### FILED FEB 28, 2013 In the Officeofthe Clerk ofCourt WA StateCourt ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No.302S8-0-III ) Respondent, ) ) 

### v. ) ) TONY ORLANDO CANTU, ) UNPUBLISHED OPINION ) Appellant. ) BROWN, 1. - Tony Orlando Cantu appeals his convictions for possessing a stolen motor vehicle, first degree criminal trespass, and first degree unlawful possession ofa fireann. He contends the Adams County Superior Court erred in denying his mistrial motion following a prospectivejuror's voir dire statement regarding Mr. Cantu's gang affiliation. Specifically, he argues the trial court's ruling impairedhis constitutional rights to an impartialjury and to confrontation, and was an abuse ofdiscretion. We disagree, and affirm. FACTS Based on events occurring in Adams County in 2010, the State charged Mr. Cantu withpossessing a stolen motorvehicle, first degree criminal trespass, and first degreeNo.30258-0-III State v. Cantu unlawful possession ofa firearm. During voir dire, the trial court asked prospective jurors to express any concerns regarding their abilities to remain impartial. Juror 30 responded, in the presence ofthe entire panel, "The Defendant is a rival gang member of friends ofmine." Report ofProceedings (RP) at 53. Mr. Cantu moved unsuccessfully for a mistrial. The trial court concludedthe statement was not so prejudicial to Mr. Cantu as to require a mistrial because instructing thejuryto decide solely upon the evidence admitted could ensure he received a fair trial,

as thejuryis presumed to follow such instruction. The court did not expressly instruct thejuryto disregard the statement, agreeing with Mr. Cantuthat doing so would unnecessarily emphasize it. Upon Mr. Cantu'srequest, the court dismissedjuror30 for

cause and admonished him not to contact any panel member. When voir dire resumed, defense counsel asked panel members ifhearing the statement would affect their abilities to remain impartial. The first prospectivejurorto speak indicated the statement would not affect his ability to remain impartial because he needed to hear the evidence before he could "make ajudgment on" whetherMr. Cantu

was affiliated with a gang. RP at 174. The secondjuror agreed, but admitted 

## if the evidence showed Mr. Cantu was affiliated with a gang, this knowledge would leave "a bad taste in [his] mouth" and "weigh on [him] a little bit" when evaluating guilt. RP at 175. The thirdjurorresponded, "I don't think it impacts whatsoever because [Mr. Cantu is] notbeing tried for being on a gang." RP at 176. The fourthjurorresponded, "Ithink

2No. 30258-0-III State 

### v. Cantu pertaining to this case it's irrelevant." RP at 176. Several otherprospectivejurors agreed with the final two responses. Thejury found Mr. Cantu guilty ofeach crime as charged. He appealed. ANALYSIS The issue is whetherthe trial court erred in denying Mr. Cantu's mistrial motion based onjuror 30's voir dire statement. First, Mr. Cantu contends the trial court'sruling violated his rightto an impartialjury. We review alleged constitutional violations de

novo. State v. Siers, 174 Wn.2d 269,274,274 PJd 358 (2012). Both the federal and state constitutions provide a criminal defendantthe right to trial by an impartialjury. U.S. CONST. amend. VI; CONST. art. I, § 22 (amend. 10). This requires thatjurors remain mindifferent,'" Morgan v. Illinois, 504 U.S. 719, 727,112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (construing U.S. CONST. amend. VI), or "unbiased and unprejudiced," State v. Davis, 141 Wn.2d 798,824, 10 PJd 977 (2000) (construing CONST. art. I, § 22 (amend. 10)). Becausethe trial court can observe and evaluatejurors' individual demeanors and responses, it is best suited to assess their impartiality. State v. Nottie, 116 Wn.2d 831, 839, 809 P.2d 190 (1991). However, ifa prospectivejuror repeatedly makes highly inflammatory, expert-like statements directly concerning guilt in the presence ofthe entire panel, this court maypresume the statements tainted the resultingjury'simpartiality. Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997).



### 3No.302S8-0-III State v. Cantu Relying on Mach, Mr. Cantu argues we shouldpresumejuror 30's voir dire statement infected the entire panel with bias orprejudice. 

### In Mach, the government charged the defendant with making sexual contact with a minor. Id. at 631. During voir dire, aprospectivejuror stated, in the presence ofthe entirepanel, that she had a psychology background, currently worked for the state child protective services agency, and had confirmed child sexual assault in every case where a client reported it. Id. at 631-32. Upon further questioning, the prospectivejurorrepeated three times more how she never, in her three years as a social worker, found a case where a child lied about sexual assault. Id. at 632. The district court removed the prospectivejurorfor cause upon the defendant's request. Id. The defendant moved for a mistrial, which the district court denied without inquiring into whether the statements affected the pane'l's impartiality. Id. at 632-33. The Mach courtreversed, holding the statements presumably infected thejury with bias orprejudice and, thus, the district courtviolated the defendant's constitutional right to an impartialjury by denying his mistrial motion. Id. at 633. 

### In so holding, the court reasoned the statements were "highly inflammatory and directly connected to ... guilt." Id. at 634. Further, the court found the statements had an "expert-like" quality based on the prospectivejuror's years ofexperience and degree ofcertainty. Id. at 633. Additionally, the court indicated the number oftimes the prospectivejurorrepeated the statements created an especially high riskthey would affect thejury'sverdict. Id. Given



### 4No. 30258-0-111 State v. Cantu these facts andthe lack ofinformation regarding the statements' actual impact, the court "presume[d] that at least onejurorwas tainted and entered intojury deliberations with the conviction that children simply never lie about being sexually abused." Id. Mach is distinguishable because it involved repeated, expert-like statements directly concerning guilt,**id.~** while ourcase involves an isolated, layperson's statement unconnected to any material issue. Further, Mach presumed the prospectivejuror's statements tainted the entire panel mainly because it lacked information regarding the statements' actual impact, id., while in this casenumerous panel members assured defense counsel the statementhad no impact ontheir impartiality. Thus, Mach does not control the resulthere and wewill not presumejuror 30's voir dire statementtainted the entire panel. Absent such a presumption, Mr. Cantu fails to showjuror 30'svoirdire statement causedjurybias orprejudice. Thetrial court correctly instructed thejury to decide solely upon the evidence admitted. "Wepresume thatjuries follow the instructions and consider only evidencethat is properly before them." State v. Perez- Valdez, 172 Wn.2d 808,818-19,265 P.3d 853 (2011). Nothing suggests thejury did otherwise. Rather, the panel's assurances to defense counsel suggestthejuryremained impartial. Thus, we conclude the trial court did not violate Mr. Cantu's right to an impartialjuryby denying his mistrial motion.

5No. 30258-0-II1 State v. Cantu Second, Mr. Cantu contends the trial court violated his federal confrontation right by denying his mistrial motion. He argues solely, "[T]here can be no question" it did. Br. ofAppellant at 12. Our standard ofreview remains de novo. The Sixth Amendment to the U.S. Constitutionprovides a criminal defendant the right to confront and cross-examine adverse witnesses. U.S. CONST. amend. VI. The federal Confrontation Clause renders testimonial, out-of-court statements inadmissible unless the declarant testifies at trial or the defendant had a prior opportunity to crossexamine the declarant. Crawfordv. Washington, 541 U.S. 36, 54-55, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Ajurorbecomes an "unsworn witness," triggering the federal Confrontation Clause, ifhe or she "communicates objective extrinsic facts regarding the defendant orthe alleged crimes to otherjurors." Jeffries v. Wood, 114 F.3d 1484, 1490 (9th Cir. 1997), overruledon othergrounds by Gonzalez v. Arizona, 677 F.3d 383 (9th Cir.20l2). But the defendant waives his orher federal confrontation right by failing to timely assert it at the trial court in accordance with applicable procedural rules. State v. O'Cain, 169 Wn. App. 228, 239-40, 279 P.3d 926 (2012) (analyzing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)). Mr. Cantu waived his federal confrontation right because he failed to assert it at the trial court. l Even so, the trial court did not violate Mr. Cantu's federal confrontation

I While Mr. Cantu does not assert his state confrontation right, he likely waived it as well because "[n]othing about [the state confrontation clause] lends credenceto the 6No.30258-0-III State 

### v. Cantu right by denying his mistrial motion because he had the opportunity to cross-examine juror 30 during voir dire but chose not to do so, instead requesting the trial court dismiss him for cause. Third, Mr. Cantu contendsthe trial court abused its discretion when denying his mistrial motion. We review a denial ofa mistrial motion for abuse ofdiscretion, finding such abuse only if"'noreasonablejudgewould have reached the same conclusion.'" State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (quoting State v. Hopson, 113 Wn.2d 273,284, 778 P.2d 1014 (1989)). A mistrial is proper if"the defendant has been so prejudicedthat nothing short ofa
new trial can ensure that the defendantwill be fairly tried." ld. (citingHopson, 113 Wn.2d at 284). A trial irregularity prejudices a defendant's fair trial rights ifit poses a "substantial likelihood" ofaffecting thejury's verdict. State v. Gamble, 168 Wn.2d 161, 177,225 P.3d 973 (2010) (citing State v. Greiff, 141 Wn.2d 910,921, 10 PJd 390 (2000)). This analysis depends on '''(1)the seriousness ofthe irregularity, (2) whether the statementwas cumulative ofevidenceproperly admitted, and (3) whether the irregularity could be cured by an instruction.'" Perez-Valdez, 172 Wn.2d at 818 (quoting State v. Post, 118 Wn.2d 596, 620,826 P.2d 172,837P.2d 599 (1992)). Here, the trial court concludedjuror 30's voir dire statement was not so prejudicial to Mr. Cantu as to require a mistrial because instructing thejuryto decide solely upon the

notion that a defendant may choose notto confront the witness at trial and then seek a 7No.30258-0-III 

### State 

### v. Cantu evidence admitted could ensure he received a fair trial, as thejury is presumedto follow such instruction. We cannot say no reasonablejudgewould have reached the same conclusion. First, despite the inflammatory nature ofgang affiliation, the statement was not very serious because it was not evidence, was isolated, and did not concern any matterrelevant to the case. And, '''thetrialjudge is best suited tojudgethe prejudice ofa statement.'" 

### Greiff, 141 Wn.2d at 921 (quoting 

### State v. 

### Weber, 99 Wn.2d 158, 166,659 P.2d 1102 (1983)). Second, the parties offered no testimony orexhibits regarding gang affiliation, so the statement was not cumulative ofadmitted evidence. Finally, the trial court correctly instructed thejuryto decide solely upon the evidence admitted. We presume thejury followed the trial court's instructions and considered solelythe evidence admitted at trial. 

### Perez-Valdez, 172 Wn.2d at 818-19. Nothing suggests thejury did otherwise. Notably, during voir dire, numerous panel members assured defense counsel the statement had no impact on their impartiality. In sum, a reasonablejudge could conclude a properjury instruction, not a new trial, was the appropriate remedy to ensure Mr. Cantu received a fair trial. Itfollows that the trial court did not abuse its discretion by denying Mr. Cantu's mistrial motion.

new trial based uponthe absence ofconfrontation." 

### 0 'Cain, 169 Wn. App. at 252. 8No.30258-0-II1 State 

### v. Cantu Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

Brown, J. WE CONCUR:

Kulik, J.



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