State Of Washington v. Paul Benjamin Southerland ( 2018 )

VILE°
COURT OF APPEALS DIV I
STATE OF WASHINGTON
2018 AUG -6 AM 10: 514
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 76057-2-1
)
Respondent, )
)
v. )
)
PAUL BENJAMIN SOUTHERLAND, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: August 6, 2018
)
VERELLEN, J. — Paul Southerland appeals his conviction for failure to register
as a sex offender. Because Southerland does not show that the trial court abused its
discretion in denying his for-cause challenge to a juror who was ultimately seated on
the jury, we affirm.
FACTS
The State charged Southerland by amended information with failure to register
as a sex offender. Southerland had prior convictions for child molestation in the first
degree and felony failure to register as a sex offender. The State alleged that
between August 27, 2014 and July 21, 2016, Southerland was required to register as
a sex offender and knowingly failed to do so.
A jury convicted Southerland as charged, and the trial court sentenced him to
12 months and 1 day confinement. Southerland appeals.
No; 76057-2-1/2
ANALYSIS
For-Cause Challenge to Juror
Southerland argues that the trial court violated his right to a fair trial before an
impartial jury when it denied his motion to strike juror 7 for cause. Even assuming,
but not deciding, that Southerland has properly preserved this issue, his argument
fails.1
"Actual bias is a ground for challenging a juror for cause,"2 and the trial court
has the duty to excuse any juror who is unfit by reason of bias.3 Actual bias occurs
when the juror's opinion, in reference to the action or to either party, satisfies the
court that the juror cannot try the issue impartially and without prejudice to the
substantial rights of the challenging party.4 That a juror has expressed "such opinion
shall not of itself be sufficient to sustain the challenge, but the court must be satisfied,
from all the circumstances, that the juror cannot disregard such opinion and try the
1 The State contends that under State v. Clark, 143 Wash. 2d 731, 762, 24 P.3d
1006 (2001), Southerland did not preserve this issue because he failed to use all of
his peremptory strikes. Southerland contends that State v. Fire, 145 Wash. 2d 152, 158,
34 P.3d 1218(2001) establishes that he was not required to exercise all of his
peremptory strikes in order to bring this challenge. Because Clark and Fire are both
factually distinguishable from Southerland's appeal, we choose to resolve this issue
on the merits and do not address the preservation issue.
v. Lawler, 194 Wash. App. 275, 281, 374 P.3d 278, review denied, 186
2 State
Wn.2d 1020 (2016).
3 RCW 2.36.110.
4 Lawler, 194 Wash. App. at 281.
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issue impartially."5 The trial court may determine whether a litigant has successfully
rehabilitated a juror who expresses actual bias.6
We review a trial court's decision on excusing jurors for cause for an abuse of
discretion.7 This standard recognizes that the trial court is in the unique position to
assess potential jurors'"tone of voice, facial expressions, body language, or other
forms of nonverbal communication."8 We simply cannot and should not make those
assessments as an appellate court.6
Here, during voir dire, the prosecutor asked the jurors in the jury box,"What
was your reaction like when you heard the charge in this case?"1° After several other
jurors responded, the prosecutor asked juror 7 to share her thoughts. She
responded, "I would agree with what Juror Number 1 said, as well. I do agree that it's
not that hard to re-register, when there are many kids around that are not always
under supervision. So it's nice to have, to know if someone's registered or not."11
Later, defense counsel asked what the potential jurors thought about the fact
that Southerland had a prior conviction for failure to register as a sex offender. Juror
7 explained her reaction:
[DEFENSE COUNSEL]: ... What did you think, then?
5 RCW 4.44.190.
6 State v. Witherspoon, 82 Wash. App. 634, 638, 919 P.2d 99 (1996).
7 Id.
8 Lawler, 194 Wn. App. at 287.
9 Id.
10 Report of Proceedings(RP)(Oct. 3, 2016) at 48.
11 Id. at 49
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PROSPECTIVE JUROR NO. 7: That I wasn't very observant or
hearing everything you said, I was like --
[DEFENSE COUNSEL]: Well, is that necessarily fair[?] [B]ecause
when you hear child molestation, right, you're brand new, you're
showing up[.] [VV]hat kind of case is this going to be[?] [A]nd then, all
of a sudden, you hear, whammo, it's a criminal case [and] whammo, it's
child molestation, right?
PROSPECTIVE JUROR NO. 7: Right.
[DEFENSE COUNSEL]: You think, oh, wow, okay. What was your
thought process? Can you describe what was going on in your mind? I
mean, can you imagine that --
PROSPECTIVE JUROR NO. 7: Well, initially I was shocked, you know,
1-- as many people were -- and that the failure to register --
[DEFENSE COUNSEL]: Then you realized what's --
PROSPECTIVE JUROR NO. 7: It was more a than a paper trail -- lack
of paper trail, I understand that, and -- the repetitiveness of it, just right
now --
[DEFENSE COUNSEL]: Yeah. Right.
PROSPECTIVE JUROR NO. 7: -- kind of makes it a bigger deal.
[DEFENSE COUNSEL]: Yeah. Okay. A bigger deal, because, if you
would?
PROSPECTIVE JUROR NO. 7: Because just a failure of -- repetitive,
as being responsible, you know, keeping papers and what have you.
[DEFENSE COUNSEL]: Okay. So you've learned that Paul has
allegedly been convicted of child molestation in the first degree. The
State's got to prove that. The State's got to prove that he's allegedly
been convicted of a second -- of a prior failure to register as a sex
offender, right? So does that make it more likely that you're going to be
thinking, I think he's guilty of this, you know?
PROSPECTIVE JUROR NO. 7: I do, yes. I'm just waiting for evidence,
obviously, but --
[DEFENSE COUNSEL]: Yeah.
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PROSPECTIVE JUROR NO. 7: -- if there is evidence, there
should be --
[DEFENSE COUNSEL]: Right.
PROSPECTIVE JUROR NO. 7: -- in the judicial system --
[DEFENSE COUNSEL]: Right.
PROSPECTIVE JUROR NO. 7: -- then I would say he's guilty.
[DEFENSE COUNSEL]: But at this point, are you really kind of
thinking, okay, I mean --
PROSPECTIVE JUROR NO. 7: I'm waiting for information.
[DEFENSE COUNSEL]: Okay. But at this -- okay.(12]
Defense counsel then asked who agreed that "the situation got a little bit more
difficult for defense" given Southerland's prior conviction for failure to register, and
juror 7 raised her card.13 She again raised her card when asked who would want to
hear from Southerland during the trial.
At the end of voir dire, defense counsel challenged juror 7 for cause:
[DEFENSE COUNSEL]: Yes please, Your Honor, Juror Number 7 had
said that she thought she wouldn't -- that she was really in line with
guilt, if I'm not misstating it, when she learned the new information
about the allegation of the felony failure to register conviction.
THE COURT: [Prosecutor]?
[PROSECUTOR]: Your Honor, may I voir dire Number 7? I don't recall
that.
THE COURT: Yes.
12 Id. at 64-66.
13 Id. at 66.
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No. 76057-2-1/6
[PROSECUTOR]: Juror Number 7, we've spoken about the State's
burden in this case, the State's burden to establish everything that I'm
alleging beyond a reasonable doubt; do you understand that?
PROSPECTIVE JUROR NO. 7: Sure.
[PROSECUTOR]: Can you hold the State to that burden?
PROSPECTIVE JUROR NO. 7: Yes, I can.
[PROSECUTOR]: Can you hold the State to that burden even though
you had initially misheard or not heard all of the allegation in this case?
PROSPECTIVE JUROR NO. 7: Yes.
[PROSECUTOR]: And can you do so in a fair and unbiased manner?
PROSPECTIVE JUROR NO. 7: Yes.
[PROSECUTOR]: Thank you. The State would object, Your Honor.
THE COURT: And based on my notes, I'm going to deny the challenge
of Juror Number 7.
[DEFENSE COUNSEL]: Okay.(141
After exercising six of seven peremptory strikes, defense counsel accepted the jury
with juror 7 impaneled.
Southerland argues that several of juror 7's comments indicate that she would
not follow the court's instructions on his presumption of innocence and the burden of
proof carried by the State. But in her original conversation with defense counsel,
juror 7 stated that she was waiting for "evidence" and "information" before she
decided whether or not Southerland was guilty. And the prosecutor later rehabilitated
juror 7 by confirming that she would hold the State to its burden of proof in a fair and
14 Id. at 148-49.
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No. 76057-2-1/7
unbiased manner. Therefore, the record does not indicate that juror 7 expressed
serious doubts as to her ability to be impartial. The trial court did not abuse its
discretion in denying Southerland's challenge.
Southerland argues that juror 7's statements in this case are analogous to
juror statements in State v. Gonzales15 and State v. Fire16 and require reversal. But
in both of those cases, the challenged jurors unequivocally admitted a bias and
indicated that the bias would likely affect their deliberations.17 Juror 7 made no such
unequivocal admission, and she specifically confirmed that she would hold the State
to its burden of proof in a fair and unbiased way. Therefore, Gonzales and Fire are
distinguishable.
Southerland also argues that State v. Irbv15 and Hughes v. United States19 are
controlling. They are not. In those cases, a juror displayed actual bias, but no one
challenged the juror for cause.2° Both courts held that the defendant could raise the
15 1 1 1 Wash. App. 276, 45 P.3d 205 (2002).
16 100 Wash. App. 722, 998 P.2d 362(2000), rev'd on other grounds, 145 Wash. 2d
152, 34 P.3d 1218 (2001).
17 Gonzales, 111 Wash. App. at 277-82(no rehabilitation attempted where juror
stated it would be difficult to disbelieve a police witness, indicated the bias would
likely affect her deliberations, and admitted she did not know if she could presume
innocence in the face of officer testimony indicating guilt); Fire, 100 Wash. App. at 728
(despite affirming one-word answers that he could be fair, juror indicated actual bias
by saying he considered defendant to be a "baby raper" who should be "severely
punished," that children are more credible than adults, and that his strong feelings
about the case could affect his determination of guilt or innocence).
18 187 Wash. App. 183, 347 P.3d 1103(2015).
19 258 F.3d 453(6th Cir. 2001).
29 Irby, 187 Wash. App. at 190 (juror stated, "I would like to say he's guilty");
Hughes, 258 F.3d at 456 (juror stated, "I don't think I could be fair.").
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issue of juror bias for the first time on appeal and that reversal was required where no
one attempted to elicit an assurance that the juror had an open mind on the issue of
guilt.21 Here, the prosecutor did elicit an assurance that juror 7 could be fair and
unbiased. Irby and Hughes do not require reversal.
Finally, Southerland argues that, even though the prosecutor attempted to
rehabilitate juror 7, such rehabilitation did not go to the actual bias she expressed.
Southerland identifies those biases as a failure to apply the presumption of
innocence fairly and a failure to state she could follow the court's instructions on the
law. But based on juror 7's statement that she was waiting for "evidence" and
"information" before she decided whether Southerland was guilty, she was not biased
against the presumption of innocence. And nothing in the record indicates that juror
7 expressed she could not follow the court's instructions. Therefore, rehabilitation on
those issues was not necessary.
We affirm.
WE CONCUR:
4 .401, 46,7-
21 Irby, 187 Wash. App. at 196-97; Hughes, 258 F.3d at 463.
8