State v. Parnell

McGovern, J.

(dissenting) — I dissent. The trial court appropriately considered all relevant information before it and determined that venireman Martin was a qualified juror. *509 Because the record adequately supports that determination, we should affirm.

The total examination of Mr. Martin regarding his presence at defendant’s preliminary hearing was as follows:

The Court: Now I will ask the jurors in the box, is there any of you that has an acquaintanceship with Vivian Parnell or with either of the attorneys? Juror No. 3 (Arthur L. Martin): Well, Your Honor, I am not really sure, but in a traffic accident that happened to me in October, a collection agency wanted to collect some damages to the trailer that was struck and I had to go to court and I was diverted to the wrong courtroom and I believe I sat in and heard some of the preliminary hearing involving this particular young lady. The Court: Involving Miss Parnell? The Juror: Yes. The Court: You have no personal acquaintance with her other than that? The Juror: No, no. The Court: The names I have of people who might be witnesses in this case are read to you to see if you have any acquaintance with such persons: Detective Henaby, Detective Kirschner, Detective L. L. Hart, Detective C. O. Jett, K. M. Sweeney, LaVeme Jones, James Squires.

Is there any of you in the box that has any acquaintance with any of the persons whose names I have just read? Juror No. 3 (Arthur L. Martin): Just that I am pretty sure now I was waiting in the courtroom in Judge Hoar’s court at the time of the preliminary hearing. These witnesses’ names were brought out then. The Court: You were there on another matter? The Juror: Yes. I was in the wrong department. The Court: You heard part of this in the preliminary? The Juror: Yes. . . . By Mr. Hohlbein: Q. Mr. Martin, were you — how long were you in the preliminary hearing? A. I was in there — actually I was in Judge Hoar’s court for about two hours. A. Whose court? A. Judge Hoar. Q. Yes? A. I was in there approximately two hours. Q. Did you listen to the case pretty much down there? A. Well, inasmuch as the policemen at the time came forth and they just give a little preliminary — Q. Don’t say what anybody said. A. No, I am not saying that. The only thing I am saying is that they presented the matter. Q. You listened fairly attentively to the case? A. Fairly, yes. Q. And after you listened to it I suppose you gained some impression? A. No, I didn’t really get an impression. I had my own *510 problems on that particular day and I just happened to notice that the charge was brought up and the witnesses’ names were called off and this lady was sitting at the table with counsel. Q. Did you recognize me? A. Come to think of it, I think you were there. I am not too sure. Q. Now do you remember I made no objections during the course of that preliminary hearing? A. I don’t really recall. Q. It is your best recollection no objections were made? A. Not to my knowledge, no. . . . Q. The main idea is to have jurors that know nothing about the case and that when they try the case in the jury room they are trying it on the evidence they hear in this courtroom here. A. Right. Q. And they are trying it in terms of rules laid down by the Court and the evidence they hear, and of course, generally speaking, we hope, of course, to have jurors that know little or nothing about the case. Knowing this and knowing that you sat in for two hours and that you heard the preliminary hearing, don’t you think that it might just be possible in the back of your mind somewhere you might think back to something you heard at that time? Don’t you think if you were sitting in her shoes you would rather excuse yourself and say, perhaps, for the interest of justice you should excuse yourself? A. I would say in the interest of justice I think it would be appropriate for me to stay where I am until I am dismissed on your peremptory, but I do not think I have any preconceived ideas about it because it was very vague and there was no ruling given. I just remember her. Q. You must be careful what you say. This is what I am trying to avoid. A. I am just telling you I remember her from her face is all. Q. So if you were in her shoes you would be perfectly happy with a juror such as yourself? A. I believe I would.

Following that examination, defendant’s challenge of venireman Martin for cause and her request for an additional peremptory were both denied by the court.

In denying the challenge for cause, the trial court looked to the appropriate statutes as a guideline to its ruling on the motion. RCW 4.44.170 provides:

Particular causes of challenge are of two kinds:

(1) For such a bias as when the existence of the facts is ascertained, in judgment of law disqualifies the juror, and which is known in this code as implied bias.

*511 (2) For 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 trier in the exercise of a sound discretion, that he cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.

RCW 4.44.180 then defines an implied bias with more particularity.

A challenge for implied bias may be taken for any or all of the following causes, and not otherwise:

(1) Consanguinity or affinity within the fourth degree to either party.

(2) Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant, to the adverse party; or being a member of the family of, or a. partner in business with, or in the employment for wages, of the adverse party, or being surety or bail in the action called for trial, or otherwise, for the adverse party.

(3) Having served as a juror on a previous trial in the same action, or in another action between the same parties for the same cause of action, or in a criminal action by the state against either party, upon substantially the same facts or transaction.

(4) Interest on the part of the juror in the event of the action, or the principal question involved therein, excepting always, the interest of the juror as a member or citizen of the county or municipal corporation.

After considering the facts before it, and after applying those facts to the statutory causes said to constitute an implied bias, the trial court concluded that juror Arthur L. Martin was not impliedly biased against the defendant. It therefore denied the challenge. My consideration of the record before us and of the same statute leads me to concur in that conclusion. RCW 4.44.180 has no application to the facts.

Defendant also argues that the trial court should have concluded that juror Martin had an actual bias against her and should have been excused for that reason.

Certainly a juror must be indifferent between the parties. A fundamental constitutional condition attached to every *512 jury trial is that each juror hearing the case must be impartial. Const, art. 1, § 22. If a juror is prejudiced against a party to the action, then that party cannot receive a fair and just hearing and he has been deprived of a constitutional trial. It is therefore the responsibility of the trial court to consider all of the facts before it and from those facts to determine if the challenged juror does or does not hold an actual bias against a party involved in the proceeding. To that end, the trial court must consider all of the particulars that will help in its decision, including the outward manner of the juror as indicating a fixed, preconceived opinion or prejudice. It must fully and fairly consider each of the juror’s answers to the questions asked of him and determine whether or not those answers were truthfully, candidly and completely made. State v. Patterson, 183 Wash. 239 , 48 P.2d 193 (1935).

The competency or qualification of the juror is left to the determination of the trial court. That court should examine and consider to the best of its ability the frame of mind of the juror being questioned. It should pursue every available source of information which is calculated and needed to assist in its decisional process. And the answers given by that juror on his voir dire examination are not binding on the court.

The ultimate question to be decided by the trial court is not whether the juror holds certain preconceived ideas, opinions or impressions, or if he is possessed of facts relating to the cause of action. The real test is whether or not “he can put [those] notions aside and decide the case on the basis of the evidence given at the trial and the law as given him by the court.” State v. White, 60 Wn.2d 551, 569 , 374 P.2d 942 (1962). If otherwise qualified, a juror is competent if he can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

The trial court here properly considered all matters before it and determined, that juror Arthur L. Martin could impartially decide the case on the evidence presented at the trial. It therefore denied the challenge for cause. I would *513 not disturb that ruling, for “The granting or denial of a challenge for cause is within the discretion of the trial judge, and will not constitute reversible error in the absence of a manifest abuse of discretion.” State v. Aiken, 72 Wn.2d 306, 350 , 434 P.2d 10 (1967). I find no abuse of discretion in the ruling of the court. Mr. Martin had no personal acquaintanceship with the defendant; he apparently answered all questions with candor and completeness. In response to the question “Do you think of any reason at all why you couldn’t be a fair and impartial juror in a case like this?”, he answered “No, I don’t see why I could not be.” He said that he gained no impression from the testimony he heard during the preliminary hearing and that he did not “have any preconceived ideas” about the case. “The trial judge heard the answers of this juror and was in a better position than we to observe [his] attitude and demeanor.” State v. Bird, 31 Wn.2d 777, 780 , 198 P.2d 978 (1948). I find that the conclusion of the trial court is well supported by the record.

The judgment and sentence should be affirmed.

Finley, Weaver, and Hamilton, JJ., concur with McGovern, J.

February 9,1970. Petition for rehearing denied.