State v. Rempel

• Citation: 770 P.2d 1058,53 Wn.App. 799
• Decision Date: 10 April 1989
• Docket Number: No. 20933-7-I,20933-7-I
• Parties: STATE of Washington, Respondent, v. Dale D. REMPEL, Appellant.
• Court: Court of Appeals of Washington

Page 799

53 Wn.App. 799

770 P.2d 1058

STATE of Washington, Respondent, v. Dale D. REMPEL, Appellant.

No. 20933-7-I.

Court of Appeals of Washington Division 1.

April 10, 1989.

Julie Kesler, Washington Appellate Defender, Seattle, for Dale D. rempel.

Paul Stern, Cassandra Noble, Deputy Pros. Attys., for State of Wash.

GROSSE, Acting Chief Judge.

The appellant, Dale D. Rempel, was charged with one count of first degree burglary, one count of attempted second degree rape, and one count of tampering with a witness. He was convicted by a jury of first degree criminal trespass, attempted second degree rape, and tampering with a witness. Only the latter two convictions are at issue in this appeal.

Appellant's principal allegation is that the trial court erred in not granting a mistrial due to juror misconduct. During the initial voir dire the juror in question indicated that she was not acquainted with the name of the complaining witness. At trial, in the middle of the first day, the State called the complaining witness to testify. The victim had not been in court during the preliminary voir dire. Before she began to testify, juror 7 announced that she was in fact acquainted with the victim. The trial court immediately sent the witness and the other 11 jurors from the room. Defense counsel moved for a mistrial.

Under questioning from the trial court and defense counsel the juror explained that she had previously worked with the victim, and further stated she had no opinion as to the victim's credibility or honesty. Juror 7 stated that she felt she could listen and objectively evaluate the testimony. Defense counsel focused his questions on whether the juror might feel more sympathy for the victim than for a complete stranger. After more questioning, the trial court determined that juror 7 could be impartial and denied the motion for mistrial based on the defense challenge for cause.

The appellant argues that the trial court erred because, however inadvertent, juror 7's answers during the first voir dire were not truthful. Based on this inadvertent error, he contends (1) that juror misconduct occurred as a matter of law thus entitling him to a new trial; and (2) that even if the juror's conduct did not itself unfairly prejudice him in the course of the trial, it did deprive him of the opportunity to intelligently exercise his peremptory challenges thus depriving him of a fair and impartial trial.

With regard to appellant's first contention, the decisions of whether a juror is impartial and whether a mistrial is required are matters for the discretion of the trial court. The determination of the trial court will be overturned on appeal only for an abuse of discretion. State v. Colbert, 17 Wash.App. 658, 664-65, 564 P.2d 1182 (1977).

When an irregularity occurs at trial, the trial court must determine whether the irregularity so prejudiced the defendant as to deny a fair trial. See State v. Mak, 105 Wash.2d 692, 701, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). See also State v. Davenport, 100 Wash.2d 757, 762, 675 P.2d 1213 (1984). It is the trial court that is best able to determine if the juror can set aside any preconceived opinion. The trial court is able to observe the juror's demeanor and, in light of the observation, interpret and evaluate the juror's answers to determine whether the juror will be fair and impartial. State v. Rupe, 108 Wash.2d 734, 749, 743 P.2d 210 (1987), cert. denied, --- U.S. ----, 108 S.Ct. 2834, 100 L.Ed.2d 934, (1988). The effect on the jury of juror 7's knowing the complaining witness is a question which was properly determined in the sound discretion of the trial court. Adkins v. Aluminum Co. of Am., 110 Wash.2d 128, 137, 750 P.2d 1257, clarified, 756 P.2d 142 (1988); see also Halverson v. Anderson, 82 Wash.2d 746, 752, 513 P.2d 827 (1973).

Appellant relies on the case of Smith v. Kent, 11 Wash.App. 439, 523 P.2d 446 (1974), for the proposition that the trial court erred in failing to grant a mistrial as a matter of law. The Smith court stated at 443, 523 P.2d 446:

Article 1, section 21 of the state constitution provides that "[t]he right of trial by jury shall remain inviolate ..." The right of trial by jury means a trial by an unbiased and unprejudiced jury, free of disqualifying jury misconduct.

(Emphasis added.)

We believe that the appellant's reading of Smith v. Kent in this regard is too broad. The proper focus, when ruling on a motion for a new trial, is on the bias of the juror, if any, and the resulting prejudice to the litigant. See Adkins v. Aluminum Co. of Am., supra 110 Wash.2d at 137, 750 P.2d 1257. See also Mutual of Enumclaw Ins. Co. v. Cox, 110 Wash.2d 643, 653-54, 757 P.2d 499 (1988). Thus, it must be determined under the facts and circumstances surrounding each case whether a juror is biased against the moving litigant. The appellant's reading of the Smith case would compel us to rule that juror 7 was actually biased as a matter of law and that this bias so prejudiced the defense as to require a mistrial. This we will not do.

Where a juror fails to disclose some fact on voir dire which might affect his or her qualifications as a juror, and the failure to disclose amounts to deception, the usual remedy is to award a new trial. However, an unintentional failure to disclose information not directly connected with the case does not necessarily show a juror's prejudice sufficient to require a new trial. See Anderson v. Burlington N. R.R. Co., 651 S.W.2d 176 (Mo.App.1983), aff'd, 700 S.W.2d 469 (Mo.App.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1974, 90 L.Ed.2d 657 (1986). See also Harrison v. St. Louis Pub. Serv. Co., 251 S.W.2d 348 (Mo.App.1952). In the case at bar, juror 7's realization that she was acquainted with the complaining witness came when she first saw her in court. Her knowledge contradicted her answer on voir dire that she knew none of the witnesses, but the discrepancy was unintentional. After ample precaution and inquiry the trial court found there was no prejudice in allowing the trial to continue with juror 7.

Criminal defendants have a right to a fair trial by a panel of impartial, indifferent jurors. State v. Latham, 100 Wash.2d 59, 62-63, 667 P.2d 56 (1983). However, " '[a litigant] is entitled to a fair trial but not a perfect one,' for there are no perfect trials." (Citations omitted.) Brown v. United States, 411 U.S. 223, 231-32, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973). The Supreme Court has also stated that "[t]o invalidate the result of a ... trial because of a juror's mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984). "The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." McDonough, at 556, 104 S.Ct. at 850.

In addition, this case is not analogous to Smith. There, a juror prejudiced the plaintiff's case by speculating outside the evidence based on his experience as a truck driver. Here, juror 7 did no such thing. It is not claimed that she imparted any information to the jury outside of the evidence. There is nothing in this record to establish that juror 7 had any improper bias against the appellant. There is no indication that appellant was prejudiced by juror 7's presence on the jury. The court did not abuse its discretion in denying the mistrial.

Appellant also contends that at the time juror 7 was questioned on voir dire he still had a peremptory challenge which he would have used had he known juror 7 was acquainted with the complaining witness. Appellant argues that the inquiry made by the trial court should not end with whether or not there was bias. He contends that a defendant still has the right to exercise a peremptory challenge to assist in securing a fair and impartial jury. Again, he relies on this proposition in large part based on Smith v. Kent, supra. We do not agree with the proposition.

As stated in State v. Kender, 21 Wash.App. 622, 626, 587 P.2d 551 (1978), review denied, 91 Wash.2d 1017 (1979):

The law presumes that each juror sworn in a case is impartial and above legal exception,...