Opinion
No. 37350-5-II.
Filed: September 3, 2009.
Appeal from the Superior Court, Pierce County, No. 07-1-05276-5, John R. Hickman, J., entered February 8, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Becker, JJ.
Unpublished Opinion
The State charged Matthew Galvin with first degree malicious mischief. During deliberations, juror 8 received a letter from the Pierce County Prosecutor's Office informing her that the prosecutor involved in Galvin's case would also be prosecuting an identity theft case in which she was a victim. Juror 8 shared this information with the other jurors and the trial court and, at the State's request, the trial court questioned each juror. The trial court chose not to excuse juror 8 and accepted the jury's guilty verdict. Galvin now appeals, arguing that (1) the trial court abused its discretion by choosing not to dismiss either juror 8 or the entire jury, and (2) he was denied effective assistance of counsel. He also makes additional claims in a statement of additional grounds for review (SAG). We affirm.
FACTS
On October 11, 2007, the State charged Galvin with one count of first degree malicious mischief. On January 25, 2008, the jury announced that it had reached a verdict. It also informed the trial court that it wanted to make a "disclosure." 4 Report of Proceedings (RP) at 235. Juror 8 told the trial court that she had received a letter in which the Pierce County Prosecutor's Office informed her that the same prosecutor who tried Galvin's case had been assigned to a pending identity theft case in which she was a victim. She explained that she had shared the coincidence with her fellow jurors during morning deliberations.
Both the prosecutor and juror 8 subsequently clarified that a victim/witness advocate, and not the prosecutor, had sent the letter.
Although the trial court noted that the jury was "well into their deliberations" before juror 8 received the letter, it, the State, and defense counsel agreed to question juror 8 about the letter and its potential effect on deliberations. 4 RP at 236. When questioned, juror 8 explained that she received the letter the previous day after returning home from deliberations. She stated that she had reached her decision as to Galvin's guilt the day before and that the letter had not raised any "doubts or swayed [her] from that." 4 RP at 237. Defense counsel asked her whether she thought knowing about the letter had affected the way she presented her views to the other jurors. She said "[n]o" and explained that the other jurors thought it was a "small world kind of thing" and that "nobody cared." 4 RP at 240.
The State continued to express concern about the possibility of jurors believing that the prosecutor had had improper contact with juror 8 and requested the opportunity to question the remaining jurors. Both the trial court and defense counsel agreed. Defense counsel stated that he would not move for a mistrial unless the jurors indicated that the letter had affected their deliberations.
The trial court questioned each juror individually, asking if the letter had affected his or her ability to make a fair and impartial decision or deliberation in this case. Each juror responded that it had not. Four jurors stated that they thought it was an interesting coincidence. Seven jurors explained that they had already reached a verdict prior to hearing about the letter. All of the jurors stated that this information had not affected their decision.
After the trial court dismissed the jury, defense counsel stated that he had no argument to make. The trial court announced that it was satisfied that the information had not affected the jury's impartiality and accepted the jury's guilty verdict. Galvin now appeals.
ANALYSIS
I. Preservation of Error
As a preliminary matter, the State argues that Galvin failed to preserve any claim regarding juror 8 by failing to request a mistrial below. Galvin does not respond to the State's argument regarding this issue.
Under RAP 2.5(a), "a party may raise . . . claimed errors for the first time in appellate court: . . . [if it is a] manifest error effecting a constitutional right." The defendant must identify a constitutional error and show how, in the context of the trial, the alleged error actually affected his rights; it is this showing of actual prejudice that makes the error "manifest," allowing appellate review. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest. State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993). Division One of this court has held that the issue of implied bias is one that may be considered for the first time on appeal under RAP 2.5(a). State v. Cho, 108 Wn. App. 315, 329, 30 P.3d 496 (2001). It goes to the impartiality of the fact finder, a right guaranteed by the Sixth Amendment and a touchstone of the constitutional guarantee of a fair trial. Cho, 108 Wn. App. at 329. The facts here are quite different than those in Cho and there may well be invited error or waiver issues that should preclude review. In any case, we consider the issue on its merits and reject the claim.
II. Juror Bias
Galvin argues that the trial court abused its discretion by declining to order a mistrial when it discovered that juror 8 was a victim in a case assigned to the prosecuting attorney involved in Galvin's case. Specifically, Galvin claims that the "unique relationship" between a crime victim and a prosecutor is akin to an attorney-client relationship and that the trial court should have dismissed the juror for implied bias under RCW 4.44.180(2). Appellant's Br. at 15. The State responds that the trial "court's inquiry dispelled any appearance or suspicion that the jury . . . was tainted." Resp't's Br. at 8. Galvin's arguments fail for two reasons. First, the relationship between a crime victim and a prosecutor does not constitute an attorney-client relationship for purposes of RCW 4.44.180(2). Second, the trial court did not abuse its discretion by finding insufficient cause to dismiss either juror 8 or the entire jury for unfitness.
Both the federal and state constitutions guarantee an impartial jury in criminal prosecutions. U.S. Const. amend. VI, XIV; Wash. Const. article I, §§ 3, 22; State v. Davis, 141 Wn.2d 798, 824-25, 10 P.3d 977 (2000). By statute, trial courts must excuse "any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias. . . ." RCW 2.36.110. Echoing this statute, CrR 6.5 requires that "[i]f at any time before submission of the case to the jury a juror is found unable to perform the duties the court shall order the juror discharged[.]" RCW 2.36.110 and CrR 6.5 together "place a 'continuous obligation' on the trial court to investigate allegations of juror unfitness and to excuse jurors who are found to be unfit, even if they are already deliberating." State v. Elmore, 155 Wn.2d 758, 773, 123 P.3d 72 (2005).
RCW 4.44.180 enumerates certain relationships between a potential juror and a party from which the law implies bias and for which prospective jurors may be excused. In those instances, actual bias need not be shown. This statute explicitly lists the bases for implied bias including a juror "standing in the relation of . . . attorney and client . . . to a party." RCW 4.44.180(2). A juror may be challenged for implied bias for any of the listed causes "and not otherwise." RCW 4.44.180.
In determining whether a juror is biased, the trial judge serves as both an "observer and [a] decision maker." State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d 866 (2000). This allows the judge to weigh the juror's credibility based on his or her observations. State v. Rupe, 108 Wn.2d 734, 749, 743 P.2d 210 (1987). As with other factual determinations made by the trial court, we defer to the trial judge's decision absent an abuse of discretion. Jorden, 103 Wn. App at 229. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008) (quoting State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)).
Galvin relies on several crime victim statutes to demonstrate that "there is a unique relationship between the prosecutor and the victim in a criminal case." Appellant's Br. at 15. While Galvin's statement may be true, this "unique" relationship is not one of the relationships enumerated in the implied bias statute. Appellant's Br. at 15. Since bias cannot be presumed under the statute he cites, the trial court correctly addressed the question of actual bias and found none.
Additionally, Galvin asserts that "[w]hile Washington courts appear not to have addressed this issue, state and federal courts have recognized the inherent bias which may arise when there is in effect an attorney-client relationship between the prosecutor and a juror." Appellant's Br. at 14-15. Galvin cites to several cases that stand for the proposition that implied bias may exist when a prosecutor has represented a prospective juror during the course of the prosecutor's private civil practice. See State v. Jaster 690 N.W.2d 213 (N.D. 2004) (implied bias found when prosecutor was currently representing two jurors in a pending civil matters); Fugate v. Commonwealth of Kentucky, 993 S.W.2d 931 (Ky. 1999) (implied bias found when the juror had employed the prosecutor to draft a living will); Terrell v. State, 759 S.W.2d 46 (Ark. App. 1988) (implied bias found when prosecutor represented juror in pending civil case); Celestine v. Blackburn, 750 F.2d 353 (5th Cir. 1984), cert denied, 472 U.S. 1022 (no error when the trial court refused to dismiss juror whose father had been represented by the prosecutor).
In all of these cases, the prosecutor either was or had been a juror's actual attorney. In Galvin's case, the "representation" had not yet begun and what, if any, actions the prosecutor might take or refuse to take to assist juror 8 are entirely prospective and speculative. The trial judge and counsel for both parties questioned each juror individually. Each juror stated that the disclosure had no bearing on his or her ability to reach a decision. Under these circumstances and given the jurors' responses, we find no error.
III. Ineffective Assistance of Counsel
Galvin also argues that defense counsel's decision not to move for a mistrial constituted ineffective assistance of counsel. Galvin asserts that "[f]ailure to move for a mistrial when a defendant is entitled to one can be seen as just such deficient performance" and that there "could be no strategic reason" for defense counsel's decision. Appellant's Br. at 17-18. The State responds that because the trial court correctly determined that the jury was not biased, there was no error. The record demonstrates that defense counsel's decision not to request a mistrial was clearly strategic.
To show ineffective assistance of counsel, Galvin must establish that (1) his counsel's performance was deficient, and that (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984)). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). "Deficient performance is not shown by matters that go to trial strategy or tactics." State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001) (quoting State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996)). We give considerable deference to counsel's choice of tactics and presume that he or she was effective. Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335. Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Per. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
In this case, defense counsel's decision not to request a mistrial was a tactical one. Defense counsel agreed with the State and the trial court that juror 8 should be questioned about her contact with the prosecutor. After questioning juror 8 regarding her reaction to the letter as well as the other jurors' reactions to the coincidence, defense counsel stated that he did not believe that "abandoning this jury at this point in time" was necessary. 4 RP at 242. He added that he would like to question the remaining jurors but explained that unless the jurors indicated that the disclosure had affected their views, he would not move for a mistrial. After each juror individually stated that he or she had not been affected by juror 8's disclosure, defense counsel chose not to move for a mistrial. Galvin's argument fails because the record clearly demonstrates that defense counsel considered the possible risk of juror bias, sought more information from the jury, and made a strategic decision not to request a mistrial.
Specifically, defense counsel stated:
I think we do need to ask each of them individually whether or not it had any impact on them since they got the information also. I might change my view if one of them — if it actually had an impact on one of them, but if they were all to come in and say that, "It made no difference to me, it seemed like just an odd coincidence," then I don't think I would be asking for a mistrial.
4 RP at 242.
IV. SAG
Although a defendant is not required to cite to the record or authority in his SAG, he must still "inform the court of the nature and occurrence of [the] alleged errors." RAP 10.10(c). We are not required to search the record to find support for the defendant's claims. RAP 10.10(c). Galvin's claims that (1) his speedy trial rights were violated, and that (2) "[i]t was an accident" lack specificity and appear to refer to matters outside of the record. SAG at 1. Therefore, we decline to review these issues on appeal.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and BECKER, J., concur.