The Court of Civil Appeals reversed a judgment based upon a jury verdict for Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc. (hereinafter together referred to as "Toyota"), the defendants in a wrongful death case. This was done because a juror, W. P., had pleaded guilty to third degree burglary 12 ½ years before he served on the petit jury in this case. Toyota had peremptorily struck W.P.; however, W.P. was reinstated as a member of the petit jury because the plaintiff, Carol C. Price, as administratrix of the estate of Mell W. Price II, deceased, contended that Toyota had violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in striking W.P. The trial court upheld Price's challenge in the face of what Toyota contended were race-neutral reasons (that W.P. was unemployed, had owned a "lemon" automobile, was young and single, and, therefore, would more likely be somewhat negative toward Toyota and tend to render a higher verdict). The jury found for Toyota. Price sought a new trial because W. P., who Price had insisted be reinstated as a juror, had served on the jury. The trial court denied the new trial motion. Price appealed, and the Court of Civil Appeals reversed and remanded. Price v. Toyota Motor Corp., 684 So.2d 131 (Ala.1996). We granted Toyota's petition for certiorari review. Toyota raised two issues:
(1) Whether Price waived the right to challenge W. P.'s statutory disqualification through a failure to exercise due diligence to keep disqualified persons, such as W. P., off the jury panel; and
The facts underlying this case are undisputed. Carol Price filed a wrongful death action in the Tuscaloosa County Circuit Court in 1993, based on the death of Mell W. Price II. The case came up for trial during the week of May 8, 1995. As was the custom in Tuscaloosa County, the initial qualification of the jury pool was conducted all at once by a "qualifying judge," who would not preside over the trial, prior to the beginning of the several trials scheduled for that week.
After assembling the venire for Price's case, the trial judge conducted a second voir dire examination. Price's attorneys were present for this second voir dire. The trial judge began the voir dire himself, with a series of questions, but he asked no questions concerning criminal convictions, losing the right to vote, or any other related matters. Following this, Price's attorneys conducted a lengthy and extensive voir dire, but asked no questions concerning criminal convictions, losing the right to vote, or any other related matters.
W.P. was a member of the jury pool for this case. Once the voir dire had concluded, Toyota used a peremptory strike to remove W.P. from the jury panel. Price challenged the strike of W.P., under Batson, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), arguing that the strike was racially motivated. After considering Toyota's stated reasons for the strike, the trial judge disallowed
On May 13, 1995, the jury returned a verdict for Toyota. After the verdict was returned, Price's attorneys investigated the members of the jury and learned that W.P. had pleaded guilty to burglary in the third degree, a Class C felony, and resisting arrest, a Class B misdemeanor. Price then moved for a new trial, arguing that she was entitled to a new trial because, she said, if W.P. had revealed his burglary conviction "[her attorneys] could have ... asked ... [follow-up] questions, including whether [W.P.'s] civil rights had been subsequently restored," to determine if W.P. was statutorily disqualified to serve on a jury, pursuant to § 12-16-60(a)(4). Toyota opposed Price's new trial motion, arguing that Price had waived her right to challenge W.P.'s qualifications to sit on the jury by failing to exercise due diligence to identify statutorily disqualified venire members during voir dire and by challenging Toyota's strike of W.P. despite Price's lack of knowledge of whether W.P. was statutorily qualified to serve on the jury. In support of its argument in opposition to Price's new trial motion, Toyota attached the affidavit of juror W.P., in which W.P. stated in part:
After considering the arguments from both sides, the trial court denied Price's new trial motion, on the basis of the "invited error doctrine."
The plaintiff, Price, appealed the trial judge's denial of her new trial motion to this Court; pursuant to Ala.Code 1975, § 12-2-7, we transferred the appeal to the Court of Civil Appeals. The Court of Civil Appeals reversed the trial court's denial of Price's motion for a new trial. That court wrote:
Price v. Toyota Motor Corp., 684 So.2d at 131. On this certiorari review, Toyota requests that we reverse the Court of Civil Appeals' holding and reinstate the judgment in its favor.
STANDARD OF REVIEW
On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals. In McBride v. Sheppard, 624 So.2d 1069, 1070-71 (Ala.1993), this Court stated the standard applicable on review of a trial court's ruling on a motion for new trial:
Judge Cates, while serving on the Court of Appeals, wrote Beasley v. State, 39 Ala.App. 182, 96 So.2d 693 (1957), Alabama's leading case in the area of disqualified jurors. In Beasley, he enunciated a three-part test for reviewing trial court rulings on new trial motions in cases where an allegedly disqualified person served on the jury:
Beasley, 39 Ala.App. at 185, 96 So.2d at 695-96.
We need not consider the first question of the Beasley test (see footnotes 1 and 2). As to the third question, our opinions in Noble Trucking Co. v. Payne, 664 So.2d 202 (Ala. 1995), and Chrysler Credit Corp. v. McKinney, 456 So.2d 1069 (Ala.1984), hold that, provided that the complaining litigant exercised due diligence to have disqualified persons removed from the jury pool (question two), a venireperson's failure to respond to a question concerning a statutory disqualification requires the grant of a new trial. The issue before this Court, then, is whether the trial judge correctly denied Price's new trial motion based upon his finding that Price had invited the error she now complains of, by failing to exercise due diligence to keep W.P., who she now alleges to be disqualified, off the jury panel.
Under Alabama law, a "[f]ailure to timely challenge a juror for cause may result in a waiver of the right to do so if the fact of disqualification is either known or, through the exercise of due diligence, should be known." Watters v. Lawrence County, 551 So.2d 1011, 1016 (Ala.1989) (citing Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So.2d 431 (1971)).
The facts of the present case are distinguishable from those of Noble in two very important ways. First, Price was not present when the qualifying judge conducted the initial questioning of the jury. Price's attorneys had no way of knowing whether any questions had been asked of the jury pool concerning loss of the right to vote because of criminal convictions (§ 12-16-60(a)(4)) or conviction of a felony (§ 12-16-150(5)); despite this lack of knowledge, Price's attorneys
We recently held in General Motors Corp. v. Hopper, 681 So.2d 1373 (Ala.1996), that a party cannot wait until the entry of an adverse judgment to fulfill his or her duty to assist the trial court in determining the statutory qualifications of the members of the jury panel. In that case, we quoted with approval the following language from Pogue v. State, 429 So.2d 1159, 1161 (Ala.Crim.App. 1983):
See Hopper, 681 So.2d at 1374. We, therefore, cannot conclude from the record that the trial judge plainly and palpably erred in concluding that Price had failed to exercise due diligence in fulfilling her duty to assist the trial court during voir dire in identifying and removing disqualified persons from the jury pool.
Because we find merit in Toyota's first argument, we need not decide the issue whether, by challenging Toyota's strike of W.P., Price waived the right to assert that W.P. was statutorily disqualified. We do note the obvious fundamental unfairness that would result from allowing Price, who had failed to fully participate in voir dire and therefore did not know whether W.P. was statutorily qualified to serve as a juror, to profit from her successful challenge of Toyota's strike of W.P.
REVERSED AND REMANDED.
MADDOX, J., concurs specially.
ALMON and COOK, JJ., concur in the result.
MADDOX, Justice (concurring specially).
I concur with the opinion. I write specially only to point out an additional reason why a new trial was not merited in this case.
The Alabama Rules of Civil Procedure were adopted primarily to ensure that cases and controversies like this would be decided on their merits. In fact, Rule 1(c) of those Rules specifically states: "These rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action."
Commenting on these rules, retired Circuit Judge James Haley, who worked so long and hard as a member of this Court's Advisory Committee on the Rules of Civil Procedure, said that Rule 1 was one of the most important of the civil rules and that it should be understood to apply to all of the other rules. I agree with Judge Haley.
In my opinion, the spirit of the Rules of Civil Procedure generally requires that challenges to prospective jurors on the ground that they are statutorily or otherwise disqualified should always be made pre-trial. In applying the provisions of Rule 1(c) to this case, I ask this question: Would it be "just" to allow a party who has not been diligent in determining a potential disqualification of a prospective juror to go through an entire trial and then obtain a new trial because a particular juror was statutorily disqualified? I think not.
I make one additional comment. The civil rules offer litigants sufficient time and opportunity to determine the qualifications of jurors, and I have strongly advocated the use of a questionnaire to assist a litigant in determining which jurors would be best qualified to serve in any particular case. See Ex parte Bruner, 681 So.2d 173 (Ala.1996) (Maddox, J., concurring in the result); General Motors v. Hopper, 681 So.2d 1373 (Ala.1996) (Maddox, J., concurring specially). If the plaintiffs had used a juror questionnaire in this case, they might have discovered the juror's past criminal conviction and thus prevented the problem now before us.
But, see, Ex parte Poole, 497 So.2d 537, 544 (Ala.1986), and the plurality opinion in Williams v. Lide, 628 So.2d 531, 533-34 (Ala.1993). There is no evidence that W.P. lost the right to vote. His affidavit in opposition to the new trial motion provided the only evidence in the record of his voting status:
Because Toyota does not question Price's assertion that, because of § 182, W.P. is not entitled to vote and is, therefore, disqualified from jury service pursuant to § 12-16-60(a)(4), we will assume for purposes of this appeal that W.P. was not statutorily qualified to serve on the jury in this case.
See Holland v. Brandenberg, 627 So.2d 867, 870 (Ala.1993):