State v. Cleary
269 P.3d 367
Wash. Ct. App.2012Background
- A Grant County jury questionnaire asked jurors if they were under DOC supervision rather than if civil rights were restored; the issue was discovered before jurors were seated.
- RCW 2.36.070(5) bars felons who have not had civil rights restored from serving on juries; the court stated this and noted the questionnaire's change to ask about DOC supervision.
- Jurors 4, 7, and 28 reported felony convictions; the court considered interviewing them to verify civil rights restoration but ultimately interviewed only Juror 4.
- Juror 4 testified he marked the felony box by mistake and had not been convicted; the court then decided not to interview Jurors 7 and 28.
- Counsel for Cleary agreed with the court’s approach and ultimately the jury was seated and Cleary was convicted of third degree assault of a law enforcement officer and obstructing a law enforcement officer.
- On appeal, Cleary argued there was no affirmative showing Juror 7 had civil rights restored; the court rejected this, held no constitutional error, and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of juror eligibility challenge | Cleary preserved a due process issue by challenging Juror 7's eligibility. | State contends there was no preserved constitutional error and invited error or waiver. | No constitutional error; error invited/waived; convictions affirmed. |
| Constitutional impact of seating an unverified felon juror | Seating Juror 7 without civil rights restoration violated impartial jury rights. | Statutory defect does not necessarily implicate constitutional rights; no per se violation. | No constitutional violation found. |
| Effect of invited error doctrine on review | Counsel affirmative agreement to proceed should not waive potential error. | Counsel explicitly consented; error was invited and thus not reviewable as grounds for reversal. | Error invited; not a basis for reversal. |
Key Cases Cited
- State v. Nemitz, 105 Wash. App. 205 (2001) (impartial jury and rights to challenge)
- Kohl v. Lehlback, 160 U.S. 293 (1895) (felony juror statute not implicating due process)
- Raub v. Carpenter, 187 U.S. 159 (1902) (untimely discovery of juror's crimes; motion handling)
- Coleman v. Calderon, 150 F.3d 1105 (9th Cir. 1998) (felon serving on jury did not violate Sixth or Fourteenth Amendments)
- United States v. Uribe, 890 F.2d 554 (1st Cir. 1989) (statutory violation about felon serving did not implicate fundamental fairness)
- United States v. Humphreys, 982 F.2d 254 (8th Cir. 1992) (impartiality not require per se bar on felon-jurors)
- United States v. Boney, 977 F.2d 624 (D.C. Cir. 1992) (whether felon-juror was biased; per se rule not favored)
- In re Pers. Restraint of Call, 144 Wash.2d 315 (2001) (invited-error doctrine and waiver analysis)