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State v. Cho9/4/2001
This case arises from a juror's failure to disclose during voir dire that he was a retired police officer. A presumption of bias arises when a juror deliberately withholds material information in order to be seated on a jury. We remand for an evidentiary hearing. Unless the trial court finds facts refuting the implication of bias, the defendant is entitled to a new trial.
On an August evening in 1999, four members of a gang were riding in a black Honda in Federal Way. The car stopped, and its occupants were confronted by members of a rival gang approaching on foot. One of the passengers in the Honda leaned out the window and shot one of the members of the rival gang. The Honda then drove off. Based on information that appellant Kenny Cho was driving the Honda, the State prosecuted him for rendering criminal assistance.
Trial began on Monday, January 10, 2000. The trial court used the Struck jury method to conduct voir dire. The venire panel was seated in the courtroom with number cards. After consulting with counsel, the judge began by asking about 20 general questions. Jurors were to hold up their cards to indicate an affirmative answer to a question. Counsel for the State and for Cho were then each allowed two 20-minute segments to ask further questions.
The judge encouraged the panel to be open and frank with the court and not to withhold any information:
THE COURT: Now, if there are any questions that we ask that you feel you'd rather answer in private, please let us know and we will try to accommodate you. But please do not withhold any information. One of the worst things that you can do for us is to withhold the information until after the case is over or something else. And then you read about it in the paper, and then that makes me very unhappy. So what we want you to do is tell us now how you feel about these particular items.
On the second day, several jurors updated their responses to the questions asked the previous day, showing that they understood the court's desire to have its questions interpreted broadly.
Juror number eight, whose alleged nondisclosure is at issue in this case, held up his card in response to several of the court's questions. His responses indicated that he had been an eyewitness to crimes, had given testimony in a court proceeding, and had previous civil jury experience.
Among other questions asked by the judge were some designed to elicit connections with, and attitudes toward, police officers. Juror number eight responded affirmatively when the judge asked whether anyone ever had a particularly unfavorable experience with the police. In response to a general question about whether anyone worked with a court or in the administration of justice, juror number eight gave his current occupation as a security manager for Wells Fargo Bank, but did not disclose that he was a former police officer.
After voir dire concluded on Tuesday, there were no challenges for cause from either side. The State exercised peremptory challenges to strike four potential jurors from the panel. Three of them had responded affirmatively when the judge asked whether anyone had ever had an unfavorable experience with the police; the fourth had back problems. The defense exercised three peremptory challenges. Two of them were residents of Federal Way, including one, a crime victim, who reported having a favorable experience with the police and strong feelings about gangs. The third was a technician for the Federal Bureau of Investigation; his stepbrother was a police officer.
When the trial began, the State presented three witnesses beginning with the victim, who explained the riv
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