                                                                         FILED
                                                                     JANUARY 26, 2016
                                                                  In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 32559-8-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
MATTHEW S. GAROUTTE,                           )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, C.J. -      Matthew Garoutte was convicted of possession of a controlled

substance (methamphetamine) and bail jumping following a unitary trial in which he

waived jury trial on the possession of a controlled substance count and tried only the bail

jumping count to the jury.

       He appeals his conviction for bail jumping, contending (1) his right to an impartial

jury was violated when issues of alleged bias on the part ofnyo jurors arose after voir

dire and the court denied both a motion for mistrial and a request to substitute alternate

jurors, and (2) irrelevant and unduly prejudicial evidence of his arrest for the bail
No. 32559-8-III
State v. Garoutte


jumping charge was admitted in error. In a pro se statement of additional grounds, he

complains of a violation of his right to a speedy trial and that the amended information

omitted an essential element of bail jumping. We find no error or abuse of discretion and

affirm.

                       FACTS AND PROCEDURAL BACKGROUND

          Matthew Garoutte was arrested on April 3, 2013, on an outstanding Department of

Corrections warrant. At the time of his arrest, Mr. Garoutte was sitting in a friend's

pickup truck. A backpack was in the bed of the truck.

          After Mr. Garoutte's arrest, the owner of the pickup truck contacted police and

told them the backpack did not belong to him. Officers logged the backpack into

evidence and inventoried its contents, which were found to include a glass smoking pipe

containing residue that proved to be methamphetamine.

          A few days later, Mr. Garoutte traveled to the police department to retrieve the

backpack, which he claimed belonged to him. The police returned everything but the

pipe. In light of Mr. Garoutte's self-proclaimed ownership of the backpack, the State

charged him with one count of possession ofa controlled substance (methamphetamine).

          On August 20, 2013, Mr. Garoutte was arraigned and the court set release

conditions and scheduled the omnibus hearing in his case for October 8. Mr. Garoutte

failed to appear for the omnibus hearing. A bench warrant was issued, and the State




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No. 32559-8-111
State v. Garoutte


amended the information to add a count of bail jumping. A Grant County deputy sheriff

arrested Mr. Garoutte on January 18,2014, on a failure to appear warrant.

       Mr. Garoutte waived a jury trial on the possession of a controlled substance count

but not on the bail jumping count. The case proceeded to a unitary jury trial where

evidence was presented on both counts. The court informed the jury it was to consider

only the bail jumping count.

       After voir dire, and during the parties' exercise of their peremptory challenges, the

trial judge told the lawyers that juror 9 lived across the street from him. Juror 9 was not

stricken by either party.

       After jury selection was completed, Mr. Garoutte moved for a mistrial based on

the disclosed relationship between juror 9 and the trial judge, arguing that he had been

denied effective assistance of counsel because he had been unable to explore the

relationship in voir dire. In denying the motion, the judge elaborated a bit more on his

relationship with juror 9, stating that he and juror 9 and their respective daughters had

been friends for many years, but emphasizing that he and juror 9 had never discussed Mr.

Garoutte's case. He also stated, "I don't know of any reason why my acquaintance with

Duror 9] would disqualify him, and I don't know of any reason why counsel could not,

frankly, ask the entire panel whether they knew me or were acquainted with me." Report

of Proceedings (RP) at 61.




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No. 32559-8-II1
State v. Garoutte


       On the morning after the jury was selected, Mr. Garoutte's lawyer reiterated his

concern about juror 9 and suggested that the trial court replace juror 9 with one of the

alternate jurors. The trial court responded that itwould take the suggestion under

advisement.

       The court then informed the lawyers that, on a related note, the county's deputy

clerk, Marla Webb, who the State planned to call as a witness on the bail jumping charge,

had informed the court that morning that she and juror 8, who had also been seated on the

jury, were next-door neighbors. Although prospective jurors had been read the names of

witnesses including Ms. Webb, juror 8 had not disclosed that she knew Ms. Webb. The

trial court told the parties, "[W]e don't need to take care of that now. But I'll let you

stew on that a little bit. We'll talk about that later." RP at 71.

       The State called Ms. Webb to testify in its case-in-chief. She testified that Mr.

Garoutte was present in court on August 20,2013, the day on which the October 8

omnibus hearing was scheduled. It called Douglas Mitchell, a former Grant County

deputy prosecutor who handled Mr. Garoutte's arraignment on August 20. He testified

that Mr. Garoutte was present in court that day and that the court had read aloud the

release conditions included in its August 20 order. The State also called Deputy Jacob

Fisher, who had arrested Mr. Garoutte in January 2014 on the failure to appear warrant.

Over Mr. Garoutte's objection that the testimony was irrelevant and prejudicial, the State

elicited the deputy's testimony about the fact and the timing of that arrest.

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No. 32559-8-II1
State v. Garoutte


       The State offered and the court admitted certified copies of the criminal minute

sheet from August 20,2013, indicating the omnibus hearing was set for October 8,2013;

a criminal case scheduling order requiring Mr. Garoutte to be in court on October 8,

2013; an order setting conditions for release, unsigned by Mr. Garoutte, requiring Mr.

Garoutte to appear in court on October 8,2013; and a bench warrant commanding Mr.

Garoutte's arrest.

       Before jury deliberations, Mr. Garoutte renewed his request that the trial court

replace juror 9 with an alternate juror and added a request that juror 8 be replaced with an

alternate juror as well. The trial court offered to question juror 8 regarding her

relationship with Ms. Webb, but Mr. Garoutte declined the offer. The court then refused

the request for substitution, stating, "I don't think there's a legal basis in either case at

this point to substitute the jurors in." RP at 273.

       The trial court found Mr. Garoutte guilty of possession of a controlled substance

(methamphetamine) and the jury found Mr. Garoutte guilty of bail jumping. Mr.

Garoutte appeals. I




       I Among Mr. Garoutte's assignments of error in his opening brief was the trial
court's failure to enter findings of fact and conclusions oflaw on the possession ofa
controlled substance count. Before scheduling the appeal for hearing, this court directed
the State to procure the entry of written findings of fact and conclusions of law and
supplement the clerk's papers, which was done.

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No. 32559-8-111
State v. Garoutte


                                        ANALYSIS

                                       1. Impartial jury

       Mr. Garoutte's first assignment of error is to the trial court's denial of both his

motion for a mistrial and his subsequent request that the court replace juror 8 and juror 9

with alternate jurors before submitting the case to the jury for deliberation. Mr. Garoutte

contends that the relationships ofjuror 8 and juror 9 to individuals involved in the trial

indicate "bias" that he was unable to explore. Br. of Appellant at 11.

       Both the United States and Washington State Constitutions provide a right to trial

by an impartial jury, which "requires a trial by an unbiased and unprejudiced jury, free of

disqualifying jury misconduct." State v. Boiko, 138 Wn. App. 256, 260, 156 P.3d 934

(2007); U.S. CONST. amend. VI; CONST. art. I, § 21. RCW 2.36.110 provides:

       It shall be the duty of a judge to excuse from further jury service any juror,
       who in the opinion of the judge, has manifested unfitness as a juror by
       reason of bias, prejudice, indifference, inattention or any physical or mental
       defect or by reason of conduct or practices incompatible with proper and
       efficient jury service.

CrR 6.5 states, "If at any time before submission of the case to the jury a juror is found

unable to perform the duties the court shall order the juror discharged." RCW 2.36.110

and CrR 6.5 impose on the trial court a continuing obligation to excuse any juror who is

unfit to serve on the jury. State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000).

       A juror must be excused for either actual or imp lied bias. Kuhn v. Schnall, 155

Wn. App. 560, 574,228 P.3d 828 (2010). Actual bias requires "the existence ofa state of

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No. 32559-8-111
State v. Garoutte


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." RCW 4.44.170(2). Implied bias

requires'" the existence of the facts [that] in jUdgment oflaw disqualifies the juror. '"

Kuhn, 155 Wn. App. at 574 (alteration in original) (quoting RCW 4.44.170(1)). RCW

4.44.180 provides four bases for a challenge for implied bias: consanguinity to a party,

certain relationships to a party such as landlord and tenant, having served as a juror in a

case with substantially the same facts, and interest in the event of the action or the

principal question.

       When Mr. Garoutte moved the trial court for a mistrial on account of its

relationship with juror 9, the court and the lawyers discussed the fact that the court's

disclosure of the relationship had been made while the parties were exercising their

peremptory challenges. The record does not indicate precisely when in the course of that

process the disclosure was made. "A party accepting a juror without exercising its

available challenges cannot later challenge that juror's inclusion." State v. Reid, 40 Wn.

App. 319, 322, 698 P.2d 588 (1985) (citing State v. Jahns, 61 Wash. 636, 112 P. 747

(1911). If the disclosure was made when Mr. Garoutte had not exhausted his peremptory

challenges, he should not be heard to complain at all about juror 9's service. Not

knowing whether that was the case, we analyze his challenge to juror 9 further.




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No. 32559-8-II1
State v. Garoutte


       None of the four statutory bases for implied bias exist in the case ofjuror 8 or

juror 9. Turning to Mr. Garoutte's charge of actual bias on the part of the jurors, a party

challenging a juror for actual bias must show such bias by a preponderance of the

evidence. Ottis v. Stevenson-Carson Sch. Dist. No. 303,61 Wn. App. 747, 754,812 P.2d

l33 (1991). To show bias, the party '''must show more than a mere possibility that the

juror was prejudiced.'" State v. Noltie, 116 Wn.2d 831,840,809 P.2d 190 (1991)

(emphasis omitted) (quoting 14 LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON

PRACTICE: TRIAL PRACTICE CIVIL § 202 (4th ed. 1986)).

       Mr. Garoutte does not point to any evidence of actual bias on the part of the two

jurors. He merely speculates that, because juror 8 lived next door to Ms. Webb, the juror

was biased. See State v. Tingdale, 117 Wn.2d 595, 601, 817 P.2d 850 (1991) ("A juror's

acquaintance with a party, by itself, is not grounds for a challenge for cause."). The same

is true with juror 9. Mr. Garoutte's real complaint appears to be his view that he was

deprived of an opportunity to explore the possibility of bias through voir dire. A trial

court's abuse of its discretion over the scope and content of voir dire that substantially

prejudices the rights of an accused implicates the constitutional right to fair trial and can

be addressed on appeal. State v. Davis, 141 Wn.2d 798, 826, 10 P.3d 977 (2000).

       Here, however, the trial court is not accused of limiting the scope and content of

voir dire. As the trial court noted, if the defense thought that a prospective juror's

acquaintance with the trial judge could give rise to bias, it could have explored that

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No. 32559-8-III
State v. Garoutte


during voir dire. But ordinarily, a juror's acquaintance with the judge should not cut in

favor of one party or the other. As the State points out, a trial judge is not a party to the

case, does not provide testimony, strives for neutrality, and even instructs the jury, as the

trial court did here:

              Our state constitution prohibits a trial judge from making a comment
       on the evidence. It would be improper for me to express, by words or
       conduct, my personal opinion about the value of testimony or other
       evidence. I have not intentionally done this. If it appeared to you that I
       have indicated my personal opinion in any way, either during trial or in
       giving these instructions, you must disregard this entirely.

RP at 277.

       Appellate courts review a trial court's decision whether to remove ajuror for an

abuse of discretion. State v. Elmore, 155 Wn.2d 758, 768, 123 P.3d 72 (2005). Because

no bias is demonstrated, the trial court did not abuse its discretion. Since a motion for a

mistrial should be granted "only when the defendant has been so prejudiced that nothing

short of a new trial can insure that the defendant will be tried fairly," Mr. Garoutte's

motion for mistrial was properly denied as well. State v. Lewis, 130 Wn.2d 700, 707, 927

P.2d 235 (1996) (noting a trial court is in the best position to discern prejudice).

       The trial court was also in no way responsible for the delayed revelation that juror

8 was a neighbor of Ms. Webb. In the case ofjuror 8, not only was Mr. Garoutte free to

explore potential jurors' relationships with witnesses, but jurors were actually provided

with Ms. Webb's name and asked to indicate if they knew her-juror 8 either didn't


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No. 32559-8-UI
State v. Garoutte


know Ms. Webb, didn't know her by name, or misled the court as well as the lawyers.

Misconduct can arise where a juror fails to speak during voir dire regarding a material

fact. Kuhn, 155 Wn. App. at 573. But to complain ofjuror misconduct, "a party must

show the juror failed to answer honestly where a correct response would have provided a

valid basis for a challenge for cause." [d. Mr. Garoutte does not allege misconduct nor

show that a correct response would have supported a challenge for cause. In any event,

the trial court afforded Mr. Garoutte the opportunity to examine juror 8 and he declined.

Any challenge was waived. See State v. Clark, 34 Wash. 485, 492, 76 P. 98 (1904)

(finding no error where the appellant had the opportunity to examine jurors but failed or

refused to do so).

                                  II. Evidentiary error

       Mr. Garoutte next argues that the trial court erred in admitting evidence of Mr.

Garoutte's January 18,2014 arrest. He contends the evidence was irrelevant and that any

limited relevance it might have had was outweighed by its unduly prejudicial character.

He argues that admission of the evidence was not harmless because the evidence that Mr.

Garoutte was aware of his obligation to appear at an omnibus hearing on October 8 was

not strong, since his signature did not appear on the August 20 order setting conditions

for release.

       Appellate courts review a trial court's decision regarding evidence admissibility

for an abuse of discretion. State v. Aguilar, 153 Wn. App. 265,273,223 P.3d 1158

                                            10 

No. 32559-8-II1
State v. Garoutte


(2009). Only relevant evidence is admissible at trial. ER 402. Relevant evidence is

"evidence having any tendency to make the existence of any fact that is of consequence

to the determination of the action more probable or less probable than it would be without

the evidence." ER 401. "The threshold to admit relevant evidence is very low[;] [e]ven

minimally relevant evidence is admissible." State v. Darden, 145 Wn.2d 612, 621, 41

P.3d 1189 (2002). Relevant evidence may be excluded "if its probative value is

substantially outweighed by the danger of unfair prejudice." ER 403.

      To prove the crime of bail jumping, the State ha~ to prove that Mr. Garoutte had

knowledge of the requirement that he appear at the omnibus hearing on October 8 and

failed to appear as required. RCW 9A.76.170(1).

      The relevance of Mr. Garoutte's arrest in January 2014 advanced by the State was

that Mr. Garoutte's last appearance on the possession of a controlled substance charge

had been on August 20-five months earlier-and a reasonable person charged with such

a crime would have realized well before January 18 that he must have missed a court

appearance. As the trial court noted:

             Well, it seems to me ifhe's gone for four months and he makes no
      attempt to get back in front of the court, which I think is a rational inference
      from what happened here, I think that supports the notion that his failure to
      appear back before the court is not simply because he didn't know what
      date, because a reasonable person under the circumstances would have
      made some inquiry within four months, and after the trial date passes, I
      think that supports that notion.

RP at 236. We agree with the State and the trial court that the evidence was relevant.

                                            11 

No. 32559-8-III
State v. Garoutte


       Mr. Garoutte also argues that any relevance of the arrest was outweighed by unfair

prejudice, but without identifYing the unfair prejudice. The event occurring during the

arrest that principally concerned Mr. Garoutte in objecting was that he gave police a false

name at the time of his arrest--evidence that was excluded by the trial court. Given the

charge of bail jumping, evidence that a warrant issued and that Mr. Garoutte was arrested

is unsurprising and is not unduly prejudicial. And given that the August 20 order setting

conditions of release was unsigned by Mr. Garoutte, the probative value of evidence that

the State arrested him to obtain his seriously belated appearance on the controlled

substance charge outweighed whatever small stigma might be associated with arrest.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds (SAG), Mr. Garoutte raises two. He

argues that his right to a speedy trial under CrR 3.3 and the Washington Constitution was

violated where the 60-day speedy trial period expired on March 21, 2014, without trial.

He argues that while the trial court allowed the State to release him in order to extend his

speedy trial period, it did so too late, and alternatively abused its discretion in doing so

because there was no good cause to continue the trial.

       He also argues that the information filed on the bail jumping charge is insufficient

where it identifies only the cause number of the case in which he had failed to appear

without identifYing the crime charged in that criminal case. We address the issues in

tum.

                                              12
No. 32559-8-III
State v. Garoutte


       Speedy trial. The Sixth Amendment of the United States Constitution and article

I, section 22 of the Washington State Constitution guarantee a defendant the right to a

speedy trial. State v. Saunders, 153 Wn. App. 209, 216, 220 P.3d 1238 (2009). But CrR

3.3(b)(1)(i)'s requirement of trial within 60 days when the defendant is in custody '''is

not a constitutional mandate. '" Id. at 216-17 (quoting State v. Carson, 128 Wn.2d 805,

821,912 P.2d 1016 (1996)). Pretrial release decisions are reviewed for an abuse of

discretion. State v. Johnson, 105 Wn.2d 92,96, 711 P.2d 1017 (1986).

       We are unable to address Mr. Garoutte's contention that he was in custody for

longer than 60 days without trial because the record on appeal does not contain any of the

records necessary to evaluate a speedy trial issue. Mr. Garoutte attached a jail time

certification to his SAG, but under RAP 1O.3(a)(8) this court does not review appendix

material not contained in the record. The appropriate means of raising matters requiring

evidence not included in the record on appeal is through the filing of a personal restraint

petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

       Turning to Mr. Garoutte's complaint about his release, State v. Kelly, 60 Wn. App.

921, 925, 808 P .2d 1150 (1991) addressed the issue being raised by Mr. Garoutte:

"whether the trial court may release an in-custody defendant before the expiration of the

60-day speedy trial period in order to extend the time during which trial must be held."

The Kelly court held (1) a release from custody properly extends the time for trial and (2)

a judge can consider such circumstances as the trial calendar and the availability of

                                             13 

No. 32559-8-III
State v. Garoutte


witnesses when deciding pretrial release. Id. at 926, 928. Given the decision in Kelly,

the trial judge did not abuse his discretion by releasing Mr. Garoutte to extend the time

for trial.

        Insufficient information. "An information must contain [a]II essential elements of

a crime." State v. Green, 101 Wn. App. 885, 889, 6 P.3d 53 (2000) (alteration in

original) (internal quotation marks omitted) (quoting State v. Kjorsvik, 117 Wn.2d 93,97,

812 P.2d (1991». In bail jumping, the underlying offense is an essential element ofthe

crime. Id.

        When a charging document is challenged for the first time on appeal, as is the case

here, it must be construed liberally; we need only determine if the necessary facts appear

in any form in the charging document. State v. Williams, 162 Wn.2d 177,185,170 P.3d

30 (2007). In this case, the State's amended information, filed in Grant County Superior

Court Cause No. 13-1-00420-1, charged the underlying crime, possession of

methamphetamine, as count one. It charged bail jumping as count two, stating that the

charge was based on his "fail [ure] to appear ... in which a Class B or Class C felony has

been filed, to-wit: Grant County Superior Court [clause [n]o. 13-1-00420-1; contrary to

Revised Code of Washington 9A.76.170." Clerk's Papers at 22. Here, the charging

document is sufficient because, within the single amended information, the State both

identified the crime of unlawful possession of a controlled substance (methamphetamine)

and alleged a corresponding felony hail jumping violation. This is not a case in which

                                             14 

No. 32559-8-III
State v. Garoutte


Mr. Garoutte was required to search for rules, regulations, or a case file in order to

discover the underlying charge. It is plain from page two of the amended information

that the underlying offense appears on page one.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




Brown, J.*                                         Lawrence-Berrey, J.
                                                                                     j




       *Judge Stephen M. Brown was a member of the Court of Appeals at the time
argument was heard on this matter. He is now serving as a judge pro tempore of the
court pursuant to RCW 2.06.150.

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