477382MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 47738-2-I
Title of Case: State of Washington, Respondent
v.
Daniel Gonzales, Appellant
File Date: 04/22/2002


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 001037925
Judgment or order under review
Date filed: 10/23/2000
Judge signing: Hon. Phillip Hubbard


JUDGES
------
Authored by Anne L. Ellington
Concurring: Susan R. Agid
Mary K. Becker


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Washington Appellate Project
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101

Cheryl D. Aza
Washington Appellate Project
1305 4th Ave Ste 802
Seattle, WA 98101

Counsel for Respondent(s)
Prosecuting Atty King County
King County Prosecutor/Appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

Randi J. Austell
King Co Pros Attorney
516 3rd Ave 5th Floor
Seattle, WA 98104

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 47738-2-I
)
Respondent, ) DIVISION ONE
)
v. )
) PUBLISHED OPINION
DANIEL GONZALES, )
)
Appellant. ) FILED:
)

ELLINGTON, J. -- In Daniel Gonzales' trial on charges of assault in the
first degree, a biased juror was seated, and the prosecutor committed
misconduct during closing argument. We reverse and remand for retrial.
Gonzales was charged with brutally assaulting Ghoshua Hoy during the
early morning hours of March 15, 2000. Hoy suffered substantial injuries,
including brain damage. He never saw his assailant(s) and was unable to
identify Gonzales. The bulk of the evidence against Gonzales consisted of
his own statements to police officers. He contends several errors occurred
at trial.
Biased Juror. The right to trial by an impartial jury is guaranteed by the
Sixth Amendment to the United States Constitution and article 1, section 22
of the Washington Constitution.1 To protect this right, a juror will be
excused for cause if his views would ''prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions
and his oath.'''2
Actual bias 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{.}'3 The
trial judge is in the best position to evaluate whether a particular
potential juror is able to be fair and impartial based on observation of
mannerisms, demeanor and the like.4 We therefore review denial of a cause
challenge for manifest abuse of discretion.5
During voir dire in Gonzales' trial, the attorneys asked whether jurors
knew of any reason they might have for not sitting on the jury, or if there
were any reason a juror might be biased in favor of certain types of
testimony. Defense counsel specifically asked jurors about the credibility
of police officers. One juror stated she would find it difficult to
disbelieve a police witness:
DEFENSE: Is there anyone else . . . who thinks that a police officer's
testimony might influence them just because they are police officers?
. . . .

JUROR 11: Just the way I was brought up -- I know it's very naãve, but the
way I was brought up, the police are always, you know -- unless they are
proven otherwise, they are always honest and straightforward, and tell the
truth. So I would have a very difficult time deciding against what the
police officer says.

DEFENSE: Okay. So you would presume the police officer was telling the
truth? If it came down to -- let's say, hypothetically, if it came down to
a police officer's word versus Daniel Gonzales's word, okay, and you're
trying to assess which one of them is telling the truth, correct me if I'm
wrong, but I hear you saying that you would presume the police officer was
telling the truth?

JUROR 11: Yes, I would.

DEFENSE: What if the Court instructed you that it's actually the opposite,
that you're supposed to presume that the defendant is innocent unless and
until the State, through its witness, the police officer, can prove to you
otherwise?

JUROR 11: . . . I don't know. It's going to be back there. That's just
the way I was raised. I don't know if I could keep those separate. I
don't think -- I don't know if I could.6

Later, the following exchange occurred:
STATE: Then when an officer testifies and you're assessing his or her
credibility, the fact that he or she is a police officer is one of the
things, like their tone of voice, the consistency, and their body language
that you use to assess, does that one factor that he or she is an officer
testifying in any way relieve the State of its burden of proving that Mr.
Gonzales is guilty of the crime with which he has been charged?

JUROR 11: No.

STATE: So, in your mind, does he still have a presumption of innocence
regardless of the fact that it is an officer that has taken the stand to
testify?

JUROR 11: I don't know.

STATE: Do you want me to come back to you?

JUROR 11: Yeah.

STATE: I don't want to be like Regis and have that be your final answer
yet. . . .7

No further questions were asked of Juror 11.
Gonzales later challenged Juror 11 for cause. The court denied the
challenge without comment. Defense counsel then used all but one of his
peremptory challenges to remove other potential jurors. Juror 11 was
seated on the jury and went on to deliberate.
We have considered several similar cases. In State v. Witherspoon,8 a
juror admitted he was prejudiced against African Americans charged with
dealing drugs:
When what you see in the newspaper, I have to admit I'm a little bit
prejudiced. I see a lot of black people who are dealing drugs. When drugs
are dealt, that's who is involved unfortunately. I can't help it. I'm
sorry. I'm that way. I see it in the papers all the time, and I can't
help but be influenced.9

We held that the juror had demonstrated actual bias, because the 'very
issue on which {the juror} was being asked to pass was whether Mr.
Witherspoon, an African American, possessed drugs{,}' and that attempts to
rehabilitate the juror did 'not go far enough to mitigate a categorical
statement by {the} juror that he is prejudiced against African
Americans{.}'10 We held the trial court abused its discretion in failing to
excuse the juror.
We also found actual bias in State v. Fire,11 where potential jurors in a
child molestation case were asked if there was any reason they might have
for not sitting on the jury. One potential juror responded, 'I consider
him a baby raper, and it should just be severely punished. I'm very
opinionated when it comes to this kind of a crime.'12 We held the
prosecutor's attempt to rehabilitate the juror insufficient to overcome the
juror's actual bias:
We do not say that a juror whose initial responses indicate actual bias can
never be rehabilitated by affirmative responses to thorough and thoughtful
inquiry. . . . But appellate deference to trial court determinations of the
ability of potential jurors to be fair and impartial is not a rubber stamp.
. . . We find nothing in the potential juror's one-word affirmative
responses to the series of rehabilitative questions that indicates he had
come to understand that he must lay his preconceived notions aside, in
order to serve as a fair and impartial juror.13

Like the jurors in Witherspoon and Fire, Juror 11 unequivocally admitted a
bias regarding a class of persons (here, a bias in favor of police
witnesses) and indicated the bias would likely affect her deliberations.
Juror 11 also candidly admitted she did not know if she could presume
Gonzales innocent in the face of officer testimony indicating guilt. And
like the jurors in Witherspoon and Fire, Juror 11 was not rehabilitated.
Indeed, here no rehabilitation was attempted.
A prospective juror's expression of preference in favor of police testimony
does not, standing alone, conclusively demonstrate bias. The State points
to State v. Gosser.14 There, a retired state patrolman in the venire stated
that if an issue could be resolved only by assessing the credibility of a
police officer versus that of the defendant, he would believe the officer's
testimony over the defendant's. But he also indicated he would presume the
defendant innocent, and would not automatically believe everything a
witness said just because the witness was an officer. In affirming the
conviction, the Gosser court noted that although the prospective juror's
answers in voir dire suggested a preference in favor of police testimony,
the juror also made clear that he was able to set these notions aside
because he understood the presumption of innocence and had an open mind on
the issue of guilt.15
By contrast, Juror 11 not only admitted that she would have a 'very
difficult' time disbelieving a police officer, she admitted she was not
sure she could afford Gonzales the presumption of innocence if an officer
testified. Further, in Gosser the prospective juror's bias was effectively
neutralized by further questioning, whereas no such rehabilitation occurred
here. At no time did Juror 11 express confidence in her ability to
deliberate fairly or to follow the judge's instructions regarding the
presumption of innocence. Juror 11 demonstrated actual bias, and the trial
court erred in rejecting Gonzales' cause challenge.
When a defendant is denied his or her constitutional right to a fair and
impartial jury, the remedy is reversal. Our Supreme Court in Fire recently
described a defendant's options as follows:
{I}f a defendant believes that a juror should have been excused for cause
and the trial court refused his for-cause challenge, he may elect not to
use a peremptory challenge and allow the juror to be seated. After
conviction, he can win reversal on appeal if he can show that the trial
court abused its discretion in denying the for-cause challenge.16

Juror 11 should have been excused. Gonzales is entitled to a new trial.
Prosecutorial Misconduct. Gonzales argues, and we agree, that the
prosecutor committed misconduct in closing argument. We address the issue
to ensure it does not arise on remand.
In closing, the prosecutor disparaged the role of defense counsel and
sought to 'draw a cloak of righteousness' around the State's position:
STATE. I have a very different job than the defense attorney. I do not
have a client, and I do not have a responsibility to convict. I have an
oath and an obligation to see that justice is served.

DEFENSE: Objection. Misconduct. As if I'm not out to seek justice, too.

COURT: Overruled.

STATE: The defense has an obligation to a client.

DEFENSE: Objection.

COURT: Counsel, that objection is not well taken. It's overruled.

STATE: Thank you. {Defense counsel} has a client to represent, I don't.
Justice, that's my responsibility and justice is holding him responsible
for the crime he committed{.}17

A nearly identical argument was held improper by the Fifth Circuit
court in United States v. Frascone.18 There, in rebuttal argument, the
prosecutor stated: 'Let me point out something to you, Ladies and
Gentlemen. I take an oath to see that justice is done. They take an oath
to represent their client zealously{.}'19 At this point, Frascone's
attorney interrupted and objected, the objection was sustained, and the
district judge directed the jury to disregard the prosecutor's comment.
The Circuit Court held the argument constituted misconduct: 'This is an
improper statement; it seeks to draw the cloak of righteousness around the
prosecutor in his personal status as government attorney and impugns the
integrity of defense counsel.'20 Because of the trial court's immediate
corrective instruction, however, the court concluded the remark did not
require reversal.21
Here, the effect of the improper argument was not corrected by an
instruction but rather was compounded when the court overruled Gonzales'
objection and stated 'that objection is not well taken.'22 This allowed the
prosecutor to continue to develop her theme -- in effect giving additional
credence to the argument and further establishing in the jurors' minds the
false notion that unlike defense attorneys, prosecutors take an oath to
'see that justice is served.' Such an argument clearly has the potential
to affect a verdict, which would necessitate reversal.23 Whether it did so
here, we need not decide. But it should not be repeated on retrial.
We reject Gonzales' other assignments of error.
Reversed and remanded for new trial.

WE CONCUR:

1 State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995).
2 State v. Hughes, 106 Wn.2d 176, 181, 721 P.2d 902 (1986) (quoting
Wainwright v. Witt, 105 S. Ct. 844, 469 U.S. 412, 424 (1985)).
3 RCW 4.44.170(2).
4 State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991); see also State
v. Witherspoon, 82 Wn. App. 634, 637, 919 P.2d 99 (1996) (denial of a
challenge to a juror for cause is within the trial court's discretion).
5 State v. Fire, 145 Wn.2d 152, 158, 34 P.3d 1218 (2001).
6 Report of Proceedings (RP) (Sept. 7, 2000) at 127-29.
7 RP (Sept. 7, 2000) at 133-34.
8 82 Wn. App. 634, 637, 919 P.2d 99 (1996).
9 Witherspoon, 82 Wn. App. at 637-38.
10 Witherspoon, 82 Wn. App. at 638.
11 100 Wn. App. 722, 998 P.2d 362 (2000), rev'd on other grounds, 145 Wn.2d
152 (2001).
12 Fire, 100 Wn. App. at 724.
13 Fire, 100 Wn. App. at 728-29.
14 33 Wn. App. 428, 656 P.2d 514 (1982).
15 Gosser, 33 Wn. App. at 434.
16 Fire, 145 Wn.2d at 158. See also United States v. Martinez-Salazar, 528
U.S. 304, 316, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000) (seating of a juror
who should have been dismissed for cause requires reversal).
17 RP (Sept. 13, 2000) at 548.
18 747 F.2d 953 (5th Cir. 1984).
19 Frascone, 747 F.2d at 957.
20 Frascone, 747 F.2d at 957-58.
21 Frascone, 747 F.2d at 958.
22 RP (Sept. 13, 2000) at 548.
23 See State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).
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