Opinion
No. 61231-0-I.
March 2, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-06720-1, Jeffrey M. Ramsdell, J., entered January 22, 2008.
Affirmed by unpublished per curiam opinion.
John Lee Williams appeals his conviction for domestic violence felony violation of a court order. He contends that the trial court violated his right to a fair and impartial jury under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution when it excused a prospective juror for cause based on her statements about jury nullification. Because the trial court was in the best position to determine the juror's ability to be fair and impartial — as it had the opportunity to evaluate the juror's demeanor and conduct as well as her statements — we cannot say that the trial court erred in concluding that the juror exhibited actual bias. Moreover, any error the trial court may have committed is harmless since Williams fails to show that an unqualified juror replaced that juror. We affirm.
Background
Williams was charged with felony violation of a no-contact order. On the first day of voir dire, November 27, 2008, the court addressed the jury venire, which prompted the following exchange with juror 13.
THE COURT: One of the other instructions you'll be given as jurors, and you've actually heard it once already, is that as jurors you are under an obligation to follow the law as given to you by the court regardless of what you personally believe the law is or ought to be.
Just to let you know, it's the same obligation I have. Not every law is a law that I would necessarily subscribe to if I had my choice. But it's not my job to rewrite the law or interpret it the way I think it should be written. And what you would be required to do as jurors is to follow the law as given to you by the Court.
Do any of you think you might have a problem following the notion if you didn't like the way the law was, for example? Would you have a problem following it? Again, it's kind of an unfair question because you haven't gotten the law yet. Do any of you think you might have a problem with it?
JUROR 13: Are you talking about jury nullification?
THE COURT: In a word, yes.
JUROR 13: I believe in jury nullification.
THE COURT: Okay. So in other words —
JUROR 13: It's a long-standing principle within our judicial system from the beginning.
THE COURT: So in other words, if you thought the law required you to reach one verdict but you disagreed with the result —
JUROR 13: It would be the same principle as the reason we don't have prohibition anymore. Jury nullification. If the law is not a fair or just law, the jury has a right to say they won't convict on it, which is jury nullification.
The next eight jurors agreed with juror 13's statements about jury nullification, leading to another exchange between juror 13 and the court.
JUROR 13: I'm sorry. I didn't mean to open a can of worms.
THE COURT: You know what? That's exactly what you're supposed to do. That's why we're going through this process. I appreciate you opening those doors. That's what we're here to talk about.
JUROR 13: Yeah. Well, there's treatises written on it by the first supreme court justice on jury nullification. That's one of my hobbies I didn't mention was constitutional law.
Later, juror 13 interjected about how jury service was a check upon the government and that "[i]t's very important that you do it. I mean, if you were sitting in that defendant's chair, trust me, you'd be hoping this was happening for you."
The prosecutor subsequently moved to excuse juror 13 for cause on grounds that juror 13 "is a believer in jury nullification, that she believes that it's a constitutional right and duty, and that we could not — we could not be sure that that's not what she would attempt to do once — if she was selected as a juror." Defense counsel objected to the State's challenge for cause.
The court heard argument and then issued its ruling on juror 13.
MR. KITCHING [defense counsel]: Well, Your Honor, as I was looking at some of the case law brought in by Ms. Berliner, particularly the Elmore case —
THE COURT: That seems to be the most instructive.
MR. KITCHING: — I guess I didn't hear Juror 13 say that she would disregard the law in every case.
THE COURT: No. But the cautionary tale that Elmore brings us is that it's far more difficult and concerning to untangle the knot once they go into deliberations than it is to deal with it beforehand. . . .
The fundamental principle that is being articulated by the person who says I believe in jury nullification is that if I don't like the law, I don't have to pay any attention to it.
. . . .
[T]here's two sides to this sword that I'm really nervous about. There's the jury nullification that you're hoping for and there's the notion that I don't have to pay attention to what the judge says, which could actually hurt the defendant in the long run. And so with that understanding, I'm inclined to grant the challenge for cause because I think this is a two-edged sword that may not always be borne to the benefit of the defendant. So I'm going to grant the motion.
MR. KITCHING: . . . I'm just not sure that we've inquired enough of this particular juror if that's the sort of juror she is or whether or not she is just saying philosophically that she feels that our constitution allows jurors to not always follow the law.
THE COURT: Well, there's a fundamental precept that the jurors are required to follow the law as given to them by the judge, even if they don't agree with it. . . .
That being said, what she said in essence was: I don't feel I have to follow the law. And like I said, that is a dangerous place for us to venture into because it could be detrimental to the rights of the defendant in ways that we're not thinking of right now.
. . . I'm going to error [sic] on the side of caution. . . . I think that's a safer course of action rather than waiting.
So Juror 13 will be dismissed for cause.
A jury was impaneled and convicted Williams as charged. He received a standard range sentence of 14 months confinement.
Standard of Review
A trial court's ruling on a juror challenge for cause is reviewed for abuse of discretion.
State v. Tingdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991).
Discussion
Williams argues that the trial court abused its discretion in excusing juror 13 based on her statements about jury nullification. He asserts that the court erred by failing to ask juror 13 whether she could put aside her jury nullification beliefs and decide the case impartially.
"A prospective juror must be excused for cause if the trial court determines the juror is actually . . . biased." Actual bias is "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." In determining whether actual bias exists, the question is whether a juror with preconceived ideas 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.'" Our courts have held that this question is best left to the trial court:
State v. Gosser, 33 Wn. App. 428, 433, 656 P.2d 514 (1982).
Gosser, 33 Wn. App. at 433 (quoting State v. White, 60 Wn.2d 551, 569, 374 P.2d 942 (1962)); State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991).
Case law, the juror bias statute, our Superior Court Criminal Rules and scholarly comment all emphasize that the trial court is in the best position to determine a juror's ability to be fair and impartial.
It is the trial court that can observe the demeanor of the juror and evaluate and interpret the responses.
Noltie, 116 Wn.2d at 839.
Here, the trial court drew upon its observation of juror 13's demeanor, as well as her statements about jury nullification, to conclude that "what [juror 13] said in essence was: I don't feel I have to follow the law." Based on this interpretation, the court decided to excuse juror 13 for cause, explaining to defense counsel that impaneling juror 13 could harm Williams. The court also reasoned that removing juror 13 at this stage of the proceedings was prudent, which is supported by case law. "In general, it is preferable to resolve the question of juror bias during voir dire rather than through a postverdict motion for a new trial." In light of this record, the trial court did not err in excusing juror 13 for cause.
State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994) (holding that the trial court erred in failing to conduct an evidentiary hearing before ruling on the defendant's motion for a new trial when a juror exhibited racial bias during deliberations).
Moreover, any error the trial court may have committed is harmless under State v. Phillips. In that case, doubt was raised about a prospective juror's citizenship. When the trial court excused the juror without proof that he failed to meet citizenship requirements, Phillips appealed, arguing that he had been denied a fair and impartial jury. Our Supreme Court disagreed. Declaring that Phillips "had no vested right in any particular juror," the court held that removal of a juror on insufficient grounds did not result in prejudice unless an unqualified juror was selected as a replacement. Because Phillips failed to show that this had occurred, the court concluded that he suffered no prejudice. Similarly, in this case, Williams does not show that an unqualified juror was seated as a result of juror 13's removal, so he fails to establish prejudice. Thus, even if the court's decision to grant the State's challenge for cause was error, that error was harmless.
65 Wash. 324, 118 P. 43 (1911).
Phillips, 65 Wash. at 326.
Phillips, 65 Wash. at 326.
Phillips, 65 Wash. at 326.
Phillips, 65 Wash. at 326-27.
Phillips, 65 Wash. at 327.
Conclusion
The trial court was in the best position to evaluate juror 13's ability to be fair and impartial. Its conclusion that juror 13 exhibited actual bias was based not only on her statements about jury nullification but also on her demeanor and conduct. Moreover, since Williams fails to show that an unqualified juror replaced juror 13, any error the court may have committed is harmless. The trial court did not abuse its discretion by granting the State's challenge for cause.
Affirmed.