Opinion
No. 61142-9-I.
March 2, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10952-6, Douglas D. McBroom, J., entered December 19, 2007.
Affirmed by unpublished per curiam opinion.
Devon Lewis Harris was convicted of two counts of promoting prostitution in the second degree. He argues that his conviction must be reversed because the trial court erred when it failed to discharge a potential juror who demonstrated actual bias during voir dire. In the alternative, he argues that he received ineffective assistance of counsel because his attorney failed to challenge the juror for cause. We affirm because, although the juror demonstrated some bias regarding the type of case, it did not amount to actual bias and the juror was successfully rehabilitated with further questioning.
Background
During voir dire, the prosecutor asked the jury panel whether any of them had a reaction to the nature of the charges or to the area of the city where the crimes occurred. The following colloquy occurred between the prosecutor and Juror 6:
PROSPECTIVE JUROR NUMBER 6: I . . . would have no problem of it being discussed. That's not the problem. My problem is sort of the legal — the illegal transaction with the woman in the middle. So a transaction between two men, where the woman is the object, I have a very strong reaction about that.
MS. COOK: Okay. And I'm going to have to ask you a little bit more detail. I mean, what kind of reaction are you having?
PROSPECTIVE JUROR NUMBER 6: Well, it's — it's — you know, I have a — it's disgusting. It's — it — I — it enrages me actually.
MS. COOK: Okay.
PROSPECTIVE JUROR NUMBER 6: I don't have a problem with the woman making that transaction for herself. I have no problem with that, but the problem for me is the two men kind of making this exchange, the woman in the middle having no say. So when I heard the Judge's story, that's how I sort of set it up in my mind.
MS. COOK: Okay. We can't tell you anything about this case because we want to make sure that you remain objective, but, if I'm hearing you correctly, if that were the type of situation that ended up developing throughout the course of this trial, that maybe you would have answered that question differently that [sic] the Court asked?
PROSPECTIVE JUROR NUMBER 6: Well, that isn't really the question she asked.
. . . .
MS. COOK: Okay. But you indicated you had some pretty strong feelings about that type of scenario?
PROSPECTIVE JUROR NUMBER 6: I think it's a really horrible thing. I take the female perspective, that's really awful.
MS. COOK: Well, if that were the situation that were presented at trial, do you feel like you could be objective? I mean, you've made comments about this person could be innocent. Do you think you could maintain that presumption of innocence?
PROSPECTIVE JUROR NUMBER 6: Yes. . . . The crime itself, in my mind, is just revolting.
MS. COOK: Okay. But you would be able to listen to the case. And if you did believe, after hearing all the evidence, that you didn't think this person was guilty, that you would vote not guilty?
PROSPECTIVE JUROR NUMBER 6: Yes.
Later, Harris's attorney questioned Juror 6 about whether she believed she could follow the court's instructions, and she replied, "Yes. I do have some emotional — you know, around this particular issue. But, also having a man's fate, future in my hands and our hands is a very grave responsibility and I will take that extremely seriously."
Neither party challenged Juror 6, and she was selected as a member of the jury. Harris now argues that the court should have excused Juror 6 because she demonstrated actual bias. In the alternative, Harris argues that his counsel was ineffective for not challenging Juror 6 for cause.
Standard of Review
We review the trial court's decision to grant or deny a particular challenge of a juror for cause for manifest abuse of discretion because the trial court is in the best position to evaluate whether a particular potential juror is able to be fair and impartial, based on the juror's demeanor and responses during voir dire. A trial court's excusal of jurors on its own motion is also reviewed for abuse of discretion. Thus, we will review the trial court's alleged failure to dismiss a juror on its own motion under the abuse of discretion standard.
State v. Noltie, 116 Wn.2d 831, 838-39, 809 P.2d 190 (1991).
See State v. Killen, 39 Wn. App. 416, 418, 693 P.2d 731 (1985).
Discussion
Under the Sixth Amendment to the United States Constitution and article 1, section 22 of the Washington Constitution, every criminal defendant has the right to a fair and impartial jury. The failure to provide a defendant an impartial jury violates due process.
State v. Fire, 100 Wn. App. 722, 725-26, 998 P.2d 362 (2000) (citing State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995)), rev'd on other grounds, 145 Wn.2d 152, 34 P.3d 1218 (2001).
State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969), abrogated on other grounds by State v. Fire, 145 Wn.2d 152, 34 P.3d 1218 (2001).
Where a defendant challenges a juror for cause, the trial court must excuse a juror for cause if actual bias is shown. Additionally, a judge must excuse a juror if, after examination of that juror, the judge "is of the opinion that grounds for challenge are present." One ground for challenge is actual bias, which is defined as "the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging." But "[a] juror is not disqualified because he holds certain preconceived ideas, provided he can put these notions aside and decide the case on the basis of the evidence given at the trial and the law as given him by the court."
State v. Grenning, 142 Wn. App. 518, 540, 174 P.3d 706 (2008).
CrR 6.4(c)(1).
State v. White, 60 Wn.2d 551, 569, 374 P.2d 942 (1962).
Harris compares his case with three cases in which the appellate court held that a potential juror demonstrated actual bias: State v. Witherspoon, State v. Fire, and State v. Gonzales. In those cases, each of the challenged jurors demonstrated actual bias and did not satisfactorily demonstrate an ability to set aside that bias and try the case impartially. Here, however, Juror 6 did not demonstrate actual bias and she did demonstrate the ability to set aside her preconceived ideas and try the case impartially.
82 Wn. App. 634, 919 P.2d 99 (1996).
100 Wn. App. 722, 998 P.2d 362 (2000).
111 Wn. App. 276, 45 P.3d 205 (2002).
In Witherspoon, an African American defendant was charged with drug possession. A potential juror candidly admitted he was prejudiced against African Americans when he stated:
When what you see in the newspaper, I have to admit I'm a little bit prejudiced. I see a lot of black people who are dealing drugs. When drugs are dealt, that's who is involved unfortunately. I can't help it. I'm sorry. I'm that way. I see it in the papers all the time, and I can't help but be influenced.
Witherspoon, 82 Wn. App. at 637-38.
The court stated that the juror's statement "unequivocally concede[d] a prejudice against African Americans — a specific prejudice that they deal drugs." Although the prosecutor attempted to rehabilitate the juror, those attempts were not sufficient to "mitigate a categorical statement . . . that he [was] prejudiced against African Americans. . . ." Therefore, the court held that the trial court had abused its discretion in denying Witherspoon's challenge for cause of that juror.
Witherspoon, 82 Wn. App. at 638.
Witherspoon, 82 Wn. App. at 638.
Similarly in Fire, a potential juror demonstrated actual bias and was not satisfactorily rehabilitated. The juror said, "I consider him a baby raper, and it should just be severely punished," and went on to say that he was "very opinionated when it comes to this kind of crime." He admitted that his opinions could affect his determination of guilt or innocence and that he would "probably give children a higher credibility factor than an adult." The prosecutor attempted to rehabilitate him by asking if he could follow the law regarding the burden of proof, to which he gave "one-word affirmative responses." We held that under the specific facts where the juror had actually said, "I consider him a baby raper," the attempt to rehabilitate the juror by garnering one-word affirmative responses to the prosecutor's leading questions was insufficient. In so holding, we noted that whether a juror can be rehabilitated after initially demonstrating bias is a fact-specific determination.
Fire, 100 Wn. App. at 728.
Fire, 100 Wn. App. at 724.
Fire, 100 Wn. App. at 724-25, 728.
Fire, 100 Wn. App. at 728.
Fire, 100 Wn. App. at 728-29.
In Gonzales, a potential juror demonstrated actual bias when she stated she was more likely to believe testimony of police than that of other witnesses, and no attempt was made to rehabilitate the juror. She "unequivocally admitted a bias regarding a class of persons (. . . police witnesses) and indicated the bias would likely affect her deliberations." The juror also admitted that she was unsure whether she could follow the judge's instructions regarding the presumption of innocence and did not express confidence in her ability to deliberate fairly. In concluding that the trial court erred in denying Gonzales's challenge for cause, we noted that a juror's expression of preference in favor of police testimony is not conclusive evidence of actual bias, contrasting State v. Gosser. In Gosser, a juror who was a retired state trooper initially indicated that he would tend to find the testimony of a police officer more credible than that of an accused. However, he also indicated that he would presume the defendant innocent and would not automatically believe the testimony of a witness just because the witness was a police officer. Noting that the trial court was in a better position to evaluate and interpret the juror's responses, the appellate court held that it was not an abuse of discretion to deny the challenge for cause. In Gonzales, however, the juror gave no indication that she could set aside her bias.
Gonzales, 111 Wn. App. at 278-81.
Gonzales, 111 Wn. App. at 281.
Gonzales, 111 Wn. App. at 279, 282.
33 Wn. App. 428, 656 P.2d 514 (1982).
Gosser, 33 Wn. App. at 431-33.
Gosser, 33 Wn. App. at 434.
Gosser, 33 Wn. App. at 434.
Gonzales, 111 Wn. App. at 282.
While Juror 6 initially demonstrated some bias regarding the charged crime, it did not amount to actual bias, and she was successfully rehabilitated.
Initially, Juror 6 stated that she had a "very strong reaction" to the idea of two men conducting a transaction with a woman as the object of the transaction and found the crime itself "revolting" and "horrible." Despite her negative reaction to the charged crime, Juror 6 never exhibited a state of mind indicating that she would not be able to try the issue impartially and without prejudice to Harris, and therefore she did not exhibit "actual bias" as defined in RCW 4.44.170(2). To the contrary, when the prosecutor asked whether she could remain objective if the evidence revealed such a situation, Juror 6 stated, "Oh, it could be that this gentleman is innocent." She responded affirmatively when asked whether she could follow instructions, but unlike in Fire, "one-word affirmative responses" were not the only indications that she would be an impartial juror. She stated that she would take her responsibility as a juror very seriously and understood that the defendant's future was at stake. She demonstrated that she would follow instructions and that she presumed Harris innocent. Thus, unlike the jurors in Witherspoon, Fire, and Gonzales, Juror 6 was successfully rehabilitated. The trial court did not abuse its discretion in failing to excuse Juror 6.
Harris also argues that he received ineffective assistance because his attorney failed to challenge Juror 6 for cause. To show ineffective assistance of counsel, Harris must show that his attorney's performance was so deficient that it fell below an objective standard of reasonableness and that there is a reasonable probability that the counsel's unprofessional errors affected the outcome of the trial. The failure to challenge Juror 6 for cause does not constitute deficient performance because Juror 6 did not demonstrate actual bias and any bias that she expressed was neutralized by her responses to further questioning. Harris's counsel specifically questioned Juror 6 during voir dire and was evidently satisfied by her ability to remain impartial. Furthermore, the record shows that counsel may have had tactical reasons for wanting to retain Juror 6 because she took her responsibility as a juror seriously and was generally distrustful of police officers. Counsel's performance was not deficient.
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
Affirmed.