State of Washington v. Tony Orlando Cantu ( 2013 )

FILED
FEB 28, 2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No.302S8-0-III
)
Respondent, )
)
v. )
)
TONY ORLANDO CANTU, ) UNPUBLISHED OPINION
)
Appellant. )
BROWN, 1. - Tony Orlando Cantu appeals his convictions for possessing a stolen
motor vehicle, first degree criminal trespass, and first degree unlawful possession of a
fireann. He contends the Adams County Superior Court erred in denying his mistrial
motion following a prospective juror's voir dire statement regarding Mr. Cantu's gang
affiliation. Specifically, he argues the trial court's ruling impaired his constitutional
rights to an impartial jury and to confrontation, and was an abuse of discretion. We
disagree, and affirm.
FACTS
Based on events occurring in Adams County in 2010, the State charged Mr. Cantu
with possessing a stolen motor vehicle, first degree criminal trespass, and first degree
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State v. Cantu
unlawful possession of a firearm. During voir dire, the trial court asked prospective
jurors to express any concerns regarding their abilities to remain impartial. Juror 30
responded, in the presence of the entire panel, "The Defendant is a rival gang member of
friends of mine." Report of Proceedings (RP) at 53.
Mr. Cantu moved unsuccessfully for a mistrial. The trial court concluded the
statement was not so prejudicial to Mr. Cantu as to require a mistrial because instructing
the jury to decide solely upon the evidence admitted could ensure he received a fair trial,
as the jury is presumed to follow such instruction. The court did not expressly instruct
the jury to disregard the statement, agreeing with Mr. Cantu that doing so would
unnecessarily emphasize it. Upon Mr. Cantu's request, the court dismissed juror 30 for
cause and admonished him not to contact any panel member.
When voir dire resumed, defense counsel asked panel members if hearing the
statement would affect their abilities to remain impartial. The first prospective juror to
speak indicated the statement would not affect his ability to remain impartial because he
needed to hear the evidence before he could "make a judgment on" whether Mr. Cantu
was affiliated with a gang. RP at 174. The second juror agreed, but admitted if the
evidence showed Mr. Cantu was affiliated with a gang, this knowledge would leave "a
bad taste in [his] mouth" and "weigh on [him] a little bit" when evaluating guilt. RP at
175. The third juror responded, "I don't think it impacts whatsoever because [Mr. Cantu
is] not being tried for being on a gang." RP at 176. The fourth juror responded, "I think
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pertaining to this case it's irrelevant." RP at 176. Several other prospective jurors agreed
with the final two responses.
The jury found Mr. Cantu guilty of each crime as charged. He appealed.
ANALYSIS
The issue is whether the trial court erred in denying Mr. Cantu's mistrial motion
based on juror 30's voir dire statement. First, Mr. Cantu contends the trial court's ruling
violated his right to an impartial jury. We review alleged constitutional violations de
novo. State v. Siers, 174 Wn.2d 269,274,274 PJd 358 (2012).
Both the federal and state constitutions provide a criminal defendant the right to
trial by an impartial jury. U.S. CONST. amend. VI; CONST. art. I, § 22 (amend. 10). This
requires that jurors remain mindifferent,'" Morgan v. Illinois, 504 U.S. 719, 727,112 S.
Ct. 2222, 119 L. Ed. 2d 492 (1992) (construing U.S. CONST. amend. VI), or "unbiased
and unprejudiced," State v. Davis, 141 Wn.2d 798,824, 10 PJd 977 (2000) (construing
CONST. art. I, § 22 (amend. 10)). Because the trial court can observe and evaluate jurors'
individual demeanors and responses, it is best suited to assess their impartiality. State v.
Nottie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991). However, if a prospective juror
repeatedly makes highly inflammatory, expert-like statements directly concerning guilt in
the presence of the entire panel, this court may presume the statements tainted the
resulting jury's impartiality. Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997).
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Relying on Mach, Mr. Cantu argues we should presume juror 30's voir dire
statement infected the entire panel with bias or prejudice. In Mach, the government
charged the defendant with making sexual contact with a minor. Id. at 631. During voir
dire, a prospective juror stated, in the presence of the entire panel, that she had a
psychology background, currently worked for the state child protective services agency,
and had confirmed child sexual assault in every case where a client reported it. Id. at
631-32. Upon further questioning, the prospective juror repeated three times more how
she never, in her three years as a social worker, found a case where a child lied about
sexual assault. Id. at 632. The district court removed the prospective juror for cause
upon the defendant's request. Id. The defendant moved for a mistrial, which the district
court denied without inquiring into whether the statements affected the pane'l's
impartiality. Id. at 632-33.
The Mach court reversed, holding the statements presumably infected the jury
with bias or prejudice and, thus, the district court violated the defendant's constitutional
right to an impartial jury by denying his mistrial motion. Id. at 633. In so holding, the
court reasoned the statements were "highly inflammatory and directly connected to ...
guilt." Id. at 634. Further, the court found the statements had an "expert-like" quality
based on the prospective juror's years of experience and degree of certainty. Id. at 633.
Additionally, the court indicated the number of times the prospective juror repeated the
statements created an especially high risk they would affect the jury's verdict. Id. Given
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these facts and the lack of information regarding the statements' actual impact, the court
"presume[d] that at least one juror was tainted and entered into jury deliberations with the
conviction that children simply never lie about being sexually abused." Id.
Mach is distinguishable because it involved repeated, expert-like statements
directly concerning guilt, id.~ while our case involves an isolated, layperson's statement
unconnected to any material issue. Further, Mach presumed the prospective juror's
statements tainted the entire panel mainly because it lacked information regarding the
statements' actual impact, id., while in this case numerous panel members assured
defense counsel the statement had no impact on their impartiality. Thus, Mach does not
control the result here and we will not presume juror 30's voir dire statement tainted the
entire panel.
Absent such a presumption, Mr. Cantu fails to show juror 30's voir dire statement
caused jury bias or prejudice. The trial court correctly instructed the jury to decide solely
upon the evidence admitted. "We presume that juries follow the instructions and
consider only evidence that is properly before them." State v. Perez- Valdez, 172 Wn.2d
808,818-19,265 P.3d 853 (2011). Nothing suggests the jury did otherwise. Rather, the
panel's assurances to defense counsel suggest the jury remained impartial. Thus, we
conclude the trial court did not violate Mr. Cantu's right to an impartial jury by denying
his mistrial motion.
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Second, Mr. Cantu contends the trial court violated his federal confrontation right
by denying his mistrial motion. He argues solely, "[T]here can be no question" it did.
Br. of Appellant at 12. Our standard of review remains de novo.
The Sixth Amendment to the U.S. Constitution provides a criminal defendant the
right to confront and cross-examine adverse witnesses. U.S. CONST. amend. VI. The
federal Confrontation Clause renders testimonial, out-of-court statements inadmissible
unless the declarant testifies at trial or the defendant had a prior opportunity to cross-
examine the declarant. Crawford v. Washington, 541 U.S. 36, 54-55, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004). A juror becomes an "unsworn witness," triggering the federal
Confrontation Clause, if he or she "communicates objective extrinsic facts regarding the
defendant or the alleged crimes to other jurors." Jeffries v. Wood, 114 F.3d 1484, 1490
(9th Cir. 1997), overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th
Cir.20l2). But the defendant waives his or her federal confrontation right by failing to
timely assert it at the trial court in accordance with applicable procedural rules. State v.
O'Cain, 169 Wn. App. 228, 239-40, 279 P.3d 926 (2012) (analyzing Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)).
Mr. Cantu waived his federal confrontation right because he failed to assert it at
the trial court. l Even so, the trial court did not violate Mr. Cantu's federal confrontation
I While Mr. Cantu does not assert his state confrontation right, he likely waived it
as well because "[n]othing about [the state confrontation clause] lends credence to the
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right by denying his mistrial motion because he had the opportunity to cross-examine
juror 30 during voir dire but chose not to do so, instead requesting the trial court dismiss
him for cause.
Third, Mr. Cantu contends the trial court abused its discretion when denying his
mistrial motion. We review a denial of a mistrial motion for abuse of discretion, finding
such abuse only if "'no reasonable judge would have reached the same conclusion.'"
State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (quoting State v. Hopson, 113
Wn.2d 273,284, 778 P.2d 1014 (1989)).
A mistrial is proper if "the defendant has been so prejudiced that nothing short of a
new trial can ensure that the defendant will be fairly tried." ld. (citing Hopson, 113
Wn.2d at 284). A trial irregularity prejudices a defendant's fair trial rights if it poses a
"substantial likelihood" of affecting the jury's verdict. State v. Gamble, 168 Wn.2d 161,
177,225 P.3d 973 (2010) (citing State v. Greiff, 141 Wn.2d 910,921, 10 PJd 390
(2000)). This analysis depends on '''(1) the seriousness of the irregularity, (2) whether
the statement was cumulative of evidence properly admitted, and (3) whether the
irregularity could be cured by an instruction. '" Perez- Valdez, 172 Wn.2d at 818 (quoting
State v. Post, 118 Wn.2d 596, 620,826 P.2d 172,837 P.2d 599 (1992)).
Here, the trial court concluded juror 30's voir dire statement was not so prejudicial
to Mr. Cantu as to require a mistrial because instructing the jury to decide solely upon the
notion that a defendant may choose not to confront the witness at trial and then seek a
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evidence admitted could ensure he received a fair trial, as the jury is presumed to follow
such instruction. We cannot say no reasonable judge would have reached the same
conclusion. First, despite the inflammatory nature of gang affiliation, the statement was
not very serious because it was not evidence, was isolated, and did not concern any
matter relevant to the case. And, '''the trial judge is best suited to judge the prejudice of a
statement.'" Greiff, 141 Wn.2d at 921 (quoting State v. Weber, 99 Wn.2d 158, 166,659
P.2d 1102 (1983)). Second, the parties offered no testimony or exhibits regarding gang
affiliation, so the statement was not cumulative of admitted evidence. Finally, the trial
court correctly instructed the jury to decide solely upon the evidence admitted. We
presume the jury followed the trial court's instructions and considered solely the evidence
admitted at trial. Perez-Valdez, 172 Wn.2d at 818-19. Nothing suggests the jury did
otherwise. Notably, during voir dire, numerous panel members assured defense counsel
the statement had no impact on their impartiality.
In sum, a reasonable judge could conclude a proper jury instruction, not a new
trial, was the appropriate remedy to ensure Mr. Cantu received a fair trial. It follows that
the trial court did not abuse its discretion by denying Mr. Cantu's mistrial motion.
new trial based upon the absence of confrontation." 0 'Cain, 169 Wn. App. at 252.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
Kulik, J.
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