       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATEOFWASHINGTON,                         )      NO.77811-1-I

                       Respondent,         )      DIVISION ONE
                                           )
       v.
                                          )       PUBLISHED OPINION
MARIO ROBERTO GUEVARA DIAZ,               )
                                          )
                     Appellant.           )       FILED: January 27, 2020


       LEACH, J.   —    Mario Roberto Guevara Diaz appeals his conviction for

second degree rape. He contends that the trial court violated his constitutional

right to a fair and impartial jury by allowing a biased juror to serve.      He also

claims that his trial counsel provided ineffective assistance.

       Before voir dire, juror 23 stated, in a juror questionnaire, that she could not

be fair to both sides in a trial for sexual assault or abuse. The trial court refused

defense counsel’s request to question her outside the presence of other jurors to

avoid tainting the other jurors. During voir dire, no one asked juror 23 about her

answer. She served on the jury that convicted Guevara Diaz.

       Juror 23’s answer shows actual bias.        Becausethe trial court did not

sufficiently oversee the juror selection process or conduct a sufficient
No. 77811-1-1/2



independent inquiry before allowing this apparently biased juror to serve, it did

not adequately protect Guevara Diaz’s right to a fair and impartial jury.      The

presence of a biased juror can never be harmless and requires a new trial

without a showing of prejudice. So we reverse and remand without considering

Guevara Diaz’s complaint about his trial counsel.

                                     FACTS

       The State charged Mario Roberto Guevara Diaz with one count of second

degree rape and one count of third degree rape. At the beginning of trial, the

judge explained to the jury that he and the attorneys would be asking them

questions, first with a questionnaire and then orally. The judge told the potential

jurors that counsel had prepared a questionnaire and pointed out that each juror

had “the opportunity to be questioned outside the presence of the other jurors in

the event that certain questions are answered yes.”

      Question 7 on the questionnaire asked, “Can you be fair to both sides in a

case involving allegations of sexual assault or sexual abuse?” Thirteen potential

jurors, including juror 23, answered “no.” Juror 23 also answered “yes” to these

questions, “Have you ever been the victim of a sexual assault or sexual abuse?”

and “Has anyone close to you, family or friend, ever been the victim of a sexual

assault or sexual abuse?” And she answered “no” to questions asking, “Was the

person who assaulted or abused you prosecuted” and whether she or anyone

                                       -2-
No. 77811-1-1/3



close to her had ever been “accused, falsely or otherwise, of committing a sexual

assault or sexual abuse.”

       Thirteen jurors stated that they wished to be questioned outside the

presence of other jurors. Seven of them had answered they could not “be fair.”

Six others, including juror 23, who also answered that they could not be fair” did

not ask to be questioned outside the presence of other potential jurors.

       Defense counsel asked the court to allow him to question outside the

presence of other potential jurors all 13 jurors who said that they could not be fair

to both sides. The court responded, “Well, apparently you would not offend their

sensibilities by asking them about that in front of the other jurors.       Is there a

particular concern I should be aware of?”

      Defense counsel replied,

      It just seems that if somebody already, without knowing any of the
      facts of the case, self-selects themselves as being not fit to
      participate, I think. that a juror who’s thinking like that carries a
                            .   .


      real risk of tainting the jury pool by starting to blurt things out in the
      middle of voir dire, like “I already know the guy did it,” which I see
      happen more often than I like to see.

            So I think out of an abundance of caution, I do think it would
      be appropriate for the Court to ask those seven jurors individually
      why they answered they could not be fair.




                                         -3-
No.77811-1-1/4



       The prosecutor deferred to the court.                                                          The judge said that he had

“presided over quite a few jury trials, and [had not] seen [a case] where a remark

from a potential juror.       .   .   tainted the other panel.” He suggested that

       typically, . some of [the jurors] don’t fully understand what their
                      .   .


       job is supposed to be and think that the allegation is—is enough.

              In other words, they sometimes will say something like, ‘if
       your client is guilty, then I    can’t be fair to him.” And that, Of
                                                                .   .   .


       course, puts the cart before the horse.

              Other ones I think sometimes will      say that, because they                   .   .   .


       are, for one reason or another, having a reaction to the subject
       matter generally—and others possibly have no good reason to say
       that apart from looking for a reason to get off the jury. And I
       wouldn’t like to say that ordinarily, except I’ve had enough
       experience to know that that is another thing that can happen.

                   Every trial there are some who say they cannot be fair
      and impartial. I have not yet seen anybody who has said anything
      that carried such weight with anybody else that it can taint the other
      jurors. .




             At this stage,     the purpose of this process is really
                                                .       .   .


      intended to make [the jurors] comfortable enough to give us the
      answers that we need to have in open court, and that’s the reason
      why they are outside the presence of the other jurors.

              So I’m not inclined to bring     the seven that you identified      .   .   .


       up just to find out      why they think they cannot be fair and
                                        .   .       .


       impartial outside the presence of the other jurors.
       Defense counsel said that it seemed to him that the “potential jurors who

answered that [they could not be fair] are presumptively not going to be fair in

this case. They are going to be ‘for cause’ challenges.”


                                                                            -4-
No. 77811-1-I /5



       The judge replied, “They may well be. I fully anticipate that some of them

will wind up getting challenged for cause successfully. And depending on what

they say, others might not, but we’ll have to hear from them first.”

       The first two jurors that counsel and the court questioned maintained that

they were not sure that they could be fair. Defense counsel challenged each for

cause. The court dismissed both.

       During individual questioning, the court excused seven jurors who said

they could not be fair on their questionnaire.

       The remaining potential jurors then returned to the courtroom. The court

asked these jurors several questions based on questionnaire answers. At one

point, the court said, “Question 7, would any of you be unable to assure the Court

that you will follow the instructions on the law regardless of what you think the

law is or ought to be? And there are no hands.”

       The prosecutor asked the jurors collectively if anyone thought it would be

their “role or any juror’s role to compromise a situation because they didn’t want

someone to get in trouble after a conviction,” despite the judge instructing them

that their decisions had “nothing to do with punishment that may follow

conviction.”   After one juror answered, the prosecutor asked juror 23 if she

understood the question, and whether she would “be able to follow” a judge’s



                                        -5-
No. 7781 1-1-I /6



instruction? Juror 23 said, “I would be able to. No compromising. That’s for

sure.”

         Later, the prosecutor had the following exchange with the jurors:

         [PROSECUTOR]: “Do you all promise that you will give both sides
         a fair trial in this case?

                  “Do you agree that the defendant, as he sits here, is
         presumed innocent until proven guilty? Do you promise to give him
         a fair trial?

               “Do you agree that the State, represented                              by the
         prosecutor,  has the burden of proof in this case?
                        .   .   .




                   “Do you all also agree that the State is also entitled to a fair
         trial?

                   “There’s a lot of nodding of heads.     .   .   you all mean, yes,
         right?”

         JURORS: “Yes.”

         [PROSECUTOR]: “Do you promise to give the State a fair trial?”

         JURORS: “Yes.”
The defense attorney questioned the jurors for about 17 minutes.

         The prosecutor then addressed the jurors again.                           At one point, he

discussed the need to be able to follow the court’s instructions even if they

contradicted a juror’s understanding of the law. He concluded with the following

exchange:

                [PROSECUTOR]: “Can you assure the Court and the
         attorneys that you will follow the law as given to      you by the
                                                                       .   .   .


         judge like you’ve already said that you will do here, regardless of
                                          -6-
No. 77811-1-1/7


       what you think the law is or should be? Is that a promise that you
       can make to the Court?

              “Back here, same question. Can you all assure the Court
       and the attorneys that you will follow the law given to you,
       regardless of what you think the law is?”

              JURORS: “Yes.”
The defense attorney then finished his questioning.

       The court then asked the attorneys if either wished to challenge any other

juror for cause. Both answered “no.” The defense attorney then exercised all

seven of his peremptory challenges, including excusing two jurors who said they

could not be fair to both sides. The court seated two jurors who said that they

could not be fair, juror 23 and juror 27. Before deliberations, the court identified

juror 27 as an alternate juror, who did not participate in deliberations.

       The jury found Guevara Diaz guilty of one count of second degree rape

and one count of third degree rape. The court vacated the conviction for third

degree rape because it violated Guevara Diaz’s rights against double jeopardy.

       Guevara Diaz appeals.

                                     ANALYSIS

       Guevara Diaz asserts that because juror 23 expressed actual bias, the

trial court should not have allowed her to serve without further inquiry. We agree.




                                         -7-
No. 77811-1-1/8



Guevara Diaz Did Not Waive His Challenge

       As a preliminary matter, the State contends that Guevara Diaz waived his

challenge to juror 23 because he knowingly failed to challenge her below.1 We

disagree.

       This court will consider an issue a party did not raise below if it involves

manifest constitutional error.2 A party demonstrates manifest constitutional error

by showing that the issue before this court affects that party’s constitutional rights

and that he suffered actual prejudice.3 To show actual prejudice, the party must

make a ‘plausible showing       .   .   .   that the asserted error had practical and

identifiable consequences in the trial of the case.”4

      A criminal defendant has a federal and state constitutional right to a fair

and impartial jury.5 Seating a biased juror violates this right.6 Because “[tihe


           Guevara Diaz contends that he preserved this issue by asking to
question juror 23 outside the presence of the rest of the jury. But his trial
attorney did not challenge the juror. Guevara Diaz cites no authority to support
the contention that the request for separate questioning is adequate to preserve
the issue ofajuror’s bias for appeal. State v. Logan, 102 Wn. App. 907, 911 nI,
10 P.3d 504 (2000) (“Where no authorities are cited in support of a proposition,
the court is not required to search out authorities, but may assume that counsel,
after diligent search, has found none.”) (quoting DeHeer v. Seattle Post
Intelligencer, 6OWn.2d 122, 126, 372 P.2d 193 (1962))).
        2 RAP 2.5(a)(3).
        ~ State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).
        ~ State v. WWJ Corn., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)
(quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)).
        ~ U.S. CONST. amend. VI; WASH. CONST. art. I, § 22.
        6 State v. Irby, 187 Wn. App. 183, 193, 347 P.3d 1103 (2015) (citing In re
Pers. Restraint of Yates, 177 Wn.2d 1, 30, 296 P.3d 872 (2013)).
                                        -8-
No. 7781 I-I-I /9



presence of a biased juror cannot be harmless,” seating an actually biased juror

“requires a new trial without a showing of actual prejudice.”7 “{l]f the record

demonstrates the actual bias of a juror, seating the biased juror was by definition

a manifest error.”8 A defendant’s “failure to challenge   .   .   .   jurors for cause at trial

does not preclude him from raising the issue of actual bias on appeal.”9

       Because the seating of a biased juror raises an issue of manifest

constitutional error, Guevara Diaz did not waive his right to raise the issue of

actual bias before this court.

       The State cites a number of cases to support its argument.                      First, it

discusses cases where courts prohibited an appellant from raising issues related

to other constitutional rights not raised in the trial court.1° Because none of these

cases involve the fundamental right to an impartial jury, we do not find them

persuasive.11   The State also quotes City of Seattle v. Erickson,12 where the

        ~ United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (quoting
Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998)).
        8j~y 187 Wn. App. at 193.
        9j~y, 187 Wn. App. at 193.
        10 State v. Hayes,165 Wn. App. 507, 517, 265 P.3d. 982 (2011); State v.

Morgensen, 148 Wn. App. 81, 91, 197 P.3d 715 (2008); State v. Walton, 76 Wn.
App. 364, 369, 884 P.2d 1348 (1994); State v. Valladares, 99 Wn.2d 663, 672,
664 P.2d 508 (1983); State v. Bolton, 23 Wn. App. 708, 715, 598 P.2d 734
(1979).
        ~ Hayes,165 Wn. App. at 517 (refusing to consider an appeal based on
the failure to raise the confrontation clause below); Morgensen, 148 Wn. App. at
91 (refusing to consider an appellant’s contention that the trial judge was biased
because he did not raise it below); Walton, 76 Wn. App. at 369 (refusing to
consider an appeal based on the failure to raise the confrontation clause below);
                                          -9-
No. 77811-1-1/10



Washington Supreme Court said that a “Batson challenge” must “be brought at

the earliest reasonable time while the trial court still has the ability to remedy the

wrong.” But this statement does not require that the issue of juror bias be raised

below before this court will consider it. None of the State’s cases establishes

that the failure to challenge a juror in the trial court waives a defendant’s right to

a fair and impartial jury.

       The State also relies on State v. Jahns,13 an early case more on point but

still not persuasive. In Jahns, a juror heard that a woman was murdered at the

place and time central to the case at hand but he made it clear that he had an

“impression” that could “yield” to evidence.14 Defense counsel challenged the

juror for cause due to actual bias, the State opposed the challenge, and the court

denied the challenge.15      The State then withdrew its objection.        The court

permitted defense counsel to challenge the juror again.          When the defense

counsel did not, the court seated the juror.16 The reviewing court said, “If the first

ruling of the court was wrong, it was withdrawn for the benefit of defendant, and

in refusing to take advantage of the court’s ruling and interpose a challenge to

Valladares, 99 Wn.2d at 672 (refusing to consider an appeal based on defense
attorney’s affirmative withdrawal of a suppression motion); Bolton, 23 Wn. App.
at 715 (requiring a challenge to a judge for bias be made in a timely manner).
       12188 Wn.2d 721, 729, 398 P.3d 1124 (2017).
       1361 Wash. 636, 637-38,112 P.747(1911).
       14 Jahns, 61 Wash, at 638.
       15 Jahns~ 61 Wash. at 638.
       16 Jahns,, 61 Wash, at 638.

                                        -10-
No. 77811-I-I / 11



the juror, an[y] error in the first ruling was waived and cannot now be taken

advantage of.”17 Jahns does not address a situation where an appellant failed to

raise the issue below, so it does not hold that a failure to challenge a juror for

actual bias results in a waiver.18

       Finally, the State attempts to distinguish State v. lrby19 and State v.

Lawler.2° There, this court and Division Two allowed appellants to raise the issue

of juror bias for the first time on appeal. The State reasons that this case differs

from j.~y because j~y involved a pro se defendant who did not attend voir dire,

so he could not knowingly allow the biased juror to be seated.21 j~j~y did present

an unusual situation.    But the ~j~y court concluded broadly that “if the record

demonstrates the actual bias of a juror, seating the biased juror was by definition

a manifest error” and an appellant could raise the issue for the first time on

appeal.22 The court did not rely on Irby’s failure to attend voir dire to support its

decision, so we reject the State’s effort to distinguish j~y.

       The State attacks Lawler more generally.         It asserts that “the [Lawler]

court’s decision should not be accepted as authoritative.” And it says that “this

       17 Jahns~ 61 Wash. at 638.
       18 The State also quotes from State v. Reid, 40 Wn. App. 319, 320, 698
P.2d 588 (1985), but this is a Division Two case involving a challenge on the
basis of a juror’s putative mental disorder, not actual bias.
       19187 Wn. App. 183, 193, 347 P. 3d 1103 (2015).
       20 194 Wn. App. 275, 282, 374 P.3d 278 (2016).

       21~j~y 187 Wn. App. at 188.
       22jj~y, 187 Wn. App. at 193.
                                         —11—
No. 77811-1-I /12



court can and should disagree with” the “erroneous holding” that a party can

raise the issue of actual bias on the part of a juror for the first time on appeal.

But the Lawler court did not directly discuss the right of the appellant to raise the

issue of juror bias on appeal if he had not raised it in the trial court23 Instead, it

agreed with j~j~y that seating a juror who expressed actual bias was a manifest

constitutional error.24   Consistent with jjj~y and Lawler, we conclude that a

challenge to a conviction based on a claim of juror bias established by the record

involves an issue of manifest constitutional error, so Guevara Diaz did not waive

the issue.

Juror 23 Expressed Actual Bias

       Guevara Diaz contends that by answering “No” to the fairness question,

juror 23 demonstrated actual bias. We agree.

       The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington Constitution both guarantee a criminal defendant

the right to trial by an impartial jury.25 To protect this right, a party may challenge

a juror for cause.26 Actual bias provides a basis to challenge a juror for cause.27

       23   Lawler, 194 Wn. App. at 286 (quoting [~y, 187 Wn. App. at 188).
         24 Lawler, 194 Wn. App. at 286 (quoting j~y, 187 Wn. App. at 188).
         25 The Sixth Amendment states, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury.” Article I,
section 22 of the Washington Constitution states, “[T]he accused shall have the
right to.   . a speedy public trial by an impartial jury.”
                .

         26 CrR 6.4(c); RCW4.44.130.
         27 RCW4.44.170(2); Lawler, 194Wn. App. at 281.

                                           -12-
No. 77811-1-I / 13



A juror demonstrates actual bias when she exhibits “a state of mind                         .   .   .   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.”28 If the court has only a “statement of

partiality without a subsequent assurance of impartiality,” a court should “always”

presume juror bias.29

             The trial judge has an obligation to excuse a juror where grounds for a

challenge for cause exist, even if neither party challenges that juror.3° “When a

trial court is confronted with a biased juror,      .   .   .   the judge must, either sua sponte

or upon a motion, dismiss the prospective juror for cause.”31 If the court does not

remove a biased juror from the panel,                           “[t]he presence of a biased

juror.   .   .   requires a new trial without a showing of prejudice.”32 Because “[a] trial

court need not excuse a juror with preconceived ideas if the juror can set those

ideas aside and decide the case on the evidence presented at the trial and the

         28RCW4.44.170(2).
         29Miller v. Webb, 385 F.3d 666, 674 (6th Cir. 2004) (quoting Hughes v.
United States, 258 F.3d 453, 460 (6th Cir. 2001)).
        30 RCW 2.36.110; CrR 6.4(c)(1); see State v. Davis, 175 Wn.2d 287, 316,
290 P.3d 43 (2012), abrogated on other grounds by State v. Gregory, 192 Wn.2d
1, 427 P.3d 621 (2018); see also State v. Jorden, 103 Wn. App. 221, 227, 11
P.3d 866 (2000) (stating that RCW 2.36.110 places “a continuous obligation on
the trial court to excuse any juror who is unfit and unable to perform the duties of
a juror”).
        ~ Miller, 385 F.3d at 675 (citing Frazier v. United States, 335 U.S. 497,
511, 69 S. Ct. 201, 93 L. Ed. 187 (1948)).
        32j~y 187 Wn. App. at 193 (citing Gonzalez, 214 F.3d at 1111).
                                        -13-
No. 77811-1-I / 14



law as provided by the court,”33 the question the trial court must answer is

“whether a juror with preconceived ideas can set them aside.”34

       Because “the trial court is in the best position to determine a juror’s ability

to be fair and impartial,” this court reviews a trial court’s decision not to dismiss a

juror for manifest abuse of discretion.35 A trial court abuses its discretion when it

bases its decision on untenable grounds or reasons.36 But the “trial court’s broad

discretion in the conduct of voir dire is nevertheless ‘subject to essential

demands of fairness.”37

       Recently, in State v. Berhe,38 the Washington Supreme Court stated that

in the case of postverdict evaluation of alleged racial bias during jury

deliberations, the investigation “must be conducted under the court’s supervision

and on the record.” In a case of potential juror bias identified during voir dire and

not rehabilitated by counsel, a trial judge’s “continuous obligation    .   .   .   to excuse

any juror who is unfit and unable to perform the duties of a juror”39 required the

        ~ RCW 4.44.190; State v. Phillils, 6 Wn. App. 2d 651, 662, 431 P.3d
1056 (2018) (citing State v. Rure, 108 Wn.2d 734, 748, 743 P.2d 210 (1987)),
review denied, 193 Wn.2d 1007 (2019).
        ~ State v. Noltie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991).
        ~ Noltie, 116 Wn.2d at 839; State v. Depaz, 165 Wn.2d 842, 852, 204
P.3d 217 (2009) (citing State v. Elmore, 155 Wn.2d 758, 778, 123 P.3d 72
(2005)).
       36 State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
       ~ Hughes, 258 F.3d at 457 (quoting Wolfe v. Brigano, 232 F.3d 499, 504
(6th Cir. 2000) (Wellford, J., concurring)).
       38193 Wn.2d 647, 649-50, 662, 444 P.3d 1172 (2019).
       ~ Jorden, 103 Wn. App. at 227.
                                         -14-
No. 77811-1-I /15



trial judge to similarly use voir dire to ask juror 23 about her statement that she

could not be fair to determine her ability to be impartial.4°

       Neither the defense counsel nor the court questioned juror 23 individually.

The prosecutor asked juror 23 if she could follow the judge’s instruction in

reviewing the evidence even if she did not want someone to be punished. She

answered, “I would be able to. No compromising.”

       The court asked the group, “Question 7, would any of you be unable to

assure the Court that you will follow the instructions on the law regardless of

what you think the law is or ought to be?” No juror raised a hand in response.41

Later, the prosecutor asked the jurors a series of questions:

              “Do you all promise that you will give both sides a fair trial in
       this case?

                “Do you agree that the defendant, as he sits here, is
       presumed innocent until proven guilty? Do you promise to give him
       a fair trial?

             “Do you agree that the State, represented                  by the
       prosecutor. has the burden of proof in this case?
                     .   .




       40 See Berhe, 193 Wn.2d at 669-70 (concluding that in a case of potential
racial bias, the failure to “exercise sufficient oversight” of trial counsels’
postverdict inquiry and the failure of the court itself to conduct a sufficient inquiry,
rather than simply relying upon declarations, represented abuses of discretion).
       41 See Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir. 1992) (“We
cannot say that an ambiguous silence by a large group of venire persons to a
general question about bias is sufficient to support a finding of fact in the
circumstances of this case.”).
                                         -15-
No. 77811-1-I / 16


                    “Do you all also agree that the State is also entitled to a fair
          trial?

                    “There’s a lot of nodding of heads     .   .   .   you all mean, yes,
          right?”

                    JURORS: “Yes.”
While the record states that the jurors answered “yes,” it does not state how

many answered or whether the jurors nodded “yes” to all of the questions or just

the final question. And the record does not indicate whether juror 23 responded

at all.

          Finally, the record also says that jurors answered “yes” when the

prosecutor asked if they could “assure the Court and the attorneys that [they

would] follow the law as given” to, them by the judge “regarding of what [they

thought] the law is or should be?” Again, the record does not establish how

many responded or whether juror 23 responded.

          Juror 23 answered “no” to the question asking, “Can you be fair to both

sides in a case involving allegations of sexual assault or sexual abuse?” Later,

she answered “yes” to the only question directed to her individually. Her answer

established that she would not compromise the verdict even if she were aware of

and concerned about the defendant being punished.

          None of the group-directed questions required the jurors to state

affirmatively that they could be fair to the defense. And the record does not

establish that juror 23 responded to any of the group-directed questions.
                                             -16-
No. 77811-1-1/17



       All that the record clearly shows is that juror 23 said she could not be

fair.42 We conclude that she exhibited actual bias.

       The trial court should have addressed this actual bias by questioning juror

23 or allowing defense counsel to question her outside the hearing of other

jurors. Under the circumstances of this case, any court questioning also should

have occurred outside the hearing of other jurors because of defense counsel’s

viable concern over questioning potentially biased jurors in front of the jury pool.

       The State asserts that the lack of context for juror 23’s answer to question

7 undermines a claim of bias. RCW 4.44.170(2) states that actual bias involves

a state of mind “in reference to the action, or to either party.” While the court

must be satisfied that this state of mind means “that the challenged person

cannot try the issue impartially and without prejudice to the substantial rights of

the party challenging,” the statute requires only that the state of mind be in

reference to the action.43 According to the Sixth Circuit in Hughes v. United

States,44 “so long as the judge realized that ‘prejudicial fallout existed     .   .   .   on

which side the prejudice would fall’ was a question immaterial to counsel’s

challenge of a juror for cause.” The State does not provide any authority for the

proposition that a juror who said she could “not be fair” with respect to the action

      42  RCW4.44.190.
      ‘~  RCW 44.44.170(2).
       ~~258 F.3d 453, 460 (6th Cir. 2001) (alteration in original) (quoting United
States v. Nell, 526 F.2d 1223, 1228 (5th Cir. 1976)).
                                       -17-
No. 77811-1-I /18



was not actually biased because the record did not show the direction of her

bias. While this court gives deference to a lower court’s decisions in voir dire, it

is hard to imagine a clearer statement of unfairness than a juror answering that

she could “not be fair.”

        Also, because no one questioned juror 23 about her fairness answer, the

only insight the record offers about this answer comes from her answers to the

rest of the questionnaire and her answer to the prosecutor’s question about

compromising the verdict. Her answers to the questionnaire include: “yes,” that

she had been sexually assau[ted or abused; “no,” that the person who attacked

her was never prosecuted’ and “yes,” that a person close to her had been

sexually assaulted or abused. This information does not show the direction of

juror 23’s bias.

        The State also urges this court to conclude that juror 23 established her

ability to be fair and put aside preconceived ideas during group questions.

Several courts have pointed out that silence and even answers during group voir

dire “cannot substitute for individual questioning.”45 And, even if they could, the

record here does not establish that juror 23 answered any group question about

an ability to be fair.


       ~ j.~y, 187 Wn. App. at 196 (citing Hucihes, 258 F.3d at 461); see also
Johnson, 961 F.2d at 753-54; Thompson v. Altheimer & Gray, 248 F.3d 626 (7th
Cir. 2001).
                                    -18-
No. 77811-1-1/19



       The State points to the fact that the trial court and participating attorneys

were alert to the possibility of bias.46 And they were present at voir dire and

could evaluate juror responses. So the State asks this court to assume that they

determined juror 23 was not biased.        As discussed above, the court had an

independent responsibility not to seat a biased juror. The record does not show

that it received any information showing it that juror 23 could be fair to both sides.

       The State cites to Lawler. as analogous.           In Lawler, the appellant

contended that a juror who said his experience involving family members meant

he did not “see how [he] could be objective” expressed actual bias.47 The juror,

when pressed by the State, said that it ‘would be a pain in the neck” to be fair

and impartial given his past experience and he did not “think [he] would be able

to do that with all these experiences.”48      Division Two concluded he did not

exhibit actual bias because his answers were “at least slightly equivocal” and the

trial court and defense counsel were aware of the possibility of biased jurors.49 It


       46  For example, the judge, in response to the prosecutor’s comment about
the review it viewed appropriate to support excusing jurors “for cause,” said, “[l]f
a juror at the end of questioning maintains that the juror cannot be fair and
impartial, even if the juror also thinks the juror will follow instructions in a broad
general sense, which is really all we’ve heard, why, then that is a juror who
should not serve.” The judge made clear that jurors who did not express the
ability to follow the instructions of the court because of the strength of their
underlying opinions displayed actual bias and should not be seated.
        ~ Lawler, 194 Wn. App. at 283.
        48 Lawler, 194 Wn. App. at 283.
        ~ Lawler, 194 Wn. App. at 287-88.
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No. 77811-1-1120



deferred to the trial court and to the defense counsel’s need to make strategic

decisions during trial without interruption of the court, particularly because

defense counsel had not used up all of his peremptory challenges.5°

       Lawler is distinguishable. Here, juror 23’s statement was not equivocal.

She did not explain her answer, and defense counsel was out of peremptory

challenges. Lawler does not help the State.

       We reverse Guevara Diaz’s conviction and remand for a new trial. In light

of this decision, we need not decide Guevära Diaz’s claim that his counsel

performed ineffectively.

                           Statement of Additional Grounds

      Guevara Diaz submitted a statement of additional grounds. In light of our

decision, we do not address them.

                                   CONCLUSION

      We reverse Guevara Diaz’s conviction and remand for a new trial. Juror

23 expressed actual bias in her answer to the questionnaire, and nothing




      50   Lawler, 194 Wn. App. at 288-89.
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No. 77811-1-1/21



occurred during voir dire to provide any assurance of her impartiality. So the trial

court should not have seated her as a juror.



                                                                             fi
WE CONCUR:



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