FILED 


FEB 28, 2013 


In the Office of the Clerk of Court 


WA State Court of Appeals, 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TONY ORLANDO CANTU, ) UNPUBLISHED OPINION 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 of a 

fireann. He contends the Adams County Superior Court erred in denying his mistrial 

motion following a prospective juror's voir dire statement regarding Mr. Cantu's gang 

affiliation. Specifically, he argues the trial court's ruling impaired his constitutional 

rights to an impartial jury and to confrontation, and was an abuse of discretion. We 

disagree, and affirm. 

FACTS 

Based on events occurring in Adams County in 2010, the State charged Mr. Cantu 

with possessing a stolen motor vehicle, first degree criminal trespass, and first degree 
No.30258-0-III 

State v. Cantu 

unlawful possession of a 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 of the entire panel, "The Defendant is a rival gang member of 

friends of mine." Report of Proceedings (RP) at 53. 

Mr. Cantu moved unsuccessfully for a mistrial. The trial court concluded the 

statement was not so prejudicial to Mr. Cantu as to require a mistrial because instructing 

the jury to decide solely upon the evidence admitted could ensure he received a fair trial, 

as the jury is presumed to follow such instruction. The court did not expressly instruct 

the jury to disregard the statement, agreeing with Mr. Cantu that doing so would 

unnecessarily emphasize it. Upon Mr. Cantu's request, the court dismissed juror 30 for 

cause and admonished him not to contact any panel member. 

When voir dire resumed, defense counsel asked panel members if hearing the 

statement would affect their abilities to remain impartial. The first prospective juror to 

speak indicated the statement would not affect his ability to remain impartial because he 

needed to hear the evidence before he could "make a judgment on" whether Mr. Cantu 

was affiliated with a gang. RP at 174. The second juror agreed, but admitted ifthe 

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 third juror responded, "I don't think it impacts whatsoever because [Mr. Cantu 

is] not being tried for being on a gang." RP at 176. The fourth juror responded, "I think 

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State v. Cantu 

pertaining to this case it's irrelevant." RP at 176. Several other prospective jurors agreed 

with the final two responses. 

The jury found Mr. Cantu guilty of each crime as charged. He appealed. 

ANALYSIS 

The issue is whether the trial court erred in denying Mr. Cantu's mistrial motion 

based on juror 30's voir dire statement. First, Mr. Cantu contends the trial court's ruling 

violated his right to an impartial jury. 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 defendant the right to 

trial by an impartial jury. U.S. CONST. amend. VI; CONST. art. I, § 22 (amend. 10). This 

requires that jurors 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)). Because the trial court can observe and evaluate jurors' 

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, if a prospective juror 

repeatedly makes highly inflammatory, expert-like statements directly concerning guilt in 

the presence of the entire panel, this court may presume the statements tainted the 

resulting jury's impartiality. Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1997). 

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State v. Cantu 

Relying on Mach, Mr. Cantu argues we should presume juror 30's voir dire 

statement infected the entire panel with bias or prejudice. In Mach, the government 

charged the defendant with making sexual contact with a minor. Id. at 631. During voir 

dire, a prospective juror stated, in the presence of the entire panel, 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 prospective juror repeated 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 prospective juror for 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 court reversed, holding the statements presumably infected the jury 

with bias or prejudice and, thus, the district court violated the defendant's constitutional 

right to an impartial jury 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 prospective juror's years of experience and degree of certainty. Id. at 633. 

Additionally, the court indicated the number of times the prospective juror repeated the 

statements created an especially high risk they would affect the jury's verdict. Id. Given 

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No. 30258-0-111 

State v. Cantu 

these facts and the lack of information regarding the statements' actual impact, the court 

"presume[d] that at least one juror was tainted and entered into jury 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 our case involves an isolated, layperson's statement 

unconnected to any material issue. Further, Mach presumed the prospective juror's 

statements tainted the entire panel mainly because it lacked information regarding the 

statements' actual impact, id., while in this case numerous panel members assured 

defense counsel the statement had no impact on their impartiality. Thus, Mach does not 

control the result here and we will not presume juror 30's voir dire statement tainted the 

entire panel. 

Absent such a presumption, Mr. Cantu fails to show juror 30's voir dire statement 

caused jury bias or prejudice. The trial court correctly instructed the jury to decide solely 

upon the evidence admitted. "We presume that juries follow the instructions and 

consider only evidence that is properly before them." State v. Perez-Valdez, 172 Wn.2d 

808,818-19,265 P.3d 853 (2011). Nothing suggests the jury did otherwise. Rather, the 

panel's assurances to defense counsel suggest the jury remained impartial. Thus, we 

conclude the trial court did not violate Mr. Cantu's right to an impartial jury by denying 

his mistrial motion. 

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No. 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. of Appellant at 12. Our standard of review remains de novo. 

The Sixth Amendment to the U.S. Constitution provides 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. Crawford v. Washington, 541 U.S. 36, 54-55, 124 S. Ct. 1354, 

158 L. Ed. 2d 177 (2004). A juror becomes an "unsworn witness," triggering the federal 

Confrontation Clause, if he or she "communicates objective extrinsic facts regarding the 

defendant or the alleged crimes to other jurors." Jeffries v. Wood, 114 F.3d 1484, 1490 

(9th Cir. 1997), overruled on other grounds by Gonzalez v. Arizona, 677 F.3d 383 (9th 

Cir.20l2). But the defendant waives his or her 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 credence to the 

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No.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 contends the trial court abused its discretion when denying his 

mistrial motion. We review a denial of a mistrial motion for abuse of discretion, finding 

such abuse only if "'no reasonable judge would 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 prejudiced that nothing short of a 

new trial can ensure that the defendant will be fairly tried." ld. (citing Hopson, 113 

Wn.2d at 284). A trial irregularity prejudices a defendant's fair trial rights if it poses a 

"substantial likelihood" of affecting the jury'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 statement was cumulative ofevidence properly 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 172,837 P.2d 599 (1992)). 

Here, the trial court concluded juror 30's voir dire statement was not so prejudicial 

to Mr. Cantu as to require a mistrial because instructing the jury to decide solely upon the 

notion that a defendant may choose not to confront the witness at trial and then seek a 

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No.30258-0-III 

State v. Cantu 

evidence admitted could ensure he received a fair trial, as the jury is presumed to follow 

such instruction. We cannot say no reasonable judge would have reached the same 

conclusion. First, despite the inflammatory nature of gang affiliation, the statement was 

not very serious because it was not evidence, was isolated, and did not concern any 

matter relevant to the case. And, '''the trial judge is best suited to judge the prejudice of a 

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 or exhibits regarding gang 

affiliation, so the statement was not cumulative of admitted evidence. Finally, the trial 

court correctly instructed the jury to decide solely upon the evidence admitted. We 

presume the jury followed the trial court's instructions and considered solely the evidence 

admitted at trial. Perez-Valdez, 172 Wn.2d at 818-19. Nothing suggests the jury did 

otherwise. Notably, during voir dire, numerous panel members assured defense counsel 

the statement had no impact on their impartiality. 

In sum, a reasonable judge could conclude a proper jury instruction, not a new 

trial, was the appropriate remedy to ensure Mr. Cantu received a fair trial. It follows that 

the trial court did not abuse its discretion by denying Mr. Cantu's mistrial motion. 

new trial based upon the absence of confrontation." 0 'Cain, 169 Wn. App. at 252. 

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No.30258-0-II1 

State v. Cantu 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Brown, J. 

WE CONCUR: 

Kulik, J. 

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