State v. Fire

• Decision Date: 29 November 2001
• Docket Number: No. 69851-1.,69851-1.
• Citation: 145 Wash.2d 152,34 P.3d 1218
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Mink FIRE, a/k/a David Paul Mrowka, Respondent.

34 P.3d 1218

145 Wash.2d 152

STATE of Washington, Petitioner, v. Mink FIRE, a/k/a David Paul Mrowka, Respondent.

No. 69851-1.

Supreme Court of Washington, En Banc.

Argued February 15, 2001.

Decided November 29, 2001.

Randall Keenan Gaylord, San Juan County Prosecutor, Friday Harber, Brett & Daugert, Philip james Buri, Bellingham, for Petitioner.

Nielsen, Broman & Assoc. James R. Dixon, Christopher Gibson, Seattle, Catherine E. Glinski, Manchester, for Respondent.

BRIDGE, J.

The State asks this court to review the Court of Appeals decision in State v. Fire, 100 Wash.App. 722, 724, 729, 998 P.2d 362 (2000), which reversed Mink Fire's convictions and remanded for a new trial because the trial court should have excused a potential juror for cause. The State asks this court to determine whether that juror should have been dismissed for cause and whether, where a defendant exercises a peremptory challenge to remove a juror who should have been excused for cause and the defendant subsequently exhausts all of his peremptory challenges, the remedy is automatic reversal without a further showing of prejudice. We find that even if that juror should have been dismissed for cause, Fire exercised one of his peremptory challenges to remove the juror, and there is no showing that a biased juror, against whom the peremptory challenge might have been used, sat on his panel. Following the reasoning in United States v. Martinez-Salazar, 528 U.S. 304, 307, 315-16, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) and State v. Roberts, 142 Wash.2d 471, 517-18, 14 P.3d 713 (2000), we conclude that Fire did not lose a peremptory challenge, but exercised it. Therefore, he has not demonstrated prejudice and has not been deprived of any constitutional right. Without having to decide whether the juror should have been removed for cause, we reverse the Court of Appeals and remand for actions consistent with this opinion.

FACTS

Fire was charged with three counts of child molestation in the first degree. During voir dire the prosecuting attorney asked if any of the jurors could not completely put aside what he or she had heard about the case outside of the courtroom. After no one answered, the prosecutor began to question Juror No. 8:

MR. SILVERMAN: Juror Number 8. I'm picking on you, but why is it you feel you could do that that you could put that aside, whatever it was?

JUROR NO. 8: Well, that is a hard one.

MR. SILVERMAN: That's why I'm asking it.

JUROR NO. 8: To be completely honest, I would—this type of criminal activity, I have strong opinions on.

MR. SILVERMAN: O.K. And are those opinions that you have on these types of cases, is that going to affect your deliberations if you're a juror?

JUROR NO. 8: Very good possibility.

MR. SILVERMAN: Why is it that you feel that that might happen?

JUROR NO. 8: Can I be blunt?[¹]

At that point the prosecuting attorney interrupted and indicated he would continue the conversation without the other jurors present. When Juror No. 8 was the sole juror present, the court asked him if he would like to say anything regarding reasons for sitting or not sitting on the jury.

JUROR NO. 8: The subject matter in this case. You know, if it was, you know, somebody stealing a car or even someone getting murdered, that's, you know, fine with me. But a case in this nature, you know. I consider him a baby raper, and it should be severely punished.

I'm very opinionated when it comes to this kind of a crime. I hold innocent—or children from conception on very dear, and they should be protected.

THE COURT: You realize that this is just an accusation?

JUROR NO. 8: Yes, I do, ma'am.

THE COURT: Because of that, do you still feel that you could not start out with— do you feel that you could start out with a clean slate, an open mind, and listen to the evidence in order to determine whether you feel that the defendant is innocent or guilty?

JUROR NO. 8: Yes. But in the case in this—in any—probably any other case, yes, but in something like this, I'd be leaning to the accusation is there, and this type of case should be, you know, is very serious personally to me.

. . . .

MR. SILVERMAN: O.K. Are you telling me that you feel that your strong feelings about these types of offenses is such that that would even affect the role in making a determination of guilt or innocence?

JUROR NO. 8: That possibility is there.

. . . .

JUROR NO. 8: ... I'm saying that reasonable—if reasonable has some leeway, 40, 60, I'd probably be on the 40 [side] on this particular kind of case instead of being in the middle. You know, I hate to, in something—a different subject matter, it would be completely different.

. . . .

MR. SILVERMAN: And you—if you were given instructions on what [proving charges beyond a reasonable doubt] means and the other instructions, you would follow the instructions as given to you by the Court?

JUROR NO. 8: Yes.

MR. SILVERMAN: But you do have some strong feelings about the case, but you'd still follow the law?

JUROR NO. 8: Yes.[²]

In declining to excuse Juror No. 8 for cause, the court cited the juror's indication that he would be able to follow the instructions and the law. Fire's counsel later renewed his challenge to Juror No. 8 for cause, and the court once again declined to excuse him. Fire's counsel then exercised Fire's second peremptory challenge to excuse Juror No. 8 and subsequently exhausted his six peremptory challenges.

The jury found Fire guilty on November 5, 1998. On appeal Fire raised three issues including prosecutorial misconduct.³ The Court of Appeals held that Juror No. 8's responses indicated actual bias and that the trial court abused its discretion in failing to excuse him. Stating that it was bound by the decision in State v. Parnell, 77 Wash.2d 503, 508, 463 P.2d 134 (1969), the appeals court determined that the remedy is reversal; it remanded Fire's case for a new trial. In its petition for review the State raised only the issues of whether the court erred in not excusing Juror No. 8 and whether the remedy was correct. This court granted review on October 1, 2000.

ANALYSIS

At issue in this case is whether the trial court abused its discretion in denying a challenge for cause to Juror No. 8 and whether, without a further showing of prejudice, reversal is the remedy for a trial court's error in not dismissing a potential juror for cause where the defendant later uses a peremptory challenge to remove that juror and exhausts his remaining challenges before the final selection of the jury. Following Caruso v. Local Union No. 690, 107 Wash.2d 524, 534-35, 730 P.2d 1299 (1987) and Roberts, we may determine the second issue without reaching the first. Thus we consider whether, even if Juror No. 8 should have been excused for cause, Fire has alleged a situation which requires reversal of his conviction to cure the error.

The United States Constitution does not provide a basis for granting relief to Fire. The central federal legal issue in Fire's case has been definitively resolved in United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792. That case is directly on point:

We focus on this sequence of events: the erroneous refusal of a trial judge to dismiss a potential juror for cause, followed by the defendant's exercise of a peremptory challenge to remove that juror. Confronting that order of events, the United States Court of Appeals for the Ninth Circuit ruled that the Due Process Clause of the Fifth Amendment requires automatic reversal of a conviction whenever the defendant goes on to exhaust his peremptory challenges during jury selection. 146 F.3d 653 (1998).

We reverse the Ninth Circuit's judgment.... We hold ... that if the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.

Id. at 307, 120 S.Ct. 774.

The Court focused on the Ninth Circuit's conclusion that Martinez-Salazar was "forced" to exercise a peremptory challenge to cure an erroneous for-cause refusal. Id. at 314, 120 S.Ct. 774. The Court reasoned that a hard choice is not the same as no choice; Martinez-Salazar chose to exercise a peremptory challenge because he did not want a particular person to sit on the jury. Id. at 315, 120 S.Ct. 774. Instead of allowing the juror to sit and pursuing a Sixth Amendment challenge on appeal following the conviction, the defendant chose instead to use his peremptory challenge curatively. Id. In removing the juror, Martinez-Salazar did not lose a peremptory challenge, but used it for what it was for: to help secure an impartial jury. Id. at 315-16, 120 S.Ct. 774. Martinez-Salazar, together with his codefendants, exercised 11 peremptory challenges, which is all he was entitled to under the rule. Id. at 315, 120 S.Ct. 774.

As the Court indicated, if a defendant believes that a juror should have been excused for cause and the trial court refused his for-cause challenge, he may elect not to use a peremptory challenge and allow the juror to be seated. After conviction, he can win reversal on appeal if he can show that the trial court abused its discretion in denying the for-cause challenge.⁴

In Fire's case, even if Juror No. 8 should have been excused for cause, Fire exercised one of his peremptory challenges to remove him from the jury. Fire does not further show or even attempt to show that a biased juror sat on his panel. Thus, under the rule in Martinez-Salazar, Fire has not been deprived of any federal constitutional right.

Although the Court of Appeals in Fire recognized the existence and import of Martinez-Salazar, it stated it was bound by the decisions of this court. Fire, 100 Wash.App. at 727, 998 P.2d 362. After finding that Juror No. 8 should have been excused for cause, the Court of Appeals applied the rule in Parnell and reversed Fire's conviction. Id. at 729, 998 P.2d 362. The appeals court...