State v. Cho

• Decision Date: 04 September 2001
• Docket Number: No. 46254-7-I.,46254-7-I.
• Citation: 30 P.3d 496,108 Wn. App. 315,108 Wash. App. 315
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Kenny H. CHO, Appellant.

30 P.3d 496

108 Wn. App. 315

108 Wash. App. 315

STATE of Washington, Respondent, v. Kenny H. CHO, Appellant.

No. 46254-7-I.

Court of Appeals of Washington, Division 1.

September 4, 2001.

Reconsideration Denied November 1, 2001.

Eric Broman, John Eric Gibson, Seattle, for Appellant.

Daniel Jason Clark, Seattle, for Respondent.

BECKER, A.C.J.

This case arises from a juror's failure to disclose during voir dire that he was a retired police officer. A presumption of bias arises when a juror deliberately withholds material information in order to be seated on a jury. We remand for an evidentiary hearing. Unless the trial court finds facts refuting the implication of bias, the defendant is entitled to a new trial.

On an August evening in 1999, four members of a gang were riding in a black Honda in Federal Way. The car stopped, and its occupants were confronted by members of a rival gang approaching on foot. One of the passengers in the Honda leaned out the window and shot one of the members of the rival gang. The Honda then drove off. Based on information that appellant Kenny Cho was driving the Honda, the State prosecuted him for rendering criminal assistance.

Trial began on Monday, January 10, 2000. The trial court used the Struck jury method to conduct voir dire.¹ The venire panel was seated in the courtroom with number cards. After consulting with counsel, the judge began by asking about 20 general questions. Jurors were to hold up their cards to indicate an affirmative answer to a question. Counsel for the State and for Cho were then each allowed two 20-minute segments to ask further questions.

The judge encouraged the panel to be open and frank with the court and not to withhold any information:

THE COURT: Now, if there are any questions that we ask that you feel you'd rather answer in private, please let us know and we will try to accommodate you. But please do not withhold any information. One of the worst things that you can do for us is to withhold the information until after the case is over or something else. And then you read about it in the paper, and then that makes me very unhappy. So what we want you to do is tell us now how you feel about these particular items.[²]

On the second day, several jurors updated their responses to the questions asked the previous day, showing that they understood the court's desire to have its questions interpreted broadly.

Juror number eight, whose alleged nondisclosure is at issue in this case, held up his card in response to several of the court's questions. His responses indicated that he had been an eyewitness to crimes, had given testimony in a court proceeding, and had previous civil jury experience. Among other questions asked by the judge were some designed to elicit connections with, and attitudes toward, police officers.³ Juror number eight responded affirmatively when the judge asked whether anyone ever had a particularly unfavorable experience with the police. In response to a general question about whether anyone worked with a court or in the administration of justice, juror number eight gave his current occupation as a security manager for Wells Fargo Bank, but did not disclose that he was a former police officer.

After voir dire concluded on Tuesday, there were no challenges for cause from either side. The State exercised peremptory challenges to strike four potential jurors from the panel. Three of them had responded affirmatively when the judge asked whether anyone had ever had an unfavorable experience with the police; the fourth had back problems. The defense exercised three peremptory challenges. Two of them were residents of Federal Way, including one, a crime victim, who reported having a favorable experience with the police and strong feelings about gangs. The third was a technician for the Federal Bureau of Investigation; his stepbrother was a police officer.

When the trial began, the State presented three witnesses beginning with the victim, who explained the rivalry between the two gangs, described the shooting incident, and identified the shooter. He identified the black Honda as Cho's, and said he had seen Cho driving it earlier in the day, but could not see who was driving because the window was rolled up. Next, one of the passengers in the Honda testified that Cho was the driver, and that after the shooting they drove off casually so as to avoid attracting suspicion. A Federal Way police officer then described his investigation, including a search of Cho's bedroom in which he found evidence of Cho's gang affiliation. In the defense case, Cho's parents and his sister gave testimony tending to prove that Cho was at home on the evening in question. The State presented two police officers in rebuttal, to impeach the testimony of Cho's family members.

The trial ended on Wednesday afternoon. On Thursday, the jury brought in a verdict of guilty. After the verdict, the jurors shared their impressions of the trial with the attorneys. Juror number eight approached Cho's attorney and inquired about the reasons defense attorneys strike jurors. During the course of this conversation it became clear to counsel that juror number eight had been a police officer for a number of years, a fact he had not disclosed during voir dire.

The next day, Cho filed a motion for a new trial based on juror misconduct. His attorney filed an affidavit relating that juror number eight said he was "surprised to have made it on the jury" because, as a former police officer, he had always been stricken from previous jury panels. "He then went on to tell me that he was the person who really argued the point with the jurors that were hesitant to convict Mr. Cho. In the end, he managed to change their minds." Counsel said the juror "was convinced no one had inquired as to whether he had been in law enforcement and reiterated his surprise at that oversight."

The trial court heard Cho's motion on January 19, 2000 and denied it in an order dated January 28, 2000:

1. The juror's nondisclosure at issue would not have independently provided a basis for a challenge for cause.... State v. Carlson, 61 Wash.App. 865, 812 P.2d 536 (1991).

2. The record fails to demonstrate, by affidavit or otherwise, that the nondisclosed status or information, or the unique experiences possibly related thereto, was injected into the deliberations. This case is therefore distinguished from State v. Briggs, 55 Wash.App. 44, 776 P.2d 1347 (1989).

It is from this order denying his motion for a new trial that Cho appeals.

Cho's appeal requires us first to determine the standard that a trial court must use when faced with a motion for a new trial based on a juror's alleged failure to disclose information during voir dire, and then to decide whether the trial court erred in denying Cho's motion based on the facts presented. We will disturb a trial court's decision to deny a new trial only for a clear abuse of that discretion or when it is predicated on an erroneous interpretation of the law. State v. Briggs, 55 Wash.App. 44, 60, 776 P.2d 1347 (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).

The test on a new trial motion as articulated by this court is whether the movant can demonstrate that information a juror failed to disclose in voir dire was material, and also that a truthful disclosure would have provided a basis for a challenge for cause. See e.g., State v. Carlson, 61 Wash.App. 865, 877, 812 P.2d 536 (1991), review denied, 120 Wash.2d 1022, 844 P.2d 1017 (1993); State v. Briggs, 55 Wash.App. 44, 52, 776 P.2d 1347 (1989). Applying the second part of this test, the trial court concluded that even if Cho had learned during voir dire that the juror was a retired police officer, the disclosure would not have provided a basis for a challenge for cause.

According to Cho, the proper inquiry, found in older Washington cases, is whether a truthful disclosure would have independently provided a basis for a peremptory challenge. See State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); Smith v. Kent, 11 Wash.App. 439, 523 P.2d 446 (1974). The holdings in Simmons and Kent reflected the established jurisprudence of their era. But 10 years after Kent, the United States Supreme Court set forth a different rule in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (plurality opinion). McDonough is the origin of the rule applied by the trial court in the present case.

In McDonough, an action for personal injury was brought against a lawnmower manufacturer. A three-week trial resulted in judgment for the manufacturer. Plaintiffs then learned that a juror whose son had once sustained a broken leg injury in a tire explosion had failed to disclose this fact in voir dire when asked whether family members had ever sustained a severe injury. The plaintiffs moved for a new trial, arguing that if they had known this juror had such a narrow concept of severe injury, they would have exercised a peremptory challenge. The Tenth Circuit granted a new trial, holding that the juror's nondisclosure had prejudiced the plaintiffs' rights to exercise a peremptory challenge. The Supreme Court reversed. The Court stated that it would be to "insist on something closer to perfection than our judicial system can be expected to give" to invalidate the result of a three week trial because of a juror's mistaken but honest response to a question. McDonough, 464 U.S. at 555, 104 S.Ct. 845. The Court further stated:

A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a

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