State v. Guevara Diaz

11 Wash.App.2d 843

456 P.3d 869

STATE of Washington, Respondent,

v.Mario Roberto GUEVARA DIAZ, Appellant.

NO. 77811-1-I

Court of Appeals of Washington, Division 1.

FILED: January 27, 2020

Nielsen Koch PLLC, Attorney at Law, Eric J. Nielsen, Kevin Andrew March, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122, for Appellant.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201-4060, for Respondent.

PUBLISHED OPINION

Leach, J. ¶1 Mario Roberto Guevara Diaz appeals his conviction for second degree rape. He contends that the trial court violated his constitutional right to a fair and impartial jury by allowing a biased juror to serve. He also claims that his trial counsel provided ineffective assistance.

¶2 Before voir dire, juror 23 stated, in a juror questionnaire, that she could not be fair to both sides in a trial for sexual assault or abuse. The trial court refused defense counsel’s request to question her outside the presence of other jurors to avoid tainting the other jurors. During voir dire, no one asked juror 23 about her answer. She served on the jury that convicted Guevara Diaz.

¶3 Juror 23’s answer shows actual bias. Because the trial court did not sufficiently oversee the juror selection process or conduct a sufficient independent inquiry before allowing this apparently biased juror to serve, it did not adequately protect Guevara Diaz’s right to a fair and impartial jury. The presence of a biased juror can never be harmless and requires a new trial without a showing of prejudice. So we reverse and remand without considering Guevara Diaz’s complaint about his trial counsel.

FACTS

¶4 The State charged Mario Roberto Guevara Diaz with one count of second degree rape and one count of third degree rape. At the beginning of trial, the judge explained to the jury that he and the attorneys would be asking them questions, first with a questionnaire and then orally. The judge told the potential jurors that counsel had prepared a questionnaire and pointed out that each juror had "the opportunity to be questioned outside the presence of the other jurors in the event that certain questions are answered yes."

¶5 Question 7 on the questionnaire asked, "Can you be fair to both sides in a case involving allegations of sexual assault or sexual abuse?" Thirteen potential jurors, including juror 23, answered "no." Juror 23 also answered "yes" to these questions, "Have you ever been the victim of a sexual assault or sexual abuse?" and "Has anyone close to you, family or friend, ever been the victim of a sexual assault or sexual abuse?" And she answered "no" to questions asking, "Was the person who assaulted or abused you prosecuted" and whether she or anyone close to her had ever been "accused, falsely or otherwise, of committing a sexual assault or sexual abuse."

¶6 Thirteen jurors stated that they wished to be questioned outside the presence of other jurors. Seven of them had answered they could not "be fair." Six others, including juror 23, who also answered that they could not "be fair" did not ask to be questioned outside the presence of other potential jurors.

¶7 Defense counsel asked the court to allow him to question outside the presence of other potential jurors all 13 jurors who said that they could not be fair to both sides. The court responded, "Well, apparently you would not offend their sensibilities by asking them about that in front of the other jurors. Is there a particular concern I should be aware of?"

¶8 Defense counsel replied,

It just seems that if somebody already, without knowing any of the facts of the case, self-selects themselves as being not fit to participate, I think ... that a juror who’s thinking like that carries a real risk of tainting the jury pool by starting to blurt things out in the middle of voir dire, like "I already know the guy did it," which I see happen more often than I like to see.

So I think out of an abundance of caution, I do think it would be appropriate for the Court to ask those seven jurors individually why they answered they could not be fair.

¶9 The prosecutor deferred to the court. The judge said that he had "presided over quite a few jury trials, and [had not] seen [a case] where a remark from a potential juror ... tainted the other panel." He suggested that

typically, ... some of [the jurors] don’t fully understand what their job is supposed to be and think that the allegation is—is enough.

In other words, they sometimes will say something like, "If your client is guilty, then I ... can’t be fair to him." And that, of course, puts the cart before the horse.

Other ones I think sometimes will ... say that, because they are, for one reason or another, having a reaction to the subject matter generally—and others possibly have no good reason to say that apart from looking for a reason to get off the jury. And I wouldn’t like to say that ordinarily, except I’ve had enough experience to know that that is another thing that can happen.

.... Every trial there are some who say they cannot be fair and impartial. I have not yet seen anybody who has said anything that carried such weight with anybody else that it can taint the other jurors. ...

At this stage, ... the purpose of this process is really intended to make [the jurors] comfortable enough to give us the answers that we need to have in open court, and that’s the reason why they are outside the presence of the other jurors.

So I’m not inclined to bring ... the seven that you identified up just to find out ... why they think they cannot be fair and impartial outside the presence of the other jurors.

¶10 Defense counsel said that it seemed to him that the "potential jurors who answered that [they could not be fair] are presumptively not going to be fair in this case. They are going to be ‘for cause’ challenges."

¶11 The judge replied, "They may well be. I fully anticipate that some of them will wind up getting challenged for cause successfully. And depending on what they say, others might not, but we’ll have to hear from them first."

¶12 The first two jurors that counsel and the court questioned maintained that they were not sure that they could be fair. Defense counsel challenged each for cause. The court dismissed both.

¶13 During individual questioning, the court excused seven jurors who said they could not be fair on their questionnaire.

¶14 The remaining potential jurors then returned to the courtroom. The court asked these jurors several questions based on questionnaire answers. At one point, the court said, "Question 7, would any of you be unable to assure the Court that you will follow the instructions on the law regardless of what you think the law is or ought to be? And there are no hands."

¶15 The prosecutor asked the jurors collectively if anyone thought it would be their "role or any juror’s role to compromise a situation because they didn’t want someone to get in trouble after a conviction," despite the judge instructing them that their decisions had "nothing to do with punishment that may follow conviction." After one juror answered, the prosecutor asked juror 23 if she understood the question, and whether she would "be able to follow" a judge’s instruction? Juror 23 said, "I would be able to. No compromising. That’s for sure."

¶16 Later, the prosecutor had the following exchange with the jurors:

[PROSECUTOR]: "Do you all promise that you will give both sides a fair trial in this case?

"Do you agree that the defendant, as he sits here, is presumed innocent until proven guilty? Do you promise to give him a fair trial?

"Do you agree that the State, represented by the prosecutor, ... has the burden of proof in this case?

"Do you all also agree that the State is also entitled to a fair trial?

"There’s a lot of nodding of heads ... you all mean, yes, right?"

JURORS: "Yes."

[PROSECUTOR]: "Do you promise to give the State a fair trial?"

JURORS: "Yes."

The defense attorney questioned the jurors for about 17 minutes.

¶17 The prosecutor then addressed the jurors again. At one point, he discussed the need to be able to follow the court's instructions even if they contradicted a juror’s understanding of the law. He concluded with the following exchange:

[PROSECUTOR]: "Can you assure the Court and the attorneys that you will follow the law as given to ... you by the judge like you’ve already said that you will do here, regardless of what you think the law is or should be? Is that a promise that you can make to the Court?

"Back here, same question. Can you all assure the Court and the attorneys that you will follow the law given to you, regardless of what you think the law is?"

JURORS: "Yes."

The defense attorney then finished his questioning.

¶18 The court then asked the attorneys if either wished to challenge any other juror for cause. Both answered "no." The defense attorney then exercised all seven of his peremptory challenges, including excusing two jurors who said they could not be fair to both sides. The court seated two jurors who said that they could not be fair, juror 23 and juror 27. Before deliberations, the court identified juror 27 as an alternate juror, who did not participate in deliberations.

¶19 The jury found Guevara Diaz guilty of one count of second degree rape and one count of third degree rape. The court vacated the conviction for third degree rape because it violated Guevara Diaz’s rights against double jeopardy.

¶20 Guevara Diaz appeals.

ANALYSIS

¶21 Guevara Diaz asserts that because juror 23 expressed actual bias, the trial court should not have allowed her to serve without further inquiry. We agree.

Guevara Diaz Did Not Waive His Challenge

¶22 As a preliminary matter, the State contends that Guevara Diaz waived his challenge to juror 23 because he knowingly failed to challenge her below.¹ We disagree.

¶23 This court will consider an issue a party did not raise below if it involves manifest constitutional error....