State v. Gollas-Gomez
| Decision Date | 06 June 2018 |
| Docket Number | A161005 |
| Citation | 292 Or.App. 285,423 P.3d 162 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Eduardo GOLLAS-GOMEZ, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Kenneth A. Kreuscher argued the cause and filed the brief for appellant.
Christopher R. Page, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
Defendant appeals a judgment of conviction for five counts of sexual abuse. In his first assignment of error, he argues that the trial court abused its discretion when it denied his motion to strike a prospective juror, Juror 11, for cause. Because we agree with defendant, we reverse and remand for a new trial, and we do not reach his other assignments of error.
The relevant facts are procedural and undisputed. The state charged defendant with five counts of sexual abuse in the first degree, ORS 163.427, based on alleged incidents involving his two daughters, aged 11 and 12 years old. During the voir dire portion of jury selection, defense counsel questioned potential jurors in aid of making challenges for cause and exercising peremptory challenges. One potential juror was Juror 11. Juror 11 had identified himself as having worked for the Department of Human Services (DHS), which led to the following exchange with defense counsel:
At the conclusion of that exchange, defense counsel moved to strike Juror 11 for cause. The trial court summarily denied the motion, and Juror 11 was seated on the jury.2 A three-day trial ensued. The state’s evidence included the testimony of a police officer, recordings of and testimony about the alleged victims’ CARES interviews, and the testimony of the counselor for one of the victims. After deliberation, the jury returned nonunanimous guilty verdicts on all five counts. The court accepted the verdicts and entered a judgment of conviction. Defendant appeals.
We review the denial of a motion to strike a juror for cause for abuse of discretion. State v. Fanus , 336 Or. 63, 83, 79 P.3d 847 (2003), cert. den. , 541 U.S. 1075, 124 S.Ct. 2416, 158 L.Ed.2d 987 (2004). "Discretion refers to the authority of a trial court to choose among several legally correct outcomes." State v. Romero, 236 Or. App. 640, 643, 237 P.3d 894 (2010) (internal quotation marks omitted). "If the trial court’s decision was within the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial court did not abuse its discretion." Id. at 643, 237 P.3d 894 (citation omitted).
A criminal defendant has the guaranteed right to an impartial jury under both the state and federal constitutions. See Or. Const., Art. I, § 11 (); U.S. Const., Amend. VI (). Consistent with that right, ORCP 57 D(1)(g), applicable to criminal trials through ORS 136.210(1), allows a criminal defendant to challenge any prospective juror based on actual bias. "Actual bias is the existence of a state of mind on the part of a juror that satisfies the court, in the exercise of sound discretion, that the juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging the juror." ORCP 57 D(1)(g). Actual bias "may be in reference to," inter alia , "either party to the action" or a "witness." Id .
The ultimate question with respect to actual bias is whether a prospective juror "can try the case impartially and follow the trial court’s instructions." State v. Montez , 309 Or. 564, 594, 789 P.2d 1352 (1990). "[A]ctual bias does not arise out of the mere fact that the challenged juror holds certain views, but out of the fact that those views are likely to impair the juror’s performance of his or her duties." State v. Barone , 328 Or. 68, 78, 969 P.2d 1013 (1998), cert. den. , 528 U.S. 1135, 120 S.Ct. 977, 145 L.Ed.2d 928 (2000). To determine whether a prospective juror’s views "would prevent or substantially impair" performance of a juror’s duties, the trial court must look "at the totality of the potential juror’s voir dire testimony to discern whether it suggests the probability of bias." State v. Lotches , 331 Or. 455, 474, 17 P.3d 1045 (2000), cert. den. , 534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001) (internal quotation marks omitted). Actual bias is a question of fact to be determined from all of the circumstances, including the prospective juror’s demeanor, apparent intelligence, and candor during voir dire . Barone , 328 Or. at 74, 969 P.2d 1013. The trial court’s decision whether to exclude a juror for cause is "entitled to deference and will not be disturbed except for abuse of discretion." Id . That is especially so because the trial court has the advantage of observing the prospective juror. State v. Dalessio , 228 Or. App. 531, 536, 208 P.3d 1021 (2009).
Although our review is deferential, the trial court’s discretion in deciding whether to dismiss a prospective juror for cause is not unbounded. State v. Carter , 205 Or. App. 460, 467, 134 P.3d 1078 (2006). In exercising its discretion, "the trial court must always be zealous to protect the rights of the accused as well as the legitimate interests of the state." Montez , 309 Or. at 575, 789 P.2d 1352. When a prospective juror has, during voir dire , "expressly called into question their ability to serve fairly and either continued to affirm that position or, at best, ‘guessed’ that they could ‘try to be fair,’ " we have held that it is an abuse of discretion to deny a motion to strike the juror for cause. State v. Vaughan-France , 279 Or. App. 305, 320-21, 379 P.3d 766, rev. den. , 360 Or. 697, 388 P.3d 711 (2016).
For example, in Carter , in response to questioning by defense counsel, a prospective juror, Henson, stated in voir dire that he "would have to hear a lot of good stuff" to change his predisposition that the defendant was guilty and that he did not think he could be fair. 205 Or. App. at 462-63, 134 P.3d 1078. Defense counsel moved to strike Henson for cause. Id . at 463, 134 P.3d 1078. The prosecutor sought to rehabilitate Henson, asking him whether he could follow an instruction to presume a defendant innocent until proved guilty beyond a reasonable doubt, to which Henson replied, "Yeah, I could probably do that." Id . The trial court then questioned Henson, explaining the duties of a juror and asking Henson whether he could set aside his personal feelings and follow the law. Id . at 463-64, 134 P.3d 1078. Henson replied, "I guess I could try." Id. at 464, 134 P.3d 1078. The trial court denied the defendant’s motion to strike for cause, as well as a renewed motion, on the basis that Henson had "his own personal beliefs but he said that he can set them aside, and I believe him." Id. We reversed on appeal, explaining that, although "the trial court did remark that he believed Henson when Henson said that he could set aside his personal beliefs," Henson "never said he could do so." Id. at 467, 134 P.3d 1078. He said only, "I guess I could try." Id . On that record, the court abused its discretion in denying the motion to strike Henson for cause. Id. at 468, 134 P.3d 1078.
In this case, defendant argues that it was an abuse of discretion for the trial court to deny his motion to strike Juror 11 for cause given Juror 11’s partiality toward the prosecution. As defendant recognizes, Juror 11’s employment history alone did not establish actual bias. However, when defense counsel asked Juror 11 whether he was concerned that his personal experiences were so extreme that they might distort his ability to perceive the evidence at trial, Juror 11 responded that he was "infinitely aware of the workings of CARES" and had "used CARES testimony in termination trials, including molestation trials." More significantly, when defense counsel followed up by asking Juror 11 whether he would be able to listen "with a critical or impartial perspective" to testimony about the "inner workings that you’re already familiar with," Juror 11 responded that he "would give weight" to the testimony of the officer, the counselors, and the CARES...
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Dorn v. Three Rivers Sch. Dist.
...tenured employment because of her prior episode of drinking and driving.4 Plaintiff argues that footnote 2 in State v. Gollas-Gomez , 292 Or. App. 285, 423 P.3d 162 (2018), points in a different direction. See id. at 287 n. 2, 423 P.3d 162. However, we can read our footnote in Gollas-Gomez ......