State Of Washington, V William Alexander Manus ( 2015 )

FILED
COURT O APPEALS
DIVISION II
2515 APR 114 AM 9: 51
STA S - ! NGTONN
IN THE COURT OF APPEALS OF THE STATE OF WASHING
BY
DIVISION II
STATE OF WASHINGTON, No. 45532 -3 - II
Respondent,
v.
WILLIAM ALEXANDER MANUS, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — A jury returned a verdict finding William Manus guilty of failure to
register as a sex offender. Manus appeals his conviction, asserting that ( 1) the trial court violated
his public trial right by employing a procedure by which the State and defense counsel exercised
peremptory challenges in writing, and ( 2) the trial court erred by failing to excuse a juror for
cause after the juror told the trial court that he had recognized a State' s witness as someone the
juror knew from his gym. We affirm Manus' s conviction.
FACTS
On October 21, 2013, the State charged Manus with failure to register as a sex offender.
Before the start of jury selection, the trial court told counsel that challenges for cause should be
brought to its attention at sidebar and that peremptory challenges would be done in writing.
After the trial court and counsel questioned potential jurors at voir dire, the trial court stated that
the attorneys would be " doing their final selection here in writing." Report of Proceedings ( RP)
Oct. 21, 2013) ( Jury Voir Dire) at 66. The trial transcripts then state, "( Attorneys doing their
peremptory challenges)" followed by "( Sidebar held, but not reported)." RP ( Jury Voir Dire) at
No. 45532 -3 - II
67. The trial court swore in the selected jurors. After the jury was excused from the courtroom,
the following discussion took place:
Trial court]: I just want to make a quick record regarding our discussion
at sidebar regarding excusing jurors for cause. It was agreed to excuse Juror No. 6
and 29. It' s also agreed to excuse Juror No. 23 because of a scheduling issue, and
also we agreed to excuse Juror No. 19 due to some health issues that she had
indicated on her green form that she had that would hurt her ability to be a juror.
Counsel, do you wish to supplement the record at all regarding those?
State] : No, Your Honor. Each of those issues was brought to our attention
and the state had no objection to excusing those individual jurors for cause.
Defense counsel]: Neither did the defense, Your Honor. Thank you.
RP at 30. That same day, the sheet of paper showing the attorneys' written peremptory
challenges was filed with the court and made part of the trial record. This sheet shows that the
State and defense counsel each exercised seven peremptory challenges by writing the names and
numbers of potential jurors they wanted excused from the jury.
Toward the end of trial, the trial court told counsel that there was a potential issue with a
juror that had recognized one of the State' s witnesses, Tacoma Police Officer Tyler Meeds,
stating:
All right. So we have an issue with one juror, Juror No. 11. Last night after we
excused them, he indicated to [ a judicial assistant] that he knows Officer Meeds
from where they work out together. He didn' t know him by name, but he
recognized him when he testified.
RP at 263. The trial court and counsel then questioned Juror No. 11 about his disclosure:
Trial court]:... My Judicial Assistant ... brought it to my attention
yesterday afternoon after we broke that you recognized Officer Meeds from the
place that you work out?
Juror]: Yes.
Trial court]: Is he somebody that you' re a social acquaintance with? Or
explain to me how you know him.
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I think I met him maybe five years ago, and our relationship is not
Juror]:
like a friend type of relationship. It' s just, you know, when I see him, we talk about
sports. I was interested in home protection, and he spoke to me about that. So
that' s really about it. We see each other. We do talk on occasion. So I just wanted
to let you guys know that I did recognize him.
Trial court]: You haven' t talked to him obviously about this particular
case?
Juror]: No, I have not.
Trial Any reason why your knowledge of him or your relationship
court]:
with him would affect your ability to be a fair juror in this case?
Juror]: No, it would not.
Trial court]: Does the state have any questions?
State]: I guess I would ask that when you see him, is it primarily at the
gym?
Juror]: Yes.
State]: So you don' t get together with him outside the gym?
Juror] : No, I do not.
State]: These conversations that you have, generally you have them in the
gym when you guys are working out?
Juror] : Exactly.
State]: I don' t have any further questions. Thank you.
Trial court]: [ Defense counsel], any questions?
Defense counsel]: No questions, Your Honor.
RP at 264 -65. Defense counsel requested the trial court to excuse the juror, which request the
trial court denied, stating:
I don' t think that there is a degree of potential prejudice with this juror that would
cause him to be excused for cause. He didn' t even know the officer' s name. I don' t
think that that' s the kind of affinity with a witness and a juror that would justify
excusing him at this point in the trial. So I' ll not excuse him. I think he can
maintain an open mind and participate and make his decision based on the facts
presented and on the law given to him.
I also agree with the state somewhat that the arrest of Mr. Manus was based
upon an outstanding warrant. It wasn' t based upon the allegations of failure to
register, and the officer' s testimony only was at the very end of this case. It didn' t
have anything to do with, I guess, the underlying significant issues in the case.
RP at 268 -69. The jury returned a verdict finding Manus guilty of failure to register as a sex
offender. Manus appeals his conviction.
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ANALYSIS
I. PUBLIC TRIAL RIGHT
Manus first contends that the trial court violated his public trial right by directing the
State and defense counsel to exercise their peremptory challenges in writing without first
considering the factors set forth in State v. Bone -Club, 128 Wn.2d 254, 906 P.2d 325 ( 1995).
We recently rejected this same contention in State v. Marks, 184 Wn. App. 782, 339 P. 3d 1962014). Following Marks, we hold that Manus' s public trial right was not violated by the trial
court' s procedure directing counsel to exercise their peremptory challenges in writing.
II. DENIAL OF FOR CAUSE CHALLENGE
Next, Manus contends that the trial court erred when it refused to dismiss a juror for
cause after the juror told the trial court that he had recognized Officer Meeds as someone he
knew from his gym. We disagree.
We review a trial court' s decision whether to remove a juror for cause for an abuse of
discretion. State v. Elmore, 155 Wn. 2d 758, 768, 123 P. 3d 72 ( 2005). A trial court abuses its
discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126
Wn.2d 244, 258, 893 P. 2d 615 ( 1995).
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution .guarantee the right to trial by an impartial jury. State v. Gonzales, 111
Wn. App. 276, 277, 45 P. 3d 205 ( 2002). Additionally, RCW 2. 36. 110 provides:
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,
prejudice, indifference, inattention or any physical or mental defect or by reason of
conduct or practices incompatible with proper and efficient jury service.
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And CrR 6. 5 states, " If at any time before submission of the case to the jury a juror is found
unable to perform the duties the court shall order the juror discharged." RCW 2. 36. 110 and CrR
6. 5 impose on the trial court a continuing obligation to excuse any juror who is unfit to serve on
the jury. State v. Jorden, 103 Wn. App. 221, 227, 11 P. 3d 866 ( 2000). The key inquiry for the
trial court in deciding whether to excuse a juror for cause is " whether the challenged juror can set
aside preconceived ideas and try the case fairly and impartially." Hough v. Stockbridge, 152
Wn. App. 328, 341, 216 P. 3d 1077 ( 2009). Because the trial court is able to observe the
challenged juror, it is in the best position to evaluate a juror' s candor, and it may weigh the
credibility of the juror based on its observations. Elmore, 155 Wn.2d at 769 n. 3; Jorden, 103
Wn. App. at 229. Thus, absent a manifest abuse of its discretion, we defer to the trial court' s
judgment as to whether a juror should be excused for cause. State v. Noltie, 116 Wn.2d 831,
839 -40, 809 P. 2d 190 ( 1991).
Manus argues that the juror' s prior relationship with Meeds demonstrated an actual bias
and an implied bias that rendered the juror unfit to serve on the jury. We disagree.
A. Actual Bias
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." RCW
4. 44. 170( 2); CrR 6. 4( c)( 2). A party challenging a juror for actual bias has the burden of
demonstrating such bias by a preponderance of the evidence. Ottis v. Stevenson -Carson School
Dist. No. 303, 61 Wn. App. 747, 754, 812 P. 2d 133 ( 1991). It is not sufficient that a party show
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that the challenged juror "has formed or expressed an opinion upon what he or she may have
heard or read," rather, " to sustain the challenge ... the court must be satisfied, from all the
circumstances, that the juror cannot disregard such opinion and try the issue impartially." RCW
4.44. 190; CrR 6. 4( c)( 2).
Manus does not cite any evidence in the record sufficient to prove actual bias justifying
dismissal of the challenged juror. Instead Manus merely speculates that, because the challenged
juror had known Meeds as an acquaintance at a shared gym for five years and had engaged in
casual conversation with Meeds during that time, the juror " would naturally have felt additional
pressure to supporting [ sic] his friend from the gym and find Manus guilty." Br. of Appellant at
20. But, even if this speculative assertion was competent evidence of actual bias, the challenged
juror told the trial court that his prior relationship with Meeds would not affect his " ability to be
a fair juror in this case." RP at 264. The trial court found the juror to be credible in this regard,
concluding that the juror could " maintain an open mind and participate and make his decision
based on the facts presented and on the law given to him." RP at 268. We defer to the trial
court' s credibility determination, and we hold that Manus has failed to show that the trial court
abused its discretion by failing to dismiss the juror for actual bias.
B. Implied Bias
Manus similarly fails to show that the trial court abused its discretion by failing to
dismiss the challenged juror for implied bias. RCW 4. 44. 180 provides four bases by which a
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juror may be challenged for an implied bias.' Manus admits that the challenged juror' s
relationship with Meeds does not fall within "one of the listed statutory bases for implied bias,"
but argues that we should interpret RCW 4. 44. 180 broadly under the rule of lenity. Br. of
Appellant at 20. However, Manus fails to provide any argument as to how the juror' s prior
relationship with Meeds would fall within RCW 4.44. 180 even under a broad interpretation of
the statute. Accordingly, we do not further consider Manus' s claim that the trial court erred by
failing to dismiss the challenged juror under RCW 4.44. 180. See State v. Davis, 174 Wn. App.
623, 641, 300 P. 3d 465, review denied, 178 Wn.2d 1012 ( 2013) ( " Passing treatment of an issue
is insufficient to warrant appellate consideration. ").
Although we decline to address Manus' s claim under RCW 4.44. 180 for lack of adequate
argument, we must still address whether the trial court abused its discretion by failing to excuse
the challenged juror for implied bias under RCW 2. 36. 110 and CrR 6. 5. Jorden, 103 Wn. App.
RCW 4. 44. 180 states:
A challenge for implied bias may be taken for any or all of the following causes,
and not otherwise:
1) Consanguinity or affinity within the fourth degree to either party.
2) Standing in the relation of guardian and ward, attorney and client, master
and servant or landlord and tenant, to a party; or being a member of the family of,
or a partner in business with, or in the employment for wages, of a party, or being
surety or bail in the action called for trial, or otherwise, for a party.
3) Having served as a juror on a previous trial in the same action, or in
another action between the same parties for the same cause of action, or in a
criminal action by the state against either party, upon substantially the same facts
or transaction.
4) Interest on the part of the juror in the event of the action, or the principal
question involved therein, excepting always, the interest of the juror as a member
or citizen of the county or municipal corporation.
Emphasis added).
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at 227; State v. Boiko, 138 Wn. App. 256, 265, 156 P. 3d 934 ( 2007). But Manus' s implied bias
claim under RCW 2. 36. 110 and CrR 6. 5 suffers from the same infirmity as his actual bias claim
in that the trial court found credible the challenged juror' s statement that his prior relationship
with Meeds would not affect his " ability to be a fair juror in this case." RP at 264. Again, we
defer to the trial court' s credibility determination in this regard and thus hold that Manus fails to
show that the trial court abused its discretion by declining to dismiss the challenged juror based
on an implied bias. Accordingly, we affirm Manus' s conviction.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
Melnick, J.