State v. Boiko

• Decision Date: 26 April 2007
• Docket Number: No. 24534-9-III.,24534-9-III.
• Citation: 138 Wn. App. 256,156 P.3d 934
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. Jay S. BOIKO, Respondent.

156 P.3d 934

138 Wn. App. 256

STATE of Washington, Appellant, v. Jay S. BOIKO, Respondent.

No. 24534-9-III.

Court of Appeals of Washington, Division 3.

April 26, 2007.

Michael George Sandona, Attorney at Law, Republic, WA, for Appellant.

Julian Elizabeth St. Marie, Law Offices of Julian St. Marie, Spokane, WA, for Respondent.

SCHULTHEIS, A.C.J.

¶ 1 A trial court is afforded great discretion and deference when ordering a new trial owing to juror bias. State v. Briggs, 55 Wash.App. 44, 60, 776 P.2d 1347 (1989). Jay Sidney Boiko was convicted of two counts of second degree rape. One of the jurors, an attorney who had applied for a job with the prosecutor one year earlier, did not disclose in voir dire that she was married to a key prosecution witness. We hold that the trial court did not abuse its considerable discretion by granting a new trial.

FACTS

¶ 2 Mr. Boiko was charged with two counts of second degree rape on November 22, 2004. The State asserted that Mr. Boiko raped D.P. two years earlier, and that the crime was reported by D.P. to his counselor, Robert Riley of Ferry County Community Services, who then took D.P. to the Ferry County Sheriff's Office to file a report. Mr. Riley ultimately testified to the circumstances surrounding D.P.'s reporting as well as D.P.'s psychological problems, medications, and stress related to the rape. Mr. Riley also provided an expert opinion to explain D.P.'s delay in reporting the crime.

¶ 3 Trial commenced on July 6, 2005. The venire completed questionnaires prior to jury selection. Juror 31 identified herself as an attorney by profession. She marked the boxes to indicate that she was both married and separated. When asked to list immediate family members she responded by listing their names.

¶ 4 During voir dire, the court asked the jury panel if they knew certain trial participants and, if so, whether the jury members could be impartial based on those relationships. The jurors raised cards printed with their juror number in response to the questions so counsel could record their numbers and follow up with individual voir dire.

¶ 5 Juror 31 indicated that she had heard of the case involving Mr. Boiko. In individual voir dire, she responded that she did not have preconceived ideas about the case. She also indicated that she knew the prosecuting attorney, D.P., and Mr. Riley, but she did not raise her card when asked whether her acquaintance with those persons would interfere with her ability to be fair. During individual voir dire, she said how she knew D.P. — from his attendance at one martial arts class.

¶ 6 Juror 31 was not asked, and she did not volunteer, any additional information during voir dire. She was the first to be seated on the jury. Mr. Boiko was convicted.

¶ 7 Mr. Boiko brought a motion for a new trial upon learning that juror 31's relationship with Robert Riley was that of husband and wife.¹ The State responded with a declaration from juror 31. She stated that she was surprised she was allowed to sit on the jury as she was certain that the prosecutor would strike her because she was representing Ferry County Professional Services in an action against the Ferry County assessor in which the prosecutor was defense counsel that was set for trial in September of that year.

¶ 8 After hearing the matter on July 29, the trial court expressed an inclination to grant the motion based on implied bias given juror 31's marital relationship with Mr. Riley, a key witness for the State. See State v. Cho, 108 Wash.App. 315, 325 n. 5, 30 P.3d 496 (2001) (holding that a presumption of bias can arise from a juror's factual circumstances, such as a juror is a close relative of one of the participants in the trial) (citing Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring)). But the trial court ordered additional briefing and set the matter for rehearing.

¶ 9 At the next hearing on August 26, the prosecutor further disclosed that juror 31 had applied for a position with his office a year prior to Mr. Boiko's trial. The trial court ordered a new trial based on implied bias.

DISCUSSION

¶ 10 Both the United States and Washington State Constitutions provide a constitutional right to trial by jury that is to be preserved and remain inviolate. U.S. CONST. amend. VI; CONST. art. I, § 21. The failure to provide a defendant with a fair hearing violates minimal standards of due process. State v. Parnell, 77 Wash.2d 503, 507-08, 463 P.2d 134 (1969) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)), overruled on other grounds by State v. Fire, 145 Wash.2d 152, 34 P.3d 1218 (2001). The right to trial by jury requires a trial by an unbiased and unprejudiced jury, free of disqualifying jury misconduct. Smith v. Kent, 11 Wash.App. 439, 443, 523 P.2d 446 (1974).

¶ 11 The State contends that the trial court erred by ordering a new trial for Mr. Boiko. We afford the trial court great discretion when deciding whether to order a new trial; more deference is afforded a decision to grant a new trial than a decision not to grant a new trial. Briggs, 55 Wash.App. at 60, 776 P.2d 1347. The trial court's decision will not be overturned on appeal unless a clear abuse of that discretion is shown or the decision is based on an erroneous interpretation of the law. State v. Jackman, 113 Wash.2d 772, 777, 783 P.2d 580 (1989). A trial court abuses its discretion when its decision is manifestly unreasonable, or exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

¶ 12 The trial court held that Mr. Boiko was entitled to a new trial under the Sixth Amendment doctrine of implied bias. This doctrine applies only in certain exceptional circumstances. Cho, 108 Wash.App. at 325, 30 P.3d 496 (citing Smith, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring)); see also McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556-57, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (Blackmun, Stevens, and O'Connor, JJ., concurring) (accepting doctrine of implied bias in exceptional circumstances); id. at 558, 104 S.Ct. 845 (Brennan and Marshall, JJ., concurring in the judgment) (same).

¶ 13 The State argues that Mr. Boiko is not entitled to a new trial because he did not show that juror 31 concealed material facts.

¶ 14 Typically, to obtain a new trial for juror bias for undisclosed information in voir dire, a party generally must show that (1) the juror intentionally failed to answer a material question and (2) a truthful disclosure would have provided a valid basis for a challenge for cause. McDonough, 464 U.S. at 556, 104 S.Ct. 845 (plurality opinion); Cho, 108 Wash.App. at 321, 30 P.3d 496; In re Pers. Restraint of Lord, 123 Wash.2d 296, 313, 868 P.2d 835, clarified, 123 Wash.2d 737, 870 P.2d 964 (1994) (citing Briggs, 55 Wash. App. at 52-53, 776 P.2d 1347).

¶ 15 In McDonough, a majority provided for a finding of implied bias without a showing of intentional concealment. 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, J., concurring); id. at 558, 104 S.Ct. 845 (Brennan, J., concurring).² Instead of establishing intentional concealment, "[w]here a juror's responses on voir dire do not demonstrate actual bias, in exceptional cases the courts will draw a conclusive presumption of implied bias from the juror's factual circumstances." Cho, 108 Wash.App. at 325, 30 P.3d 496 (citing Smith, 455 U.S. at 222, 102 S.Ct. 940 (O'Connor, J., concurring)).³

¶ 16 Here, the trial court first concluded that juror 31 could have been more forthcoming in voir dire, but because information was provided in the juror questionnaire that could have encouraged counsel to inquire further, juror 31 did not fail to make material disclosures. Second, it concluded that Mr Riley was not a party for the purposes of the implied bias statute to allow a challenge for cause.⁴ And, third, the trial court concluded that Mr. Riley was a key witness and close relative of juror 31, and held that there was an implied bias as a matter of law under Cho, Smith,⁵ and Latham.⁶

¶ 17 The trial court implied prejudice in this case without a full-blown evidentiary hearing, which was entirely reasonable under the circumstances. When the State submitted its briefing, the prosecutor had already initiated contact with and obtained a declaration from juror 31 to respond to the motion for a new trial.⁷ From these pleadings and colloquy at the hearings, the trial court discovered that the prosecutor knew juror 31 and that she had even applied for a job with the prosecutor and, further, she was involved in ongoing litigation with him as opposing counsel.

¶ 18 It is evident from the record that although neither the trial judge nor defense counsel knew juror 31, the prosecutor did. And the prosecutor did not make this disclosure. See CrR 7.5(a)(2) (providing for a new trial based on prosecutorial misconduct). The prosecutor's contacts with the jurors, although not necessarily inappropriate, when coupled with the undisclosed knowledge of and professional relationship with juror 31, may have influenced the court's decision to imply the bias, though no prosecutorial misconduct was found. See also McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, J., concurring); id. at 558, 104 S.Ct. 845 (Brennan, J., concurring).

¶ 19 The peculiarities arising in this situation were numerous, complex, and fairly considered by the trial court implying bias and ordering a new trial. The nature of juror 31's marital circumstances could inject any number of positive or negative emotions from the juror, whether conscious or not, that may manifest in supportive or obstructive reactions. See Smith, 455 U.S. at 221-22, 102 S.Ct. 940 (O'Connor, J., concurring) (noting that juror bias is elusive because the juror may not be aware of it). For instance, Juror 31's status as an attorney may have made her overconfident in her...