Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                     FILED

                                                                  JAN 24  2012

                                                           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

STATE OF WASHINGTON,                                      No.  29274-6-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
MARION SIMONE CLEARY,                           )         OPINION PUBLISHED
                                                )               IN PART
                             Appellant.         )
                                                )

       Sweeney, J.  --  A Grant County jury questionnaire asked jurors if they were under 

Department of Corrections' supervision rather than if they had had their civil rights 

restored.  Having civil rights restored is a statutory prerequisite to serving on a jury in 

Washington.  The court discovered the problem before the jurors were seated and began 

to hear the case.  The court invited the parties to inquire further and both the State and the 

defendant declined. Neither party objected to the jury selection procedure or to the 

selection of a juror with a felony conviction. We conclude that there is no constitutional 

error here that would require us to review a challenge to seating the juror and we further  

No. 29274-6-iII
State v. Cleary

conclude that any error, even assuming error, was invited.  We therefore affirm the 

convictions for third degree assault of a law enforcement officer and obstructing a law 

enforcement officer.

                                            FACTS

       The charges in this case arise out of altercations between Marion Simone Cleary 

and others at a tavern in Grand Coulee, Washington.  Ms. Cleary was a bartender at the 

tavern.  She was cleaning the tavern after it had closed.  Ella Hale, a tavern employee,

helped her.  The women got into an altercation, Ms. Hale called 911, and Officers Sean 

Cook and Adam Hunt responded.  Ms. Cleary kicked Officer Cook when he tried to take 

her hands from her pockets.  The State charged Ms. Cleary with unlawful imprisonment, 

fourth degree assault, intimidating a public servant, third degree assault of a law 

enforcement officer, and obstructing a law enforcement officer based on her conduct that 

night.  

       The matter proceeded to jury trial.  Each prospective juror filled out a 

questionnaire that asked if he or she had been convicted of a felony and if a juror 

answered "yes," that juror was then asked if he or she is supervised by the Department of 

Corrections (DOC). Jurors 4, 7, and 28 responded that they had been convicted of a 

felony.  The State asked the court if it should ask these jurors whether their civil rights 

                                               2 

No. 29274-6-iII
State v. Cleary

had been restored.  The court stated that it would call those jurors into the courtroom 

individually and ask.  

       The court discussed the matter further with counsel after a recess.  The court 

explained that RCW 2.36.070 provides that felons who have not had their civil rights 

restored are incompetent to serve as jurors.  The court said the county clerk recently 

changed the juror questionnaire to ask whether the juror was supervised by DOC.  The 

court also advised the parties that Grant County gets the names of all of its potential 

jurors from the voter rolls.  Based on that, the court asked counsel, "Are you both all right 

with that inquiry?  Are you under DOC supervision?"  Report of Proceedings (RP) at 14.  

Both counsel replied, "That's fine." RP at 14.

       The court then asked, "Do you still want to bring in those three jurors and ask 

them that real quickly?" RP at 15. The State responded that "[i]t might be more prudent 

to do so." RP at 15. The court called Juror 4 into the courtroom.  The juror told the court 

that he marked the "yes" box by mistake and that he had not been convicted of a felony.  

RP at 16-17. After interviewing Juror 4, the court decided, and counsel agreed, that it 

was not necessary to interview Jurors 28 and 7:  

              THE COURT:  Counsel, I think we can accept [Juror 28's and Juror 
       7's] answers on that and we don't need to ask further if they've checked off 
       the box no for under DOC supervision. 
              . . . .
              So I just don't see the need to bring them in, unless you want to 

                                               3 

No. 29274-6-iII
State v. Cleary

       follow up with anything.  
              All right.  Are you ready to call in the jury, then, Counsel?  Is that all 
       right with you?"  
              [DEFENSE COUNSEL]:  Yes, your Honor.
              THE STATE:  Yes, your Honor.

RP at 18-19.

       The jury convicted Ms. Cleary of third degree assault of a law enforcement officer 

and obstructing a law enforcement officer. 

                                        DISCUSSION

       Ms. Cleary contends for the first time on appeal that she is entitled to a new trial 

because there is no affirmative showing that Juror 7 had his civil rights restored and this

showing is required by statute (RCW 2.36.070).  The State responds that Ms. Cleary fails 

to show that Juror 7's civil rights have not been restored.  And, moreover, Ms. Cleary can 

and did waive any right to challenge by not challenging the juror for cause when she was 

given that opportunity.

       First, absent some manifest constitutional error, an appellant must object to or

challenge a ruling in the trial court to preserve any error for appeal.  RAP 2.5(a); State v. 

O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009).  Generally, claims of error not 

raised at trial will not be reviewed on appeal.  State v. Scott, 110 Wn.2d 682, 685, 757 

P.2d 492 (1988).  

                                               4 

No. 29274-6-iII
State v. Cleary

       Ms. Cleary asserts that she is entitled to a new trial because the jury selection 

process materially departed from the process required by statute.  But she did not 

complain about the process in the trial court where something could have been done 

about it.  

       By statute in this state, a person is not competent to serve on a jury if he has been 

convicted of a felony and has not had his civil rights restored. RCW 2.36.070(5).  Here,

prospective jurors who had committed felonies were asked, not whether their civil rights 

were restored, but rather whether they were supervised by DOC.  

       Ms. Cleary presumes that the error here is related to the guarantee of an impartial 

jury.  Br. of Appellant at 3-4.  And certainly, both the United States Constitution and the 

Washington State Constitution article 1, section 22, guarantee criminal defendants an 

impartial jury.  State v. Nemitz, 105 Wn. App. 205, 210, 19 P.3d 480 (2001).  Ms. Cleary 

does not explain how empanelling Juror 7 departed from this constitutional protection.  

       Federal courts have concluded that a simple showing that a juror is incompetent 

does not implicate a constitutional right. See Kohl v. Lehlback, 160 U.S. 293, 16 S. Ct. 

304, 40 L. Ed. 432 (1895) (concluding that violation of statute prohibiting aliens from 

serving on juries did not violate the Fourteenth Amendment's Due Process Clause); Raub 

v. Carpenter, 187 U.S. 159, 162-64, 23 S. Ct. 72, 47 L. Ed. 119 (1902) (treating a motion 

                                               5 

No. 29274-6-iII
State v. Cleary

for new trial like any other untimely motion when it is based on the defendant's discovery 

that a juror was a minor and had been convicted of several crimes); Coleman v. Calderon, 

150 F.3d 1105, 1117 (9th Cir. 1998) (concluding that a felon serving on a jury in 

violation of state statute did not violate Sixth Amendment or the Fourteenth Amendment 

Due Process Clause), rev'd on other grounds, 525 U.S. 141, 119 S. Ct. 500, 142 L. Ed. 

2d 521 (1998); United States v. Uribe, 890 F.2d 554, 562 (1st Cir. 1989) ("the statutory 

violation -- allowing a convicted felon to serve -- did not implicate the fundamental 

fairness of the trial or the defendants' constitutional rights"); United States v. Humphreys, 

982 F.2d 254, 261 (8th Cir. 1992) ("The Sixth Amendment right to an impartial jury does 

not require an absolute bar on felon-jurors. . . . [T]he guarantee of an impartial jury 

[protects] against juror bias.  A per se rule would be appropriate only if one could 

reasonably conclude that felons are always biased against one party or another."); United 

States v. Boney, 298 U.S. App. D.C. 149, 158, 977 F.2d 624 (1992) (concluding that 

"[t]he Sixth Amendment right to an impartial jury . . . does not require an absolute bar on 

felon-jurors" but remanding to determine whether felon-juror was biased because felon-

juror falsely answered jury questionnaire).  We conclude on this authority that no 

constitutional right is implicated here even assuming Juror 7 was unqualified to serve as a 

juror by RCW 2.36.070.  The disqualification criterion here is by statute not the state or

                                               6 

No. 29274-6-iII
State v. Cleary

federal constitutions. The assignment of error does not then implicate constitutional 

rights.  

       Nor is an error here apparently manifest.  We cannot conclude that Juror 7 was 

unqualified based on this record.  It does not show whether Juror 7 was actually 

unqualified.  Although voir dire was not included in this record, it appears that Juror 7 

was not challenged for cause and neither party used a peremptory challenge to strike 

Juror 7.  The trial transcripts also show nothing about Juror 7 other than the jury's verdict 

being that of Juror 7. We then conclude that this is not manifest constitutional error that 

we must address here in the first instance.

       Moreover, any error, even assuming error, was invited here.  In re Pers. Restraint 

of Call, 144 Wn.2d 315, 328, 28 P.3d 709 (2001). The court explained the reasoning 

behind the jury questionnaire's wording and counsel for Ms. Cleary responded, "That's 

fine, your Honor." RP at 14. Soon after the court said that it did not "see the need to 

bring [Juror 28 and Juror 7] in, unless you want to follow up with anything.  All right.  

Are you ready to call in the jury, then, Counsel?  Is that all right with you?" RP at 19.  

Ms. Cleary's counsel said, "Yes, your Honor." RP at 19.  The court asked whether 

counsel wanted to address the issue with Juror 7 and counsel declined.

       We affirm the convictions.

                                               7 

No. 29274-6-iII
State v. Cleary

       The remainder of this opinion has no precedential value.  Therefore, it will be filed 

for public record in accordance with the rules governing unpublished opinions.  

Statement of Additional Grounds

       Ms. Cleary argues that she was not represented adequately.  To successfully argue 

that counsel was ineffective, Ms. Cleary must show two things: "(1) defense counsel's 

representation was deficient, i.e., it fell below an objective standard of reasonableness 

based on consideration of all the circumstances; and (2) defense counsel's deficient 

representation prejudiced the defendant, i.e., there is a reasonable probability that, except 

for counsel's unprofessional errors, the result of the proceeding would have been 

different."  State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).  

       Ms. Cleary argues that her counsel was ineffective for two reasons.  First, counsel 

failed to impeach Officer Hunt and Officer Cook by presenting evidence of their "other 

abuses." However, extrinsic evidence of specific conduct, other than criminal 

convictions, cannot be used to attack a witness's credibility.  ER 608(b).  Counsel here

did not then fall below an objective standard of reasonableness by declining to offer 

inadmissible evidence.

       Second, Ms. Cleary argues her representation was deficient because counsel did 

not pursue Ms. Cleary's allegations that Officer Hunt beat and wrongfully accused her.  

                                               8 

No. 29274-6-iII
State v. Cleary

We reject the argument for two reasons.  First, we can only consider what is in the trial 

record to determine whether counsel was effective.  McFarland, 127 Wn.2d at 334.  The 

incidents Ms. Cleary complains of, in her statement of additional grounds, were not in the 

trial record.  Second, an ineffective assistance of counsel claim cannot be based upon 

legitimate trial strategy or tactics.  Id. at 336.  Accusing a police officer of brutality and 

dishonesty may have hurt Ms. Cleary's case more than helped it.  So this seems to us to 

be a matter of trial tactics; a matter that is best left to counsel. 

       Last, Ms. Cleary argues that it was improper for a juror to be seated because the 

juror knows Officer Hunt well and also knows Ms. Cleary and Ms. Cleary's children.  

Ms. Cleary seems to suggest that this juror was biased.  A juror may be challenged for an 

implied bias due to:

              (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.

                                               9 

No. 29274-6-iII
State v. Cleary

RCW 4.44.180.  Merely knowing the parties is not enough for a challenge for implied 

bias.  The record reveals nothing about this juror that shows she was biased.

       We affirm the convictions.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________                    _______________________________
Brown, J.                                           Siddoway, J.

                                               10