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State v. Cho9/4/2001
>. But we think the better approach in this case is a remand for further findings after an evidentiary hearing in which the parties may, if they choose, present additional testimony to illuminate juror number eight's answers on voir dire as well as the statements he allegedly made to defense counsel after the verdict. We are unwilling to declare the trial court's order an abuse of discretion until the trial court has had the opportunity to consider the issue of implied bias, an issue not raised or briefed below.
The issue of implied bias is one that may be considered for the first time on appeal under RAP 2.5(a). It goes to the impartiality of the factfinder, a right guaranteed by the Sixth Amendment and a touchstone of the constitutional guarantee of a fair trial. But it is also an issue on which review is best done on the basis of findings made after the parties have an opportunity to develop a record with that issue in mind. See McDonough, 464 U.S. at 552, n. 3 ('Appellate tribunals are poor substitutes for trial courts for developing a record or resolving factual controversies.').
The State has complained, both in this court and below, about the defendant's failure to make a proper record of the alleged misconduct. But Cho was not required to summon juror number eight to answer questions at a post-trial hearing. Defense counsel's affidavit was sufficient by itself to establish a prima facie case of implied bias. In extraordinary situations, and we consider this to be one of them, a court may infer bias from underlying facts about the juror without regard to explanations offered by the juror. See Smith v. Phillips, 455 U.S. at 221 (O'Connor, J., concurring). If the record supports a finding that juror number eight concealed his past employment as a police officer in order to be seated on the jury, the presumption of bias would not be changed by the juror's later protestations of impartiality, however sincere. See United States v. Scott, 854 F.2d at 700 (finding of 'sincerity' is not the same as a finding that the juror was unbiased; a juror may not conceal material facts disqualifying him simply because he sincerely believes that he can be fair in spite of them). Doubts regarding bias must be resolved against the juror. Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir. 1991).
Reversed and remanded for further proceedings consistent with this opinion.
WE CONCUR:
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