IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

CRISTIAN LUPASTEAN,

Petitioner.

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No. 37394-1-III

UNPUBLISHED OPINION

FEARING, J. — We must decide whether a juror’s incomplete and perhaps 

misleading answer to a question during voir dire constituted juror misconduct and 

whether any misconduct warrants a new trial for petitioner Cristian Lupastean. Unlike 

the settings addressed in most other reported decisions, the parties discovered the 

incomplete answer at the beginning of trial, and the trial court addressed the potential 

juror misconduct. We conclude that the trial court did not abuse its discretion when 

FILED

MAY 6, 2021

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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State v. Lupastean

2

refusing to dismiss the juror, and we affirm Lupastean’s convictions. The juror did not 

intentionally mislead the parties, and the juror held no disqualifying bias. 

FACTS

The jury needed to decide whether petitioner Cristian Lupastean or Erika Harvey 

drove a truck when Trooper Antonio Olivas spotted the truck on January 27, 2018, at 

2:50 p.m., on I-90 in Adams County. Both Harvey and Lupastean then occupied the 

truck. Lupastean’s father owned the trucking company that owned the truck. Harvey had 

a valid commercial driver’s license, but Lupastean’s license was suspended. 

During trial both Erika Harvey and Cristian Lupastean testified that Harvey drove 

the truck. Harvey averred that she exited the interstate to use the restroom at a gas station

because she felt sick. She saw the emergency lights of Trooper Antonio Olivas’s vehicle

only after she took the exit ramp and brought the truck to a stop near the gas station. She 

had not earlier noticed the presented of the law enforcement vehicle. 

Trooper Antonio Olivas works for the Washington State Patrol’s commercial 

vehicle division. At the identified time, Trooper Olivas observed the truck, in which 

Erika Harvey and Cristian Lupastean traveled, pass him. Olivas testified that Lupastean, 

not Harvey, drove the truck. 

Trooper Antonio Olivas decided to stop the truck for a routine inspection, and he 

turned on his emergency lights. The vehicle exited the freeway onto a ramp and

continued toward a gas station. Trooper Olivas grew curious as to why the truck did not 
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State v. Lupastean

3

stop, and he peered into the truck’s mirrors to observe the driver. He observed Lupastean 

and Harvey switch seats, with Harvey assuming the driver’s seat. At the time the two 

switched seats, Olivas estimates that the truck traveled at 10 miles per hour toward gas 

station fuel pumps fifty yards away. Trooper Olivas testified that a vehicle of that size 

traveling at ten miles an hour could be dangerous. 

PROCEDURE

The State of Washington charged Cristian Lupastean, in district court, with driving 

while license revoked in the first degree, driving without a commercial license, and 

reckless driving. 

At the beginning of voir dire, the trial judge listed the three charges and read the 

elements of each charge. He informed the jury that the State charged Cristian Lupastean 

with driving while having a revoked license in the first degree:

A person commits the crime of driving while license revoked in the 

first degree when he or she, having been found by the Department of 

Licensing, to be a habitual traffic offender, drives a motor vehicle while an 

Order of Revocation is in effect. 

Clerk’s Papers (CP) at 45. He then read the elements of the second charge, driving 

without a commercial driver’s license. The trial court declared that a person commits this 

crime when, “at the time of the driving, he or she does not have a valid commercial 

driver’s license.” CP at 46. Finally, the court explained that the third charge for reckless 
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driving occurs when a driver “drives a motor vehicle in willful or wanton disregard for 

the safety of persons or property.” CP at 46.

After listing the charges and their respective elements, the district court asked all 

members of the venire: 

Have any of you had any personal experience with a similar or 

related type of case or incident as a victim, witness, or accused? 

CP at 49. One potential juror responded affirmatively, and the rest responded in the 

negative. 

The district court next asked:

Do any of you have a close friend or relative who has had experience 

with a similar or related type of case or incident? And that would be as a 

victim, witness, or accused.

CP at 51. Three jurors responded affirmatively. One commented that a brother-in-law 

was in an accident when the other driver was unlicensed. Another noted that his brother 

had his driver’s license revoked and the brother was arrested for driving while under the 

influence of alcohol (DUI). The third venire person recounted that a child had received a 

DUI. The district court noted on the record negative responses from other jurors to the

question. 

The State questioned venire juror 14 on her ability to evaluate a case based on 

testimony. Defense counsel exercised all available peremptory challenges. Venire juror

number 14 was seated as juror number 6. We hereafter refer to this juror as juror 6. 
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After the district court swore in the jury, the district court ordered a brief recess. 

After the recess, defense counsel informed the trial court that the husband of juror 6

approached him and told him that his car had been hit by an unlicensed driver. 

According to counsel:

He [the juror’s husband] asked if I was an attorney, and then 

proceeded to ask about an incident that he had been involved in with 

regards to getting hit by an unlicensed driver in an accident, and his wife is 

on the jury.

CP at 84. Counsel explained that the husband wanted to recoup his losses in the accident 

with the unlicensed driver. According to defense counsel, he informed the man that he 

could not speak with him during the trial. 

After the disclosure by defense counsel, the district court summoned juror 6 into 

the courtroom for questioning. The following colloquy ensued: 

THE COURT: And it has come to the Court’s attention that 

apparently your husband has been involved in an automobile accident?

JUROR NO. 6: Yeah, this was about a month ago, but it didn’t go to 

court or nothing.

THE COURT: Okay. And as far as that accident, do you think that 

would affect your ability to be fair and impartial in this case?

JUROR NO. 6: Oh, yeah.

THE COURT: You think it would affect you?

JUROR NO. 6: No, it wouldn’t affect me. I would be fair.

THE COURT: Okay. Be a fair juror?

JUROR NO. 6: No, yeah, I would be fair.

THE COURT: All right. Any further questions from the State or the 

defense?

MS. RUSSELL [the State’s attorney]: No. Thank you, Your Honor.

MR. KIRKHAM [defense counsel]: Yes, Your Honor. Ms. Castro, 

what do you know about that accident?
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JUROR NO. 6: Well, I wasn’t with him when it happened.

MR. KIRKHAM: Okay.

JUROR NO. 6: But he was dropping off my grandkids at school, and 

when he dropped off the last one—I’m just thinking in my head of what he 

told me—that he was coming home and he was making a left turn and there 

was an oncoming car and it hit him.

MR. KIRKHAM: Okay. Do you know if the other driver was cited 

or not?

JUROR NO. 6: The other driver didn’t have his driver’s license.

MR. KIRKHAM: Okay. And earlier when we had everybody in 

here the judge was asking some questions, and one of the questions had to 

do whether you or a family member had been involved in a similar incident 

that’s alleged here, and you didn’t answer to that. Is that correct?

JUROR NO. 6: Well, yeah, because I didn’t think, you know—since 

they didn’t go to court and he just got a ticket, I don’t know, I assumed it 

would be okay.

MR. KIRKHAM: Okay. That gentleman was charged with driving 

without a license?

JUROR NO. 6: I don’t know what happened to the other gentleman 

that hit my husband. All I know that he didn’t have no driver’s license.

MR. KIRKHAM: He didn’t have a license?

JUROR NO. 6: He didn’t have a driver’s license.

MR. KIRKHAM: Okay. And the allegations here are that my client 

was driving without a license. You understood that, correct?

JUROR NO. 6: Yeah, uh-huh.

MR. KIRKHAM: Do you think that those are two similar 

incidences?

JUROR NO. 6: He was driving without a license?

MR. KIRKHAM: That’s the charge.

JUROR NO. 6: Yeah, they’re the same, the same, because the other 

young—it was a young kid and he was driving without a license, a young 

kid.

MR. KIRKHAM: Okay.

JUROR NO. 6: So, since they didn’t go to court and my husband 

didn’t get a ticket or nothing, I assumed, you know, it would be okay. So, I 

didn’t bring it up to the judge’s attention. 

MR. KIRKHAM: Right.

JUROR NO. 6: Yeah.
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MR. KIRKHAM: And I understand why you didn’t bring it up. I’m 

not mad at you or anything.

JUROR NO. 6: Oh, okay.

. . . . 

JUROR NO. 6: Well, yeah, when he was asking that question I was 

thinking behind my head. I go, well, it didn’t go to court, my husband 

didn’t get a ticket. I assumed it would be okay, but I thought in my mind.

CP at 85-88.

The prosecuting attorney then asked juror 6 some questions:

MS. RUSSELL: Ms. Castro, it didn’t seem similar to you, is that 

why you didn’t raise it with us?

JUROR NO. 6: Yeah, yeah, yeah.

. . . .

JUROR NO. 6: Yeah, yeah, my husband was just involved. It 

wasn’t—they blamed my husband since the kid, the young boy, had the 

right of way, and they blamed my husband for the accident, you know. 

And the young kid, it was a young boy, driving without a license, so I 

figured, you know, the way the situation happened, you know, it wasn’t my 

husband’s fault because he had made the turn, it was the other oncoming 

car that hit him on the side, you know.

MS. RUSSELL: And it didn’t involve a truck, or reckless driving, or 

anything like that?

JUROR NO. 6: No, no, no.

MS. RUSSELL: Okay.

JUROR NO. 6: It was just one of those accidents that happen.

MS. RUSSELL: Thank you.

JUROR NO. 6: So, that’s why I didn’t bring it up to attention 

because my husband didn’t get no ticket, he didn’t even go to court. It’s 

like, well, you know.

MS. RUSSELL: So, you still think you can be fair?

JUROR NO. 6: Oh, yeah. Yeah, that’s why I brought it up when I 

brought it up to the gentleman. I thought, well, I’ll be fair, you know.

CP at 89-90. 
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Defense counsel moved to disqualify juror 6 and for a mistrial. Counsel conceded 

that he did not believe that the juror deliberately failed to disclose information. 

Nevertheless, counsel asserted that the juror still failed to correctly answer the court’s 

question regarding family members impacted by unlicensed drivers. No additional juror 

had been selected as an alternative juror, although the court considered returning a 

recently excused juror to take juror 6’s place. The State registered no objection to 

summoning a belated alternate, although the State did not deem an alternate necessary. 

After a recess, the trial court announced its ruling on the defense’s motion to 

disqualify juror 6 or a new trial. The court found that juror 6 did not deliberately fail to 

disclose requested information. Defense counsel repeated that he did not allege a 

deliberate failure to disclose. The trial court declined to disqualify juror 6 because she 

did not deliberately mislead the parties or the court and she declared her ability to be fair 

and impartial. The district court also denied a motion for a mistrial. 

The jury convicted Cristian Lupastean on all three counts. Lupastean appealed to 

the Adams County Superior Court. The superior court affirmed. We granted 

discretionary review of the superior court’s decision. 

LAW AND ANALYSIS

On appeal, Cristian Lupastean repeats his contention that the district court erred 

when it failed to excuse juror 6. He contends that the continued seating of juror 6 

violated due process of law and his right to a jury trial as stated in the Sixth and 
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Fourteenth Amendments to the United States Constitution and article I, sections 3, 21, 

and 22 of the Washington State Constitution. Lupastean again concedes that juror 6 

honestly answered the pertinent voir dire question, but argues that the answer was 

misleading. According to Lupastean, the misleading answer prevented his counsel from 

inquiring further as to the bias of juror 6 and also prevented him from exercising a 

peremptory challenge of juror 6. According to Lupastean, the district court should have 

either declared a mistrial or selected another juror. 

Implied and Actual Juror Bias

Although Cristian Lupastean seeks reversal on constitutional grounds, his 

argument necessitates our listing of the reasons for disqualifying jurors for bias and 

identifying the difference between actual and implied bias for purposes of juror removal. 

Lupastean contends juror 6 possessed both actual and implied bias. 

A number of Washington statutes address removal of potential jurors for bias. 

RCW 4.44.170 states:

Particular causes of challenge are of three kinds:

(1) For such a bias as when the existence of the facts is ascertained, 

in judgment of law disqualifies the juror, and which is known in this code 

as implied bias.

(2) For the existence of a state of mind on the part of the juror in 

reference to the action, or to either party, which satisfies the court that the 

challenged person cannot try the issue impartially and without prejudice to 

the substantial rights of the party challenging, and which is known in this 

code as actual bias.

(3) For the existence of a defect in the functions or organs of the 

body which satisfies the court that the challenged person is incapable of 
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State v. Lupastean

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performing the duties of a juror in the particular action without prejudice to 

the substantial rights of the party challenging.

(Emphasis added.) RCW 4.44.190 addresses “actual bias:”

A challenge for actual bias may be taken for the cause mentioned in 

RCW 4.44.170(2). But on the trial of such challenge, although it should 

appear that the juror challenged has formed or expressed an opinion upon 

what he or she may have heard or read, such opinion shall not of itself be 

sufficient to sustain the challenge, but the court must be satisfied, from all 

the circumstances, that the juror cannot disregard such opinion and try the 

issue impartially.

RCW 4.44.180 defines “implied bias:”

A challenge for implied bias may be taken for any or all of the 

following causes, and not otherwise:

(1) Consanguinity or affinity within the fourth degree to either party.

(2) Standing in the relation of guardian and ward, attorney and 

client, master and servant or landlord and tenant, to a party; or being a 

member of the family of, or a partner in business with, or in the 

employment for wages, of a party, or being surety or bail in the action 

called for trial, or otherwise, for a party.

(3) Having served as a juror on a previous trial in the same action, or 

in another action between the same parties for the same cause of action, or 

in a criminal action by the state against either party, upon substantially the 

same facts or transaction.

(4) Interest on the part of the juror in the event of the action, or the 

principal question involved therein, excepting always, the interest of the 

juror as a member or citizen of the county or municipal corporation.

Cristian Lupastean contends that, because of juror 6’s husband’s accident with an 

unlicensed driver, juror 6 had hostility toward Lupastean, an alleged unlicensed driver. 

Lupastean adds that the juror eventually agreed that the facts underlying the prosecution 

of Lupastean possessed similarities to her husband’s accident in that both involved a 
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purported unlicensed driver. Based on these facts and the juror’s concession, Lupastean 

contends juror 6 possessed actual bias against him. We disagree. 

Actual bias under RCW 4.44.170(2) and RCW 4.44.190 consists of a state of mind 

that the juror cannot shed and that prevents a juror from impartially trying a case. Few 

similarities arise between juror 6’s husband’s accident and the driving by Cristian 

Lupastean without a license. The trial court and counsel questioned juror 6, after the 

husband talked to defense counsel. Based on the questioning, the trial court could 

reasonably conclude that juror 6 carried no actual bias against Lupastean. We defer to 

the trial court’s finding because the trial court is in the best position to observe a juror’s 

testimony and determine whether he or she may try a case impartially. State v. Perez, 

166 Wn. App. 55, 67, 269 P.3d 372 (2012).

Under RCW 4.44.180, a juror holds implied bias if related familially to a party, 

possesses some economic relationship with a party, served as a juror on a case involving 

identical facts, or has an “interest” in the subject matter of the suit. Lupastean contends 

the trial court should have dismissed juror 6 under either subsection 2 or 4 of the statute. 

Subsection 2 directs excusal of a juror who is the legal client of a party. According to 

Lupastean, his defense counsel was a potential attorney for juror 6’s husband and, 

because Washington is a community property state and the husband wanted payment for 

the damage to the couple’s car, defense counsel was a potential attorney for the juror. 

We observe that any such relationship with defense counsel could create bias in favor of 
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defense counsel and his client, Cristian Lupastean, rather than bias against Lupastean. 

Nevertheless, RCW 4.44.180(2) demands removal only if the juror’s attorney is a party, 

not if the juror’s attorney is an attorney for a party in the lawsuit. Also, juror 6’s husband 

never hired defense counsel, so no attorney-client relationship developed. Defense 

counsel immediately ended any discussion of the husband’s potential case. 

Cristian Lupastean may contend that juror 6 possessed an “interest” in the subject 

matter of the prosecution because the juror and her husband sought recovery for damages 

against an unlicensed driver. Nevertheless, the “interest” mentioned in RCW 4.44.180(4) 

means a direct pecuniary interest in the subject matter of the pending case or in the 

financial condition of a party. Dean v. Group Health Cooperative of Puget Sound, 62 

Wn. App. 829, 835-36, 816 P.2d 757 (1991). Juror 6 possessed no interest in the 

economic wellbeing or harm of Lupastean or in a successful prosecution of Lupastean. 

Because a great variety of fact patterns can arise, a trial court possesses a measure 

of discretion in determining what constitutes an “interest” within the meaning of RCW 

4.44.180(4), and its ruling should not be disturbed on appeal absent abuse of that 

discretion. State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987); Carle v. McChord 

Credit Union, 65 Wn. App. 93, 108, 827 P.2d 1070 (1992). The trial court did not err 

when denying removal of juror 6 because of an alleged interest in the subject matter of 

the prosecution. 
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Constitutional Right to Fair Jury

We move to our constitutional analysis. Under both the United States and 

Washington State Constitutions, the right to trial by jury must be preserved and remain 

inviolate. State v. Boiko, 138 Wn. App. 256, 260, 156 P.3d 934 (2007); U.S. CONST. 

amend. VI; CONST. art. I, § 21. The right to trial by jury requires a trial by an unbiased 

and unprejudiced jury and one free from juror misconduct. State v. Boiko, 138 Wn. App. 

at 260. A juror’s failure to speak during voir dire regarding a material fact can amount to 

juror misconduct. In re Detention of Broten, 130 Wn. App. 326, 337, 122 P.3d 942 

(2005). 

Cristian Lupastean rests his appeal on purported misconduct of juror 6 when 

failing to disclose her husband’s recent accident with an unlicensed driver. We must 

address whether juror 6 engaged in misconduct and, if so, whether Lupastean must show 

prejudice resulting from the misconduct. In doing so, we must discern whether juror 6 

provided a false, misleading, or incomplete answer and her state of mind when 

answering. We must also discern whether, assuming juror 6 gave an inappropriate 

answer, Lupastean must show some form of underlying bias, and, if so, actual bias or 

implied bias. Our previous conclusion that juror 6 suffered no disqualifying bias creates 

an obstacle to Cristian Lupastean’s success on his constitutional argument. 
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The law about inaccurate answers during voir dire is discombobulated and lacks 

any unifying and comprehensive rule. The scattered condition of the law renders an 

organized analysis difficult and prolongs this opinion. 

McDonough Two-Part Test

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S. Ct. 845, 

78 L. Ed. 2d 663 (1984), remains the nation’s leading decision with regard to alleged 

juror misconduct when incompletely or inaccurately answering a question during voir 

dire. Although the decision arose from a civil trial, criminal courts apply the same test 

emanating from the decision. Few states have diverged from the United States Supreme 

Court decision when applying state constitutional provisions. Washington State follows 

United States Supreme Court precedent. 

In McDonough Power Equipment, Inc. v. Greenwood, Billy Greenwood brought a 

products liability lawsuit against McDonough Power Equipment for injuries sustained 

when his feet struck a lawnmower blade. During voir dire, the district court questioned 

members of the venire: 

“Now, how many of you have yourself or any members of your 

immediate family sustained any severe injury, not necessarily as severe as 

Billy, but sustained any injuries whether it was an accident at home, or on 

the farm or at work that resulted in any disability or prolonged pain and 

suffering, that is you or any members of your immediate family?”

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 550. Venire juror Ronald 

Payton did not respond. After a three-week trial and a jury verdict in favor of the 
No. 37394-1-III

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manufacturer, Greenwood learned that juror Payton failed to disclose that his son had 

sustained a leg injury from a tire explosion. The juror did not believe that his son’s injury 

resulted in a “disability or prolonged pain and suffering.” Greenwood moved for a new 

trial, which the district court denied. 

On appeal, in McDonough Power Equipment, Inc. v. Greenwood, the Tenth 

Circuit reversed and ordered a new trial on the basis that Ronald Payton failed to respond 

affirmatively to the district court’s inquiry. The circuit Court of Appeals reasoned that 

the juror’s failure to disclose his son’s injury prejudiced Greenwood and impacted his 

right to raise a peremptory challenge. 

The United States Supreme Court, in a fractured opinion, reversed the appeals 

court in McDonough Power Equipment, Inc. v. Greenwood. Since then, state courts and 

lower federal courts have struggled to discern the holding in McDonough Power 

Equipment, Inc. In the lead opinion, then Associate Justice Rehnquist wrote for himself 

and three other members of the court that “respondents are not entitled to a new trial 

unless the juror’s failure to disclose denied respondents their right to an impartial jury.” 

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 549. Justice Rehnquist 

based his opinion on Federal Rule Civil Procedure 61, which reads that a district court 

order should not be set aside or a new trial granted unless a defect within that order 

renders the denial of such action inconsistent with substantial justice. Justice Rehnquist 
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announced a two-part test to determine whether a juror’s failure to answer a question 

during voir dire deprives a party of the right to a fair trial:

We hold that to obtain a new trial in such a situation, a party must 

first demonstrate that a juror failed to answer honestly a material question 

on voir dire, and then further show that a correct response would have 

provided a valid basis for a challenge for cause. The motives for 

concealing information may vary, but only those reasons that affect a 

juror’s impartiality can truly be said to affect the fairness of a trial.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 556. Under the lead 

opinion, the defendant must show that the juror lied and a correct answer would have 

established disqualification based on bias. 

In Justice Blackmun’s concurring opinion, in which two other justices joined, he 

agreed that “the honesty or dishonesty of a juror’s response is the best indicator of 

whether the juror in fact was impartial.” McDonough Power Equipment, Inc. v. 

Greenwood, 464 U.S. at 556 (Blackmun, J. concurring). Nevertheless, he stated: 

I write separately to state that I understand the Court’s holding not to 

foreclose the normal avenue of relief available to a party who is asserting 

that he did not have the benefit of an impartial jury. Thus, regardless of 

whether a juror’s answer is honest or dishonest, it remains within a trial 

court’s option, in determining whether a jury was biased, to order a posttrial hearing at which the movant has the opportunity to demonstrate actual 

bias or, in exceptional circumstances, that the facts are such that bias is to 

be inferred.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 556-57 (Blackmun, J. 

concurring). According to Justice Blackmum, a finding that the juror lied is not essential 

to demonstrating bias and gaining a new trial. 
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Justice Brennan, joined by Justice Marshall, concurred in the judgment only. 

Justice Brennan agreed with the lead opinion that a juror’s failure to provide a complete 

answer would not always warrant a new trial. He considered honesty only a factor in 

determining whether a juror is biased: 

In my view, the proper focus when ruling on a motion for new trial 

in this situation should be on the bias of the juror and the resulting 

prejudice to the litigant. More specifically, to be awarded a new trial, a 

litigant should be required to demonstrate that the juror incorrectly 

responded to a material question on voir dire, and that, under the facts and 

circumstances surrounding the particular case, the juror was biased against 

the moving litigant.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. at 557-58 (Brennan, J. 

concurring). Justice Brennan’s views may echo Justice Blackmun’s decision rather than 

generating a third test. 

Cristian Lupastean contends that the two-part test promoted by Justice Rehnquist 

in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984) is not the 

exclusive test for determining whether to grant a new trial based on alleged juror 

misconduct. In turn, Lupastean argues that intentional concealment and disqualifying 

juror bias are not always required to obtain a new trial. In so arguing, Lupastean 

contends other federal decisions modify the two-part test, Washington decisions modify 

the test, and the two-part test’s interference in his right to exercise peremptory challenges 

should lead this court to modify the test. We address these arguments in such order. 
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Other Federal Decisions

Cristian Lupastean relies on Williams v. Taylor, 529 U.S. 420, 120 S. Ct. 1479, 

146 L. Ed. 2d 435 (2000) and Porter v. Zook, 898 F.3d 408 (4th Cir. 2018) in support of 

his position that a court’s consideration of whether to grant a new trial is not limited to 

the McDonough test. Further, he insists that federal courts have indicated that Justice 

Rehnquist’s reference to “honesty” should encompass misleading answers regardless of 

the intent of the juror. 

In Williams v. Taylor, 529 U.S. 420 (2000), the United States Supreme Court 

considered whether to grant state prisoner Michael Wayne Williams’ petition for federal 

habeas corpus relief in the form of an evidentiary hearing on a claim of juror bias. The 

district court asked whether jurors were related to any prospective witnesses or whether 

they were ever represented by counsel for either of the parties. Venire juror Bonnie 

Stinnett indicated a no response, and she later sat on the jury that convicted Williams. 

Williams later learned that Stinnett, although now divorced, had a seventeen-year 

marriage with the sheriff deputy who investigated the scene of the crime, interrogated an 

accomplice in the case, and became the prosecution’s first witness. The prosecuting 

attorney also formerly represented Stinnett in the divorce case. Stinnett explained she 

remained silent to the voir dire question because she was no longer related to the sheriff 

deputy, and she believed the prosecuting attorney represented neither her husband nor her 

during the divorce proceeding as neither party contested the divorce. 
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The United States Supreme Court, in Williams v. Taylor, determined that the 

juror’s silence in response to questions on voir dire was misleading. With regard to the 

first question, although not technically related, “her silence after the first question was 

asked could suggest to the finder of fact an unwillingness to be forthcoming; this in turn 

could bear on the veracity of her explanation for not disclosing that Woodson had been 

her attorney.” Williams v. Taylor, 529 U.S. at 441. With regard to the second question, 

the Court concluded that Stinnett failed to disclose material information and her failure to 

disclose the information was “misleading as a matter of fact.” Williams v. Taylor, 529 

U.S. at 442. The U.S. Supreme Court found that an evidentiary hearing should be held 

for Williams to expose Stinnett’s potential bias. 

The unanimous decision in Williams v. Taylor suggests that, under some 

circumstances, the challenger to the jury verdict need not show that the juror intentionally 

lied when answering a voir dire question. The Williams Court never mentioned 

McDonough Power Equipment, Inc. v. Greenwood. 

In Porter v. Zook, 898 F.3d 408 (4th Cir. 2018), a capital murder case, a jury 

convicted Thomas Porter of killing law enforcement officer Stanley Reaves. In a federal 

habeas petition, Porter raised theories of juror bias based on actual bias and a juror’s 

failure to disclose under McDonough Power Equipment, Inc. v. Greenwood. Defense 

counsel asked members of the jury if a family member had ever worked as a law 

enforcement employee. In response, juror Bruce Treakle disclosed that his nephew 
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worked as a police officer. He stated that the relationship would not affect his ability to 

be impartial. After the verdict, the juror revealed that he found testimony from Reaves’ 

wife emotional because he had a brother who worked in law enforcement. The brother 

worked as a deputy sheriff in the jurisdiction adjacent to where the crime occurred. 

In Porter v. Zook, the Fourth Circuit concluded that McDonough Power 

Equipment, Inc. v. Greenwood and Williams v. Taylor presented two distinct tests for a 

new trial based on a juror’s answer to questioning. The court suggested that Williams v. 

Taylor applied to a prosecution when the juror held actual bias; whereas, McDonough

Power Equipment, Inc. v. Greenwood applied in instances of alleged implied bias. If the 

accused claims implied bias, the accused must show juror misconduct under McDonough. 

In an actual bias claim, the accused could succeed regardless of whether the juror 

intentionally lied. Despite so analyzing Williams and McDonough, the court stretched the 

coverage of McDonough’s analysis of implied bias to something more than intentional 

lying. 

The court, in Porter v. Zook, first addressed the actual bias claim stating the juror 

not only failed to disclose that his brother worked in law enforcement, but also informed 

counsel that he found witness testimony emotional and had sympathy for law 

enforcement because his brother worked as a law enforcement officer. The Fourth 

Circuit held that an evidentiary hearing should be held on the claim of actual bias. 
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The Fourth Circuit, in Porter v. Zook, next addressed the McDonough claim. The 

circuit court of appeals held that the lower courts failed to reasonably apply McDonough 

when they concluded that the juror responded honestly. The lower court reasoned that 

the juror acknowledged that he had a nephew in law enforcement and that he simply was 

not asked if he had additional relationships to law enforcement officers. The court of 

appeals stated: “[We] have viewed the ‘honesty’ aspect of the first McDonough prong as 

encompassing not just straight lies, but also failures to disclose.” Porter v. Zook, 898 

F.3d at 431. The court ordered an evidentiary hearing in order to determine whether 

further follow up questions stemming from a correct answer, that the juror’s brother 

worked in law enforcement, would provide a basis for a challenge for cause. 

We have written at length considering United States Supreme Court jurisprudence 

because of the many arguments forwarded by Cristian Lupastean and the slim distinctions 

posited by Lupastean when advocating for a new trial and because we wish to show that 

we analyzed the arguments and distinctions. Nevertheless, under either the McDonough

Power Equipment, Inc. v. Greenwood rule or the Williams v. Taylor rule, Lupastean’s 

appeal fails. Under McDonough Power Equipment, Inc. v. Greenwood, juror 6 did not 

intentionally lie, and the juror held no implied bias. Any failure to disclose by juror 6 

lacks the egregious nature of the juror’s misleading comments in Porter v. Zook. 

Under Williams v. Taylor, juror 6 may have failed to fully disclose facts or 

provided an unintentionally misleading answer. But, the juror possessed no actual bias as 
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State v. Lupastean

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found by the trial court. Unlike in the reported decisions, the error was caught 

immediately after selection of the jury, and the trial court and counsel questioned the 

juror concerning her response and her potential bias. Juror 6 eventually made a full 

disclosure and that disclosure did not supply a valid basis for a challenge for cause.

Washington Decisions 

In attempt to convince this court to reject the teachings of McDonough Power 

Equipment, Inc. v. Greenwood and to expand the circumstances under which the accused 

can gain a new trial, Cristian Lupastean cites numerous Washington decisions. We 

discuss at length his principal cited decision, State v. Boiko, 138 Wn. App. 256 (2007), 

and briefly mention other cited opinions. We conclude that Washington decisions do not 

assist Lupastean. 

In State v. Boiko, this court described the McDonough test as requiring a party to 

show that (1) the juror intentionally failed to answer a material question, and (2) a 

truthful disclosure would have provided a valid basis for a challenge for cause. This 

court then acknowledged that the majority opinion in McDonough was written by 

concurring Justice Blackmun, not the lead opinion of Justice Rehnquist. This court stated 

that, instead of establishing intentional concealment, when a juror’s responses on voir 

dire do not demonstrate actual bias, in exceptional cases the courts will draw a conclusive 

presumption of implied bias from the juror’s factual circumstances. 
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In State v. Boiko, this court affirmed the trial court’s decision that implied bias 

existed as a matter of law. After entry of the verdict, the defense learned that juror 31 

was married to a key prosecution witness. She also applied for a job with the prosecutor 

a year earlier, and she was involved in ongoing litigation with prosecuting counsel in a 

separate case. Juror 31 disclosed some facts in her juror questionnaire which should have 

encouraged further questioning from either party’s counsel. Nevertheless, during voir 

dire, no one inquired, and juror 31 did not volunteer that she was married to a witness for 

the prosecution. The trial court concluded that she had not failed to make material 

disclosures, although she could have volunteered more information. The trial court did 

not apply the McDonough test. Instead, it concluded juror 31’s relationship with a key 

witness demonstrated implied bias as a matter of law. The trial court granted Boiko a 

new trial. 

In State v. Boiko, this court affirmed the trial court’s holding. This court wrote: 

The peculiarities arising in this situation were numerous, complex, 

and fairly considered by the trial court implying bias and ordering a new 

trial. The nature of juror 31’s marital circumstances could inject any 

number of positive or negative emotions from the juror, whether conscious 

or not, that may manifest in supportive or obstructive reactions. 

State v. Boiko, 138 Wn. App. at 264.

State v. Boiko stands for the proposition that an accused may gain a new trial in 

exceptional circumstances. Nevertheless, the trial court found implied bias as a matter of 

law and this court affirmed the finding. Lupastean does not advocate his case as
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exceptional. He concedes he does not show implied bias under the terms of 

RCW 4.44.180. He asks this court to extend a reading of RCW 4.44.180(2) to encompass 

the alleged bias held by juror 6. We decline this request particularly since the trial court 

found that juror 6 did not answer dishonestly. We also decline the request because the 

majority of Washington court of appeals’ decisions employ the McDonough two-part test

outlined by Justice Rehnquist without any modifications or stretching of the test’s 

elements, when considering whether to grant a new trial based on alleged juror 

misconduct. State v. Cho, 108 Wn. App. 315, 321, 30 P.3d 496 (2001); State v. Briggs, 

55 Wn. App. 44, 52-53, 776 P.2d 1347 (1989); State v. Carlson, 61 Wn. App. 865, 878,

812 P.2d 536 (1991); Hill v. GTE Directories Sales Corp., 71 Wn. App. 132, 141, 856 

P.2d 746 (1993); State v. Tigano, 63 Wn. App. 336, 342, 818 P.2d 1369 (1991). 

Our high court has ruled that any misleading or false answers during voir dire 

require reversal only if accurate answers would have provided grounds for a challenge for 

cause. In re Personal Restraint of Lord, 123 Wn.2d 296, 313, 868 P.2d 835 (1994). 

When a juror fails to disclose information during voir dire, a new trial is warranted when 

the information withheld is material and a truthful response would have provided a basis 

for challenge for cause. State v. Carlson, 61 Wn. App. 865, 878 (1991). 

We deem a Washington Supreme Court decision, In re Personal Restraint of 

Elmore, 162 Wn.2d 236, 266-269, 172 P.3d 335 (2007), not State v. Boiko, controlling. 

The Supreme Court considered the personal restraint petition of Clark Elmore. Elmore 
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challenged his conviction for aggravated first degree murder and rape of his stepdaughter. 

He argued that he deserved a new trial based on a juror’s failure to disclose two incidents, 

during which another boy touched him sexually. 

In In re Personal Restraint of Elmore, Juror number 12 answered “no” to two 

inquiries on his juror questionnaire. The first question asked whether he or friends or 

relatives had been the victim of a crime, whether or not reported. The second question 

queried whether he or friends or relatives were the victim of a sexual offense. After the 

jury read its verdict, defense investigators questioned the juror and he disclosed that he 

had been sexually molested as a child. He insisted, however, that he had not recalled the 

incidents until questioned and he believed that neither incident constituted illegal 

conduct. In evaluating whether to grant a new trial, the state high court relied on the test 

outlined in McDonough. The court stated that the first obstacle faced by Clark Elmore 

was showing that the juror’s late disclosed answer was material. The court observed that 

both incidents were minor and differed significantly from the murder and rape charges in 

the case before it. “Thus, even assuming that Juror 12 had disclosed the two prior 

incidents, given the minimal nature of the sexual contact Elmore cannot demonstrate that 

the answers would have supported a challenge for cause as required by McDonough.” In 

re Personal Restraint of Elmore, 162 Wn.2d at 269 (2007). The Elmore factual 

background holds more similarities to Cristian Lupastean’s appeal than does the 

background in State v. Boiko.
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Peremptory Challenge

In his appeal, Cristian Lupastean astutely emphasizes that juror 6’s failure to 

disclose information precluded him from making an intelligent peremptory challenge. By 

the time the juror’s full disclosure occurred, Lupastean had already exercised all of his 

peremptories. He correctly observes that a party may use a peremptory challenge to 

exclude a juror for reasons that do not rise to the level of bias. State v. Briggs, 55 Wn. 

App. 44, 51 (1989). 

Historically, Washington case law permitted a party a new trial if he or she was

foreclosed from exercising peremptory challenges. State v. Simmons, 59 Wn.2d 381, 

392, 368 P.2d 378 (1962). In State v. Simmons, the Washington State Supreme Court 

stated:

Where a person serves on a jury who, if not excused for cause, 

would certainly have been peremptorily challenged if certain questions on 

voir dire had been answered truthfully, it was [sic] been held to be an abuse 

of discretion not to grant a new trial. 

State v. Simmons, 59 Wn.2d at 392. 

Cristian Lupastean relies on Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 776 

P.2d 676 (1989). Plaintiff Marie Robinson, a California resident, was concerned about 

bias from Washington jurors. Her counsel questioned potential jurors about their ability 

to be fair to a Californian resident. The future jury foreman responded that the fact that 

the plaintiff was from California would not affect his ability to be fair. He acknowledged 
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involvement in a divorce lawsuit, however, he did not disclose involvement in any other 

case. During deliberations, the foreman asserted that Californians like to sue and do so 

all the time. After the verdict, he disclosed that he was a defendant in a lawsuit involving 

a car accident brought by a Californian. The state Supreme Court affirmed the trial 

court’s granting of a new trial, reasoning:

A juror’s misrepresentation or failure to speak when called upon 

during voir dire regarding a material fact constitutes an irregularity 

affecting substantial rights of the parties. When the failure to respond in 

voir dire relates to a material question, the appropriate remedy is to grant a 

new trial.

Robinson v. Safeway Stores, Inc., 113 Wn.2d at 159. 

Although the Washington Supreme Court decided Robinson after McDonough

Power Equipment, Inc. v. Greenwood, this state’s high court did not mention the United 

States Supreme Court decision. The Washington Supreme Court acknowledged that, in 

addition to the concealing or misrepresenting of bias by a juror, a party has the right to be 

free from juror conduct that precludes her from intelligently using a peremptory 

challenge. The court wrote: 

[A] false answer on a material matter, whether it relates to the 

prospective juror’s bias and prejudice or whether it relates to other material 

matters, lures the litigant into a false sense of security, discourages further 

inquiry, and deprives a litigant of a fair, intelligent and adequate 

opportunity to challenge the juror . . . The jury a litigant accepts on the 

basis of misleading information on which he has a right to rely is not the 

constitutional jury to which he is entitled. The only remedy that will 

obviate the harm done to his right of trial by jury is to grant a new trial.
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Robinson v. Safeway Stores, Inc., 113 Wn.2d at 160 (quoting Smith v. Kent, 11 Wn. App. 

439, 445, 523 P.2d 446 (1974)). 

Unfortunately for Cristian Lupastean, his appeal comes twenty-five years too late. 

The state Supreme Court discussed the proper standard for obtaining a new trial again 

under the circumstances of being precluded to exercise a peremptory challenge, even if 

briefly, in In re Personal Restraint of Lord, 123 Wn.2d 296 (1994). The Supreme Court 

returned to application of the full McDonough two-part test. 

In In re Personal Restraint of Lord, juror Manuel Rosario denied having heard 

anything about the crime charged in both his juror questionnaire and again during 

individual voir dire. After the entry of a guilty verdict, Rosario disclosed to an 

investigator that he earlier read about the crime in a newspaper. He insisted, however, 

that he lacked extensive knowledge of the case and he had formed no opinions. The state 

Supreme Court noted that Rosario gave no indication that he used his previously obtained 

knowledge during jury deliberations. Any misleading or false answers during voir dire 

required reversal only if accurate answers would have provided grounds for a challenge 

for cause. The high court held that the little knowledge held by Rosario would not 

support a challenge for cause. 

Cristian Lupastean perspicaciously observes that the Lord court did not overrule 

Robinson v. Safeway Stores, Inc. The Lord decision did not even mention Robinson v. 
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Safeway Stores. Also, Lupastean notes that the Lord decision came in the context of a 

personal restraint petition, when the accused faces higher standards of review. 

We note the anomaly created by In re Personal Restraint of Lord’s failure to 

mention Robinson v. Safeway Stores. Nevertheless, we follow this court’s long line of 

decisions that declare that Lord requires a court to apply the two-part test from 

McDonough Power Equipment, Inc. v. Greenwood. The Supreme Court, assuming it 

earlier had abandoned the two-part test, reinstated the test in In re Personal Restraint of 

Lord. This court no longer considers the loss of the intelligent use of a peremptory 

challenge as a basis for a new trial. State v. Perez, 166 Wn. App. 55, 67 (2012); State v. 

Cho, 108 Wn. App. 315, 321 (2001). 

Although we reject the argument based on precedent, we value Cristian 

Lupastean’s contention that an accused should benefit from full disclosure by all jurors 

before the accused exercises peremptory challenges. We would welcome Supreme Court 

review of this contention. 

CONCLUSION

Under current precedent, we hold that Cristian Lupastean’s right to a fair and 

impartial jury was not violated. We affirm his three convictions. 
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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.

_________________________________

Fearing, J.

WE CONCUR:

______________________________

Lawrence-Berrey, J.

______________________________

Staab, J.