State v. Stackhouse

Florida, v. scribed when the crime was consummated.” Miller 2446, 2451, Ct. 96 L. Ed. 2d 351 482 U.S. S. (1987) Graham, Weaver v. 24, 30, 101 S. Ct. (quoting (1981)). case, 2d In this POAA was 67 L. Ed. before committed Angehrn November well passed his third most serious offense. the robberies that constituted stated, punishment trig- As POAA’s increased previously of- the third conviction of most serious gered only upon fense. See RCW 9.94A.030(23), result, As a had Angehrn to life without the pos- fair notice that he would be sentenced if convicted of a third most serious offense. sibility parole not constitute ex facto post We find that POAA does to cases where the act constitut- punishment applied when strike occurs after POAA’s enactment. ing third affirm on all issues. We no value.

The remainder of this has opinion precedential record in accordance Therefore, it will be filed public governing unpublished opinions. with rules Cox, J., Baker, C.J., concur. denied at 136

Review 3, 1998.] Division Three. March [No. 15646-0-III. Respondent, Washington, Tobias Robert The State Stackhouse, Appellant. Brown, J., by separate opinion. dissents

Lorraine A Parlange, for appellant. Sweetser, D. Larry Prosecuting Attorney,

James R. Steimmetz, Deputy, respondent. . J In degree This is first murder case. re-

Sweeney, sponse limine, to Tobias Stackhouse’s motion in the trial ruled there would be no mention and no evidence of another recent prior murder Mr. Stackhouse in Pend (Roscoe murder). Oreille County The court found that such evidence would be highly prejudicial legiti- and serve no i.e., mate evidentiary purpose, motive, intent, opportunity. But the court later denied Mr. challenges Stackhouse’s for cause to jurors two who knew that he had been involved in the Roscoe murder. The question here is whether refusal to excuse these two an jurors was abuse of discre- tion. We conclude it was and reverse and remand for retrial.

FACTS 11, On January 1995, Mr. Stackhouse and Jason Kukrall were arrested on Pend Oreille for residen- County charges tial burglary and the murder of Steven Roscoe. They were in arrested and held in Spokane the Spokane County jail overnight. The following day, Spokane County deputies Mr. and transported Stackhouse Mr. Kukrall separate vehicles to the Pend Oreille County jail. As Mr. Kukrall was being to Pend Oreille transported County, two Spokane po- lice detectives rode the car and him questioned the murder of Linda Jaramillo-Guillen that occurred in Spokane 30, on November County 1994. Mr. Kukrall implicated himself and Mr. Stackhouse in that murder.

At the Pend Oreille County jail, Mr. Stackhouse was ushered into the There jail library. two detectives Spokane him of rights. them, advised his Miranda1 He waived agreed speak confessed to the murder of Ms. Guillen Spokane County.

Mr. Stackhouse was then taken from jail library arraigned the murder of Mr. Roscoe. At the preliminary the court hearing, counsel appointed represent on the charges. Stackhouse Roscoe murder Both Spokane Arizona, 1Miranda v. S. Ct. 16 L. Ed. 2d A.L.R.3d 974 hearing. preliminary Mr. Stack- detectives attended anyone, speak attorney to him in not to told court house’s including police. the Pend Oreille taken back to

Mr. Stackhouse was taped jail. Spokane County asked for detectives There tape, agreed. He On the murder. confession on Guillen rights. again He him read his constitutional the detectives murdering again Guillen. and admitted Ms. waived them being recorded, his Mr. confession was As Stackhouse’s (on charges) attorney appointed to murder tried the Roscoe jail supervisor him that Mr. Stack- him. The told contact lawyer Mr. Stack- unavailable. The assumed house was hearing. being transported He waited from the house was attorney became aware for about 15 minutes. When being interviewed, he demanded that Mr. Stackhouse was jail supervisor supervisor stop The the interview. couple Spokane detectives left and returned a of times. The taping finished the confession and left.

Mr. Stackhouse murdered Mr. Roscoe about five weeks after Guillen. Mr. Kukrall and Mr. Stackhouse were Ms. prior to trial on Ms. convicted of Roscoe murder this Guillen’s murder. charged Kukrall with one

Mr. Stackhouse and Mr. were felony degree count of murder and the alternative first degree during robbery first murder the commission trial, to the court severed an unre- of Ms. Guillen. Prior charge. burglary charge court, lated from the murder separately however, motion to be tried denied KukraU’s agreed plead guilty from Mr. Stackhouse. Mr. Kukrall testify against degree Mr. Stackhouse. second murder and response limine, motion In to Mr. Stackhouse’s of Mr. no mention or evidence court ordered there be prior mur- conviction for the Kukrall’s or Mr. Stackhouse’s simply that to der of Mr. Roscoe. The trial court reasoned say jury be a murderer, therefore he must to the “he’s a djoesn’t [It jerkitude invite them murderer, is a factor. decision on and make their look at the facts this case Report of the 403 factor.” this case. It overwhelms. That’s Proceedings however, 251. The trial court agreed, to al- low the State to tell the that both jury Mr. Kukrall and Mr. Stackhouse had unnamed prior felonies. dire, voir

During jurors two admitted that Mr. knowing Stackhouse and Mr. Kukrall were involved the Roscoe murder. Mr. Stackhouse both for challenged cause. The court denied both challenges. And both jurors impan- were eled.

The jury found Mr. guilty Stackhouse first mur- degree der.

DISCUSSION The to trial right assumes the jury right an unbiased and if unprejudiced jury. Accordingly, one or more members of the jury are biased or panel prejudiced, the constitutional by jury is denied. State v. to trial right 507, 463 P.2d(1969). Parnell, 77 Wn.2d 134 But a defend ant error to assigning the court’s denial of a challenge for cause must show more than the mere possibility that Noltie, State v. was juror prejudiced. 831, 840, 116 Wn.2d (1991) 809 P.2d 14 190 (citing H. Orland & B. Lewis Karl Washington § at 331 Tegland, Trial Practice: Practice (4th 1986)). ed. And, therefore, clear, unless it is very court’s denial of a for cause must challenge be sustained. Noltie, State v. 839; 116 Wn.2d at Witherspoon, 82 Wn. review 634, 637, (1996), App. 919 P.2d 99 130 Wn.2d 1022

The trial here appropriately prohibited the State from introducing evidence of Mr. recent prior Stackhouse’s conviction for the murder of Mr. Roscoe. He concluded that evidence of this recent prior conviction for murder—the same of crime Mr. type Stackhouse was on trial for—would be and had no overwhelmingly prejudicial probative value. Pam, was correct. State v. The judge 98 Wn.2d (1983) 659 P.2d (Utter, J., 454 concurring) (“strong the admission of of a presumption against prior evidence conviction identical to that for which the defendant on Brown, overruled on other trial”), grounds by reh’g, on 113 Wn.2d 124, aff’d (1989). “Where 1013, 80 A.L.R.4th 520, 782 P.2d shown, strong can be kinds convictions various multiple the same are for those which excluding arise for reasons lay jurors pressure of the inevitable crime because did so this he probably ‘if did it before that he believe ” (Utter, J., concurring) (quot Pam, at 761 time.’ (D.C. States, 383 F.2d 936, 940 Cir. v. United Gordon ing (1968)). court, denied, 1967), knew of Mr. who however, jurors refused to dismiss two in the Roscoe murder. involvement Stackhouse’s that he jury in his responded questionnaire Juror No. 6 murder one other implicated have been “[t]hey knew custody.” other have confessed while may and one or the juror that In dire same questioning, voir response average person that because “presumably responded would, think, maybe person I would think yeah, convicted, if had been they especially more predisposed recently.” that “Jason in her questionnaire

Juror No. 32 responded in an- Stackhouse were also involved Kukrall and Tobias Deer Park and that Jason other murder or around dire, during in that role.” voir guilty Again Kukrall was I doing together. it would “[t]hey were juror responded asked how involved.” When say think. That’s how would were implicated if the same two individuals she would feel way “I feel the same murder, would responded: in this she in involved what- they one. That were both did with that are responses of.” The that—they’re accused ever it was taint which prompted of the very prejudicial evidence recent previous evidence of the refusal to permit court’s (Utter, J., concurring). Pam, 98 Wn.2d at murder. that discuss the stan- on those cases The State relies of the effect gauging for analysis and appropriate dards Yount, 1025, 1029, 104 Patton v. U.S. pretrial publicity. (court (1984) decision upheld 2885, 81 L. Ed. 2d 847 S. Ct. about press from the knowledge who had jurors to impanel which was confession case, defendant’s including trial); admissible at Rupe, 108 Wn.2d (1987) (juror on the impaneled retrial of a defend ant previously sentenced death not biased by knowledge denied, cert. from the media about the case), 486 U.S. 1061 (1988). Those cases focus on a different The question. ques tion there is jurors whether can set aside information the case under consideration and decide the case on the impartially facts at trial. presented Parnell, Much like the State’s position the State here compares impressions by jurors two gained “with the reading newspaper accounts or hearing radio reports offense for which a defendant placed Parnell, trial.” 77 Wn.2d at 505-06. And like the court Parnell, “[w]e cannot agree. setting and the purpose Parnell, different.” Id. at 506. are In entirely it pre was a Mminary where hearing Here, witnesses are under oath. it of Mr. knowledge Stackhouse’s involvement in another recent A murder. conviction that the trial court ap propriately recognized was highly prejudicial to jurors deciding Stackhouse’s involvement unre totally lated murder.

We conclude that the trial abused discretion in denying Mr. challenges Stackhouse’s to Juror No. 6 and Brett, cause. See State v. 32 for Juror No. (1995) (denial

158, 892 P.2d 29 for challenge cause reviewed for discretion), abuse of (new Parnell, 77 Wn.2d at 508 (1996); trial granted

after court failed to disqualify juror cause who had from a knowledge preliminary to the hearing prejudicial trial). defendant’s rights While the express implicit 404(b) 609(a) findings underlying court’s ER or ER rul can be ings analyzed separately from its denial of Mr. Stack- juror house’s we challenges, believe to do so would be an in sophistry. exercise The concerns—a fair trial and the effect of prejudicial this information—are the same. assignments We address other of error that be may rele- on retrial. vant Taped

Obtaining con- Mr. Stackhouse Confession. right at Amendment to counsel attached Sixth tends his County arraignment murder the Pend Oreille on right to charges. Fifth Amendment And therefore his Spokane during taped murder of the confession counsel had been invoked. Amendment his Sixth

A invocation of defendant’s right Fifth Amendment not also invoke his counsel does to during present right inter a later custodial to have counsel charge. rogation Stewart, 113 State on an unrelated U.S. ques In the court answered the same Stewart, in-custody by “Where an raised Mr. Stackhouse: tion now right invoked to counsel is Sixth Amendment defendant’s yet arraignment, not met with but the defendant has right Amendment counsel, the defendant’s Fifth is interrogate police on the defendant counsel violated when charges, procure a waiver, and obtain a Miranda unrelated no. Id. at 463. confession?” The answer is controlling argues that Stewart Mr. Stackhouse He him and he was confused. the State tricked because rights he because was invalid contends the waiver converging jurisdictions police on had from two different questions crimes within him about both at once with refusing very period him Police tricked of time. short County court-appointed at- Pend Oreille tell him that his during taped trying torney him confes- to contact at 474-78. concerns. Id. sion. Stewart addresses his specifically arraigned, he is advised When a defendant pending charges if to have he wishes and asked charges. represent An.4. Id. at 474 him on those counsel interrogation subsequent matters on unrelated custodial right including warnings requires to have Miranda new charges. interrogation during present new on the counsel Id. procedures two that these court reasoned

The Stewart arraign- immediately occurring another, i.e., an after one interrogation separate unre- ment and custodial charges, lated would not confuse even the most uneducated right separate, defendant on the counsel on unrelated charge. if Id. The court noted that a defendant had been appointed arraignment, immediately counsel at an and then right attorney during subsequent advised about his to an interrogation, and unrelated custodial it is reasonable already assume that the defendant would indicate that he appointed attorney present during had an that should be interrogation. prompt person the conducting Id. This would then interrogation again him advise of the charges, attorney present nature of new ask if he an wants charges—as opposed arraigned charges—or for these to the rights. if he wishes to waive his Mr. Stackhouse waived his rights doing Miranda and showed no confusion when so.

Allegations trickery are The also without merit. knowledge record is unclear whether the had detectives attorney trying that Mr. Stackhouse’s was to contact him. Regardless, at the time of the confession Mr. Stackhouse right “[A] had waived his to counsel. waiver is valid as suspect matter of law once it is determined that a rights aware of his and the State’s intention to use his against statements him, his decision not to invoke rights those Earls, was uncoerced.” State v. 116 Wn.2d (1991); 364, 380, Burbine, 805 P.2d Moran v. (1986).

412, 422-23, 106 S. Ct. 89 L. Ed. 2d 410 attorney, try defendant, fact that an unbeknownst to the ing during bearing to contact him a confession has no capacity comprehend knowingly the defendant’s relinquish right. Earls, his constitutional 116 Wn.2d at App. 380; Burbine, 422; Greer, 475 U.S. at State v. 62 Wn. (1991). 779, 787-88, 815 P.2d 295 Taped

Admission of Confession at Trial. Mr. Stackhouse by allowing the trial contends court abused its discretion play taped the State to confession because it was prejudice. cumulative and caused unfair ruling We will not disturb a trial court’s on a mo admissibility tion limine or the an evidence absent Stenson, abuse of discretion. State v. 132 Wn.2d (1998); 940 P.2d 1239 118 S. Ct. 1193 P.2d 615 Powell, 126 Wn.2d 244, 258, 893 State the broad testimony is within to limit trial “The decision Smith, App. 82 Wn. the trial court.” discretion of denied, (1996), review be not cumulative. Evidence may Taped confession outweighed substantially if its value probative excluded ER of cumulative evidence. needless by presentation 403. to exclude 1996, Mr. Stackhouse moved February 15,

On cumula- that it would be ground confession on the his taped the two detec- that could he obtained testimony tive to But confession. during taped present tives who were motion. at the time of the had testified neither detective admit both the taped the State could not The court ruled because confession transcript taped confession and a the other. It had to choose one or that be cumulative. would in the confes- that the statements argues Stackhouse testimony given by the to be cumulative proved sion He James Hansen. Minde and Detective Connelly Detective is mistaken. Detective Hansen testi- nor Connelly

Neither Detective Connelly Detective fied about the confession. taped times, she times. The first three called to the stand four scene, at the crime her evidence experience, testified about victim, codefend- victim, to the interviews with injuries the other than Kukrall, and found locations ant Mr. evidence the time testified about crime The fourth she scene. Mr. Stackhouse dur- by made conversation statements And County jail. Eend Oreille at the ing the first interview about that. does not complain he apparently Connelly questions Detective did not ask prosecutor Detec- made in the confession. taped statements to the tape: references following made only tive Hansen interview, you did second Q: During tape-recorded this of Mr. Stackhouse? any questions Hansen] ask [Detective yes. questions, I did ask a few A: 356

Q: And will that tape? be reflected Yes, A: it would be.

Report Proceedings at 819.

The taped confession was not cumulative.

Taped unfairly prejudicial. Audio confession are admissible at the tapes discretion of the court, trial but should be excluded if are unduly prejudicial. State v. they Frazier, 180, 188, 661 P.2d 126 (1983); State v. Clapp, review App. Wn. 834 P.2d (1993). denied, 121 Wn.2d 1020 Evidence may be excluded if its probative value substantially outweighed by the “ danger of unfair prejudice. ER 403. £[U]nfair prejudice’ is that which is more likely to arouse an emotional response than a rational decision Gould, State v. jury.” 175, 183, Wn. App. 791 P.2d 569 context, Within its “unfair prejudice” means an undue tendency to suggest decision on an improper basis—commonly an emotional Cameron, State v. one. 520, 529, 674 P.2d 650 (1983). The addition of the word “unfair” in ER 403 “obligates court to weigh evidence the context of itself, trial in mind bearing fairness to both the State Bernson, defendant.” Wn. App. review 700 P.2d 104 Wn.2d 1016 “In any instance, almost a defendant can complain the admission of potentially incriminating evidence is in that it prejudicial may contribute proving beyond reasonable doubt he committed the crime with he which charged.” Id. As such, the focus be on must whether it was unfairly Here, Mr. prejudicial. argues Stackhouse unfair prejudice primarily ground the the of admission the taped confession was duplicative testimony by to given Detective Hansen and Detective As we Connelly. have noted, Furthermore, it was not. the State was not required to have the evidence in the confession come the through State v. just detectives because it was less inflammatory. Crenshaw, 98 State 789, 807, (1983); Wn.2d 659 P.2d 488 Adams, rev’d on 76 Wn.2d 458 P.2d 558

357 L. Ed. 2d 2273, 29 947, 91 S. Ct. 403 U.S. grounds, other 855 as evi confession taped introduced

The State time of at the demeanor Mr. Stackhouse’s dence of on the issue relevant That demeanor was confession. voluntarily gave freely and Mr. Stackhouse whether 392, 394-95, Cushing, State v. App. 68 Wn. confession. (voluntariness of confession determined 842 P.2d 1035 de of the including demeanor the circumstances totality of (1993). The trial denied, 121 Wn.2d 1021 review fendant), did not abuse his discretion. Fhotographs. contends Stackhouse Admission of grue- by failing suppress its discretion trial court abused He the admission argues of the victim. photographs some unnecessary of the victim was of the photographs there were alternative because prejudice caused unfair information the same for presenting means available He contends the verbal photographs. depicted and medical personnel law enforcement testimony by sufficient, and the have been injuries the victim’s would unnecessary establish photographs admission charged. of the crime the elements prove the facts within generally admissibility photographs State v. Sargent, 40 the trial court. discretion of sound Crenshaw, 98 (1985); App. Wn. will not to admit photographs at 806. The decision Wn.2d abuse of of an showing absent appeal disturbed on be 628, 651, 904 P.2d Pirtle, State v. discretion. 40 Wn. denied, Sargent, (1996); (1995), from the record that it clear at 347. “Unless App. is to photographs admit gruesome reason to primary uphold courts will appellate jury’s passion, inflame the Daniels, App. 56 Wn. of the trial court.” decision 579, review 646, 649, 784 P.2d if accurate are admissible photographs Gruesome ef- prejudicial their outweighs if their value probative 358 Sargent, App.

feet. Crenshaw, 806; 98 Wn.2d at 40 Wn. at 347. “Prosecutors as well as trial courts must exercise their gruesome photographs.” discretion in the Crenshaw, use of proof may amply 98 Wn.2d at 807. When of criminal acts be proven through testimony noninflammatory evidence, prosecutors grue must “use restraint in their reliance on repetitive photographs.” some and Id. But a brutal crime explained anything cannot be as other than a brutal crime. Id.; Adams, 76 Wn.2d at 656. precluded

Mr. Stackhouse contends the State is from us- ing gruesome photographs because other testimonial explain injuries. evidence is available to the victim’s The requires preclusion an restraint, law exercise of not a simply inflammatory because other less testimonial evi- dence is Crenshaw, available. 98 Wn.2d 807. present

Here, the court did not allow the State to both a videotape multiple photographs still of the victim at required the crime scene. The court the State to one choose only or the other to avoid cumulative evidence. It allowed photograph along one still of the victim at the scene with photographs other crime scene where the victim was not in picture. “Photographs probative ‘they have value when are explain testimony patholo used to illustrate or of the ” gist performing autopsy.’ Brett, State v. 126 Wn.2d (1995) (quoting 136, 160, 892 P.2d 29 Lord, 117 Wn.2d 822 P.2d denied, 177 cert. 506 U.S. (1996). (1992)), cert. 516 U.S. 1121 The court pathologist rely only photographs. allowed the on four It previously pathologist rely had ruled that could injuries graphs depicted charts and show in the autopsy photographs. pictures identity established the They

victim. showed the manner in which she was killed. they jury understanding physical short, In aided the facts relevant to Mr. Stackhouse’s intent. See State v. Grif 721, fith, 328 P.2d 897 Mr. Stack- house’s concession on the cause of death does not make the 598- Rice, State irrelevant.

photographs denied, 491 U.S. (1988), discretion. not abuse its court did The trial Right Testimony to Remain Invocation Rebuttal its discre- court abused argues Mr. Stackhouse Silent. he was because for a mistrial motion his denying tion used being to remain silent right unfairly prejudiced posed the question contends him. The State against rebuttal testi- proper in redirect was Connelly Detective mony. agree. We allowed to comment

The State is generally Jones, 111 v. silent. State choice to remain a defendant’s on (1988). “A comment 239, 248-49, 759 Wn.2d State’s used to the occurs when accused’s silence an or to guilt sug evidence either as substantive advantage guilt.” admission of was an to the that silence gest jury 707, 927 P.2d 235 Lewis, defense if the do so rebuttal However, may the State 248-49; States Jones, 111 United the issue. raises 2d 864, 99 L. Ed. 25, 32-33, 108 S. Ct. Robinson, 485 U.S. trial of a criminal Because the central purpose innocence, “it is or guilt factual question to decide the have prosecutor the defendant and that both important arguments fairly to meet the evidence the opportunity Robinson, U.S. at 33. of one another.” Con- of Detective redirect examination the first During confession— taped had heard the jury after the nelly—and had ever Mr. Stackhouse asked whether the prosecutor Connelly Detective the statements. deny her to contacted after, objected Defense counsel He did not.” stated: “No. objec- and the court sustained given, the answer detective, recross of defense counsel’s During tion. as follows: testimony went you Toby, jail, did with

Q: you had later contact Ma’am testing him for from not, you some blood when obtained purposes? Yes, I did.

A: Q: occasion, you And on that did not offer have him go statement, it, it, change deny it,

over retract or anything like that?

A: That’s correct. During the redirect, second State then asked and following testimony elicited the in rebuttal: Q: [defense You in response question counsel’s] indicated you did have contact with Mr. to get Stackhouse hair samples,

blood and correct? right,

A: That’s did.

Q: you Did Mr. Stackhouse talk to at that time? No,

A: he not. did —

Q: he to change Did offer

[DEFENSE Object, COUNSEL]: Your Honor. subsequently objection The court sustained the denied Mr. Stackhouse’s for motion a mistrial. We review Lewis, an Here, abuse of discretion. 707. Wn.2d at denying trial court did not abuse discretion in its motion. testimony proper Jones,

The was rebuttal. 111 Wn.2d at questioning posed by 249; Robinson, 485 U.S. at 33. The during opened defense counsel the to a com- recross door invoking right ment on Mr. to Stackhouse’s his remain initially waiving right, silent. After Mr. Stackhouse incriminating against confessed and made statements self- consulting counsel, interest. After Mr. Stackhouse recanted pleaded guilty. during and not counsel Defense recross brought validity reliability question and of into the the jury confession. He invited the to infer that Mr. Stackhouse process right denied to was due when he waived his remain throughout This a defense theme the case. The silent. question suggested up that the detective failed to follow af- by allowing recant, the Mr. to ter confession Stackhouse change deny, retract, or his confession.

361 to attempted the State then recross, During its second rebuttal. so was Doing proper issue. fairly address 249; Robinson, 485 Jones, 111 at 33. U.S. Wn.2d Argument. Mr. Stack- Hearsay Closing Statements the State trial allowed improperly house contends the court during closing arguments its hearsay statements present trial) (and how the telling jury the during excluded her. please hitting had Mr. Stackhouse to stop victim asked statements were in evidence. argues He that such the within The and exclusion evidence is admission court and will not be reversed sound discretion trial Swan, 114 abuse of absent manifest discretion. denied, cert. (1990), P.2d 613, 658, Wn.2d 610 Stenson, State 940 P.2d (1991); 118 S. Ct. the direct During examination codefendant Mr. Kukrall, questions the asked several the prosecutor on interactions between Stackhouse the victim the night of the murder. Mr. Kukrall testified that Mr. Stack- hand, hit said, house the victim after which she “raised her I you will do whatever want.” court sustained Stop, objection hearsay grounds. defense Defense counsel’s counsel did not move to strike the nor did the testimony disregard testimony. trial court instruct jury an with no further motion to objection When sustained jury for the testimony strike no further instruction testimony disregard testimony, remains Swan, record for the consideration. 114 Wn.2d at jury’s Here, from presenting 659. the State was not precluded argument. statements of the its hearsay closing victim remanded for a new trial. Reversed and C.J. concurs. Schultheis, —

Brown, (dissenting) majority opinion J. with agree disagree the there was an on all but critical one. points the the trial in denying abuse of on of part judge discretion the for cause for 6 and is not rele- challenges jurors 32. It vant to the critical issue that the trial excluded in judge (even correctly) limine of the prior evidence defendant’s 404(b) 609(a). bad acts under either ER or ER Our focus is on voir dire and jury juror not evidence admis- impartiality, sibility, change or of venue based on pretrial publicity. Today we should be trial deciding solely judge whether the his manifestly by abused discretion denying challenges for cause and thereby denied the defendant a fair trial. knowledge

Prior prior defendant’s conviction or a involvement recent similar murder automati- does not Coe, a cally juror. 832, 840-41, disqualify Wn.2d The Coe court 750 P.2d 208 relied on the trial jurors’ court’s assessment of assurances impartiality of when claim rejecting jurors defendant’s knew of recent Coe’s convictions or the prior related convic- Ruth. Id. mother, of tions 841. worst,

At 6 and jurors when equivocated answering their subject is a case partiality. Accordingly, this bias, claimed presumed actual not implied conclusively bias. Our standard of equivocal by review for answers pro v. Rupe, State spective 734, is stated in jurors (1988): 743 P.2d 210 486 U.S. 1061 however, Equivocal not, alone require juror answers do that a be removed challenged when cause. The question whether a with juror preconceived ideas can set them aside. judge juror’s The trial a best situated to determine competency impartially. to serve The trial is able to and, light observation, observe the juror’s demeanor of that evaluate interpret juror’s answers to determine whether would juror impartial. be fair and (Citations omitted.) Noltie, State same standard was applied (1991) (relied 809 P.2d 190 upon where for cause was based

majority), challenge rejected upon juror’s equivocal answer. consistently held denial of a

Washington have cases the trial court lies within the discretion of challenge for cause absent a manifest abuse not error and will constitute reversible in implied Actual differs from bias that that discretion. bias of exists, from conclusively it implied presumed bias is where claimed, shown; whereas, in actual is it facts cases where bias by proof. be must established Noltie,

State v. Removal not required, 116 Wn.2d at 838. question juror prior is whether with knowl rather ideas a case can them aside or set edge preconceived Id. As noted in impartial and render a fair and verdict. Noltie, preliminary question a for the this becomes of fact mind involving trial court the state of of the challenged 303, 61 Ottis v. Stevenson-Carson Sch. Dist. No. juror. Wn. (1991). 747, 753, 812 P.2d 133 The trial exercises judge App. to fact-finding discretion inferences related to weigh Id. credibility juror. the evidence and decide the I trial 753-54. would disturb this exercise of court in position credibility discretion. We are no of these that is for the jurors; judge. trial

Here, cause challenge trial court denied the for once 32 “She said more than that she juror saying: believed she could be fair. But she said she not to preferred also sit on this case. And that isn’t for disqualification.” sufficient challenge And the trial court also denying said 6: “he forthcoming. And rather juror was—quite talkative. think those—both elicited lot of information attorneys [juror you will, from if My testimony, 6]. recollection of he things. that could be fair. all those And Balancing have, [juror 32], knowledge he did as did some while crime, juror.” other I don’t believe him as a disqualifies Parnell, relies on State v. 503, 77 Wn.2d majority P.2d 134 case was reversed because 463 Farnell’s very in the hearing sat in on a case juror preliminary he in a juror position acquire as a and was where served The Parnell jury’s facts in the case outside of the view. far was, therefore, a dissimilar and differ examining court and in Coe. Furthermore, it ent issue than examined here about unrelated albeit my pretrial publicity view that 364

similar matters is generally likely to be less harmful than publicity about a case at bar.

Likewise, the majority has State v. misplaced reliance Pam, 748, 659 overruled on other (1983), grounds by Brown, 111 Wn.2d P.2d reh’g, 782 P.2d aff’d In Pam the majority examined, A.L.R.4th part, the admissibility of the prior defendant’s convictions 404(b) 609(a) under ER and ER and found no error in the rulings allowing them. Justice Utter’s concurring opinion the Pam focused on his view that failed to majority recog nize the potential for prejudice from permitting impeach ment evidence of similar crimes. past However, even Justice Utter concluded the trial court did not abuse its discretion Pam, the evidence. admitting (Utter, J., Wn.2d at 760 concurring). significant It is for analysis our here there was no juror impartiality raised question by Mr. Earn.

I do not believe trial abused his discretion when deciding the fact preliminary questions related to weighing credibility jurors 6 and 32. The jurors indicated they could be fair and and the impartial trial court agreed. The trial court thus properly acted when rejecting the chal- Coe, Rupe, Noltie, and Ottis stan- lenges cause using I dards. respectfully dissent to that portion the majority opinion holding affirm contrary. would in all other respects. denied at

Review 136 Wn.2d 1002

Case Details

Case Name: State v. Stackhouse

Court Name: Court of Appeals of Washington

Date Published: Mar 3, 1998

Citation: 957 P.2d 218

Docket Number: 15646-0-III

Court Abbreviation: Wash. Ct. App.