State v. Ili

• Decision Date: 11 May 2021
• Docket Number: 54135-1-II
• Parties: STATE OF WASHINGTON, Respondent, v. PITA DALLAS ILI, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. PITA DALLAS ILI, Appellant.

No. 54135-1-II

Court of Appeals of Washington, Division 2

May 11, 2021

UNPUBLISHED OPINION

CRUSER, J.

Pita Ili appeals his conviction for second degree assault.Ili argues that the trial court's failure to dismiss juror 29 violated Ili's right to an impartial jury because the juror's association with a witness and involvement with the investigating police department resulted in the juror harboring both actual bias and implied bias.

We hold that the trial court did not abuse its discretion when it declined Ili's motion to dismiss juror 29.Accordingly we affirm.

FACTS

Ili was involved in a verbal dispute with Aaron Klien, a coworker while at work.It was Klien's first day on the job and Klien felt that throughout the day Ili had been criticizing Klien's performance.While Klien was unloading the delivery truck, Ili confronted Klien and got in Klien's face.The two proceeded to get into "a verbal exchange" that resulted in Ili grabbing Klien by the throat and forcing him down to the ground.1 Verbatim Report of Proceedings (VRP)at 145.As Klien fell backwards his hard hat came up and he incurred a laceration on the back of his head as it hit the corner of a building.Klien immediately had difficulty breathing and could feel Ili squeezing harder and harder.While on the ground, Ili was kneeling over Klien and kept his hands on Klien's throat.It was becoming harder for Klien to breathe and he felt a "pop" in his neck.Id. at 149.Klien felt lightheaded and dizzy.

Ili disputed Klien's account, claiming that he felt threatened as a result of the verbal altercation with Klien and grabbed Klien and took him to the ground to stop the argument.Ili claimed that he never squeezed Klien's throat.

Ili's coworkers pulled Ili off Klien.Dustin Fritz, the site supervisor, then told Ili to leave, which he did.Fritz also witnessed Ili take Klien to the ground.After the assault Klien called 911.Officer David Maclurg of the Lacey Police Department responded to the call and spoke with Klien at the scene.Maclurg noticed that Klien was having a hard time clearing his throat, speaking, and swallowing.Maclurg later called Ili, and they discussed the assault over the phone.At Maclurg's request, Ili turned himself in and consented to a recorded interview at the police station.The State charged Ili with second degree assault.The case proceeded to a jury trial.

During voir dire, the court asked the prospective jurors if they knew any of the potential witnesses, which included Maclurg.Juror 29 responded that he knew Maclurg because he(juror 29) was a former reserve police officer for the Lacey Police Department"and current chaplain for Lacey Police Department."Id. at 22.Juror 29 elaborated that he had probably last seen Maclurg approximately three weeks earlier.The court then asked juror 29, "if you were selected to serve as a juror in this case, would your current position and your prior position as it touches upon your familiarity with Officer Maclurg cause you to potentially give more weight to his testimony if he's called as a witness in this trial than another witness?"Id. at 22-23.Juror 29 responded, "No."Id. at 23.No one inquired further about juror 29's position as chaplain at the police department or his connection with Maclurg.Juror 29 also indicated that despite being the chaplain for the investigating police department he did not know anything about this case.

After the court finished its questions and the prospective jurors left the courtroom, the court discussed potential for cause challenges with the parties.The court noted that multiple jurors had responded that they knew a witness and asked if there were any motions regarding those jurors.Ili moved to remove juror 29 because "[f]amiliarity with the officer is one issue.The other is the depth of potential familiarity as the chaplain."Id. at 33.The State responded that the record did not support the juror's removal for cause.The court stated, "I'm going to for now deny the motion as to 29.It may be renewed after voir dire if we can have a discussion then."Id. at 34.

The attorneys then had an opportunity to ask the prospective jurors additional questions.When asked if anyone had previously served on a jury, juror 29 indicated he had and that it had been a challenging experience.Juror 29 explained "you start going through the evidence and realizing, . . . that this is somebody's livelihood or something that's at stake . . . it's another person involved and we should care about.[sic]We're all human beings and we care about them."Id. at 66.Juror 29 indicated that he had voted to acquit because the prosecution failed to prove its case.The juror also noted that he thought it was very important to listen to other jurors, even if he did not agree with them, because "everybody needs to be heard and have a voice, and sometimes people have a piece that maybe you forgot about or they can bring in to help."Id. at 48-49.

Later in the proceedings, when the jurors were asked about whether they volunteered in the community, juror 29 explained that he was "a volunteer chaplain" and helps "families in the community when they're going through tragedies and tough situations."Id. at 71.No one followed up on juror 29's answer to obtain more information about the exact nature of his volunteer work.Juror 29 was seated on Ili's jury.

At trial, Maclurg testified about his response to the scene, his interaction with Klien, and his phone conversation with Ili.The State admitted the recordings of Maclurg's interviews of Ili and Klien.The jury found Ili guilty of second degree assault.

Ili appeals.

DISCUSSION

I.Actual Bias and Implied Bias

Actual bias is defined in RCW 4.44.170(2) as "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."

A court must remove a juror for actual bias when the court is satisfied that the challenged juror's state of mind prevents the juror from being impartial.RCW 4.44.170(2).^[1] A juror with preconceived ideas who gives equivocal answers to questions can remain on a jury so long as the trial court is satisfied that the juror can set those preconceived ideas aside.RCW 4.44.190;State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190(1991).There must be proof that the challenged juror cannot be impartial.State v. Birch, 151 Wn.App. 504, 512-13, 213 P.3d 63(2009).

A party can also challenge a juror, "For [implied bias] as when the existence of the facts is ascertained, in judgment of law disqualifies the juror."RCW 4.44.170(1).RCW 4.44.180 provides an exclusive list of the bases for a challenge based on implied bias.Relevant to this case, a party can challenge a juror for implied bias if the juror is employed for wages by one of the parties.RCW 4.44.180(2).

However, even if the State is a party in a criminal proceeding, state employees are not automatically barred from serving as jurors in a criminal trial.State v. Johnson, 42 Wn.App. 425, 429, 712 P.2d 301(1985).A state employee is only barred from serving on a criminal trial, under RCW 4.44.180(2), if there is "a substantial relationship between the interests the prospective juror has in his employment and the interest the government is advancing as a litigant."Id.

II.ANALYSIS

A.Actual Bias

Ili argues that the trial court should have removed juror 29 for actual bias because the juror knew one of the witnesses, and because juror 29 served as a chaplain for the police department that investigated Ili's case.We disagree.

We review a trial court's ruling declining to dismiss a juror for an abuse of discretion.State v. Sassen Van Elsloo, 191 Wn.2d 798, 806, 425 P.3d 807(2018).The abuse of discretion standard is used because the trial court is in the best position to observe a juror's demeanor, and to interpret and evaluate a juror's answers when determining if a juror can be impartial.Noltie, 116 Wn.2d at 839-40.A trial court abuses its discretion when its decision is contrary to law, manifestly unreasonable or based on untenable grounds.Sassen Van Elsloo, 191 Wn.2d at 807.A decision is based on untenable grounds when it rests on facts unsupported by the record.Id.^[2]

Here, there is no evidence that juror 29 exhibited a state of mind that prevented him from being impartial.Ili relies solely on speculation about juror 29's employment and relationship to a witness to support his actual bias claim.But Ili fails to identify any portion of the record in which juror 29 expressed an opinion regarding a party, a witness, or the proceedings, or exhibited a state of mind that would prevent him from being impartial.Nor does Ili point to any information in the record showing that juror 29, had he formed any opinions, would have been unable to set those opinions aside in order to be impartial.Because the record fails to show that juror 29's state of mind would prevent him from being impartial, the trial court did not abuse its discretion by denying Ili's challenge for cause based on actual bias.Birch, 151 Wn.App. at 512-13.

The record, in fact, demonstrates that juror 29 recognized the importance of Ili's right to a fair trial and the importance of impartial deliberations.Juror 29 stated his familiarity with Maclurg would not cause him to give more weight to Maclurg's testimony than to the testimony of the other witnesses.Additionally, when juror 29 spoke about his previous jury service, he noted that the jury's verdict had significant consequences and it was important that the State prove...