
    [No. 46593-1-II.
    Division Two.
    May 25, 2016.]
    The State of Washington, Respondent, v. Greycloud Lawler, Appellant.
    
    
      
      Catherine E. Glinski (of Glinski Law Firm PLLC), for appellant.
    
      Anthony F. Golik, Prosecuting Attorney, and Aaron Bartlett, Deputy, for respondent.
   Maxa, J.

¶1 — Greycloud Lawler appeals his convictions for second degree rape, second degree kidnapping, second degree assault, felony harassment, possession of a controlled substance, and interference with reporting domestic violence.

¶2 In the published portion of this decision, we hold that (1) the trial court did not abuse its discretion in failing to dismiss sua sponte an allegedly biased juror whom Lawler chose not to excuse, and (2) defense counsel’s failure to challenge the allegedly biased juror did not constitute ineffective assistance of counsel. In the unpublished portion of this opinion, we reject Lawler’s additional arguments as well as claims asserted in a statement of additional grounds (SAG). Accordingly, we affirm Lawler’s convictions.

FACTS

Motel Incident

¶3 Lawler and MDJ started dating in March 2013. On February 14, 2014, they checked into a motel in Hazel Dell. After dinner they had an argument. The argument escalated, and Lawler became violent when MDJ said she wanted to leave. Lawler covered MDJ’s mouth as she tried to scream and eventually caused her to lose consciousness. When MDJ regained consciousness, Lawler strangled her again until she passed out.

¶4 The violence ultimately subsided, and Lawler and MDJ slept next to one another. Lawler slept with a knife at his side. In the middle of the night, MDJ woke up to use the bathroom. Lawler, upset by the thought of MDJ leaving the motel room, took the bedding from the bed and his knife and slept in front of the door so MDJ could not leave. Lawler threatened MDJ, telling her that she was not going home and that she was not going to see her children again.

¶5 The next morning, MDJ told Lawler that she was upset about the night before and that she did not want to leave with him. Provoked by MDJ’s comments, Lawler dragged her off the bed and into the bathroom, and threatened to drown her in the toilet. When Lawler and MDJ were preparing to leave the motel, Lawler told MDJ that he had come to the room to have sexual intercourse and that they were not leaving until that happened. Lawler then forced MDJ to have intercourse. Out of fear, MDJ did not fight Lawler, although she made clear to Lawler that she did not want to have intercourse.

¶6 Eventually MDJ was able to get out of the room and down to the front desk, where she told the motel clerk that she had been assaulted and called 911. Lawler left the motel on foot before the police arrived.

¶7 Police and medical personnel arrived at the motel and noticed bruising and scrapes on MDJ’s face and bruising on her arms that resembled fingerprints. The paramedics transported MDJ to the hospital, and MDJ received treatment from a sexual assault nurse examiner. MDJ reported that she had been held against her will and repeatedly assaulted and raped and that she was in pain and felt nauseous. Based on MDJ’s physical condition and her complaints, the treating doctor prescribed MDJ pain and antinausea medications.

¶8 Police later arrested Lawler and found that he was carrying an eight-inch knife in a leather sheath, a 12-inch blade with no handle, and a balloon full of a powdery substance that later was identified as methamphetamine. The State charged Lawler with first degree rape, second degree kidnapping, second degree assault, felony harassment, possession of a controlled substance, and interference with reporting domestic violence. The State alleged that the rape, kidnapping and harassment were committed while Lawler was armed with a deadly weapon.

Jury Selection

¶9 During the questioning of prospective jurors, the prosecutor asked if any of the potential jurors had a family member or friend involved in a situation of sexual assault or physical violence. Juror 23 indicated that his mother had been removed from her biological father when she was a child, that his older half-sister had been raped by her stepfather, and that his niece who was living with him had been physically and mentally abused by her previous boyfriend.

¶10 The prosecutor asked whether these experiences would make it difficult for him to be fair and impartial, and juror 23 responded, “I don’t see how I could be objective with all that past experience.” Voir Dire Report of Proceedings (RP) at 32. When the prosecutor asked juror 23 if he could set his personal experiences aside and follow the trial court’s instruction, he replied, “Honestly, I think that would be a pain in the neck, you know. I don’t think I would be able to do that with all these experiences.” Voir Dire RP at 33. Neither the parties nor the trial court followed up on juror 23’s answers.

¶11 As voir dire progressed, defense counsel questioned several jurors regarding their previously expressed concerns and apprehensions, but did not further question juror 23. When defense counsel asked the potential jurors who would be uncomfortable serving on the jury, juror 23 raised his number. Neither the parties nor the trial court followed up on this response.

¶12 The trial court was actively involved in discussions with counsel about what jurors should be dismissed for cause. The trial court noted that “[w]e had quite a number of people who had concerns that they wouldn’t be able to be fair due to issues related to the case.” Voir Dire RP at 57. The trial court suggested that two jurors be dismissed, and neither party objected. Lawler challenged three other jurors for cause. However, the trial court did not mention juror 23 and Lawler did not challenge juror 23 for cause. Lawler then exercised five of his six preemptory challenges, none of which were for juror 23. And Lawler passed on the exercise of his final peremptory challenge. Juror 23 was seated on the jury.

Verdict

¶13 The jury found Lawler guilty of the lesser offense of second degree rape, second degree kidnapping, second degree assault, harassment, possession of a controlled substance, and interference with reporting domestic violence. The jury also found by special verdicts that Lawler committed the rape, kidnapping and harassment while he was armed with a deadly weapon.

¶14 Lawler appeals his convictions.

ANALYSIS

A. Trial Court’s Failure to Sua Sponte Dismiss a Juror

¶15 Lawler argues that the trial court violated his constitutional right to a fair and impartial jury by failing to sua sponte dismiss juror 23. We disagree.

1. Legal Principles

¶16 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to trial by an impartial jury. State v. Davis, 175 Wn.2d 287, 312, 290 P.3d 43 (2012). To ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would preclude or substantially hinder the juror in the performance of his or her duties in accordance with the trial court’s instructions and the jurors’ oath. State v. Gonzalez, 111 Wn. App. 276, 277-78, 45 P.3d 205 (2002). When a defendant does not receive a trial by an impartial jury, the remedy is reversal. Id. at 282.

¶17 Either party may challenge a prospective juror for cause. RCW 4.44.130. Lawler argues that juror 23 demonstrated actual bias. Actual bias is a ground for challenging a juror for cause. RCW 4.44.170(2). Actual bias occurs when there 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.” Id. Although a party may challenge a juror for actual bias, the mere fact that a juror expresses or forms an opinion is not in itself sufficient to sustain a challenge. RCW 4.44.190. Instead, “the court must be satisfied, from all the circumstances, that the juror cannot disregard such opinion and try the issue impartially.” Id.

¶18 The trial court also has authority from two sources to dismiss a juror without a challenge from a party during jury selection. First, 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.

Second, CrR 6.4(c)(1) states:

If the judge after examination of any juror is of the opinion that grounds for challenge are present, he or she shall excuse that juror from the trial of the case. If the judge does not excuse the juror, any party may challenge the juror for cause.

¶19 When a party does challenge a juror for cause, we review a trial court’s ruling on that challenge for manifest abuse of discretion. Davis, 175 Wn.2d at 312.

“The reason for this deference is that the trial judge is able to observe the juror’s demeanor and, in light of that observation, to interpret and evaluate the juror’s answers to determine whether the juror would be fair and impartial.”

Id. (quoting State v. Gentry, 125 Wn.2d 570, 634, 888 P.2d 1105 (1995)); see also State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991) (stating that “[c]ase law, the juror bias statute, our Superior Court Criminal Rules and scholarly comment all emphasize that the trial court is in the best position to determine a juror’s ability to be fair and impartial”). The abuse of discretion standard also applies to dismissal of a juror under RCW 2.36.110, State v. Elmore, 155 Wn.2d 758, 768-69, 123 P.3d 72 (2005), and CrR 6.4(c)(1). State v. Roberts, 142 Wn.2d 471, 518-19, 14 P.3d 713 (2000).

¶20 The presence of a biased juror cannot be harmless, and allowing a biased juror to serve on a jury requires a new trial without a showing of prejudice. State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015), review denied, 184 Wn.2d 1036 (2016). If the juror demonstrates actual bias, empaneling the biased juror is a manifest error. Id.

2. Evidence of Actual Bias

¶21 During voir dire, juror 23 discussed three past experiences involving family members. The State asked whether these experiences would cause him difficulty being fair and impartial. Juror 23 said, “I don’t see how I could be objective with all that past experience.” Voir Dire RP at 32. The State then asked if he could set aside his personal experiences and judge the case on its merits if the trial court asked him to do so. Juror 23 replied, “Honestly, I think that would be a pain in the neck, you know. I don’t think I would be able to do that with all these experiences.” Voir Dire RP at 33.

¶22 These statements show that juror 23 questioned whether he was capable of being fair and impartial or objective in judging the case on its merits. But there was some slight equivocation in juror 23’s answers. He stated, “I don’t see how” when asked if he could be objective rather that stating that he definitely could not be objective. Voir Dire RP at 32. And he said that “I don’t think I would be able” to judge the case on the merits rather than stating that he definitely could not. Voir Dire RP at 33. Equivocal answers alone do not require that a juror be dismissed for cause. State v. Rupe, 108 Wn.2d 734, 749, 743 P.2d 210 (1987). In addition, the experiences of juror 23’s family members were nothing like the incident giving rise to the charges against Lawler.

¶23 However, there was never any attempt to rehabilitate juror 23. As a result, he never stated on the record that he could be fair and impartial and that he could judge the case on its merits.

3. Trial Court’s Obligation to Dismiss a Biased Juror Sua Sponte

¶24 Lawler did not challenge juror 23 for cause or exercise an available peremptory challenge to dismiss juror 23. Therefore, the question is whether the trial court was required to dismiss juror 23 sua sponte based on his voir dire responses.

a. Mandatory Duty to Excuse Biased Juror

¶25 Both RCW 2.36.110 and CrR 6.4(c)(1) create a mandatory duty to dismiss an unfit juror even in the absence of a challenge. RCW 2.36.110 states that “[i]t shall be the duty of a judge” to dismiss a juror who is unfit because of bias or other issues. “RCW 2.36.110 . . . placets] a continuous obligation on the trial court to excuse any juror who is unfit and unable to perform the duties of a juroy." State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000).

¶26 CrR 6.4(c)(1) states that the judge “shall” excuse a juror if grounds for a challenge are present. In applying CrR 6.4(c)(1), the Supreme Court stated:

This rule makes clear that a trial judge may excuse a potential juror where grounds for a challenge for cause exist, notwithstanding the fact that neither party to the case exercised such a challenge. In fact, the judge is obligated, to do so.

Davis, 175 Wn.2d at 316 (emphasis added). However, Davis involved the trial court’s sua sponte dismissal of a juror even though neither party challenged the juror, not its failure to dismiss a juror sua sponte. Id. at 311.

b. Interfering with Jury Selection Strategy

¶27 On the other hand, a trial court should exercise caution before injecting itself into the jury selection process. The State argues:

[G]iven the strategic importance of voir dire and the wide room for strategic decisions a defendant can make concerning which jurors to strike or accept, a court must not wade into the jury selection process sua sponte dismissing jurors absent an unmistakable demonstration of bias lest it interfere with a defendant’s right to control his defense.

Br. of Resp’t at 20.

¶28 The State’s argument has merit. Whether to keep a prospective juror on the jury panel or whether to dismiss a juror often is based on the trial counsel’s experience, intuition, strategy, and discretion. Trial counsel may have legitimate, tactical reasons not to challenge a juror who may have given responses that suggest some bias. See State v. Johnston, 143 Wn. App. 1, 17, 177 P.3d 1127 (2007) (stating that defense counsel’s decision not to challenge a juror for cause despite some evidence that the juror was biased could be a legitimate trial strategy). A trial court that sua sponte excuses a juror runs the risk of disrupting trial counsel’s jury selection strategy.

¶29 The State cites to State v. Coristine, in which the trial court gave a jury instruction on a statutory affirmative defense over the defendant’s objection. 177 Wn.2d 370, 374, 300 P.3d 400 (2013). In Coristine, the Supreme Court held that because the Sixth Amendment gives a defendant the right to present a defense, it requires deference to the defendant’s strategic decisions. Id. at 375. The court stated:

To further the truth-seeking function of trial and to respect the defendant’s dignity and autonomy, the Sixth Amendment recognizes the defendant’s right to control important strategic decisions.

Id. at 376.

¶30 We believe that the rule stated in Coristine applies equally to a defendant’s strategic decision not to challenge for cause or exercise a preemptory challenge regarding a prospective juror. The difference here is that the trial court did not specifically address this issue with defense counsel. Therefore, the record does not directly show that defense counsel’s decision not to challenge juror 23 was strategic.

c. Irby Decision

¶31 In Irby, Division One of this court held that the trial court erred by not sua sponte excusing a juror who demonstrated actual bias. 187 Wn. App. at 196-97. In Irby, a prospective juror explained that she may not be able to give the parties a fair trial because “ ‘I’m more inclined towards the prosecution I guess.’ ” Id. at 190. When the court asked if that would impact her ability to be fair and impartial and whether she could listen to both sides, the juror responded, “ ‘I would like to say he’s guilty.’ ” Id. There was no follow up to this exchange, and the juror was seated on the jury. Id.

¶32 The court analyzed the issue under RCW 4.44.170(2) and .190, and noted that the trial court has broad discretion when determining whether a particular potential juror is able to be fair and impartial. Id. at 193-94. However, the court stated that the juror’s answer that she “would like to say he’s guilty” was akin to an unqualified statement that she did not think she could be fair. Id. at 196. In addition, the juror did not give an assurance that she had an open mind on the issue of guilt. Id. As a result, the court concluded that the juror demonstrated actual bias and that seating her on the jury was manifest constitutional error. Id. at 197. The court held:

One of the jurors said during voir dire that she “would like to say he’s guilty.” There was no inquiry by the court or the prosecutor that might have neutralized the meaning of these words. When a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error.

Id. at 188.

¶33 Irby is somewhat unique in that the defendant had waived both his right to be represented at trial and his right to be present. Id. Therefore, the jury was selected without any participation by the defendant. Id. at 189. Arguably, this placed a greater burden on the trial court to excuse biased jurors. The court stated, “The record reflects that the trial judge and the prosecutor knew that Irby’s refusal to participate did not excuse them from the duty of impaneling a fair and impartial jury.” Id. at 196.

d. Analysis

¶34 Several factors convince us that the trial court did not abuse its discretion in failing to sua sponte dismiss juror 23 because of his alleged bias.

¶35 First, we emphasize again that the trial court is in the best position to evaluate whether a juror must be dismissed. Davis, 175 Wn.2d at 312. Our review is limited to juror 23’s transcribed voir dire answers. We cannot assess juror 23’s tone of voice, facial expressions, body language, or other forms of nonverbal communication when making his statements. We also are unable to assess juror 23’s nonverbal reactions to the trial court, counsel, or the other jurors’ voir dire answers. The trial court was able to observe and evaluate juror 23 in a way that we cannot.

¶36 Second, as noted above juror 23’s answers were at least slightly equivocal. His answers gave the impression that he was unsure whether he could be objective, not that he had a firm conviction of that fact. His answers seemed to convey a vague, nonspecific discomfort with the case rather than a firm bias. And his statement that it would be a “pain in the neck” to judge the case on its merits, Voir Dire RP at 33, seems to refer to inconvenience rather than bias. Unlike in Irby, we do not consider juror 23’s statements to be “unqualified statement[s] expressing actual bias.” Irby, 187 Wn. App. at 188. And again, the nonverbal aspect of these answers would be very important. For example, if juror 23 shrugged his shoulders or rolled his eyes when making these statements, the trial court and counsel may not have perceived any actual bias.

¶37 Third, the record shows that the trial court was alert to the possibility of biased jurors. This is not a case where the trial court was not paying attention to voir dire. The trial court expressly noted that several jurors stated concerns that they could not be fair. And before either party made challenges for cause the trial court suggested that two jurors be dismissed. Yet the trial court did not mention juror 23 or suggest that he be dismissed. This fact suggests that the trial court observed something during voir dire that led it to believe that juror 23 could be a fair juror.

¶38 Fourth, the record shows that defense counsel also was alert to the possibility of biased jurors. This is not a case where defense counsel abdicated his responsibility to critically evaluate the jurors. Defense counsel agreed when the trial court suggested dismissing two jurors, moved to excuse two additional jurors for cause, and exercised five peremptory challenges. Yet defense counsel did not challenge juror 23 or even ask follow up questions despite juror 23’s voir dire answers and his indication that he would be uncomfortable serving on the jury. This fact suggests that defense counsel observed something during voir dire that led him to believe that juror 23 could be a fair juror.

¶39 Fifth, it is significant that Lawler had a peremptory challenge available that he chose not to use on juror 23 and in fact remained unused. This is not a situation where Lawler had no choice but to accept a biased juror. The fact that Lawler did not use an available peremptory challenge on juror 23 leads to a presumption that Lawler wanted juror 23 on the jury.

¶40 Finally, we acknowledge that the trial court must be careful not to interfere with a defendant’s strategic decisions regarding jury selection. Although a trial court does have a duty to dismiss biased jurors, a trial court in the exercise of its discretion may legitimately be less willing to dismiss a juror sua sponte than to grant a for cause challenge. Here, because Lawler did not challenge juror 23 for cause or use an available preemptory challenge to dismiss him, the trial court may have concluded that Lawler had made a strategic decision that he wanted juror 23 to serve on the jury despite his voir dire responses.

¶41 Based on all these factors, we hold that the trial court did not abuse its discretion in failing to excuse juror 23 sua sponte.

B. Ineffective Assistance of Counsel

¶42 Lawler argues that defense counsel’s failure to challenge juror 23 for cause constitutes ineffective assistance of counsel. We disagree.

1. Standard of Review

¶43 We review claims of ineffective assistance of counsel de novo. State v. Hamilton, 179 Wn. App. 870, 879, 320 P.3d 142 (2014). To prevail on an ineffective assistance of counsel claim, the defendant must show that (1) counsel’s performance was deficient, and (2) the deficient performance prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011). Representation is deficient if, after considering all the circumstances, it falls below an objective standard of reasonableness. Id. at 33. Prejudice exists if there is a reasonable probability that except for counsel’s errors, the result of the trial would have been different. Id. at 34.

¶44 We begin our analysis with a strong presumption that counsel’s performance was reasonable. Id. at 33. To rebut this presumption, the defendant must establish the absence of any “ ‘conceivable legitimate tactic explaining counsel’s performance.’ ” Id. (emphasis added) (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). If defense counsel’s conduct can be considered to be a legitimate trial strategy or tactic, counsel’s performance is not deficient. Grier, 171 Wn.2d at 33.

2. Analysis

¶45 Defense counsel neither challenged juror 23 for cause nor exercised a preemptory challenge to remove juror 23. And defense counsel exercised only five of Lawler’s six preemptory challenges, ultimately forgoing the final challenge.

¶46 Lawler argues that the decision to not challenge juror 23 was unreasonable because he had stated an inability to be objective and follow the court’s instructions. However, as stated above we must presume that defense counsel’s performance was effective. Therefore, we must presume that defense counsel wanted juror 23 to sit on the jury despite his answers in voir dire. Otherwise, defense counsel would have exercised the unused preemptory challenge to excuse him.

¶47 Lawler also argues that defense counsel’s failure to challenge juror 23 cannot be deemed a tactical decision. However, Lawler cannot establish the absence of any conceivable legitimate tactic for not excusing juror 23. Jury selection involves strategic and tactical decisions for defense counsel. See Grier, 171 Wn.2d at 31. Defense counsel may have thought juror 23 was a good juror despite his voir dire responses because of his background, other personal characteristics, mannerisms, or nonverbal communication. Or defense counsel may have preferred juror 23 over the person who would have been seated on the jury if juror 23 was excused. Therefore, there are conceivable legitimate tactical reasons for defense counsel’s decision to not challenge juror 23, and Lawler cannot overcome the presumption of effective performance.

¶48 Accordingly, we hold that Lawler’s claim for ineffective assistance of counsel fails.

¶49 In the unpublished portion of this opinion, we consider and reject Lawler’s additional arguments. Accordingly, we affirm Lawler’s convictions.

¶50 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Bjorgen, C.J., and Sutton, J., concur.

Review denied at 186 Wn.2d 1020 (2016). 
      
       It could be argued that not using a peremptory challenge on juror 23 waived Lawler’s ability to challenge the trial court’s failure to dismiss juror 23 sua sponte. See State v. Crawford, 21 Wn. App. 146, 151, 584 P.2d 442 (1978). However, the State does not make this argument and therefore we do not address it.
     