggravated assault of his
four-month-old son. We affirmed Miller's convictions in
State v. Miller, 2014 S.D. 49, 851 N.W.2d 703. In
November 2014, Miller filed a petition for a writ of habeas
corpus asserting multiple errors from the underlying case.
This appeal concerns Miller's claim that structural
errors occurred during the jury selection process. In
Miller's view, the jury selection process was so
fundamentally flawed that it affected the framework within
which the trial proceeded, necessitating a new trial.
The record reveals that jury selection occurred over the
course of two days. The circuit court informed the parties
that there would be 12 jurors and 3 alternates. The court
also gave each side 22 peremptory strikes. To achieve these
numbers, the court determined that there needed to be 59
qualified jurors after voir dire and prior to the strike-down
(12 jurors plus 3 alternates plus 44 peremptory strikes
equals 59). The court planned to call 200 potential jurors.
The potential jurors were assigned a number and divided into
four groups, which groups were to be called in four different
On January 17, 2013, the first morning of jury selection, 31
potential jurors appeared. After voir dire, 6 jurors were
excused for cause, leaving 25 qualified jurors on the
clerk's final juror list. During the afternoon, 39
potential jurors appeared. After voir dire, 10 jurors were
excused for cause, leaving 29 qualified jurors on the
clerk's final juror list. With 54 qualified jurors after
the first day of jury selection, the court noted that 5 more
jurors needed to be qualified during the second day to reach
the required 59 qualified jurors.
On January 18, the second morning of jury selection, 45
jurors appeared, including juror #108. Juror #108 had been
scheduled to appear on the first afternoon of jury selection
but did not appear. The record does not indicate why he was
absent. After voir dire on the second day, 18 jurors were
excused for cause, leaving 27 potential jurors. Because only
5 qualified jurors were needed, the circuit court drew a line
on the clerk's final juror list intending to designate 59
jurors qualified for selection. The court mistakenly drew the
line after the 60th qualified name on the list instead of
after the 59th name. Neither the parties nor the circuit
court were aware of the mistake when it happened.
After designating the jurors qualified for selection, the
circuit judge gave the State the final juror list and left
the courtroom. The parties alternated exercising peremptory
strikes, with the State exercising its first strike on the
60th name on the list (juror #117). After both sides used
their 22 peremptory strikes, they realized that 16 potential
jurors remained, rather than 15 (12 jurors and 3 alternates).
The parties brought the error to the circuit court's
attention. The court realized that the 60th name on the list
(juror #117) should not have been included because the court
intended to include only 59 names on the list. Based on
statements made by counsel for the State, the circuit court
determined that if the error had not occurred, the State
would have stricken juror #108. The court, therefore,
suggested that juror #108 be stricken. Miller objected but
did not propose a substitute resolution. Ultimately, the
court declared the State's first peremptory strike (juror
#117) "invalid" and struck juror #108.
Miller's case proceeded to trial, and the jury found
Miller guilty of both offenses. The court sentenced Miller to
life in prison for the murder conviction and fifty years in
prison for the conviction of aggravated assault, with the
sentences to be served consecutively. Although Miller
appealed, he did not challenge the jury selection process.
He, however, asserted to the habeas court ...