State v. Talbott, 100540-7

CourtUnited States State Supreme Court of Washington
Writing for the CourtYU, J.
Citation521 P.3d 948
Parties STATE of Washington, Petitioner, v. William E. TALBOTT II, Respondent.
Docket Number100540-7
Decision Date22 December 2022

Seth Aaron Fine, Attorney at Law, 3616 Colby Ave., Everett, WA, 98201-4773, Matthew R. Pittman, Snohomish County Pros. Attorney, 3000 Rockefeller Ave., Everett, WA, 98201-4046, for Petitioner.

Mary Swift, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Respondent.

YU, J.

¶1 In this case, we must decide whether a party who declines to remove a prospective juror with an available peremptory challenge has the right to appeal the seating of that juror. The answer is no.

¶2 The trial court denied William E. Talbott II's motion to excuse a prospective juror (juror 40) for cause. Talbott could have removed juror 40 with a peremptory challenge, but he did not, nor did he exhaust his peremptory challenges on other prospective jurors. Instead, Talbott affirmatively accepted the jury panel, including juror 40, with at least two peremptory challenges still available to him.

¶3 After he was convicted, Talbott appealed the denial of his for-cause challenge to juror 40. His claim is foreclosed by a long line of precedent holding that a party who accepts the jury panel without exhausting their peremptory challenges cannot appeal "based on the jury's composition." State v. Clark , 143 Wash.2d 731, 762, 24 P.3d 1006 (2001). Nevertheless, Talbott argues that Clark has been, or should be, rejected in light of dicta from State v. Fire , 145 Wash.2d 152, 158, 34 P.3d 1218 (2001). He is incorrect.

¶4 Fire did not overrule Clark . The two cases address different scenarios because the appellant in Fire exhausted their peremptory challenges and the appellant in Clark did not. Moreover, the holdings of Clark and Fire are consistent with each other; it is only in dicta that Fire appears to contradict Clark . It is this dicta in Fire that has created some confusion and uncertainty in this area of the law. Thus, we take this opportunity to clarify that a party who does not exhaust their peremptory challenges and accepts the jury panel cannot appeal the seating of a particular juror. Our holding is limited to the facts in this case, and we express no opinion on the analysis that applies where a party exhausts their peremptory challenges and objects to the jury panel.

¶5 Here, Talbott did not exhaust his peremptory challenges and he affirmatively accepted the jury panel, including juror 40. As a result, we will not reach the merits of his claim that juror 40 should have been dismissed for cause. We reverse and remand to the Court of Appeals to address the remaining issues on appeal.

A. Factual background

¶6 In mid-November 1987, Jay Cook's father sent Cook to Seattle to buy parts for his furnace business in Victoria, British Columbia, Canada. Cook invited Tanya Van Cuylenborg to join him on the trip. They planned to leave on Wednesday, November 18, and return the next day. However, the pair did not make it to their destination. For the next few days, family members distributed posters and went on several trips to find the missing couple.

¶7 Van Cuylenborg's body was found on November 24 in Skagit County, displaying evidence of sexual assault. Cook's body was found on November 26 in Snohomish County. Despite a multicounty law enforcement effort to solve the murders, no arrests were made. It was not until 30 years later that law enforcement, with the assistance of a genealogist, identified Talbott as the source for DNA (deoxyribonucleic acid) that was collected in 1987. Talbott was arrested in 2018 and charged with two counts of aggravated first degree murder.

B. Jury selection

¶8 The issue presented for our review stems from Talbott's unsuccessful motion to excuse juror 40 for cause. Juror 40 was questioned individually because "someone [she] had been close to had been a victim of sexual assault, murder, or other violent act." 1 Verbatim Rep. of Proc. (VRP) (June 11, 2019) at 292. When the court asked for more information, juror 40 explained,

[M]y mother was the victim of a lot of domestic abuse. So while I am able to reasonably set aside my own, I guess, experiences in life, I just wanted to put that out there, because I don't know how I would feel , being shown evidence of something that could bring up memories that I have worked to get rid of.

Id. at 293 (emphasis added). The court asked, "[D]o you think that would affect you to the point where you think you could not be fair and impartial in assessing the evidence in this case as to both the state and Mr. Talbott?" Id . Juror 40 responded that she "wouldn't know until the time came" and that "[i]f there was some action taken towards a young woman, [she] might take that personally and not be able to be impartial." Id.

¶9 The court then opened up the discussion to the attorneys, starting with defense counsel. Juror 40 expressed concern about seeing "potentially graphic evidence." Id. at 294. Defense counsel informed juror 40 that "[i]n this case you would hear and see all of that kind of evidence," explaining that the charges concerned "a young woman, 18 years old, who was murdered, who the state is accusing of—is accusing was sexually assaulted." Id. at 295. Counsel then advised juror 40,

[Y]ou have to tell me if you think that this is just not the right case for [you], that there's enough of a chance that [you] could be biased that [you] don't want to sit on a jury where [you] have to be fair where [you] don't know if [you] can. If that's your position, I would just ask that you tell me.

Id. at 296. Juror 40 stated, "That's my position" and further explained,

I try to be very, very logical and methodical in decisions I make in my life and, you know, trying to see both sides of everything. But like I said, if it's a case involving violence and women, it's just something that I've already experienced in my life, and I fear that I will always inherently have as a mother, so that's just the one thing that I probably couldn't get past.

Id. at 296-97.

¶10 The State then questioned juror 40, acknowledging "these biases that you think might be there." Id. at 298. Counsel asked juror 40 if she could "set those things aside" in this case "and come to a conclusion at the end just based on the evidence." Id. Juror 40 responded, "I could try." Id.

¶11 The State also acknowledged the reaction juror 40 might have to "the graphic evidence" in the case. Id. at 299. Counsel asked if she could "take those emotions, set them aside, ... but then come to a conclusion of Mr. Talbott's innocence or guilt based on the evidence," and not "any other experience that you've had?" Id. Juror 40 again responded, "I could try," noting "that there's always multiple sides to a story, and I'm a fact-based person, so I could tell you that I will give it my very best, should I end up being on the jury, to do that." Id.

¶12 Talbott moved to excuse juror 40 for cause. The trial court denied Talbott's motion, noting that the court often saw jurors "expressing some concerns about how they may react," as "anybody would have to, because they haven't seen the evidence." Id. at 302. Juror 40 left the courtroom, and voir dire continued with other prospective jurors.

¶13 Some prospective jurors were dismissed for cause on Talbott's motion, such as juror 83, who "read a lot about this case when it first came in the news" and thought "it would be difficult for [them] to be impartial," and juror 109, who "felt it would be difficult for [them] to be fair and impartial in this case ... based on some of [their] own personal experiences." Id. at 325, 327; see also 2 Clerk's Papers (CP) at 320. At the end of voir dire, the court provided both parties the opportunity to raise any additional for-cause challenges, and both declined.

¶14 The parties then exercised peremptory challenges. After the State exercised its first peremptory challenge, juror 40 moved into the jury box. Talbott never attempted to use a peremptory challenge to remove juror 40, and he affirmatively "accept[ed] the panel" after exercising only four of his peremptory challenges. 2 VRP (June 13, 2019) at 721; see also 2 CP at 332. Talbott had at least two additional peremptory challenges that he did not use on any prospective juror.1 Thus, Talbott explicitly agreed to be tried by a jury that included juror 40.

C. Conviction and appeal

¶15 Talbott was convicted and sentenced to two consecutive terms of life in prison without the possibility of parole. He appealed, contending, among other things, that the seating of juror 40 violated his right to a fair trial by an impartial jury. The Court of Appeals agreed and reversed in an unpublished opinion, holding that Talbott was not "provided a fair and impartial jury." State v. Talbott , No. 80334-4-I, slip op. at 12, 2021 WL 5768985 (Wash. Ct. App. Dec. 6, 2021) (unpublished), The Court of Appeals summarily rejected the State's argument that Talbott "waived" his challenge to juror 40 by "failing to exhaust all of his peremptory challenges after the for-cause challenge to juror 40 was denied." Id. at 4 (citing State v. Peña Salvador , 17 Wash. App. 2d 769, 776-83, 487 P.3d 923, review denied , 198 Wash.2d 1016, 495 P.3d 844 (2021) ).

¶16 We granted the State's petition for review and denied Talbott's cross petition, which raised other alleged trial errors contingent on our acceptance of review. We now reverse and remand to the Court of Appeals to address the remaining issues Talbott raised on appeal. See RAP 13.7(b).


¶17 If a party believes that their for-cause challenge to a prospective juror was erroneously denied, may the party decline to use an available peremptory challenge, allow the juror to be seated, and then appeal on the basis that their for-cause challenge should have been granted?


¶18 Criminal defendants have the constitutional...

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