IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                         No. 77722-0-I
                       Appellant,
                                                         DIVISION ONE
               V.
                                                         UNPUBLISHED OPINION
TERRANCE ANTHONIA PAIGE,

                       Respondent.                       FILED: June 17, 2019



       ANDRUS, J. — Terrance Paige appeals his convictions of residential

burglary and theft in the second degree following a jury trial. Because a majority

of the venire had some experience with the crimes of burglary or theft and shared

those experiences during voir dire, Paige claims that defense counsel provided

constitutionally inadequate representation by failing to seek a new jury panel. He

further contends that the trial court's failure to dismiss the panel violated his right

to an impartial jury. We disagree with both contentions. We remand to strike the

DNA1 collection fee and otherwise affirm Paige's judgment and sentence.

                                                FACTS

       On August 29, 2017, Merriann and Isaac Fu and their two children

returned home after church to discover that their home had been burglarized.

Merriann and Isaac drove home in separate cars.2 Isaac pulled up to the house



       1 Deoxyribonucleic acid.
       2 We refer to Isaac and Merriann Fu by their first names for clarity.
No. 77722-0-1/2

a few minutes after Merriann and saw two young men run from the back of the

house.    They were carrying items including what appeared to be laptop

computers. Issac followed the men in his vehicle and eventually saw them enter

a wooded park. Issac parked at the edge of the park and called the police.

       Merriann did not notice anything unusual when she first entered the

house, but when she went back inside with her children, she found that several

rooms had been ransacked.        The Fus discovered that several items were

missing, including a child's coin collection, two laptop computers, approximately

$600 in cash, a gift card, jewelry, and watches.

      A City of Kent K9 police officer responded and began a track to look for

the suspects at a trail leading to the wooded area. The dog located a suspect,

later identified as Terrance Paige, hiding in thick bramble. Paige had coins,

watches, and jewelry in his pockets. A police officer brought Isaac to the place

where police apprehended Paige and Isaac identified Paige as one of the men

he saw running from his house. The Fus recognized the items recovered from

Paige's pockets. The police were unable to locate a second suspect.

      The Fus had a security camera on the front of their house that took a

photograph when it detected motion. On the date of the incident, the camera

took a photograph that showed two men walking toward the house when the

family was out.

       About an hour or two before the Fus arrived home and discovered the

burglary, two men approached another house in the Fus' neighborhood, rang the

doorbell, and offered yardwork services to the resident. This neighbor later




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viewed the photograph taken by Fus' security camera and identified the men as

the same people who came to his home.

       The State charged Paige with residential burglary and theft in the second

degree. The venire was composed of 50 potential jurors. During voir dire, the

court described the charges and asked if any members of the venire had

"experience with related or similar types of allegations." Almost half of the venire,

including nine individuals later selected to serve as jurors, reported that either

they, or someone they knew, had experience with theft or burglary. The court

questioned the members of the jury panel individually. They reported either

personal experiences or experiences of their neighbors or family members with

vehicle break-ins, residential burglaries, and burglaries at places of employment.

A similar number reported that they, a relative, or close friend had been a victim

of some crime in the past.

       When the court asked if any members of the panel had concerns about

their ability to be impartial, only one potential juror responded affirmatively. Juror

No. 10 initially reported concerns about partiality, due to some prior experiences

with vandalism and a recent "upsetting" incident involving police officers running

through the juror's property to chase a suspect.        But after the court further

explained that jurors must make a decision based on the evidence, the juror

expressed a willingness to be "open-minded." Juror No. 10 was not selected for

the jury. Later, the prosecutor asked again whether any of the potential jurors felt

they could not set aside their personal experience with theft and/or burglary and

fairly weigh the evidence. None of the potential jurors responded affirmatively.




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       Eleven members of the venire reported specific personal experience with

residential burglary.     The prosecutor questioned the prospective jurors

individually about their experiences and the likelihood that their past experience

would affect their view of the evidence. Of the thirteen venire members selected

to serve as jurors, four reported past experience specifically with residential

burglary. One of the four said that 35 years ago, while in the process of moving

residences, someone stole some personal belongings. Another reported that

during childhood, the juror's parents' home had been burglarized while the family

was away on vacation. Another juror reported two burglaries and one attempted

burglary, one of which occurred in the 1980s. Finally, one juror's home was

burglarized six years previously, but the perpetrator was "scared away" quickly

and was only able to take some documents. Another juror, who had not initially

responded, reported past burglaries of some dairy outbuildings owned by the

juror's family. The juror said the incidents were not a "big deal" and that the

burglars stole mainly tools. Each of these jurors said their personal experiences

would not affect their ability to fairly consider the evidence.

       Neither the State nor the defense challenged any of the members of the

venire for cause. And neither side exercised all available preemptory challenges.

       Following a two-day trial, the jury convicted Paige as charged. The court

imposed a standard range sentence.

                                         ANALYSIS

       Paige alleges ineffective assistance of trial counsel based on counsel's

failure to seek dismissal of the jury panel because of the high percentage of the




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venire who had past personal experience with crimes of burglary or theft. Paige

also contends that even in the absence of a defense motion, the trial court had

an obligation to dismiss the jury panel. Paige claims that as a result of counsel's

conduct and trial court error, he was deprived of his right to a fair and impartial

jury.

        The Washington Constitution guarantees a criminal defendant the right to

a fair trial by "unbiased jurors." Wash. Const., art. 1, § 22; State v. Momah, 167

Wn.2d 140, 152, 217 P.3d 321 (2009). The Sixth Amendment to the United

States Constitution also guarantees the right to a fair trial by impartial jurors.

Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).3 The

right to an impartial jury does not, however, require "that the jurors be totally

ignorant of the facts and issues involved." Irvin, 366 U.S. at 722. As the United

States Supreme Court has recognized, "it is virtually impossible to shield jurors

from every contact or influence that might theoretically affect their vote." Smith v.

Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). "It is

sufficient if the juror can lay aside his impression or opinion and render a verdict

based on the evidence presented in court." Irvin, 366 U.S. at 723.

        Persons selected for jury service must be selected at random from a fair

cross section of the population served by the court. RCW 2.36.080(1); Brady v.

Fibreboard Corp., 71 Wn. App. 280, 282, 857 P.2d 1094 (1993). The Sixth and

Fourteenth Amendments of the federal constitution similarly entitle litigants to a

"petit jury selected from a fair cross section of the community."                     Duren v.


        3 The Washington Constitution provides no greater protection than the federal right to an
impartial jury. State v. Fire, 145 Wn.2d 152, 163, 34 P.3d 1218 (2001).


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Missouri, 439 U.S. 357, 359, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979). Because

the jury panel must be randomly selected, challenges to the composition of the

panel are limited. CrR 6.4(a) requires trial courts to sustain a challenge to the

entire jury panel only if it is based on a "material departure from the procedures

prescribed by law for their selection." Our supreme court has held that "[w]here

the selection process is in substantial compliance with the statutes, the

defendant must show prejudice." State v. Tinqdale, 117 Wn.2d 595, 600, 817

P.2d 850 (1991); State v. Roberts, 142 Wn.2d 471, 518, 14 P.3d 713(2000).

      It is well settled that to demonstrate ineffective assistance of counsel,

Paige must show that: (1) defense counsel's representation was deficient, i.e., it

fell below an objective standard of reasonableness considering all the

circumstances; and (2) the deficient representation prejudiced the defendant.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). He must

overcome the strong presumption that counsel's performance was reasonable.

State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Where the alleged

deficient conduct is the failure to bring a motion, the defendant can establish

prejudice only if the motion would have been granted. State v. Price, 127 Wn.

App. 193, 203, 110 P.3d 1171 (2005), aff'd, 158 Wn.2d 630, 146 P.3d 1183

(2006). We need "not address both prongs of the ineffective assistance test if

the defendant's showing on one prong is insufficient." State v. Foster, 140 Wn.

App. 266, 273, 166 P.3d 726 (2007).

      Paige does not argue that the jury panel was not based on a random

selection process.   He does not claim that the jury selection departed from




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relevant statutory procedures. He does not point to anything in the record to

indicate that any individual selected to serve on the jury exhibited actual bias.

Paige baldly asserts that "without question," a new venire would not have

included similar numbers of individuals who had personal experience with the

type of crimes as issue. Although this argument is based on a speculative

premise, the right to a jury selected from a fair cross section of the local

population does not entitle a party to any specific composition of jurors. State v.

Davis, 141 Wn.2d 798, 837, 10 P.3d 977(2000).

       Paige does not contend that the comments of any member of the venire

were overly prejudicial.   Instead, he claims that the cumulative effect of the

potential jurors' "inordinately strong sentiments" about burglary and theft and the

"deeply affecting accounts" of their experiences tainted the jury pool.

       Paige relies on Mach v. Stewart, 137 F.3d 630 (9th Cir. 1997). In that

case, the defendant was on trial for a sex offense involving an eight-year-old

child. Mach, 137 F.3d at 631. A prospective juror, a social worker, stated that

she would have a difficult time being impartial because of her work experience.

Mach, 137 F.3d at 631-32.        She also said that "sexual assault had been

confirmed in every case in which one of her clients reported such an assault."

Mach, 137 F.3d at 632. The court continued to question the prospective juror,

eliciting "at last three more statements from [the prospective juror] that she had

never, in three years in her position, become aware of a case in which a child

had lied about being sexually assaulted." Mach, 137 F.3d at 632. The court

asked the other members of the jury panel whether anyone disagreed with the




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woman's statements and no one responded. Mach, 137 F.3d at 633. The trial

court denied Mach's motion for a mistrial in which he argued that the entire panel

had been tainted by the exchange between the court and this prospective juror.

Mach, 137 F.3d at 632.

      The Ninth Circuit reversed. Mach, 137 F.3d at 634. The court held the

juror's statements tainted the jury because they were "highly inflammatory and

directly connected to Mach's guilt."      Mach, 137 F.3d at 634.      The juror's

comments had an "expert-like" quality given her years of experience and degree

of certainty. Mach, 137 F.3d at 633. The court concluded the juror's repetition of

the statements created an especially high risk they would affect the verdict.

Mach, 137 F.3d at 633.      The court explained that reversal was warranted

because the trial was "principally dependent [sic] on whether the jury chose to

believe the child or the defendant." Mach, 137 F.3d at 634.

      Mach is easily distinguishable. None of the members of the venire made

repeated, confident assertions addressing the evidence, Paige's culpability, or

potential credibility of the witnesses.     No prospective juror professed any

expertise. No prospective juror's statements were tantamount to the introduction

of inflammatory, extrinsic evidence from an expert that was directly connected to

Paige's guilt. See Mach, 137 F.3d at 633.

      Paige greatly overstates the case by describing the potential jurors'

discussion of their experiences as highly emotionally charged, creating an

atmosphere of "irremediable sympathy" for the victims. A few members of the

panel, none of whom ultimately served on the jury, reported lingering emotion




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stemming from their experiences, described a feeling of having been invaded or

a diminished sense of security, or said they lost items of personal value. But

other jurors described experiences that were far in the past, in neutral terms, with

no indication of a lasting emotional impact. None of the individuals who served

as jurors expressed doubt about their ability to set aside their personal

experience and impartially consider the evidence.

       Cumulatively, the potential jurors' statements were not prejudicial or

inflammatory and did not infuse the process with emotion or otherwise taint the

jury. Under these circumstances, Paige cannot demonstrate that counsel was

deficient for failing to move to dismiss the venire or that trial court would have

granted such a motion. His ineffective assistance of counsel claim fails.

       Paige cites no authority supporting the position that a trial court is

obligated to dismiss a jury panel sua sponte under these circumstances—merely

because a high percentage of potential jurors had personally experienced or

knew others who had experienced relatively common crimes.              For instance,

Paige cites State v. Irby, 187 Wn. App. 183, 197, 347 P.3d 1103 (2015), which

involved the trial court's failure to dismiss a juror, in the absence of challenge for

cause, after the juror made an unqualified statement of actual bias against the

defendant. Similarly Hughes v. United States, 258 F.3d 453, 464 (6th Cir. 2001),

involved a claim of ineffective assistance of counsel based on the failure to

challenge a particular juror who openly declared an inability to impartially weigh

the evidence based on her personal relationships. But neither case is analogous

to this case because not a single juror exhibited any actual bias or inability to




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impartially weigh the evidence. In the absence of any showing of actual bias, we

conclude that Paige received a fair trial by an impartial jury. Therefore, his claim

of trial court error also fails.

       In a supplemental assignment of error, Paige seeks to strike the $100

DNA fee from the judgment and sentence. The State concedes that, while this

legal financial obligation was properly imposed at the time of sentencing, it

should be stricken pursuant to recently amended RCW 43.43.7541 and State v.

Ramirez, 191 Wn.2d 732, 426, P.3d 714 (2018).             We accept the State's

concession and agree.

       We remand to the trial court to strike the $100 DNA fee. We otherwise

affirm Paige's convictions and sentence.




WE CONCUR:




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