State v. Irby, 347 P.3d 1103

Background

Terrance Irby was tried for James Rock’s 2005 beating and death; evidence linked Irby (neighbors, items with victim’s blood, victim’s weapons in Irby’s truck).
Irby’s 2007 convictions were reversed by the Washington Supreme Court for a public-trial violation; on remand he proceeded pro se and voluntarily absented himself during voir dire at the 2013 retrial.
During voir dire two seated jurors made statements suggestive of bias: Juror 38 said, unprompted, “I would like to say he’s guilty,” and Juror 27 expressed being “pro police officer” but later said she would “try” to be fair.
Irby was convicted of premeditated first-degree murder, first-degree burglary, and felony murder; sentencing produced life without parole on aggravated murder (based on aggravators) and life without parole on burglary as a persistent offender.
The court held: seating juror 38 (actual bias without follow-up) was manifest constitutional error requiring reversal and new trial; jury unanimity was lacking on the burglary count (two distinct acts presented without election or Petrich instruction), requiring reversal of burglary and felony-murder convictions; the State failed to prove aggravating factors and felony-murder, so those findings were dismissed with prejudice.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Irby)	Held
Juror bias (Juror 38, 27)	No forfeiture; voir dire adequate overall; group questions sufficient; no follow-up needed	Juror 38’s statement showed actual bias; failure to question was manifest constitutional error; juror 27 also biased	Reversed: Juror 38 demonstrated actual bias; seating her was manifest error requiring new trial; juror 27 was not clearly biased
Jury unanimity on burglary	Charge involved alternative means or the acts were part of same transaction; unanimity instruction unnecessary	State presented two separate unlawful entries (shop and upstairs bedroom); no election or Petrich instruction; jurors may not have agreed on same act	Reversed: Failure to give unanimity/Petrich instruction was not harmless; burglary and dependent felony-murder reversed
Sufficiency of evidence for aggravating circumstances	Evidence supported burglary-related and concealment aggravators as part of the transaction	Sequence of events not proved; burglary may have occurred after killing; concealment not established beyond speculation	Reversed with prejudice: State failed to prove aggravators; cannot retry on those aggravators; felony-murder also unsupported
Comparability of 1976 conviction as a strike	Historical conviction comparable or factual record shows age disparity sufficient	Information/ verdict from 1976 did not prove 36-month age gap; using court records to find age would violate Apprendi	Vacated strike use: 1976 conviction not proven factually comparable beyond jury findings; cannot be used to impose persistent-offender life term

Key Cases Cited

Taylor v. Louisiana, 419 U.S. 522 (1975) (right to impartial jury)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty must be found beyond a reasonable doubt)
State v. Petrich, 101 Wn.2d 566 (1984) (jury unanimity requirement for the act underlying a single charge)
State v. Kitchen, 110 Wn.2d 403 (1988) (unanimity and alternative means discussion)
State v. Brett, 126 Wn.2d 136 (1995) (aggravators and concealment standard)
State v. Hacheney, 160 Wn.2d 503 (2007) (felony-murder and timing/chronology requirement)
Hughes v. United States, 258 F.3d 453 (6th Cir. 2001) (failure to follow up on juror’s explicit inability to be fair requires reversal)
United States v. Gonzalez, 214 F.3d 1109 (9th Cir. 2000) (biased juror error not harmless)
State v. Gonzales, 111 Wn. App. 276 (2002) (juror statements showing inability to apply presumption of innocence require excusal)
State v. Lavery, 154 Wn.2d 249 (2005) (comparability test for prior convictions used as strikes)
State v. Hickman, 135 Wn.2d 97 (1998) (remedy for insufficient evidence is dismissal with prejudice)