t C~ VVASr: 

### imjmzQ

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. FRANK RICARDO BORDERS, Appellant. No. 73297-8-1 DIVISION ONE UNPUBLISHED OPINION FILED: June 20, 2016 his o- 33



### Becker, J. — To assure a criminaldefendant's constitutional right to a fair 

### and impartial trial, the trial court has an obligation to excuse a juror for bias or 

### other grounds ofunfitness, regardless ofwhether eitherparty has exercised a challenge. On appeal, Frank Borders contends the trial court erred byfailing to dismiss sua sponte an allegedly biased potential juror. But the jurormade no 

### unequivocalcomments reflecting actual bias. Nordoes the record disclose any other circumstances establishing that the jurorwas unable to try the issues 

### impartially. Becausethe trial courtdid notabuse itsdiscretion in seating the 

### juror, weaffirm Borders' conviction for one count of rape in the second degree. FACTS 

### The State charged Borderswith two counts of rape in the second degree 

### for separate incidents occurring in 2007 involving S.C. andJ.P. Borders' first trial ended in a hung jury, and the trial courtdeclared a mistrial.No. 73297-8-1/2 Following a second trial, thejury found Borders guilty as charged. The court sentenced Borders to a mandatory life sentence under the Persistent OffenderAccountability Act ofthe Sentencing Reform Act of 1981 (POAA), chapter 9.94A RCW. On appeal, we reversed and remanded for a new trial because the trial court erred in admitting evidence of a prior uncharged rape under RCW 10.58.090. State v. Borders, noted at 167 Wn. App. 1037 (2012);
see also State v. Gresham. 173 Wn.2d 405, 269 P.3d 207 (2012). 

### Borders' third trial occurred inJanuary 2015. Thejury found Borders 

### guiltyas charged forthe count involving S.C. but was unable to reach a verdict
on the count involvingJ.P. The court again imposed a mandatory lifesentence under the POAA. JUROR BIAS Borders contends the trial court committed reversible error when it failed 

### to excuse a biasedjuror who was not challenged by either party. He argues the presence ofthe biasedjuror, juror 31, violated his right to a fair and impartial jury 

### The trial court began voir dire with several preliminaryquestions aboutthe potential jurors' knowledge of the case and theirfamiliarity with the defendant, potential witnesses, and the location of the alleged crimes. The court then asked ifanyone had familymembers or friends who had been the victim ofsexual assault or sexual misconduct. After listening to the responses, the court asked if 

### potentialjurors had personally experienced such conduct: 

### Ihave two goals in asking allthese questions. You know, first we 

### want people to lookwithin and make sure that they would be a fair juror in this case, not prejudging issues. We don'twant anybodyNo. 73297-8-1/3 

### who, because ofpersonal experiences, is going tojump to conclusions about the allegations in this particular case. And 

### second of all, my purpose is that Idon't wantto see anybody on the jury for whom itwould be too emotional, too difficult to sit in this case because of personal experiences. So, again, those are
— that's the purpose for asking. One ofthe first responses came from juror 31: THE COURT:
.... Was there anybody in the box that had a hand up? . . . And in the second row Iget to [juror 31]. JUROR [31]: Yes, Iwas 16, stranger, no criminal charges. THE COURT: The two concerns that Imentioned, the fairness ofthe process and your comfort

— JUROR [31]: It's hard to know. It's hard to know until — THE COURT: Yeah. JUROR [31]: —the proceedings (Inaudible). THE COURT: Sure. 

### JUROR [31]: However, Idon't know ifwe're going to be 

### asked aboutthis, my proximity to the location. Ialready feel a certain sense ofsafety issues in my neighborhood. I'm two blocks

— I live two blocks from one ofthe situations. 

### THE COURT: Right. Okay, all right. And there were a couple more hands allthe way inthe back row, Ithink. 

### Afterquestioning the remaining potential jurors who had experienced sexual misconduct or abuse, the court asked the panel members to introduce 

### themselves and provide limitedbiographical information. The deputy prosecutors and defense counsel then questioned thejurors.No. 73297-8-1/4 

### During defense counsel's second session, she asked whether anyjuror or
a close friend or family member had been the victim of a violent crime. Seven jurors, includingjuror 31, responded and identified themselves. Whenjurors 45 and 46 indicated they had significant concerns or discomfort because ofthe nature ofthe case, defense counsel asked whether anyone else had "similar feelings." One other person, juror 32, raised her hand. Juror 31 did not respond. The trial court excused several potentialjurors who expressed strong opinions or discomfort about the case. Neither party exercised a peremptory challenge forjuror 31, and she sat on thejury. "The Sixth and Fourteenth Amendments to the United States Constitution,
as well as article I, section 22 ofthe Washington Constitution, guarantee a criminal defendant the right to trial by an impartialjury." State v. Davis, 175 Wn.2d 287, 312, 290 P.3d 43 (2012) (citing Taylor v. Louisiana, 419 U.S. 522, 

### 526, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)), cert denied, 134 S. Ct. 62 (2013). 

### Either party may challenge a prospectivejuror for actual bias, which is "the existence of a state of mind on the part ofthejuror in reference to the action, or 

### to either party, which satisfies the court that the challenged person cannottrythe 

### issue impartially and without prejudice to the substantial rights ofthe party challenging." RCW 4.44.170(2); see also RCW4.44.130. Ajuror'smere expression or formation ofan opinion, however, is not sufficientto sustain a 

### challenge. Rather, the trial court "must be satisfied, from allthe circumstances, 

### that the jurorcannotdisregard such opinion and try the issue impartially." RCW 4.44.190.

-4-No. 73297-8-1/5


### Under CrR 6.4(c), when the trialjudge determines that there are grounds for challenging a juror, "he or she shall excuse thatjurorfrom the trial ofthe case." RCW 2.36.110 requires the trialjudge to excuse from further duty any juror "who inthe opinion ofthejudge, has manifested unfitness as ajuror by
reason ofbias." CrR 6.4(c) and RCW 2.36.110 impose a continuing obligation on the trialjudge to excuse an unfitjuror, regardless ofwhether either party has exercised a challenge. See Davis, 175 Wn.2d at 316; State v. Lawler, No. 46593-1-11, 2016 WL 3022404 (Wash. Ct. App. May 25, 2016); see ajso State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000) (RCW 2.36.110 places "a 

### continuous obligation on the trial court to excuse anyjurorwho is unfitand unable to perform the duties of a juror"), review denied, 143 Wn.2d 1015 (2001). 

### We necessarily accord the trial court broad discretion indetermining whetherto excuse a jurorfor cause: 

### "The trialjudge is inthe best position to evaluate whether a particular potentialjuror is able to be fair and impartial based on observation ofmannerisms, demeanor, and the like." 

### State v. Irbv, 187 Wn. App. 183, 194, 347 P.3d 1103 (2015) (quoting Statev, Gonzales. 111 Wn. App. 276, 278, 45 P.3d 205 (2002)), review denied. No. 

### 92191-1 (Wash. Feb. 10,2016). But "the presence of a biasedjuror cannot be harmless; the error requires a new trial without a showing ofprejudice." ]rby, 187 Wn. App. at 193. 

### Inresponding to the trialcourt's question aboutwhether her experience as a victim of sexual misconduct would affect "the fairness ofthe process" and her 

### "comfort,"juror 31 responded, "It's hard to know. It's hard to knowuntil... theNo. 73297-8-1/6 proceedings." Juror 31 also volunteered that she felt "a certain sense of safety issues in my neighborhood" because she lived abouttwo blocks away from where one ofthe charged incidents occurred. Borders argues that in the absence of any follow-up or rehabilitative questioning, juror 31's comments were sufficientto indicate actual bias and require the trial courtto excuse her, even without a challenge for cause. We disagree. 

### We are unpersuaded by Borders' contention thatjuror 31's comments are comparable to those found to establish actual bias in State v. Irby; Hughes v. United States. 258 F.3d 453 (6th Cir. 2001); and State v. Gonzalez. In]rby, a 

### prosecution for aggravated murder, a potential jurorexplained that because she had worked for Child Protective Services, she was "'more inclined towards the 

### prosecution.'" hty, 187 Wn. App. at 190. When asked whetherthat experience 

### would affect her ability to be fair and impartial, the jurorresponded, '"I would like to say he's guilty.'" kby, 187 Wn. App. at 190. Neitherthe trial court nor the prosecutor asked any follow-up questions seeking to determine whetherthe juror could remain impartial. We held that thejuror's response was effectively an 

### "unqualifiedstatementthat she did not thinkshe could be fair" and that the trial court committed reversible error by refusing to excuse thejuror sua sponte. Irby. 187 Wn. App. at 196. 

### InHughes, discussed inIrby, one ofthejurors stated that she had "'quite 

### close'" connections to police officers and repeatedly informed that court that '"I don't think Icould be fair.'" Hughes. 258 F.3d at 456. The Sixth Circuitfound 

### this declaration was "an express admission of bias" and that defense counsel'sNo. 73297-8-1/7



### failure to challenge thejurorfor cause constituted ineffective assistance. Hughes. 258 F.3d at 460. In Gonzalez, a jurorexpressed her beliefthat "'unless they are proven 

### otherwise,'" police officers "'are always honest and straightforward, and tell the truth.'" Gonzalez. 111 Wn. App. at 278. During a follow-up question, thejuror added she would "'presume'" an officer who contradicted the defendant's testimony was telling the truth and expressed uncertainty that she could follow the court's instruction on the presumption of innocence. On appeal, we concluded thatthejuror "demonstrated actual bias" and thatthe trial court therefore erred in denying defense counsel's challenge for cause. Gonzalez. 111 Wn. App. at 282. 

### Irby, Hughes, and Gonzalez involved specific and clear expressions of bias or reservations about thejurors' ability to render a fair verdict. Unlikethe 

### responses inthose cases, juror 31's statement that "It's hard to know. It's hard to know until... the proceedings" and acknowledgment of a "certain sense of 

### safety issues in my neighborhood" constituted at best a cautious expression of uncertainty or potential concern in response to preliminary and general 

### questioning. Juror 31 did not express a personal bias or concern that she could not follow the court's instructions or render a fair verdict. Such equivocal
answers do not, without more, demonstrate the probability of actual bias or 

### require removal for cause. See State v. Noltie, 116Wn.2d 831, 838-39, 809 P.2d 190 (1991); see also Lawler, 2016 WL 3022404, at *6. The trial court did not abuse its discretion in failing to excusejuror 31 for actual bias.No. 73297-8-1/8

STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW In his statement of additional grounds for review, Borders contends the evidence was insufficient to support his conviction because S.C. committed perjury and made false statements to various State witnesses. But Borders' contentions involve credibility determinations, which this court cannot review. See State v. Haves. 81 Wn. App. 425, 430, 914 P.2d 788 (appellate court defers to trier offact on issues of conflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence), review denied, 130 Wn.2d 1013 (1996). Borders also alleges that the State's use of a 1983 conviction was unconstitutional. But this bare assertion, which provides no information about the 

### nature and occurrence ofthe alleged error or the resulting prejudice, is too 

### conclusory to permit appellate review. See RAP 10.10(c) (appellate court will decline to consider issues in statement ofadditional grounds for review ifthey do not "inform the court ofthe nature and occurrence of alleged errors"). Affirmed. 

# ^PcMee. \

WE CONCUR: 

## >~^w^ A.n ^1 :—LjA—L

-8-