State v. Gosser
| Decision Date | 16 December 1982 |
| Docket Number | No. 5039-1-II,5039-1-II |
| Citation | 656 P.2d 514,33 Wn.App. 428 |
| Parties | The STATE of Washington, Respondent, v. John GOSSER, Appellant. |
| Court | Washington Court of Appeals |
Kenneth L. Cowsert, Deputy Pros. Atty., Port Angeles, for respondent.
Defendant Gosser appeals his convictions of attempted escape in the first degree and second degree assault after a jury trial. His assignments raise the following claimed errors:
1. A former state patrolman drawn as a juror should have been excused for cause.
2. The State's amendment to the information on the first day of trial alleging an alternate means of committing second degree assault was untimely and prejudicial to defendant.
3. He was denied a fair and impartial trial because he was observed by the jury in shackles.
4. The invalidity of his guilty plea to the underlying offense supporting attempted first degree escape is a complete defense.
5. Evidence was insufficient to support a finding of guilt. We disagree with defendant and affirm.
On July 4, 1980, the defendant was detained in the Port Angeles jail awaiting sentencing on his guilty plea to wilfully failing to return (RCW 72.65.070), which stemmed from his earlier confinement at the Clear Water Correctional Center on another charge. His cell was shared with other inmates including one Ward Coble. At about 10 p.m. that evening a relief jailer entered the cell with a food cart to deliver refreshments. One of the inmates threw hot coffee in his face. The jailer turned, slammed the cell door but did not lock it, and ran down the hallway to the police station offices with Coble and the defendant in pursuit, brandishing a metal bar. Shortly thereafter, both Coble and the defendant returned to the cell and were observed removing street clothing from under their jail-issued coveralls. The defendant then hid the metal bar in the cell. Although the relief jailer testified as to the melee and flight, he was unable to identify Coble or the defendant as the ones throwing the coffee, brandishing the metal bar, or pursuing Defendant moved to withdraw his guilty plea to the underlying charge of wilfully failing to return because he was misinformed as to the maximum penalty. The motion was denied by the trial court in the instant action since the court believed the matter was not properly before it. However, an identical request after the instant trial was granted when made in the proper proceeding, and the charges were dismissed by the prosecutor.
him down the corridor. Their identity and activities were testified to by other inmates of the cell
After defendant used his sixth and last peremptory challenge, juror John Haas was selected and questioned on voir dire. Haas was a retired state patrolman of 26 years service, whose duties for the most part consisted of weighing trucks. It is the defendant's contention that the voir dire of Haas indicated he would unduly favor the State. Because of the critical importance of the examination we set it out in full:
Q Sir, have you been a juror before?
A No.
Q You have been a policeman?
A Yes.
Q Where was that sir?
A State Patrol.
Q Here locally?
A Yes.
Q Mr. Haas, in your experience as a police officer, how long were you employed as a police officer?
A Twenty five, twenty six years.
Q And what were your duties essentially briefly. Were you a dispatcher, were you on the road?
A I was on the road most of the time. I worked with the trucks, I weighed the trucks.
Q Do you, Mr. Haas, believe that Mr. Gosser is not guilty of anything with which the State has charged A Until proved otherwise, yes.
him at this point?
Q Would you be able to withhold your judgment on that until you have heard everything?
A Yes.
Q You don't feel that your experience as a police officer would have any affect on your judgment?
A Well if it comes down to a question I guess of yes or no, I'd go with the police officer.
Q So you feel that if there is any--if push comes to shove you're going to--
A Push.
Q You're going to go with the State, is that correct?
A Right.
Q Now as a member of the jury, everybody that takes the stand is subject to your own perceptions about whether to believe him or not.
A Right.
Q Just because a person has a police uniform on doesn't mean he's going to be totally one hundred percent believed to you, does it?
A No.
Q Same way if a person in a jail uniform takes the stand. That doesn't make him a lier [sic]
A Yes.
Q You're not saying that you have already made up your mind to believe and not believe?
A That's right.
THE COURT: You would listen to the testimony of both witnesses John and then decide which one to believe?
A Yes.
THE COURT: And it wouldn't be automatic that the police officer would have you believing him as opposed to the others?
A No.
Q Mr. Haas, I think if I understood your answer to my earlier question correctly it might be illustrated in this way. If a police officer got on the stand and testified that it was black, something was black, let's say, and then the defendant got on the stand and he said, no it was white, you would believe the police officer over the defendant, is that correct?
A Right.
Q Without any other factor bearing on your judgment?
A That was the only--your two questions? Yes, it would be black.
Mr. Haas went on to become the jury foreman.
A prospective juror must be excused for cause if the trial court determines the juror is actually or impliedly biased. RCW 4.44.170. We are here concerned with actual bias. 1 Actual bias, as defined in RCW 4.44.170 is:
... the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, ...
RCW 4.44.170. Although a juror may hold preconceived ideas, a juror need not be disqualified if he can "put these notions aside and decide the case on the basis of the evidence given at trial and the law as given him by the court." State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962) cert. denied 375 U.S. 883, 84 S.Ct. 154, 11 L.Ed.2d 113 (1963); RCW 4.44.190. The denial of a challenge for cause lies within the discretion of the trial court and will not constitute reversible error absent a manifest abuse of discretion. State v. Gilcrist, 91 Wash.2d 603, 590 P.2d 809 (1979). If, however, a juror should have been excused for actual bias, but was not, the remedy is reversal. Miles v It is sometimes a fine line as to when a challenge for cause should be sustained:
F.E.R.M. Enterprises, Inc., 29 Wash.App. 61, 64, 627 P.2d 564 (1981).
'... Some cases will be ones where an appellate judge might have done differently but at the same time cannot say that there was an abuse of discretion * * *.' Each case must be judged on its particular facts. A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror.
State v. Cuckovich, 485 S.W.2d 16, 23 (Mo.1972), quoting from State v. Harris, Mo.Sup., 425 S.W.2d 148 at 155, and State v. DeClue, Mo., 400 S.W.2d 50 at 57.
Although Haas' answer to the question of whether he would be influenced by his experience as a police officer was uncertain and his answer to the "black and white question" suggests a preference in favor of a police officer's testimony, he clearly stated in response to questioning that he would not believe a police officer's testimony simply because he was an officer or disbelieve a prisoner simply because he was a prisoner and that he had an open mind as to the issue of guilt. The trial court's personal observation of Haas' demeanor in answering the questions places it in a better position to evaluate and interpret the response than we can from reading the cold record. Under these circumstances we cannot say that the trial court abused its discretion in denying the challenge for cause.
On the first day of trial, the court allowed the prosecutor to amend the assault charge from a knowing assault of another with intent to commit a felony of first degree escape, RCW 9A.36.020(d), to a knowing assault of another with a weapon or other instrument or thing likely to produce bodily harm. RCW 9A.36.020(c). Defendant CrR 2.1(d) provides the court may permit an information to be amended at any time before verdict or finding if substantial rights of the defendant are not prejudiced. The defendant has the burden of showing prejudice. State v. Brown, 74 Wash.2d 799, 447 P.2d 82 (1968); State v. Jones, 26 Wash.App. 1, 612 P.2d 404 (1980). The fact a defendant does not request a continuance is persuasive of lack of surprise and prejudice. State v. Brown, supra. Where the principal element in the new charge is inherent in the previous charge and no other prejudice is demonstrated, it is not an abuse of discretion to allow amendment on the day of trial. State v. Johnson, 7 Wash.App. 527, 500 P.2d 788, adopted 82 Wash.2d 156, 508 P.2d 1028 (1973).
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