State v. Gutierrez

513 P.3d 812

STATE of Washington, Respondent,

v.Robert GUTIERREZ, III, Appellant.

No. 37843-8-III

Court of Appeals of Washington, Division 3.

FILED JULY 28, 2022

Lisa Elizabeth Tabbut, Attorney at Law, Po Box 1319, Winthrop, WA, 98862-3004, for Appellant.

Joseph Anthony Brusic, Yakima County Prosecutor's Office, 128 N 2nd St. Rm 329, Yakima, WA, 98901-2621, David Brian Trefry, Yakima County Prosecutor's Office, Po Box 4846, Spokane, WA, 99220-0846, for Respondent.

PUBLISHED OPINION

Staab, J.

¶ 1 Following a jury trial, Robert Gutierrez was found guilty of second degree assault, unlawful possession of a firearm, and felony harassment. On appeal, Mr. Gutierrez requests resentencing because his offender score included prior convictions for controlled substances. In his statement of additional grounds (SAG), Mr. Gutierrez raises several issues, including juror bias and ineffective assistance of counsel. We asked for additional briefing on the juror bias issue. After considering additional briefing and reviewing the record, we hold that the trial court abused its discretion by failing to inquire further or excuse a juror who expressed actual ethnic bias during voir dire. Because we reverse Mr. Gutierrez's convictions and remand for further proceedings, we decline to address the other issues raised by Mr. Gutierrez and his attorney.

BACKGROUND

¶ 2 Mr. Gutierrez was charged with first degree robbery, second degree assault, and first degree unlawful possession of a firearm. The information was amended to include a fourth count of felony harassment against Moises Garcia. A jury found Mr. Gutierrez not guilty of robbery but guilty of second degree assault, unlawful possession of a firearm, and felony harassment.

¶ 3 In his opening brief, the only issue raised by Mr. Gutierrez's attorney, was a challenge to his sentence under Blake .¹ Mr. Gutierrez also filed a SAG, raising numerous other issues. The court requested additional briefing on one of those issues: whether, during voir dire, a juror who was eventually seated on the jury panel, expressed actual bias necessitating his removal under RCW 2.36.110.

¶ 4 During voir dire, the following exchange took place:

[DEFENSE COUNSEL]: ... Juror 16. Hi.

How are you? I'm wishing that it wasn't a pandemic and I could do this the way I naturally do. I'd be getting a lot of feedback. And this is the most important part of the trial for us. I know everybody thinks it's the evidence. This is the most important part. If I don't get people who can be fair, it won't matter what the evidence says, so I'm a little frustrated. Thank you for being here.

You've been listening ... or you appear to be listening. What are your thoughts about this? Anything I need to know about you before we go into picking the jury?

PROSPECTIVE JUROR NUMBER 16: I think I have been summoned maybe three times, not put on a jury. And I think the two [defendants in those cases] before ... were Hispanics, but they were never asked if they were a U.S. citizen. And that concerns me.

[DEFENSE COUNSEL]: And that—and if we don't—if we don't cover that during the trial will that be a problem for you?

PROSPECTIVE JUROR NUMBER 16: I thought maybe it would be brought up.

[DEFENSE COUNSEL]: Because it may not come up in this particular trial.

PROSPECTIVE JUROR NUMBER 16: How about I ask now if he's a U.S. citizen?

[DEFENSE COUNSEL]: Well, turns out you're not allowed to ask that question, which is why it doesn't come out in trial. The Judge is not allowed to ask that question. Counsel aren't allowed to ask that question. I don't think I'm allowed to ask that question.

PROSPECTIVE JUROR NUMBER 16: Why is that?

[DEFENSE COUNSEL]: I imagine it has to do with some people's—the implication of noncitizen means perhaps you're implicating yourself in a crime. And you have the privilege, not you and I, everybody in the country has the privilege not to implicate themselves in a crime. So if somebody were here illegally in saying so, they will have admitted to a crime. And it's a federal crime. So I think that that's why it is.^[2] And that is such a serious protection that a judge can't ask that of a defendant.

There's a whole Supreme Court case on it. So that's my thought. So it will not come up here.

Is there a reason that that would give you pause in being fair to Mr. Gutierrez?

PROSPECTIVE JUROR NUMBER 16: If I didn't know then I would have—I guess no reason to question that, I guess, if he was a U.S. citizen or not. If he's not a U.S. citizen he's already guilty. He shouldn't be here.

[DEFENSE COUNSEL]: Well, fair enough. That's a good point. But you wouldn't be saying then if he's not a citizen, he's guilty of the charges here, the robbery, the assault, the possession of a gun, you wouldn't be saying that because that's wholly separate, right?

PROSPECTIVE JUROR NUMBER 16: Yes. Yeah. I mean, if I don't know—I just—that would be—that wouldn't be part of the—my answer for it. So, yeah.

[DEFENSE COUNSEL]: Thank you, juror 16.

Report of Proceedings (RP) at 165-68.

¶ 5 Defense counsel did not move to strike juror 16 for cause and did not exercise a peremptory challenge to remove juror 16. Nor did the trial court make any comments or suggest that juror 16 displayed bias and should be removed. Prospective juror 16 was seated on the jury that entered a verdict of not guilty to the charge of first degree robbery, and guilty verdicts on the charges of second degree assault, unlawful possession of a firearm, and felony harassment.

ANALYSIS

¶ 6 In his SAG, Mr. Gutierrez raises an issue of juror bias. He contends that during voir dire, potential juror 16 demonstrated actual bias, but was nevertheless seated as a juror and not removed by his attorney or the court.³

¶ 7 While this issue is being raised for the first time on appeal, we address it as a manifest constitutional error. RAP 2.5(a). A defendant has a constitutional right to an unbiased jury trial. City of Cheney v. Grunewald , 55 Wash. App. 807, 810, 780 P.2d 1332 (1989). "When a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error." State v. Irby , 187 Wash. App. 183, 188, 347 P.3d 1103 (2015). It is well established that seating a biased juror is never harmless and requires a new trial regardless of actual prejudice. State v. Guevara Diaz , 11 Wash. App. 2d 843, 851, 456 P.3d 869 (2020), review denied , 195 Wash.2d 1025, 466 P.3d 772 (2020).

¶ 8 Although Mr. Gutierrez did not move to strike juror 16, a trial court must do so on its own motion where grounds for a challenge for cause are apparent in the record. Id. at 855, 456 P.3d 869 (citing RCW 2.36.110 ; CrR 6.4(c)(1) ). Under RCW 2.36.110, "It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias [or] prejudice." A juror demonstrates actual bias when he exhibits " ‘a state of mind ... 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.’ " Guevara Diaz , 11 Wash. App. 2d at 855, 456 P.3d 869 (alteration in original) (quoting RCW 4.44.170(2) ).

¶ 9 Bias based on race and ethnicity may be explicit or implicit.

Explicit racial bias is consciously held, although the biased person may not be willing to admit to having such bias if asked. See Peña-Rodriguez [v. Colorado ], , 137 S. Ct.[ 855,] 869[, 197 L. Ed. 2d 107 (2017)]. Implicit racial bias, however, primarily exists at an unconscious level, such that the biased person is unlikely to be aware that it even exists. This occurs because "[i]t is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them." [ State v. ]Saintcalle , 178 Wash.2d[ 34,] 46[, 309 P.3d 326 (2013) (plurality opinion), abrogated in part on other grounds by City of Seattle v. Erickson , 188 Wash.2d 721, 398 P.3d 1124 (2017) ].

State v. Berhe , 193 Wash.2d 647, 663, 444 P.3d 1172 (2019) (fifth alteration in original).

¶ 10 Whether implicit or explicit, evidence of actual racial and ethnic bias⁴ can be subtle. For example, questions about a person's immigration status may appear to be ethnically neutral because a person can immigrate from Canada or Mexico. But "[e]ven though the concern regarding immigration status does not explicitly implicate race, our country has made Latin ethnicity a proxy for undocumented immigration status." Mikah K. Thompson, Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom , 5 MICH. ST. L. REV . 1243, 1305 (2018).

¶ 11 In this case, the comments by juror 16 expressed actual bias. Juror 16's comments demonstrated that he was operating under a false presumption that Hispanic and Latinx persons were not citizens, and if they were not citizens then they were guilty of a crime. The link in this juror's mind between ethnicity and citizenship (and presumably immigration status) is clear: "I think the two [defendants in those cases] before were Hispanics, but they were never asked if they were a U.S. citizen. And that concerns me." RP at 167. Likewise, juror 16 wanted to know if Mr. Gutierrez was a United States citizen.

¶ 12 The State contends that juror 16's comments do not reflect bias but rather were neutral questions about an irrelevant topic. The State suggests that with defense counsel's focus on racial and ethnic bias during voir dire, along with evidence of Mr. Gutierrez's active participation in jury selection, there is little chance that both would miss a potential juror expressing actual bias.

¶ 13 In Behre , our Supreme Court acknowledged the inherent challenge in determining whether a juror is influenced by implicit bias. 193 Wash.2d at 663, 444 P.3d 1172. Implicit biases include " ‘stereotypes that are ingrained and...