State of Washington v. Robert Gutierrez, III

• Court: Court of Appeals of Washington
• Decided: July 28, 2022
• Docket: 37843-8
• Status: Published

Opinion

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FILED JULY 28, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 37843-8-III Respondent, ) ) v. ) ) ROBERT GUTIERREZ, III, ) PUBLISHED OPINION ) Appellant. )

STAAB, J. — Following a jury trial, Robert Gutierrez was found guilty of second

degree assault, unlawful possession of a firearm, and felony harassment. On appeal, Mr.

Gutierrez requests resentencing because his offender score included prior convictions for

controlled substances. In his statement of additional grounds (SAG), Mr. Gutierrez raises

several issues, including juror bias and ineffective assistance of counsel. We asked for

additional briefing on the juror bias issue. After considering additional briefing and

reviewing the record, we hold that the trial court abused its discretion by failing to inquire

further or excuse a juror who expressed actual ethnic bias during voir dire. Because we For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 37843-8-III State v. Gutierrez

reverse Mr. Gutierrez’s convictions and remand for further proceedings, we decline to

address the other issues raised by Mr. Gutierrez and his attorney.

BACKGROUND

Mr. Gutierrez was charged with first degree robbery, second degree assault, and

first degree unlawful possession of a firearm. The information was amended to include a

fourth count of felony harassment against Moises Garcia. A jury found Mr. Gutierrez not

guilty of robbery but guilty of second degree assault, unlawful possession of a firearm,

and felony harassment.

In his opening brief, the only issue raised by Mr. Gutierrez’s attorney, was a

challenge to his sentence under Blake.1 Mr. Gutierrez also filed a SAG, raising numerous

other issues. The court requested additional briefing on one of those issues: whether,

during voir dire, a juror who was eventually seated on the jury panel, expressed actual

bias necessitating his removal under RCW 2.36.110.

During voir dire, the following exchange took place:

[DEFENSE COUNSEL]: . . . Juror 16. Hi. How are you? I’m wishing that it wasn’t a pandemic and I could do this the way I naturally do. I’d be getting a lot of feedback. And this is the most important part of the trial for us. I know everybody thinks it’s the evidence. This is the most important part. If I don’t get people who can be fair, it won’t matter what the evidence says, so I’m a little frustrated. Thank you for being here.

1 State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

You’ve been listening . . .or you appear to be listening. What are your thoughts about this? Anything I need to know about you before we go into picking the jury? PROSPECTIVE JUROR NUMBER 16: I think I have been summoned maybe three times, not put on a jury. And I think the two [defendants in those cases] before . . . were Hispanics, but they were never asked if they were a U.S. citizen. And that concerns me. [DEFENSE COUNSEL]: And that—and if we don’t—if we don’t cover that during the trial will that be a problem for you? PROSPECTIVE JUROR NUMBER 16: I thought maybe it would be brought up. [DEFENSE COUNSEL]: Because it may not come up in this particular trial. PROSPECTIVE JUROR NUMBER 16: How about I ask now if he’s a U.S. citizen? [DEFENSE COUNSEL]: Well, turns out you’re not allowed to ask that question, which is why it doesn’t come out in trial. The Judge is not allowed to ask that question. Counsel aren’t allowed to ask that question. I don’t think I’m allowed to ask that question. PROSPECTIVE JUROR NUMBER 16: Why is that? [DEFENSE COUNSEL]: I imagine it has to do with some people’s—the implication of noncitizen means perhaps you’re implicating yourself in a crime. And you have the privilege, not you and I, everybody in the country has the privilege not to implicate themselves in a crime. So if somebody were here illegally in saying so, they will have admitted to a crime. And it’s a federal crime. So I think that that’s why it is.[2] And that is such a serious protection that a judge can’t ask that of a defendant.

2 For clarification, the immigration status of a defendant or witness is generally irrelevant and not admissible unless it is an essential fact to the case or to show bias or prejudice. ER 413(a). The attorney’s reference to the right to remain silent may have compounded juror 16’s bias by suggesting that Mr. Gutierrez may have had something to hide.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

There’s a whole Supreme Court case on it. So that’s my thought. So it will not come up here. Is there a reason that that would give you pause in being fair to Mr. Gutierrez? PROSPECTIVE JUROR NUMBER 16: If I didn’t know then I would have—I guess no reason to question that, I guess, if he was a U.S. citizen or not. If he’s not a U.S. citizen he’s already guilty. He shouldn’t be here. [DEFENSE COUNSEL]: Well, fair enough. That’s a good point. But you wouldn’t be saying then if he’s not a citizen, he’s guilty of the charges here, the robbery, the assault, the possession of a gun, you wouldn’t be saying that because that’s wholly separate, right? PROSPECTIVE JUROR NUMBER 16: Yes. Yeah. I mean, if I don’t know—I just—that would be—that wouldn’t be part of the—my answer for it. So, yeah. [DEFENSE COUNSEL]: Thank you, juror 16.

Report of Proceedings (RP) at 165-68.

Defense counsel did not move to strike juror 16 for cause and did not exercise a

peremptory challenge to remove juror 16. Nor did the trial court make any comments or

suggest that juror 16 displayed bias and should be removed. Prospective juror 16 was

seated on the jury that entered a verdict of not guilty to the charge of first degree robbery,

and guilty verdicts on the charges of second degree assault, unlawful possession of a

firearm, and felony harassment.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

ANALYSIS

In his SAG, Mr. Gutierrez raises an issue of juror bias. He contends that during

voir dire, potential juror 16 demonstrated actual bias, but was nevertheless seated as a

juror and not removed by his attorney or the court.3

While this issue is being raised for the first time on appeal, we address it as a

manifest constitutional error. RAP 2.5(a). A defendant has a constitutional right to an

unbiased jury trial. City of Cheney v. Grunewald, 55 Wn. App. 807, 810, 780 P.2d 1332

(1989). “When a juror makes an unqualified statement expressing actual bias, seating the

juror is a manifest constitutional error.” State v. Irby, 187 Wn. App. 183, 188, 347 P.3d

1103 (2015). It is well established that seating a biased juror is never harmless and

requires a new trial regardless of actual prejudice. State v. Guevara Diaz, 11 Wn. App.

2d 843, 851, 456 P.3d 869 (2020), review denied, 195 Wn.2d 1025, 466 P.3d 772 (2020).

Although Mr. Gutierrez did not move to strike juror 16, a trial court must do so on

its own motion where grounds for a challenge for cause are apparent in the record. Id. at

855 (citing RCW 2.36.110; CrR 6.4(c)(1)). Under RCW 2.36.110, “It shall be the duty of

3 Mr. Gutierrez also raises an issue of ineffective assistance of counsel for failing to strike the juror, but his argument on this issue points to evidence outside the record (conversations between Mr. Gutierrez and his attorney). Because this is a direct appeal, we will not consider evidence outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Mr. Gutierrez can raise these issues in a personal restraint petition. Id.

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

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 [or] prejudice.” A juror demonstrates

actual bias when he exhibits “‘a state of mind . . . 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.’” Guevara Diaz,

11 Wn. App. 2d at 855 (alteration in original) (quoting RCW 4.44.170(2)).

Bias based on race and ethnicity may be explicit or implicit.

Explicit racial bias is consciously held, although the biased person may not be willing to admit to having such bias if asked. See Peña-Rodriguez [v. Colorado], [ U.S. , ]137 S. Ct.[ 855,] 869[, 197 L. Ed. 2d 107 (2013)]. Implicit racial bias, however, primarily exists at an unconscious level, such that the biased person is unlikely to be aware that it even exists. This occurs because “[i]t is now socially unacceptable to be overtly racist. Yet we all live our lives with stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them.” [State v. ]Saintcalle, 178 Wn.2d[ 34,] 46[, 309 P.3d 326 (2013) (plurality opinion), abrogated in part on other grounds by City of Seattle v. Erikson, 188 Wn.2d 721, 398 P.3d 1124 (2017)].

State v. Berhe, 193 Wn.2d 647, 663, 444 P.3d 1172 (2019) (fifth alteration in original).

Whether implicit or explicit, evidence of actual racial and ethnic bias4 can be

subtle. For example, questions about a person’s immigration status may appear to be

4 Bias based on Hispanic or Latinx identity is referred to as ethnic bias. Peña- Rodriguez, 137 S. Ct. at 863.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

ethnically neutral because a person can immigrate from Canada or Mexico. But “[e]ven

though the concern regarding immigration status does not explicitly implicate race, our

country has made Latin ethnicity a proxy for undocumented immigration status.” Mikah

K. Thompson, Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the

Courtroom, 5 MICH. ST. L. REV. 1243, 1305 (2018).

In this case, the comments by juror 16 expressed actual bias. Juror 16’s comments

demonstrated that he was operating under a false presumption that Hispanic and Latinx

persons were not citizens, and if they were not citizens then they were guilty of a crime.

The link in this juror’s mind between ethnicity and citizenship (and presumably

immigration status) is clear: “I think the two [defendants in those cases] before were

Hispanics, but they were never asked if they were a U.S. citizen. And that concerns me.”

RP at 167. Likewise, juror 16 wanted to know if Mr. Gutierrez was a United States

citizen.

The State contends that juror 16’s comments do not reflect bias but rather were

neutral questions about an irrelevant topic. The State suggests that with defense

counsel’s focus on racial and ethnic bias during voir dire, along with evidence of Mr.

Gutierrez’s active participation in jury selection, there is little chance that both would

miss a potential juror expressing actual bias.

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In Behre, our Supreme Court acknowledged the inherent challenge in determining

whether a juror is influenced by implicit bias. 193 Wn.2d at 663. Implicit biases include

“‘stereotypes that are ingrained and often unconscious.’” Id. (quoting Saintcalle, 178

Wn.2d at 46). In order to address this difficulty, the Court adopted an objective standard:

“The ultimate question for the court is whether an objective observer (one who is aware

that implicit, institutional, and unconscious biases, in addition to purposeful

discrimination, have influenced jury verdicts in Washington State) could view race as a

factor in the verdict.” Id. at 665.

Applying this standard to the voir dire in this case, we believe that viewed

objectively, juror 16’s comments permit an inference of implicit ethnic bias. There is

nothing in the record to suggest that citizenship or immigration status was relevant to the

criminal charges before the court. Yet, juror 16’s immediate fixation on and framing of

this issue demonstrated his inclination to make it relevant. Notably, juror 16 did not

express concern about the citizenship of anyone else in the room.

Having determined that juror 16’s comments were evidence of ethnic bias against

Mr. Gutierrez, we consider whether the trial court abused its discretion by failing to

inquire further or excuse the juror sua sponte. We review a challenge to the judge’s

failure to exercise this oversight for abuse of discretion. Guevara Diaz, 11 Wn. App. 2d

at 856. This deferential standard of review recognizes that a trial judge is in the best

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

position to determine a juror’s ability to be fair and impartial. Id. Our review, on the

other hand, is based on a written transcript which often fails to provide a complete picture

of the proceedings below. While a transcript tells us what was said, words on paper do

not convey the full meaning of communication. A transcript does not include the tone of

a person’s voice, facial expressions, or body language. We cannot decipher when a

speaker emphasizes certain phrases or pauses to suggest irony or cynicism. See State v.

Lawler, 194 Wn. App. 275, 287, 374 P.3d 278 (2016).

Additionally, judges in general should exercise caution before injecting

themselves into the jury selection process because of the highly strategic nature of jury

selection. Id. at 284. Indeed, while speaking with juror 16, defense counsel pointed out

that jury selection is the most important part of the trial for him. RP at 165. Even where

a juror suggests some (nonracial) bias, there may be legitimate, tactical reasons to keep

that juror seated. Lawler, 194 Wn.2d at 285. “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.” Id. at 285. We must balance this hands-off approach

with our recommitment to the eradication of racial and ethnic bias in the justice system,

even when this requires more proactive measures. The Supreme Court’s recent decision

in Berhe provides guidance.

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

In Berhe, the court was faced with evidence of juror bias after the verdict was

read. While acknowledging the sanctity of a jury’s verdict, the court nonetheless held

that the “no-impeachment rule must yield to allegations that racial bias was a factor in the

verdict.” Berhe, 193 Wn.2d at 658. In reaching this conclusion, the court balanced the

need for robust jury deliberations with a defendant’s right to a fair trial before an

impartial jury. Id. Ultimately, the court recognized that “‘[a] trial by a jury, one or more

of whose members are biased or prejudiced, is not a constitutional trial.’” Id. (internal

quotation marks omitted) (quoting City of Seattle v. Jackson, 70 Wn.2d 733, 738, 425

P.2d 385 (1967)).

After concluding that the no-impeachment rule must yield in the face of juror bias,

the court went on to provide a framework for courts facing the issue of juror bias after a

verdict. Under this framework, courts must conduct a thorough inquiry to determine if

there is prima facie evidence suggesting that race was a factor in the jury’s verdict. Id. at

665. If there is a prima facie showing, the court must hold an evidentiary hearing. Id.

Behre addressed juror bias after a verdict and held that prima facie evidence of

juror bias was enough to invade otherwise sacrosanct deliberations. Id. at 658. While

attorneys and courts are given similar autonomy during voir dire, the process must

likewise yield when there is evidence that a potential juror labors under racial or ethnic

bias.

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

We take direction from the Supreme Court’s guidance and examples to address a

similar issue here: whether the evidence of ethnic bias during voir dire was sufficient to

raise a prima facie showing that the juror was not qualified under RCW 2.36.110. In this

case, juror 16’s first comment was about citizenship. He had been summoned as a

potential juror in two prior cases, both with Hispanic defendants and was frustrated that

he was not told whether they were citizens of the United States. Likewise, juror 16

wanted to know if Mr. Gutierrez was a citizen and offered to ask Mr. Gutierrez himself.

Juror 16’s comments demonstrated ethnic bias sufficient to raise a prima facie

showing that he was unqualified to sit as a juror in Mr. Gutierrez’s case. Under

RCW 2.36.110, the trial court was required to either inquire further or excuse the juror

as disqualified. Since the comment was made during voir dire, there was no need for a

separate evidentiary hearing, but the prima facie showing required the court to either

confirm that that the juror did not hold a bias against Latinx and Hispanic defendants or

excuse the juror.

Our holding today should not be read to require the disqualification of every juror

who inquiries about citizenship or immigration status. Lay jurors often fail to recognize

and distinguish relevant evidence from irrelevant information, which is why we have

rules of evidence. In this case however, juror 16’s inquiry was more than a naïve inquiry

about an otherwise irrelevant topic.

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

The State also contends that any evidence of bias was “cured” by defense

counsel’s subsequent questioning. Suppl. Br. of Resp’t at 14. After juror 16 inquired of

Mr. Gutierrez’s citizenship, and defense counsel explained why this topic was not

relevant, the following colloquy took place:

[DEFENSE COUNSEL]: . . . So [citizenship] will not come up here. Is there a reason that that would give you pause in being fair to Mr. Gutierrez? PROSPECTIVE JUROR NUMBER 16: If I didn’t know then I would have⎯I guess no reason to question that, I guess, if he was a U.S. citizen or not. If he’s not a U.S. citizen he’s already guilty. He shouldn’t be here. [DEFENSE COUNSEL]: Well, fair enough. That’s a good point. But you wouldn’t be saying then if he’s not a citizen, he’s guilty of the charges here, the robbery, the assault, the possession of a gun, you wouldn’t be saying that because that’s wholly separate, right? PROSPECTIVE JUROR NUMBER 16: Yes. Yeah. I mean, if I don’t know—I just—that would be—that wouldn’t be part of the—my answer for it. So, yeah. [DEFENSE COUNSEL]: Thank you, juror 16.

RP at 167-68.

Without deciding whether expressions of ethnic bias by a juror can ever be cured,

we do not agree with the State’s characterization of the colloquy. A fair reading of juror

16’s comment suggests that juror 16 believed that if Mr. Gutierrez were not a citizen, he

would have been guilty of another crime and not available for this trial. This is not the

same as saying that if Mr. Gutierrez was not a citizen, he is guilty of any crime, but it

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

does not cure the evidence of actual bias. Instead, juror 16 seemed to convince himself

that Mr. Gutierrez must be a citizen (or otherwise in the country legally) or else he would

not be available for this trial. This did not cure juror 16’s presumption that the

citizenship of every Hispanic or Latinx defendant was suspect and needed to be verified.

Despite the highly strategic nature of voir dire, a trial court has an obligation to

oversee the jury selection process. Guevara Diaz, 11 Wn. App. 2d at 846. When a juror

expresses actual bias, and the attorneys do not move to excuse the juror, the court has an

obligation to conduct an independent inquiry and excuse the juror if the court is satisfied

that the juror cannot try the issues impartially and without prejudice to the substantial

rights of parties. Id. at 855; RCW 4.44.170(2). The failure to remove a biased juror

requires a new trial without the showing of prejudice. Id. at 855.

CONCLUSION

Juror 16 expressed actual bias during voir dire by presuming that Hispanic or

Latinx defendants were not citizens and were most likely committing an immigration

crime. When the attorneys failed to address this bias, the court should have inquired

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

further or excused the juror on its own initiative. Failure to do so is an abuse of

discretion. We reverse and remand.

Staab, J.

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No. 37843-8-III

FEARING, J. (concurring) —

One of the myths arising from the folklore surrounding jury selection is that a juror who has made answers which would otherwise disqualify him by reason of bias or prejudice may be rehabilitated by being asked whether he can put aside his personal knowledge, his views, or those sentiments and opinions he has already, and decide the case instead based solely on the evidence presented in court and the court’s instructions. Montgomery v. Commonwealth, 819 S.W.2d 713, 717 (Ky. 1991).

This court must decide whether the trial court should have removed for cause,

without motion from a party, juror 16, who reflexively asked if a Latinx defendant

resided in the United States legally and who declared that a Hispanic inside the United

States illegally is automatically guilty of a crime. I agree with the majority that the court

should have done so. I, however, disagree with the majority’s interpretation of juror 16’s

answer to a voir dire question. Also, I differ from the majority when it declines to

address whether juror 16 could be rehabilitated by further questioning. I write separately

to analyze the voir dire answers of juror 16 and to explain why I conclude juror 16 could

not be rehabilitated regardless of additional questioning. When doing so, I identify

principles supporting removal of juror 16, elucidate instructive foreign cases, and

emphasize the essentiality of jurors disinclined to racial stereotyping. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 37843-8-III State v. Gutierrez (concurrence)

In response to Robert Gutierrez’s contention that a biased juror infected his guilty

verdict, the State emphasizes the ethnicity of defense counsel, highlights a juror

orientation video, asserts that one answer during voir dire rehabilitated juror 16, promotes

the satisfaction of defense counsel with the seating of juror 16, highlights Robert

Gutierrez’s acquittal on one charge, and advocates for deferral to the superior court’s

discretion. My concurring opinion answers the assertions of the State by demonstrating

that some of the contentions are irrelevant and others are mistaken.

The State highlights the ethnicity of defense counsel. In its brief, the State quotes

trial defense counsel as commenting “I’m a black man.” Report of Proceedings (RP) at

21-22. The State then writes: “Further, this juror [juror 16] was left on the jury by trial

counsel who throughout voir dire was focused on the fact that he, counsel was a Black

man and that his client was ‘brown.’” Br. of Resp’t at 15. Nevertheless, contrary to the

State’s assertions, I know of no principle declaring that, if a minority counsel represents a

minority defendant, the rules precluding juror bias disintegrate.

In State v. Jackson, 75 Wn. App. 537, 879 P.2d 307 (1994), the trial court denied a

motion for new trial after reviewing an affidavit from one juror repeating comments

made, in the deliberation room, by a second juror. The second juror commented that the

worse part of a class reunion was socializing with “‘the coloreds.’” 75 Wn. App. at 541.

This second juror added: “‘You know how these coloreds are.’” 75 Wn. App. at 541.

When denying a new trial, the superior court judge mentioned his Japanese descent and

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

the past discrimination in the United States against Japanese. Despite the sensitivity of

the trial judge to discrimination, this court reversed the conviction because of the racial

generalizations made by the second juror.

The State underscores the displaying of a video on unconscious bias during jury

orientation. But juror 16’s later targeting of a Latino defendant as being illegally in the

United States palpably demonstrates the video failed to enlighten him. Assuming the

juror watched the video with his eyes and ears open, he learned nothing about his

inherent biases. A video on unconscious bias will not change one with biased views who

denies holding biased views.

The State focuses on the questions posed and answers received during voir dire,

which questions and answers satisfied defense counsel and the superior court that juror

16 lacked bias. Because of the critical nature of the exchange between defense counsel

and juror 16, I concentrate on those questions and answers.

[DEFENSE COUNSEL]: . . . You’ve been listening or you appear to be listening. What are your thoughts about this? Anything I need to know about you before we go into picking the jury? PROSPECTIVE JUROR NUMBER 16: I think I have been summoned maybe three times, not put on a jury. And I think the two [defendants in those cases] before they were Hispanics, but they were never asked if they were a U.S. citizen. And that concerns me. [DEFENSE COUNSEL]: And that—and if we don’t—if we don’t cover that during the trial will that be a problem for you? PROSPECTIVE JUROR NUMBER 16: I thought maybe it would be brought up. [DEFENSE COUNSEL]: Because it may not come up in this particular trial.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

PROSPECTIVE JUROR NUMBER 16: How about I ask now if he’s a U.S. citizen? [DEFENSE COUNSEL]: Well, turns out you’re not allowed to ask that question, which is why it doesn’t come out in trial. The Judge is not allowed to ask that question. Counsel aren’t allowed to ask that question. I don’t think I’m allowed to ask that question. PROSPECTIVE JUROR NUMBER 16: Why is that? [DEFENSE COUNSEL]: I imagine it has to do with some people’s—the implication of noncitizen means perhaps you’re implicating yourself in a crime. And you have the privilege, not you and I, everybody in the country has the privilege not to implicate themselves in a crime. So if somebody were here illegally in saying so, they will have admitted to a crime. And it’s a federal crime. So I think that that’s why it is. And that is such a serious protection that a judge can’t ask that of a defendant. There’s a whole Supreme Court case on it. So that’s my thought. So it will not come up here. Is there a reason that that would give you pause in being fair to Mr. Gutierrez? PROSPECTIVE JUROR NUMBER 16: If I didn’t know then I would have—I guess no reason to question that, I guess, if he was a U.S. citizen or not. If he’s not a U.S. citizen he’s already guilty. He shouldn’t be here. [DEFENSE COUNSEL]: Well, fair enough. That’s a good point. But you wouldn’t be saying then if he’s not a citizen, he’s guilty of the charges here, the robbery, the assault, the possession of a gun, you wouldn’t be saying that because that’s wholly separate, right? PROSPECTIVE JUROR NUMBER 16: Yes. Yeah. I mean, if I don’t know—I just—that would be—that wouldn’t be part of the—my answer for it. So, yeah. [DEFENSE COUNSEL]: Thank you, juror 16. RP at 166-68 (emphasis added). The last question and answer could spawn pages of

parsing and analysis.

The majority construes juror 16’s last answer as establishing that the juror

believed that, if Robert Gutierrez was not a citizen, he would be guilty of another crime

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

and not available for this trial. The majority implies that, because of his answers, juror

16 concluded that Gutierrez must be a citizen or else he would not be present for trial. I,

however, cannot discern the meaning of the answer because of the double, if not triple,

negatives in the question and answer, the overuse of pronouns, and the disjointed use of

the English language. The different reading by the majority confirms the ambiguity in

the exchange. Conversants often deem themselves communicating accurately when they

are not. This difficulty inherent in communication demanded further and sharp

questioning of juror 16. When a potential juror’s initial responses indicate actual bias, an

appellate court must be able to ascertain from the record that the trial court’s decision not

to excuse the potential juror for cause was not based in any way on a misunderstanding of

what the potential juror actually said. State v. Fire, 100 Wn. App. 722, 729 (2000).

Even if I agreed with the majority’s hermeneutics of juror 16’s last answer during

the voir dire colloquy, the juror’s overall response established a prejudicial predisposition

against Latino defendants. Juror 16 was summoned for jury service on two earlier

occasions, and he grew disquieted on one or both occasions because the defendant was

Hispanic and he never learned whether the defendant was a United States citizen.

Because of the importance of the citizenship status of a Latinx defendant in juror 16’s

mind, he volunteered to ask Robert Gutierrez of his status. Juror 16 then proclaimed that,

if Gutierrez was present in the United States without being a United States citizen,

Gutierrez is guilty of an offense. Juror 16 never illuminated counsel and the court as to

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

whether he had concluded that Gutierrez was guilty of the crimes charged by the State of

Washington or guilty of an immigration crime.

The State contends that the superior court holds an obligation to interfere in voir

dire only if the questions and the efforts at rehabilitation fail to address a prospective

juror’s unequivocal statement of actual bias. The State also argues that the last response

by juror 16 during voir dire rehabilitated him. I conclude that juror 16’s comments

showed perspicuous bias. I also conclude that no further responses from juror 16, after

his questioning of Robert Gutierrez’s immigration status, could rehabilitate him.

Assuming rehabilitation was possible, the trial court should have inserted itself by further

exploration of bias. I first analyze whether further questioning by defense counsel

rehabilitated juror 16. I later examine whether rehabilitation was possible.

To repeat again, after juror 16 volunteered his viewpoint about the ethnicity of

Robert Gutierrez, Gutierrez’s counsel asked:

[DEFENSE COUNSEL]: Well, fair enough. That’s a good point. But you wouldn’t be saying then if he’s not a citizen, he’s guilty of the charges here, the robbery, the assault, the possession of a gun, you wouldn’t be saying that because that’s wholly separate, right?

RP at 167. This leading question does little, if anything, to probe the nature and extent of

juror 16’s bias and his ability to adjudge the guilt or innocence of Robert Gutierrez solely

on the evidence and the law. Defense counsel failed to ask sufficient questions to

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

rehabilitate juror 16 from his suspicious mindset that a Hispanic is already guilty of a

crime. The superior court asked no questions, let alone probing questions.

Because of the difficulty in determining whether a person will be influenced by

implicit racial bias, fleeting questioning about a prospective juror’s bias and quick

assessments of the credibility of his or her response fail constitutional scrutiny. State v.

Berhe, 193 Wn.2d 647, 663-64, 444 P.3d 1172 (2019). Generic questions about juror

impartiality may not expose specific attitudes or biases that can poison jury deliberations.

Peña-Rodriguez v. Colorado, ___ U.S. ___, 137 S. Ct. 855, 869, 197 L. Ed. 2d 107

(2017). People rarely know the existence, source, and extent of their bias and will

genuinely cling to a race-neutral reason created to mask a decision or viewpoint. State v.

Berhe, 193 Wn.2d 647, 663-64 (2019). A person may honestly believe and credibly

testify that racial bias does not influence his or her actions, even when implicit racial bias

plays a significant role. State v. Berhe, 193 Wn.2d 647, 664 (2019).

When a question is raised regarding a prospective juror’s ability to render an

impartial verdict, the prospective juror must, in unequivocal terms, expressly state that

his prior state of mind concerning either the case or either of the parties will not influence

his verdict, and he must also state that he will render an impartial verdict based solely on

the evidence. People v. Blyden, 55 N.Y.2d 73, 432 N.E.2d 758, 760, 447 N.Y.S.2d 886

(1982). All elements of the required statements must be voiced with conviction. People

v. Blyden, 432 N.E.2d 758, 760 (1982). A hollow incantation, made without assurance or

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

certitude, is not enough. People v. Blyden, 432 N.E.2d 758, 760 (1982). If the juror

expressed a statement of partiality without a subsequent assurance of impartiality, the

court must presume juror bias. State v. Guevara Diaz, 11 Wn. App. 2d 843, 855, 456

P.3d 869 (2020), review denied, 195 Wn.2d 1025, 466 P.3d 772 (2020).

In People v. Blyden, 432 N.E.2d 758 (1982), the New York high court reversed a

conviction of Herbert Blyden for assault. During voir dire, a juror stated he was “against

minorities,” in part because he disliked preferences given to them in construction

projects. 432 N.E.2d at 758. The trial judge thrice thereafter asked the juror if he could

set aside his feelings about minorities. The juror repeatedly responded: “‘Yes, I think I

could.’” 432 N.E.2d at 759. The trial court rejected Blyden’s challenge for cause.

Blyden removed the juror as one of his preemptory challenges.

On appeal, the New York Court of Appeals, in People v. Blyden, noted that a

previous expression of opinion or impression denoting actual bias can be overcome if the

prospective juror declares under oath that he believes that such opinion or impression will

not influence his verdict and that he can render an impartial verdict according to the

evidence. Also, the trial court must be satisfied that the juror does not entertain such a

present opinion as would influence his verdict. Nevertheless, in Herbert Blyden’s

prosecution, the juror’s answers to the subsequent questioning by the judge did not

overcome the indication of bias in the juror’s initial comments. The juror never expressly

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

and unequivocally stated that his feeling toward minorities would not affect his verdict

and that he would render an impartial verdict based on the evidence.

In Menefee v. State, 270 Ga. 540, 512 S.E.2d 275 (1999), a juror indicated

prejudice against African-Americans. After the defense moved to remove the juror for

cause, the trial court questioned the juror about whether she could set aside previous

experiences with African-Americans and decide the case on the evidence. The juror

responded: “I would like to try . . . it’s hard to say absolutely.” Menefee v. State, 512

S.E.2d 275, 276 (1999). The Georgia Supreme Court reversed the conviction. The

questioning of the juror failed to elicit the necessary response that she would be able to

lay aside her prejudices.

Similarly, questioning of juror 16 in Robert Gutierrez’s voir dire failed to

sufficiently probe the juror’s views and biases or elicit a response essential for

rehabilitation. I do not believe any additional questioning would rehabilitate the juror,

but I will suggest some questions. The questions to be asked a juror will vary from

circumstance to circumstance and later questioning will depend on answers to initial

questions. But to probe the bias of juror 16, counsel or the court should have asked

questions, perhaps outside the hearing of other jurors, surrounding the juror’s wondering

whether a Hispanic is a United States citizen, whether he would question non-Latinos’

citizenship status, his views as to how many Hispanics reside in the United States

illegally, his understanding of immigration law, why he deemed someone without

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

citizenship has committed a crime, his interactions with those he knows to be unlawfully

in the United States, his interactions with people of Spanish descent, and whether he

believed everyone in America should speak English.

Understandably, counsel and the court wish not to cross-examine a potential juror

about bias or suggest that racism will infect the juror’s decisions. But the liberty of the

accused is at stake. Politeness must bend to a fair trial.

The State posits that the superior court could have reasonably perceived juror 16

to serve impartially. The State also maintains that the superior court sat in a better

position to adjudge whether further questioning of and answers given by juror 16

rehabilitated him. Nevertheless, the superior court never exercised any discretion in

deciding whether to excuse juror 16. The questioning of the juror never allowed the trial

court to intelligently exercise discretion.

Sometimes the juror’s strong bias disqualifies him from service regardless of

rehabilitation through further questioning. State v. Brown, 732 N.W.2d 625, 629 n.2

(Minn. 2007); Gamble v. Commonwealth, 68 S.W.3d 367 (Ky. 2002). Stated differently,

further questions do not provide a device to rehabilitate a juror who indicates a strong

racial bias. Gamble v. Commonwealth, 68 S.W.3d 367, 372 (Ky. 2002). The Kentucky

Supreme Court wrote:

One of the myths arising from the folklore surrounding jury selection is that a juror who has made answers which would otherwise disqualify him by reason of bias or prejudice may be rehabilitated by being

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

asked whether he can put aside his personal knowledge, his views, or those sentiments and opinions he has already, and decide the case instead based solely on the evidence presented in court and the court’s instruction. This has come to be referred to in the vernacular as the “magic question.” But, as Chief Justice Hughes observed in United States v. Wood, 299 U.S. 123, 146, 57 S. Ct. 177, 81 L. Ed. 78 (1936), “[i]mpartiality is not a technical conception. It is a state of mind.” A trial court’s decision whether a juror possessed “this mental attitude of appropriate indifference” must be reviewed in the totality of circumstances. It is not limited to the juror’s response to a “magic question.”

Montgomery v. Commonwealth, 819 S.W.2d 713, 717-18 (Ky. 1991).

Numerous cases teach that jurors with preconceived ideas about ethnicities should

not serve on the jury regardless of proclaiming an ability to be fair. In State v.

Witherspoon, 82 Wn. App. 634, 919 P.2d 99 (1996), juror 3 not only expressed concern

about African-Americans, he candidly admitted he was prejudiced. He commented that

he reads in the paper about black people dealing drugs. After further questioning during

voir dire, juror 3 agreed he would presume African-American Johnnie Witherspoon

innocent of the controlled substance charge. Nonetheless, this court concluded that juror

3 “unequivocally” showed a prejudice against African-Americans, and the trial court

abused its discretion in denying a challenge for cause. State v. Witherspoon, 82 Wn.

App. 634, 638 (1996).

Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 860-61 (2017), presents some

analogs. Following the conviction of Miguel Peña-Rodriguez and the discharge of the

jury, two jurors informed defense counsel that H.C., one of the jurors, commented during

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

deliberations that “‘nine times out of ten Mexican men were guilty of being aggressive

toward women and young girls.’” 137 S. Ct. at 862. H.C. also commented that Peña-

Rodriguez’s alibi witness was not credible because, among other things, the witness was

an “illegal,” even though the witness testified he was a legal resident of the United

States. 137 S. Ct. at 861-62. The high Court quickly determined that H.C. was biased

based on defendant’s Hispanic identity.

In Gamble v. Commonwealth, 68 S.W.3d 367 (Ky. 2002), juror 54 indicated that

he had moved from his prior neighborhood because he had a young daughter and he

“‘never felt safe’” because there were “‘black guys’” always around their house. 68

S.W.3d at 372. Juror 54 expressed a strong opposition to inter-racial relationships,

characterized those involved in such a relationship as low class, and deemed low class

people more likely to commit crime. Juror 54 stated that, upon entering the courtroom,

he assumed Bennie Gamble to be the defendant because he “‘figured a black had to be

the person accused.’” 68 S.W.3d at 372. Nevertheless, juror 54 averred that he could

base his decision solely on the evidence presented at trial. The trial court refused to

excuse the juror for cause, and the African-American defendant exercised a peremptory

challenge in order to avoid having the juror serving on the jury. The reviewing court

reversed the conviction in part because of the inherent bias exhibited by juror 54.

Although the juror eventually declared that he could be fair and reach a decision on the

evidence, his initial comments illustrated that he held racist ideas that infected his view of

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Gamble before the Commonwealth presented its first piece of evidence. The juror’s bias

could not be rehabilitated.

In State v. Brown, 732 N.W.2d 625 (Minn. 2007), the reviewing court reversed

Jermaine Brown’s controlled substance crime for lack of evidence, but also digressed to

emphasize the unfairness of the jury. During voir dire, a juror declared his bias against

African-Americans, stated that he did not trust Blacks, and commented that he would not

allow his daughter’s African-American boyfriend into the home. At the same time, the

juror averred that he thought he could be fair to Brown, an African-American.

Regardless of juror 16’s answers to rehabilitating questioning, he possessed a state

of mind that required his removal from the jury panel because of his racial typecasting

and presumption of guilt of a crime. Before the presentation of any evidence, he

demanded to know more about Robert Gutierrez because of Gutierrez’s Hispanic

surname and/or the tincture of his skin. Even before opening statements, juror 16

targeted Gutierrez as a criminal because of his Latino heritage. Juror 16 automatically

viewed Gutierrez, because of his ethnic descent, as a potential, if not likely, illegal,

interloping outsider in Washington State. An outsider is presumed guilty and not entitled

to the protections of the law.

Juror 16’s remarks during Robert Gutierrez’s voir dire showed not only bias, but a

lack of understanding of the ramifications of residing in the United States or of even

being present unlawfully in this nation. He wanted to know whether Gutierrez was a

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

United States citizen. Nevertheless, one can reside in the United States legally, but not be

a citizen. Juror 16 believed otherwise. Juror 16 deemed Gutierrez guilty of a crime if he

lived unlawfully within the United States even though the law does not deem unlawful

presence by itself to be a crime. One can also be present unlawfully, but not guilty of a

crime. As a general rule, a removable alien does not commit a crime if he remains

present in the United States. Arizona v. United States, 567 U.S. 387, 407, 132 S. Ct.

2492, 183 L. Ed. 2d 351 (2012). No one disabused juror 16 of his erroneous impressions.

Further implications arise from juror 16’s questioning about Robert Gutierrez’s

immigration status. In my experience as a trial attorney and as a trial judge and in my

reading of hundreds, if not thousands, of decisions, no other venireperson has attempted

to ask a party a question before the presentment of the case. Juror 16’s volunteering to

ask Robert Gutierrez if he was a citizen evidenced a self-righteous, strident, and

judgmental attitude that suggested he should not serve as a juror in any case, let alone a

case wherein a Latinx is the accused. Going further, the juror’s comments evidenced an

entrenched ambience of superiority over Latino Americans. Without any evidence, he

held entitlement to be present in the United States, but Gutierrez did not necessarily

possess this entitlement. Juror 16 deemed he held the prerogative to adjudge another

guilty of a crime because of the other’s ethnicity. The juror would not hold this view

with regard to someone who looks like him or has the same ancestry as him.

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No one questioned juror 16 about his prospective reaction if seated on a venire in a

prosecution against a defendant with a Northern European name or with Northern

European looks. Nevertheless, we can almost be certain that the juror would have never

asked whether a light skinned, blonde-haired, or English surnamed defendant lacked

citizenship or was present illegally. Although the number is lower than the number of

undocumented Hispanics, tens of thousands of Canadians, most of which lack a Latinx

background, are unauthorized immigrants. The precise number is unknown but ranges

from 60,000 to 100,000. Tom Blackwell, Northern Aliens: Around 100,000 Canadians

Live under the Radar in the U.S. as Illegal Immigrants, NATIONAL POST, March 19,

2017; Emma Israel and Jeanne Batalova, Canadian Immigrants in the United States,

MIGRATION POLICY INSTITUTE, June 15, 2021; Abby Budiman, Key Findings about U.S.

Immigrants, PEW RESEARCH CENTER, August 20, 2020. Border authorities caught more

than 1,000 Ukrainians unlawfully crossing the United States-Mexico border between

October 2021 and January 2022. Eileen Sullivan, Biden Administration Gives Temporary

Protected Status to Some Ukrainians in the U.S., NEW YORK TIMES, March 4, 2022.

Appellate courts must not always defer to the discretion of the trial court, but

reviewing courts must also play a role in ensuring an impartial jury. Appellate

deference to trial court determinations of the ability of potential jurors to be fair and

impartial should not amount to a rubber stamp. State v. Fire, 100 Wn. App. 722, 729,

998 P.2d 362 (2000), rev’d on other grounds, 145 Wn.2d 152, 34 P.3d 1218 (2001).

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

The discerning reader will wonder why a reviewing court should reverse the

conviction of Robert Gutierrez when we do not know how any bias influenced juror 16’s

thinking after hearing the evidence presented by the State during trial. After all, juror 16

could have set aside his prejudice and convicted based on the facts and the law. Eleven

other jurors, presumably absent of prejudice against Latinx, voted to convict Gutierrez.

As underscored by the State, juror 16, along with the other jurors, acquitted Gutierrez of

the most serious charge. Going further, all jurors, if not all human beings, bear

prejudices. The law cannot eradicate bias in jury service without ending the jury system,

if not terminating the justice system. As the argument ends, wokeness should not trump

judicial economy.

I answer these arguments by observing that no bias may be worse than partiality

based on race or color. A fair trial before an impartial jury extends to a criminal

defendant’s fundamental protection of life and liberty against race or color prejudice.

McCleskey v. Kemp, 481 U.S. 279, 310, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987);

Strauder v. West Virginia, 100 U.S. 303, 309, 25 L. Ed. 664 (1879), abrogated on other

grounds by Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975).

Discrimination on the basis of race, odious in all aspects, is especially pernicious in the

administration of justice. Rose v. Mitchell, 443 U.S. 545, 555, 99 S. Ct. 2993, 61 L. Ed.

2d 739 (1979). The United States must rise above racial classifications inconsistent with

our commitment to the equal dignity of all persons. Peña-Rodriguez v. Colorado, 137 S.

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Ct. 855, 867 (2017). The Civil War Amendments to the United States Constitution

introduced the imperative to purge racial prejudice from the administration of justice.

Peña-Rodriguez v. Colorado, 137 S. Ct. at 867.

There is a sound basis to treat racial bias with added precaution. A constitutional

rule that racial bias in the justice system must be addressed is necessary to prevent a

systemic loss of confidence in jury verdicts, a confidence that is a central premise of the

Sixth Amendment to the United States Constitution trial right. Peña-Rodriguez v.

Colorado, 137 S. Ct. at 869.

Jurors acting pursuant to racial profiling challenges the American belief that the

jury functions as a bulwark of liberty. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 867

(2017). The jury must be a protection against, not an instrument of, race and color

prejudice. Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868. Racial prejudice destroys

the jury’s role as a vital check against the wrongful exercise of power by the State.

Powers v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

Peña-Rodriguez v. Colorado establishes that some jurors will assume a Latinx is

present in the United States illegally despite testimony to the contrary. Robert

Gutierrez’s trial court, the State, and defense counsel failed to disabuse juror 16 of the

possibility that Gutierrez was present unlawfully. Some jurors also believe that Latinx

men, or at least nine of out ten Latinos, all act aggressively.

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Despite an impact on judicial economy, the trial court should discharge a

prospective juror for cause when any doubt remains as to impartiality in the wake of

statements of bias. People v. Blyden, 432 N.E.2d 758, 760 (1982). The costs to society

and the criminal justice system of discharging the juror are comparatively slight, while

the costs in fairness to the defendant and the general perception of fairness of not

discharging such a juror are great. People v. Blyden, 432 N.E.2d 758, 760 (1982). The

trial court should lean toward disqualifying a prospective juror of dubious impartiality,

rather than testing the bounds of discretion by permitting such a juror to serve. People v.

Culhane, 33 N.Y.2d 90, 108 n.3, 305 N.E.2d 469, 350 N.Y.S.2d 381 (1973). The juror

system makes available many venirepeople for this reason. People v. Culhane, 33

N.Y.2d 90, 108 n.3 (1973). Even if, through caution, the court errs and removes an

impartial juror, the worst the court will have done is to have replaced one impartial juror

with another impartial juror. People v. Culhane, 33 N.Y.2d 90, 108 n.3 (1973).

More important than speedy justice is the recognition that every defendant is

entitled to a fair trial before twelve unprejudiced and unbiased jurors. State v. Parnell, 77

Wn.2d 503, 507, 463 P.2d 134 (1969). Not only should there be a fair trial, but there

should be no lingering doubt about it. State v. Parnell, 77 Wn.2d 503, 508 (1969).

I concur:

_______________________________ Fearing, J.

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

SIDDOWAY, C.J. (concurring in result) — In Washington, the “actual bias” that

disqualifies a juror is defined by statute. It 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.” RCW 4.44.170(2).

With the benefit of a transcript and focused argument, we can see that juror 16

revealed the striking misconception that if a person is not a United States citizen, then he

or she commits a crime by being in this country. Most people presumably understand

that there are a number of avenues by which noncitizens legally visit and live in this

country without being United States citizens—including avenues that lead to United

States citizenship. Juror 16 had a particular interest in determining if Hispanic

defendants were not United States citizens. If Mr. Gutierrez was not a United States

citizen, juror 16 said, “[H]e’s already guilty. He shouldn’t be here.” Report of

Proceedings at 167.

Mr. Gutierrez’s trial lawyer and the State have characterized juror 16’s expressed

views as less extreme: as a concern about people who actually are in the United States For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 37843-8-III State v. Gutierrez (concurring in result)

illegally.1 A prospective juror with only that concern could be rehabilitated by

questioning if the trial court was satisfied the juror accepted the irrelevance of

immigration status to the prosecution and provided assurance that speculation about

immigration status would not affect the juror’s ability to be fair and impartial. I agree

with the majority that more was required to rehabilitate juror 16. Juror 16’s

misunderstanding of immigration law and particular application of that misunderstanding

to Hispanics was enough to demonstrate actual bias.

In State v. Guevara Diaz, 11 Wn. App. 2d 843, 456 P.3d 869, review denied, 195

Wn.2d 1025, 466 P.3d 772 (2020), this court was also faced with a juror who

demonstrated actual bias inadequately addressed by the lawyers’ voir dire. In completing

a juror questionnaire, juror 23 had answered “no” to the question, “‘Can you be fair to

both sides in a case involving allegations of sexual assault or sexual abuse?’” Id. at 846.

1 It is reported that Americans of all backgrounds assume there are far more undocumented Latino individuals living in the United States than is actually the case. Suzanne Gamboa, “Americans Way Off on Number of Latinos They Think Are Undocumented, Poll Says,” NBC NEWS (Sept. 30, 2021), https://www.nbcnews.com /news/latino/americans-way-number-latinos-think-are-undocumented-poll-finds- rcna2464 [https://perma.cc/E2GP-YH4V]. The story reports that about 13 percent of the 62 million Latinos in the United States are undocumented according to the Department of Homeland Security and census information, yet all demographics surveyed believed the figure was two to three times higher. Id. Latinos themselves were reported to believe that 36 percent of Latinos were undocumented. Id. Well-meaning citizens may unfortunately rely on sources of information that not only exaggerate the number of undocumented Latinos but provide misleading information about burdens or dangers they pose to our communities and system of government.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

Neither lawyer questioned juror 23 about that answer. Id. at 847. Citing RCW 2.36.110,

CrR 6.4(c), and controlling case law, this court observed that “[t]he trial judge has an

obligation to excuse a juror where grounds for a challenge for cause exist, even if neither

party challenges that juror.” Id. at 855 & n.30. The court then analogized to our

Supreme Court’s decision in State v. Behre, 193 Wn.2d 647, 444 P.3d 1172 (2019), to

hold that if the lawyers do not address a juror’s demonstration of actual bias with

rehabilitation or a challenge for cause, the trial court must act. Behre held that when it is

alleged that jury deliberations were tainted by racial bias, an investigation must be

conducted under the court’s supervision, on the record; the court in Guevera Diaz held

that the trial judge should have similarly used voir dire to “ask juror 23 about her

statement that she could not be fair to determine her ability to be impartial.” Guevara

Diaz, 11 Wn. App. 2d at 856; see Behre, 193 Wn.2d at 662.

I agree with Guevera Diaz and the majority that when a prospective juror

demonstrates actual bias and is not rehabilitated or challenged by the parties, the trial

court is required to act. It must either dismiss the juror sua sponte or ask the prospective

juror about statements that demonstrate bias to determine the juror’s ability to be

impartial. Neither happened here, so we must reverse Robert Gutierrez’s convictions and

remand for a new trial.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

I part ways with the majority’s suggestion that Behre’s framework for addressing

allegations that jury deliberations were tainted by actual bias has application to voir dire.

As explained in Behre, in that singular context in which the jury’s verdict may be

impeached, “courts must carefully control the inquiry” to the exclusion of the parties.

193 Wn.2d at 657. This is completely unlike voir dire, in which the court is only required

to step in if the parties’ questions, and the parties’ efforts at rehabilitation, fail to address

a prospective juror’s statement of actual bias.

In that different context, Behre explains that before deciding whether to conduct

an evidentiary hearing, “courts [must] thoroughly consider the evidence and conduct

further inquiry if there is a possibility that racial bias was a factor in the verdict.” Id.

(emphasis added). This, too, is completely unlike voir dire, in which “a trial court should

exercise caution before injecting itself into the jury selection process.” State v. Lawler,

194 Wn. App. 275, 284, 374 P.3d 278 (2016).2

Suggesting that Behre has application to voir dire beyond its discussion of the trial

court’s responsibility to safeguard a defendant’s constitutional right to an impartial jury

2 Washington courts address implicit bias in an advance oral instruction to prospective jurors, which the lawyers can key off of in voir dire. 11 WASH. PRACTICE, PATTERN JURY INSTRUCTIONS: CRIMINAL § 1.01, at 11-12 (5th ed. 2021). Some Washington courts also address implicit bias in a video shown to prospective jurors. See Sarah Desautels, Limitations of Washington Evidence Rule 413, 95 WASH. L. REV. 429, 448-50 (2020).

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

could cause trial courts to enlarge their role in voir dire beyond anything intended by the

Supreme Court. For that reason, I concur in only the result.

Siddoway, C.J.