State v. Villeda

                                       502

   Argued and submitted January 26, reversed and remanded March 8, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    JULIO CESAR VILLEDA,
                       Defendant-Appellant.
                  Washington County Circuit Court
                     20CR10192, 19CR08759;
                    A175679 (Control), A175680
                                   

    Defendant appeals from a judgment of conviction after a jury trial for one
count each of endangering a person protected by an order under the Family
Abuse Prevention Act and assault in the fourth degree constituting domestic
violence, contending that the trial court abused its discretion in rejecting his
for-cause challenge to a prospective juror based on actual bias, thereby causing
defendant to use one of his limited number of peremptory challenges to exclude
the juror. Held: The trial court abused its discretion. When, during voir dire, the
prospective juror expressed a strong bias in favor of a victim of sexual abuse and
an inclination to side with and credit the testimony of the alleged victim, the
rehabilitation of the juror should have focused on that expressed bias, but it did
not. Instead, the attempted rehabilitation addressed only the general question
whether the juror thought she could follow the law and weigh the evidence as
presented, to which the juror affirmatively replied. That cryptic acknowledgment
was not an unequivocal assurance of an ability to set aside the expressed bias
and be impartial. Therefore, there was insufficient evidence from which the trial
court could conclude, in the exercise of its discretion, that the juror would be able
to be fair and impartial.
    Reversed and remanded.



    Oscar Garcia, Judge.
   Brett J. Allin, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public Defense
Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
Cite as 

 (2023)   503

  KAMINS, J.
  Reversed and remanded.
504                                               State v. Villeda

         KAMINS, J.
         Defendant appeals from a judgment of conviction
after a jury trial for one count each of endangering a person
protected by an order under the Family Abuse Prevention
Act (FAPA), ORS 163.192, and assault in the fourth degree
constituting domestic violence, ORS 163.160(2). In his first
assignment of error, he contends that the trial court abused
its discretion in rejecting his for-cause challenge to prospective juror 155, based on actual bias, thereby causing
defendant to use one of his limited number of peremptory
challenges to exclude juror 155. In his second assignment,
defendant contends that, in light of its error in disallowing
the challenge for cause, the trial court erred in denying his
request for additional peremptory challenges. We conclude
that the trial court abused its discretion in rejecting defendant’s for-cause challenge to juror 155, see State v. Gollas-Gomez, 

, 

 (2018) (“We review
the trial court’s ruling on challenges for cause for an abuse
of discretion.” (Citing State v. Fanus, 

, 

 (2003), cert den, 

 (2004).)), resulting in the
loss of a preemptive challenge, and that the error was prejudicial. We therefore reverse defendant’s convictions and do
not address defendant’s second assignment of error.
         The relevant facts are primarily procedural and
undisputed. In addition to the two charges on which he
was convicted, defendant was charged with and acquitted
of rape, sodomy, sexual abuse, and physical assault of his
domestic partner, and with violating a FAPA restraining
order. Before voir dire, the court asked preliminary questions of the prospective jurors. One question was whether
any of the prospective jurors thought that their personal
views might affect their ability to be fair and impartial in
the trial. Prospective juror 155 raised her hand.
          When defense counsel asked juror 155 why she
might not be able to be impartial, juror 155 answered, “I
have several close friends who have been sexually assaulted
or raped,” and “that would influence how I would participate
in this.” When asked to explain further, juror 155 stated:
      “Well, I think generally when I hear about cases of sexual abuse or rape, I tend to give credibility to the survivor.
Cite as 

 (2023)                                     505

      “And, so, while I can still presume that he is innocent, I
   think my natural inclination is stand with the survivor.”
(Emphasis added.) When defense counsel asked juror 155 if
she could put that view aside, she answered, “I’m not sure
if I could put it aside.” Defense counsel asked juror 155 if
she had “a reasonable doubt about your ability to be fair
to [defendant] in this case,” and she replied, “Yes.” Defense
counsel then asked the court to excuse juror 155 for cause.
         The court instead spoke to the venire about the role
of the jury. The court explained that the fact that a person
has had experiences in life called to mind by the circumstances of the prosecution does not mean that the person
cannot serve as a fair and impartial juror. The court then
asked prospective juror 155:
       “Do you think you could put those feelings aside, okay,
   and be neutral, fair when you hear the evidence here, okay,
   and then if it’s creeping back, wait, I know I have these
   feelings, but I can’t let them—no, no, I got to listen. I got to
   be fair to both sides, okay.
       “And then hear the evidence and then follow the law as I
   give it to you and just in essence, you know, to be fair. I mean,
   do you think you could do that as a—if you were a juror in
   this case?”
(Emphasis added.) Juror 155 replied:
       “Yes. I think so. I think, again, that my natural inclination would be to lend more support to the victim survivor, but
   I think I could check my biases and my past understanding
   of these issues.”
(Emphasis added.) At that point, the court decided to
proceed.
        The issue arose again when defense counsel asked
the venire if anyone believed that a woman would not lie
about being raped. Juror 155 again raised her hand and
explained that her concern was “the same as what [she] previously explained.” Defense counsel then asked the venire
whether anyone agreed that “a woman would not lie about
being raped,” would not do so about someone with whom she
was in a relationship, and would not lie about it in court.
Juror 155 agreed with each statement. Defense counsel
506                                              State v. Villeda

asked juror 155 whether she would be a good juror, and
she said that she thought she would be biased or “really
emotional.”
           The court and prosecutor then inquired further:
     “THE COURT: Ma’am, so I—you know, we gave you
  a chance to hear other folks, okay? And, again, you know,
  you heard my definition of what we’re looking for, everybody here, you know, to be fair and, you know, kind of keep
  your—those emotions aside if you can, all right.
      “So, do you think, ma’am, that you can do it in this case?
      “[JUROR 155]: I don’t think I could keep my emotions
  to the side. Even just being in the room is just difficult.
     “THE COURT: And would those emotions not allow
  you to be fair to one side?
    “[JUROR 155]: Yeah. I don’t think they would allow
  me to be fair.”
(Emphases added.) At that point, juror 155 became tearful.
           The court then allowed the state to make additional
inquiry:
      “[THE PROSECUTOR]: Thank you. [Juror 155], I can
  see you’re getting a little upset, and I totally understand.
  The good news is that we’re not here to decide whether or
  not rape is a crime. There are certainly—it’s a crime within
  the books, and there are other heinous crimes that definitely happen in the courthouse that we—would be hard to
  listen to. There’s child abuse. There’s murder. And nobody
  is asking you not to be a human when you’re hearing that.
  The question is when the judge tells you that, you know,
  you’re to follow the law and to weigh the evidence as its presented, do you think that’s something you could do?
      “[JUROR 155]: To weigh the evidence as it’s presented?
     “[THE PROSECUTOR]:          Mm-hmm. The evidence and
  the law as it’s presented.
      “[JUROR 155]:     Yes.”
(Emphases added.)
        Defense counsel again challenged juror 155 for
cause, and the court denied the challenge. Defense counsel
Cite as 

 (2023)                              507

then asked for additional peremptory challenges, and the
court denied the request.
        Defense counsel used a peremptory challenge for
juror 155 and for five other prospective jurors. After the
jury was selected, defense counsel stated that, if two more
peremptory challenges had been available, they would have
been used to excuse jurors 128 and 305.
        After a jury trial, defendant was convicted of the
two charges noted above and acquitted of rape, sodomy, sexual abuse, and physical assault of his domestic partner, and
with violating a FAPA restraining order.
        In his first assignment of error, defendant asserts
that the trial court abused its discretion in rejecting his for-cause challenge to prospective juror 155, because voir dire
showed that she was biased in favor of the victim and that
bias was never properly rehabilitated. Defendant therefore
had to use a peremptory challenge that he would have used
against a different juror who was seated.
         ORCP 57 D(1)(g), applicable to criminal trials through
ORS 136.210(1), allows a criminal defendant to challenge
any prospective juror for actual bias. It provides: “Actual
bias is the existence of a state of mind on the part of a juror
that satisfies the court, in the exercise of sound discretion,
that the juror cannot try the issue impartially and without
prejudice to the substantial rights of the party challenging
the juror.” Actual bias is a question of fact to be determined
by the court from all of the circumstances, including the
prospective juror’s demeanor, apparent intelligence, and
candor during voir dire. State v. Barone, 

, 

 (1998), cert den, 

 (2000).
         The fact that a prospective juror has formed opinions about matters relevant to the case is not itself cause to
exclude that juror based upon actual bias. Id. (so stating).
“Rather, the test is whether the prospective juror’s ideas or
opinions would impair substantially his or her performance
of the duties of a juror to decide the case fairly and impartially on the evidence presented in court.” Id. (citing State v.
Montez, 

, 

 (1990)). To remove
a juror for cause if it appears that the juror “has formed or
508                                             State v. Villeda

expressed an opinion upon the merits of the cause from what
the juror may have heard or read, … the court must be satisfied, from all of the circumstances, that the juror cannot
disregard such opinion and try the issue impartially.” ORCP
57 D(1)(g). The “ultimate question with respect to actual bias
is whether a prospective juror ‘can try the case impartially
and follow the trial court’s instructions.’ ” Gollas-Gomez, 

 (quoting Montez, 

).

         Thus, the factual question for the trial court in
response to defendant’s for-cause challenge to juror 155 was
whether, based on the totality of her testimony during voir
dire, including her responses to rehabilitative questioning,
the trial court was persuaded that juror 155 could set aside
her biases such that they would not substantially impair
the performance of her duties as a juror to decide the case
fairly and impartially on the evidence presented in court.
See Fanus, 

 (stating test). The trial court’s discretionary ruling rejecting the for-cause challenge on that
basis is entitled to deference, because it depends on findings
of fact based on the court’s direct observation of the prospective juror during the voir dire examination. 

 In reviewing
the trial court’s determination for an abuse of discretion,
the question on appeal is whether there is legally sufficient
evidence to support the court’s finding that juror 155 could
be fair and impartial. State v. Lotches, 

, 

 (2000) (“The question, then, is whether there is
evidence in the record to support the trial court’s conclusion
that [the prospective juror] could serve as a fair and impartial juror.”).

         When, as here, a juror has initially expressed bias
during voir dire, it is possible for a juror to be “rehabilitated”
through questioning by the court and the attorneys, such
that the court can determine that the juror is capable of
viewing the evidence without the expressed bias. “The purpose of rehabilitative questioning is investigation, not persuasion. It is to determine whether the juror is able and
likely to set aside his views, not to persuade him to do so
or to elicit pro forma answers to leading questions.” Lane
County v. Walker, 

, 

 (1977).
In exercising that investigative function to determine in its
Cite as 

 (2023)                                   509

discretion whether to allow a challenge for cause, the trial
court must look “at the totality of the potential juror’s voir
dire testimony to discern whether it suggests ‘the probability of bias.’ ” Lotches, 

 (citations omitted).
         In State v. Carter, 

, 

(2006), we explained that rehabilitation occurs with evidence sufficient to allow the trial court to find that the juror
has an unqualified and unequivocal commitment to serving fairly and without bias. We noted the Supreme Court’s
holding in Fanus, 

, that the trial court did not
abuse its discretion in rejecting a challenge for cause when
the prospective juror had given “unequivocal” assurances
“that she was willing and would be able to require the state
to prove defendant’s guilt beyond a reasonable doubt and
to base her decision upon only the evidence presented at
trial.” Carter, 

 (quoting Fanus, 

). Quoting State v. Compton, 

, 

(2002), we observed that the trial court does not abuse its
discretion in denying a challenge for cause when there was
evidence from which the trial court could find that the juror
had affirmatively expressed her willingness to “perform the
tasks of a juror in the manner required by law.” Carter, 

.
        In contrast with both Fanus and Compton, where the
prospective challenged jurors had unequivocally expressed
their ability to decide the case fairly and impartially, the
challenged juror’s testimony in Carter did not reflect an
unequivocal rehabilitation. The juror had
   “said without qualification that he did not think that he
   could be fair and that he did not think it fair to put him on
   the jury. In response to questioning from the prosecutor, he
   said that he ‘probably’ could follow the law notwithstanding his predispositions. In response to the trial court’s further questioning, he said only, ‘I guess I could try’ to follow
   the law.”

. We concluded that the trial court had
abused its discretion in denying the for-cause challenge on
the basis that the juror had been rehabilitated, because,
after the juror had acknowledged that he did not think that
he could be fair, the rehabilitation—consisting only of his
510                                           State v. Villeda

agreement with the prosecutor’s question whether he could
presume the defendant innocent until proven guilty beyond
a reasonable doubt (“Yeah, I could probably do that.” “I guess
I could try.”) had not been unequivocal.

         Here, as in Carter, we conclude that juror 155’s
expressed bias was never rehabilitated. Initially during
voir dire, in response to inquiries from defense counsel, the
prosecutor, and the court, juror 155 expressed a strong bias:
She explained that her natural inclination and her emotions would cause her to side with the victim of rape. After
repeated inquiries by defense counsel and the prosecutor,
and instruction by the court on the role of the jury, juror 155
responded affirmatively to the court’s question whether she
could be impartial and follow the evidence, answering, “Yes.
I think so,” and confirming that she thought she could check
her biases. But then after hearing responses of other jurors,
juror 155 again equivocated, agreeing with the statements
that “a woman would not lie about being raped,” would not
do so about someone with whom she was in a relationship,
and would not lie about it in court. She then became tearful
and affirmatively stated, “I don’t think [my emotions] would
allow me to be fair.” That equivocation and affirmative
expression of bias itself required rehabilitation. However,
during the only subsequent attempt at rehabilitation, the
prosecutor asked a general question as to whether juror 155
thought she could follow the law and weigh the evidence
as presented, and the tearful juror provided a single word
answer: “Yes.”

         The court and the state’s attempted rehabilitation
of juror 155 focused generally on her ability to be fair and
impartial and to consider the evidence and the law. But it
did not focus on the source of juror 155’s bias—her expressed
belief that a woman would not lie about being raped. Where,
as here, the excavated bias relates to a specific opinion, any
rehabilitation needed to sufficiently address that opinion to
permit the court to conclude that the juror could “disregard
such opinion and try the issue impartially.” ORCP 57 D(1)(g).
As in Carter, and unlike in Fanus and Compton, the rehabilitation here did not provide unequivocal assurance of the
juror’s ability to set aside her belief that a woman would not
Cite as 

 (2023)                              511

lie about a sexual assault and thus be impartial. Because
there was never any rehabilitation directed to the witness’s
professed bias that she is more likely to believe the victim
of a sexual assault, her later agreement with the statement
that she could “follow the law” and “weigh the evidence” did
not provide sufficient evidence to support the trial court’s
conclusion that the juror could disregard that bias.

         We recognize the court’s discretionary role in determining whether, despite equivocation, a juror will evaluate
the evidence fairly and impartially. Particularly “in situations in which a potential juror’s answers are contradictory
or unclear … the trial court’s discretion most meaningfully
may come into play.” Barone, 

. However, “[a]lthough
our review is deferential, the trial court’s discretion in
deciding whether to dismiss a prospective juror for cause
is not unbounded.” Gollas-Gomez, 

 (citing
Carter, 

). Here, both of juror 155’s cryptic acknowledgments that she could be impartial, weigh the
evidence, and follow the court’s instructions, were accompanied by a reiteration of her bias, which had been expressed
at the outset of voir dire, that, when faced with an allegation
of rape or sexual abuse, she would “tend to give credibility
to the survivor.” Thus, the rehabilitation accomplished its
investigative function—it effectively uncovered information
about the source of juror 155’s bias. However, in order to
allow the trial court to determine that juror 155 could disregard that bias and be fair and impartial, the rehabilitation must have explicitly addressed the bias, and it did not.
In light of prospective juror 155’s strongly expressed bias
throughout voir dire regarding her inclination to side with
and credit the testimony from the victim, and in the absence
of an unequivocal assurance of an ability to set that inclination aside, there was insufficient evidence from which the
trial court could conclude, in the exercise of its discretion,
that juror 155 would be able to be fair and impartial.

        In sum, in the face of a juror’s expressed actual bias,
any rehabilitation must be unequivocal in addressing the
source of that bias. Because the rehabilitation here was neither unequivocal nor addressed to the specific bias that was
uncovered, we decline to defer to the trial court’s judgment,
512                                            State v. Villeda

and we conclude that the trial court abused its discretion in
rejecting defendant’s for-cause challenge to juror 155.

         As the state points out, under the Oregon
Constitution, Article VII (Amended), section 3, a conviction
may not be reversed in the face of procedural error in the
absence of prejudice. Defendant contends that, although
juror 155 did not serve on the jury, the trial court’s error
nonetheless was prejudicial, because defendant was forced
to waste a peremptory challenge to exclude juror 155, which
effectively deprived defendant of a peremptory challenge to
which he was entitled under ORS 136.230(1) (defendant in
noncapital case is entitled to six peremptory challenges).

           The state notes the well-established rule that a
constitutional claim that the trial court erred in denying a
for-cause challenge does not provide a basis for reversal on
appeal—even if that challenge potentially had merit—when
that prospective juror ultimately did not sit on the jury. The
rule applies even if the defendant had to exercise a peremptory challenge to remove the juror. Ross v. Oklahoma, 

, 

, 

 (1988) (loss of
a peremptory challenge is not a violation of the constitutional right to an impartial jury “so long as the jury that
sits is impartial”); Barone, 

 (same); see also State
v. Mannix, 

, 

 (2014) (“A
long and unbroken series of Oregon appellate cases establishes that ‘[t]he erroneous overruling of a good challenge
for cause, thereby compelling the use of a peremptory challenge, is not prejudicial error where it does not appear that
the challenger was compelled to accept an objectionable
juror.’ ” (Quoting State v. Megorden, 

, 

 (1907).)); State v. Wright, 

, 

(2018), rev den, 

 (2019) (same). Thus, the need to
use a peremptory challenge to excuse a juror who should
have been excused for cause does not generally constitute
prejudice. The state further responds that, even assuming
that there could be prejudice from defendant’s inability to
peremptorily challenge a juror who was seated, that contention is speculative, because defendant has not offered an
explanation of how he might have been prejudiced by the
presence of that juror.
Cite as 

 (2023)                             513

         We disagree. Defendant’s argument on appeal does
not depend on a showing of prejudice, beyond the loss of a
peremptory challenge to which he was statutorily entitled
and that he contends he would have used to excuse a different juror. As defendant correctly argues, prejudice in that
context is presumed. In State Highway Commission v. Walker
et ux, 

, 

 (1962), the Supreme Court
held that, “since there is no way for a party deprived of his
peremptory challenge to show prejudice, there is no sanction to enforce his right unless violation thereof is adjudged
automatically prejudicial.” (Citation omitted.) The court in
Walker noted the requirement of ORS 19.125(2) (now numbered ORS 19.415) “withhold[ing] reversal except for ‘error
substantially affecting the rights of the parties,’ ” but concluded nonetheless that, “Unless an error such as the one
just noted results in reversal, the right that was given by
the statute is an empty one. We believe that the error should
be deemed prejudicial automatically.” Walker, 

.
See Baker v. English, 

, 592 n 6, 

 (1997)
(adhering to but limiting to the peremptory challenge context Walker’s “narrow exception to the general principle that
a party’s rights ordinarily are not substantially affected by
an error that likely did not affect the outcome of the case”).
If prejudice is presumed from the loss of a peremptory challenge in a civil case, the presumption is all the more applicable in the criminal context, where the stakes are higher.
         It is true that the precise issue here—whether the
denial of a peremptory challenge in the criminal context constitutes error per se—has not been directly addressed by
the Supreme Court. But the Supreme Court has indirectly
addressed the issue in Montez, 

, where the
court was faced with the identical procedural scenario—a
trial court’s rejection of a for-cause challenge to a juror,
requiring the defendant to use a peremptory challenge on
the juror. In Montez, the trial court had rejected the defendant’s for-cause challenge to Juror Boley, and the defendant
challenged that ruling on appeal. The Supreme Court did
not analyze the issue of prejudice beyond identifying as
“prejudice” that the need to use a peremptory challenge
had resulted in the loss of a peremptory challenge against
a different juror who was seated. 

 (“Because Boley did
514                                            State v. Villeda

not serve on the jury, the only ‘prejudice’ to defendant was
that defendant had no remaining peremptory challenge to
later excuse [a different juror], who did serve on the jury.”).
Thus, it would seem that the court recognized as prejudicial
the circumstances like those here. The court in Montez went
on to address the merits of the defendant’s challenge to the
trial court’s rejections of his for-cause challenge to Boley,
concluding that there had been no abuse of discretion. 

. Justice Gillette dissented, explaining that Boley should
have been excused for cause, and concluding for that reason that the defendant had not received a fair and impartial
jury. 

 (Gillette, J., dissenting).
         Thus, it would seem that, if presented squarely
with the issue, the Supreme Court would conclude that prejudice arises from the erroneous rejection of a for-cause juror
challenge if, as here, the defendant makes a record that a
lost peremptory challenge would otherwise have been used
against a juror who sat. Cf. State v. Berliner, 

,

 (2009), rev den, 

 (2010) (in identical
posture, concluding no prejudice was shown where defendant did not argue that jury empaneled was not impartial).
         Here, the consequence of the trial court’s rejection of
defendant’s for-cause challenge to prospective juror 155 was
to force defendant to use a peremptory challenge, effectively
reducing the number of peremptory challenges available for
other prospective jurors. And defendant made a record that,
had an additional peremptory challenge been available, he
would have used it against a juror who was seated. We conclude that defendant has established prejudice within the
meaning of Article VII (Amended), section 3. Montez, 

 (identifying as “prejudice” the trial court’s failure
to allow a juror to be challenged for cause, resulting in the
loss of the ability to use a peremptory challenge against a
different juror who was seated); Walker, 

 (holding that the denial of a statutorily provided peremptory
challenge constitutes prejudice per se). We therefore reverse
defendant’s convictions.
        Reversed and remanded.