State v. Lupastean

STATE OF WASHINGTON, Respondent, v. CRISTIAN LUPASTEAN, Petitioner.

No. 37394-1-III

Court of Appeals of Washington, Division 3

May 6, 2021

UNPUBLISHED OPINION

FEARING, J.

We must decide whether a juror's incomplete and perhaps misleading answer to a question during voir dire constituted juror misconduct and whether any misconduct warrants a new trial for petitioner Cristian Lupastean. Unlike the settings addressed in most other reported decisions, the parties discovered the incomplete answer at the beginning of trial and the trial court addressed the potential juror misconduct. We conclude that the trial court did not abuse its discretion when refusing to dismiss the juror, and we affirm Lupastean's convictions. The juror did not intentionally mislead the parties, and the juror held no disqualifying bias.

FACTS

The jury needed to decide whether petitioner Cristian Lupastean or Erika Harvey drove a truck when Trooper Antonio Olivas spotted the truck on January 27, 2018, at 2:50 p.m., on I-90 in Adams County. Both Harvey and Lupastean then occupied the truck. Lupastean's father owned the trucking company that owned the truck. Harvey had a valid commercial driver's license, but Lupastean's license was suspended.

During trial both Erika Harvey and Cristian Lupastean testified that Harvey drove the truck. Harvey averred that she exited the interstate to use the restroom at a gas station because she felt sick. She saw the emergency lights of Trooper Antonio Olivas's vehicle only after she took the exit ramp and brought the truck to a stop near the gas station. She had not earlier noticed the presented of the law enforcement vehicle.

Trooper Antonio Olivas works for the Washington State Patrol's commercial vehicle division. At the identified time, Trooper Olivas observed the truck, in which Erika Harvey and Cristian Lupastean traveled, pass him. Olivas testified that Lupastean, not Harvey, drove the truck.

Trooper Antonio Olivas decided to stop the truck for a routine inspection, and he turned on his emergency lights. The vehicle exited the freeway onto a ramp and continued toward a gas station. Trooper Olivas grew curious as to why the truck did not stop, and he peered into the truck's mirrors to observe the driver. He observed Lupastean and Harvey switch seats, with Harvey assuming the driver's seat. At the time the two switched seats, Olivas estimates that the truck traveled at 10 miles per hour toward gas station fuel pumps fifty yards away. Trooper Olivas testified that a vehicle of that size traveling at ten miles an hour could be dangerous.

PROCEDURE

The State of Washington charged Cristian Lupastean, in district court, with driving while license revoked in the first degree, driving without a commercial license, and reckless driving.

At the beginning of voir dire, the trial judge listed the three charges and read the elements of each charge. He informed the jury that the State charged Cristian Lupastean with driving while having a revoked license in the first degree:

A person commits the crime of driving while license revoked in the first degree when he or she, having been found by the Department of Licensing, to be a habitual traffic offender drives a motor vehicle while an Order of Revocation is in effect.

Clerk's Papers (CP) at 45. He then read the elements of the second charge, driving without a commercial driver's license. The trial court declared that a person commits this crime when, "at the time of the driving, he or she does not have a valid commercial driver's license." CP at 46. Finally, the court explained that the third charge for reckless driving occurs when a driver "drives a motor vehicle in willful or wanton disregard for the safety of persons or property." CP at 46.

After listing the charges and their respective elements, the district court asked all members of the venire:

Have any of you had any personal experience with a similar or related type of case or incident as a victim, witness, or accused?

CP at 49. One potential juror responded affirmatively, and the rest responded in the negative.

The district court next asked:

Do any of you have a close friend or relative who has had experience with a similar or related type of case or incident? And that would be as a victim, witness, or accused.

CP at 51. Three jurors responded affirmatively. One commented that a brother-in-law was in an accident when the other driver was unlicensed. Another noted that his brother had his driver's license revoked and the brother was arrested for driving while under the influence of alcohol (DUI). The third venire person recounted that a child had received a DUI. The district court noted on the record negative responses from other jurors to the question.

The State questioned venire juror 14 on her ability to evaluate a case based on testimony. Defense counsel exercised all available peremptory challenges. Venire juror number 14 was seated as juror number 6. We hereafter refer to this juror as juror 6.

After the district court swore in the jury, the district court ordered a brief recess. After the recess, defense counsel informed the trial court that the husband of juror 6 approached him and told him that his car had been hit by an unlicensed driver. According to counsel:

He [the juror's husband] asked if I was an attorney, and then proceeded to ask about an incident that he had been involved in with regards to getting hit by an unlicensed driver in an accident, and his wife is on the jury.

CP at 84. Counsel explained that the husband wanted to recoup his losses in the accident with the unlicensed driver. According to defense counsel, he informed the man that he could not speak with him during the trial.

After the disclosure by defense counsel, the district court summoned juror 6 into the courtroom for questioning. The following colloquy ensued:

THE COURT: And it has come to the Court's attention that apparently your husband has been involved in an automobile accident?

JUROR NO. 6: Yeah, this was about a month ago, but it didn't go to court or nothing.

THE COURT: Okay. And as far as that accident, do you think that would affect your ability to be fair and impartial in this case?

JUROR NO. 6: Oh, yeah.

THE COURT: You think it would affect you?

JUROR NO. 6: No, it wouldn't affect me. I would be fair.

THE COURT: Okay. Be a fair juror?

JUROR NO. 6: No, yeah, I would be fair.

THE COURT: All right. Any further questions from the State or the defense?

MS. RUSSELL [the State's attorney]: No. Thank you, Your Honor.

MR. KIRKHAM [defense counsel]: Yes, Your Honor. Ms. Castro what do you know about that accident?

JUROR NO. 6: Well, I wasn't with him when it happened.

MR. KIRKHAM: Okay.

JUROR NO. 6: But he was dropping off my grandkids at school and when he dropped off the last one-I'm just thinking in my head of what he told me-that he was coming home and he was making a left turn and there was an oncoming car and it hit him.

MR. KIRKHAM: Okay. Do you know if the other driver was cited or not?

JUROR NO. 6: The other driver didn't have his driver's license.

MR. KIRKHAM: Okay. And earlier when we had everybody in here the judge was asking some questions, and one of the questions had to do whether you or a family member had been involved in a similar incident that's alleged here, and you didn't answer to that. Is that correct?

JUROR NO. 6: Well, yeah, because I didn't think, you know-since they didn't go to court and he just got a ticket, I don't know, I assumed it would be okay.

MR. KIRKHAM: Okay. That gentleman was charged with driving without a license?

JUROR NO. 6: I don't know what happened to the other gentleman that hit my husband. All I know that he didn't have no driver's license.

MR. KIRKHAM: He didn't have a license?

JUROR NO. 6: He didn't have a driver's license.

MR. KIRKHAM: Okay. And the allegations here are that my client was driving without a license. You understood that correct?

JUROR NO. 6: Yeah, uh-huh.

MR. KIRKHAM: Do you think that those are two similar incidences?

JUROR NO. 6: He was driving without a license?

MR. KIRKHAM: That's the charge.

JUROR NO. 6: Yeah, they're the same, the same, because the other young-it was a young kid and he was driving without a license, a young kid.

MR. KIRKHAM: Okay.

JUROR NO. 6: So, since they didn't go to court and my husband didn't get a ticket or nothing, I assumed, you know, it would be okay. So, I didn't bring it up to the judge's attention.

MR. KIRKHAM: Right.

JUROR NO. 6: Yeah.

MR. KIRKHAM: And I understand why you didn't bring it up. I'm not mad at you or anything.

JUROR NO. 6: Oh, okay.

. . . .

JUROR NO. 6: Well, yeah, when he was asking that question I was thinking behind my head. I go, well, it didn't go to court, my husband didn't get a ticket. I assumed it would be okay, but I thought in my mind.

CP at 85-88.

The prosecuting attorney then asked juror 6 some questions:

MS. RUSSELL: Ms. Castro, it didn't seem similar to you is that why you didn't raise it with us?

JUROR NO. 6: Yeah, yeah, yeah.

. . . .

JUROR NO. 6: Yeah, yeah, my husband was just involved. It wasn't-they blamed my husband since the kid, the young boy, had the right of way, and they blamed my husband for the accident, you know. And the young kid, it was a young boy, driving without a license, so I figured, you know, the way the situation happened, you know, it wasn't my husband's fault because he had made the turn, it was the other oncoming car that hit him on the side, you know.

MS. RUSSELL: And it didn't involve a truck, or reckless driving, or anything like that?

JUROR NO. 6: No, no, no.

MS. RUSSELL: Okay.

JUROR NO. 6: It was just one of those accidents that happen.

MS. RUSSELL: Thank you.

JUROR NO. 6: So, that's why I didn't bring it up to attention

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