En Banc. Andersen, J. Dore, C.j., Utter, Brachtenbach, Dolliver, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.
Following a jury trial, the Court of Appeals affirmed the defendant Fredric Noltie's convictions of the crimes of statutory rape in the first degree and indecent liberties.*fn1 We granted review and affirm.
In 1984, the defendant married Joanne and began living with Joanne and her then 5-year-old daughter, M. At the 1987 trial of this case, M testified to a pattern of sexual abuse beginning shortly after the defendant and her mother's marriage.
From 1984 through 1987, the defendant lived with them in three residences; at trial M testified to specific instances of sexual abuse based upon her recollection of which house
they were living in at the time. She testified that in the first two homes the defendant repeatedly asked her to rub his genitalia with her hand. She testified that in the third home he repeatedly engaged in fellatio with her. She was able, however, to describe the specific time and location for only one specific incidence of fellatio. She also described in detail an incident where he had asked her to have vaginal intercourse with him. M said that this had happened more than once, but, again, she was only able to recall the details surrounding one incident of vaginal intercourse. She testified that she did not tell her mother about this because the defendant had told her that her mom would go into a coma and go to a hospital if she were told.
M's mother testified that on May 13, 1987, she observed the defendant standing naked by M's bed and saw him place M's hand on his genitalia. She called their marriage counselors who scheduled a meeting. At this meeting Joanne told the two counselors of the May 13 incident. Joanne and the counselors testified at trial that the defendant had responded by saying that it was "no big deal" and that he was just instructing M in sex education. At trial, the defendant denied having made these statements. The marriage counselors called Child Protective Services and charges of statutory rape in the first degree and indecent liberties were ultimately initiated against the defendant.
The more detailed facts recited by the Court of Appeals in its opinion are not necessary for resolution of the issues before us, therefore, need not be repeated here. At trial, the defendant denied any improper sexual conduct with M.
The State presented expert testimony that medical examinations of M revealed physical evidence of sexual abuse. One physician used an instrument called a "colposcope" to take photographic slides of M's genital area and then utilized these slides to illustrate her testimony. The trial court denied a defense motion in limine to exclude evidence derived from colposcopic examination and physicians testifying for both the prosecution and the defense
utilized the photographs while presenting their opinions to the jury.
The defendant was charged with two counts of statutory rape in the first degree and one count of indecent liberties. The trial court denied a defense motion to dismiss one of the counts of statutory rape. During deliberations, the jury asked the court whether count 1 applied only to vaginal intercourse and count 2 only to oral intercourse. The court responded that the jury should reread the court's instructions. The jury convicted the defendant on count 1 (statutory rape in the first degree) and on count 3 (indecent liberties); it was unable to reach a verdict on count 2, the second count of statutory rape in the first degree, and the trial court declared a mistrial on that count.
In this court, the defendant challenges: (1) the trial court's refusal to excuse a juror; (2) the constitutionality of the information charging the crimes; and (3) admissibility of the colposcopic photographs. We are thus presented with the following three issues.
Issue One. Did the trial court abuse its discretion in declining to excuse a juror for cause?
Issue Two. Was the information charging the crimes so defective as to require reversal of the convictions?
Issue Three. Did the trial court err in admitting colposcopic photographs into evidence?
Conclusion. The trial court did not abuse its discretion in denying defendant's challenge of a juror for cause based upon allegations of actual bias.
The defendant argues that the trial court's refusal to excuse a juror*fn2 for cause violated his right to an impartial
jury under the Sixth Amendment and Const. art. 1, § 22 (amend. 10).
The voir dire examination of this juror covers 16 pages of the appellate record. She was questioned by the deputy prosecutor, defense counsel and the trial judge. The juror had initially replied to the question whether she thought she would have some difficulty being fair in this case by saying that she "might". She explained that she had two little granddaughters and thought it would be traumatic when the child testified. She explained that her concern was that she might find it difficult to give the accused a fair trial; she repeatedly stated, however, that she hoped she would be fair and that she would try to be fair. When asked by defense counsel whether because of the nature of the charge and her fondness for children she might start out leaning in favor of one side, she responded:
That's what I was afraid of at first, yes. The more I've listened to the Court and the more I participated in it, it seems that it would be a lot easier to be fair, but at first I was very apprehensive about it.
The juror also stated that she felt it would be a terrible injustice to the defendant not to have a fair trial and not to have people see him as innocent. She further stated that she did not expect the defendant to have to present evidence in order to support the idea that he was innocent. She did say she might be influenced by the emotional aspects of a child's testimony, but when asked whether she would give greater weight to a child's testimony, she replied that she had never been on a jury before and that she didn't know but hoped that she would be "honest either way". She said it would be awful to be accused but when asked if she would want a person like her on the jury, she responded, "No, I don't think so . . . I don't know. I don't know. It is just, I guess children, I don't know."
The court assumed the voir dire questioning and stated "what you are expressing is a doubt that you would be fair and impartial, you are not saying that you would not be fair and impartial." The juror responded "I'm not saying I
won't be, no, I've never . . . been on anything like this so I would hope I would be fair." The court responded "you can't say positively that you are not going to be fair and you can't say that in all probability you won't be fair, it's just that you have the fear that you would not be?" The juror agreed.
The juror responded to defense counsel's question whether it was a possibility or a probability that she might start out leaning in favor of the State, that it was "just a possibility". The trial judge denied defendant's motion to excuse the juror for cause declaring that the dismissal of a juror for actual bias is based on probabilities, not on possibilities.
Juror bias is defined in RCW 4.44.170. This juror was a hospital employee and there was no evidence of any "implied" statutory bias as defined by RCW 4.44.170(1). The defendant argues that this juror should have been excused for cause because she was "actually biased". This case thus involves a challenge of a juror for actual bias, as contrasted with implied bias. RCW 4.44.170(1), (2).
Actual bias is defined in RCW 4.44.170 as follows:
Particular causes of challenge are of three kinds:
(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.
RCW 4.44.190 further discusses 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 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 ...