                                                                                                             FILED
                                                                                                        COURT O APPEALS
                                                                                                             DIVISION II
                                                                                                      2515 APR 114 AM 9: 51

                                                                                                      STA                S - ! NGTONN
    IN THE COURT OF APPEALS OF THE STATE OF WASHING
                                                                                                       BY

                                                 DIVISION II

 STATE OF WASHINGTON,                                                             No. 45532 -3 - II


                                      Respondent,


        v.



 WILLIAM ALEXANDER MANUS,                                                  UNPUBLISHED OPINION


                                      Appellant.


       WORSWICK, J. —         A jury returned a verdict finding William Manus guilty of failure to

register as a sex offender. Manus appeals his conviction, asserting that ( 1) the trial court violated

his public trial right by employing a procedure by which the State and defense counsel exercised

peremptory challenges in writing, and ( 2) the trial court erred by failing to excuse a juror for

cause after the juror told the trial court that he had recognized a State' s witness as someone the

juror knew from his gym. We affirm Manus' s conviction.

                                                       FACTS


        On October 21, 2013, the State charged Manus with failure to register as a sex offender.


Before the start of jury selection, the trial court told counsel that challenges for cause should be

brought to its attention at sidebar and that peremptory challenges would be done in writing.

After the trial court and counsel questioned potential jurors at voir dire, the trial court stated that

the attorneys would    be "   doing   their final   selection   here in writing." Report of Proceedings ( RP)


 Oct. 21, 2013) (   Jury   Voir Dire)   at   66. The trial transcripts then     state, "(   Attorneys doing their

peremptory   challenges)"     followed       by "( Sidebar   held, but   not reported)."    RP ( Jury Voir Dire)    at
No. 45532 -3 - II




67. The trial court swore in the selected jurors. After the jury was excused from the courtroom,

the following discussion took place:

                       Trial    court]:   I just want to make a quick record regarding our discussion
           at sidebar regarding excusing jurors for cause. It was agreed to excuse Juror No. 6
           and   29.    It' s also agreed to excuse Juror No. 23 because of a scheduling issue, and
           also we agreed to excuse Juror No. 19 due to some health issues that she had
           indicated on her green form that she had that would hurt her ability to be a juror.
                       Counsel, do you wish to supplement the record at all regarding those?
                       State] : No, Your Honor. Each of those issues was brought to our attention

           and the state had no objection to excusing those individual jurors for cause.
                       Defense     counsel]:       Neither did the defense, Your Honor. Thank you.


RP at 30. That same day, the sheet of paper showing the attorneys' written peremptory

challenges was filed with the court and made part of the trial record. This sheet shows that the


State and defense counsel each exercised seven peremptory challenges by writing the names and

numbers of potential jurors they wanted excused from the jury.

           Toward the end of trial, the trial court told counsel that there was a potential issue with a

juror that had recognized one of the State' s witnesses, Tacoma Police Officer Tyler Meeds,


stating:


           All   right.   So    we     have   an   issue   with one   juror, Juror No. 11.   Last night after we
           excused them, he indicated to [ a judicial assistant] that he knows Officer Meeds
           from    where        they    work   out    together.       He didn' t know him by name, but he
           recognized him when he testified.


RP   at   263. The trial court and counsel then questioned Juror No. 11 about his disclosure:


                        Trial   court]:...         My      Judicial Assistant ...   brought it to my attention
           yesterday afternoon after we broke that you recognized Officer Meeds from the
           place that you work out?
                        Juror]: Yes.
                        Trial   court]:   Is he somebody that            you' re a social acquaintance with?   Or
           explain to me how you know him.




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No. 45532 -3 -II




                         I think I met him maybe five years ago, and our relationship is not
                   Juror]:

       like a friend type of relationship. It' s just, you know, when I see him, we talk about
        sports.    I   was    interested in home        protection, and          he   spoke   to   me about   that.   So

       that' s really about it. We see each other. We do talk on occasion. So I just wanted
       to let you guys know that I did recognize him.
                   Trial     court]:      You haven' t talked to him obviously about this particular
        case?

                   Juror]: No, I have not.
                   Trial    Any reason why your knowledge of him or your relationship
                             court]:

        with him would affect your ability to be a fair juror in this case?
                   Juror]: No, it would not.
                   Trial     court]: Does the state have any questions?
                   State]:      I guess I would ask that when you see him, is it primarily at the
        gym?

                   Juror]: Yes.
                   State]:     So you don' t get together with him outside the gym?
                   Juror] : No, I do not.
                   State]:     These conversations that you have, generally you have them in the
        gym when you guys are working out?
              Juror] : Exactly.
                   State]:     I don' t have any further questions. Thank you.
                   Trial     court]: [    Defense    counsel],    any questions?
                   Defense         counsel]:      No questions, Your Honor.


RP at 264 -65. Defense counsel requested the trial court to excuse the juror, which request the

trial court denied, stating:

        I don' t think that there is a degree of potential prejudice with this juror that would
        cause him to be excused for cause. He didn' t even know the officer' s name. I don' t
        think that that' s the kind of affinity with a witness and a juror that would justify
        excusing him          at   this   point   in the trial.       So I' ll   not excuse    him.    I think he can
        maintain an open mind and participate and make his decision based on the facts
        presented and on the law given to him.
                  I also agree with the state somewhat that the arrest of Mr. Manus was based
        upon an        outstanding        warrant.    It wasn' t based upon the allegations of failure to
        register, and the officer' s testimony only was at the very end of this case. It didn' t
        have anything to do with, I guess, the underlying significant issues in the case.

RP at 268 -69. The jury returned a verdict finding Manus guilty of failure to register as a sex

offender. Manus appeals his conviction.



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No. 45532 -3 - II




                                                 ANALYSIS


                                          I. PUBLIC TRIAL RIGHT


          Manus first contends that the trial court violated his public trial right by directing the

State and defense counsel to exercise their peremptory challenges in writing without first

considering the factors set forth in State v. Bone -Club, 128 Wn.2d 254, 906 P.2d 325 ( 1995).

We recently rejected this same contention in State v. Marks, 184 Wn. App. 782, 339 P. 3d 196

 2014).    Following Marks, we hold that Manus' s public trial right was not violated by the trial

court' s procedure directing counsel to exercise their peremptory challenges in writing.

                                   II. DENIAL OF FOR CAUSE CHALLENGE


          Next, Manus contends that the trial court erred when it refused to dismiss a juror for

cause after the juror told the trial court that he had recognized Officer Meeds as someone he

knew from his gym. We disagree.


          We review a trial court' s decision whether to remove a juror for cause for an abuse of

discretion. State    v.   Elmore, 155 Wn. 2d 758, 768, 123 P. 3d 72 ( 2005).   A trial court abuses its


discretion when it bases its decision on untenable grounds or reasons. State v. Powell, 126

Wn.2d 244, 258, 893 P. 2d 615 ( 1995).

          The Sixth Amendment to the United States Constitution and article I, section 22 of the


Washington Constitution .guarantee the right to trial by an impartial jury. State v. Gonzales, 111

Wn.   App. 276,     277, 45 P. 3d 205 ( 2002).   Additionally, 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.


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No. 45532 -3 - II




And 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).         The key inquiry for the

trial court in deciding whether to excuse a juror for cause is " whether the challenged juror can set

aside preconceived           ideas   and   try   the   case   fairly   and   impartially."   Hough v. Stockbridge, 152


Wn.    App.    328, 341, 216 P. 3d 1077 ( 2009). Because the trial court is able to observe the


challenged juror, it is in the best position to evaluate a juror' s candor, and it may weigh the

credibility of the juror based on its observations. Elmore, 155 Wn.2d at 769 n. 3; Jorden, 103

Wn. App. at 229. Thus, absent a manifest abuse of its discretion, we defer to the trial court' s

judgment as to whether a juror should be excused for cause. State v. Noltie, 116 Wn.2d 831,


839 -40, 809 P. 2d 190 ( 1991).


          Manus argues that the juror' s prior relationship with Meeds demonstrated an actual bias

and an implied bias that rendered the juror unfit to serve on the jury. We disagree.

A.        Actual Bias


              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."   RCW


4. 44. 170( 2); CrR 6. 4( c)( 2).         A party challenging a juror for actual bias has the burden of

demonstrating         such   bias    by   a preponderance of           the evidence.    Ottis v. Stevenson -Carson School


Dist. No. 303, 61 Wn.           App.      747, 754, 812 P. 2d 133 ( 1991).             It is not sufficient that a party show


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No. 45532 -3 -II




that the challenged juror "has formed or expressed an opinion upon what he or she may have

heard   or read,"     rather, "      to   sustain   the   challenge ...    the court must be satisfied, from all the


circumstances,        that the    juror      cannot   disregard    such opinion and    try   the issue   impartially."   RCW


4.44. 190; CrR 6. 4( c)( 2).


          Manus does not cite any evidence in the record sufficient to prove actual bias justifying

dismissal of the challenged juror. Instead Manus merely speculates that, because the challenged

juror had known Meeds as an acquaintance at a shared gym for five years and had engaged in


casual conversation with Meeds during that time, the juror " would naturally have felt additional

pressure      to supporting [ sic] his friend from the              gym and     find Manus guilty." Br. of Appellant at


20. But, even if this speculative assertion was competent evidence of actual bias, the challenged

juror told the trial court that his prior relationship with Meeds would not affect his " ability to be

a   fair juror in this      case."        RP at 264. The trial court found the juror to be credible in this regard,

concluding that the juror could " maintain an open mind and participate and make his decision

based    on   the   facts   presented and on          the   law   given   to him." RP at 268. We defer to the trial



court' s credibility determination, and we hold that Manus has failed to show that the trial court

abused its discretion by failing to dismiss the juror for actual bias.

B.        Implied Bias


          Manus similarly fails to show that the trial court abused its discretion by failing to

dismiss the challenged juror for implied bias. RCW 4. 44. 180 provides four bases by which a




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No. 45532 -3 -II




juror may be   challenged   for   an   implied bias.'   Manus admits that the challenged juror' s


relationship with Meeds does not fall within "one of the listed statutory bases for implied bias,"

but argues that we should interpret RCW 4. 44. 180 broadly under the rule of lenity. Br. of

Appellant at 20. However, Manus fails to provide any argument as to how the juror' s prior

relationship with Meeds would fall within RCW 4.44. 180 even under a broad interpretation of

the statute. Accordingly, we do not further consider Manus' s claim that the trial court erred by

failing to dismiss the challenged juror under RCW 4.44. 180. See State v. Davis, 174 Wn. App.

623, 641, 300 P. 3d 465,    review     denied, 178 Wn.2d 1012 ( 2013) ( " Passing   treatment of an issue

is insufficient to warrant appellate consideration. ").


        Although we decline to address Manus' s claim under RCW 4.44. 180 for lack of adequate


argument, we must still address whether the trial court abused its discretion by failing to excuse

the challenged juror for implied bias under RCW 2. 36. 110 and CrR 6. 5. Jorden, 103 Wn. App.




 RCW 4. 44. 180 states:
        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 a party; or being a member of the family of,
        or a partner in business with, or in the employment for wages, of a party, or being
        surety or bail in the action called for trial, or otherwise, for a 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.

         Emphasis added).


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No. 45532 -3 -II




at   227; State   v.   Boiko, 138 Wn.   App.   256, 265, 156 P. 3d 934 ( 2007). But Manus' s implied bias


claim under RCW 2. 36. 110 and CrR 6. 5 suffers from the same infirmity as his actual bias claim

in that the trial court found credible the challenged juror' s statement that his prior relationship

with   Meeds      would not affect   his " ability to be   a   fair juror in this   case."   RP at 264. Again, we


defer to the trial court' s credibility determination in this regard and thus hold that Manus fails to

show that the trial court abused its discretion by declining to dismiss the challenged juror based

on an implied bias. Accordingly, we affirm Manus' s conviction.

          A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




 Melnick, J.
