does the law require when a juror, during jury deliberations,
recalls that he witnessed some of the events forming the
charges against the accused? Tishawn Winborne challenges his
two convictions for attempting to elude a police officer on
the ground that the trial court failed to remove the juror
and seat an alternate. Winborne also claims error to the
trial court's allowance of police officers to use the
words "reckless" and "eluding" in their
testimony. We accept Winborne's assignments of error and
remand for a new trial.
prosecution arises from Tishawn Winborne's defying of
traffic stops and fleeing the presence of law enforcement
officer patrol cars on adjoining days. On Friday, August 5,
2016, Spokane Police Officer Juan Rodriguez learned of
Winborne while investigating a crime unrelated to charges
brought against Winborne. On August 5, Officer Rodriguez
viewed surveillance footage from a Motel 6 parking lot, which
footage showed a male loading boxes into a red Mercury. The
motel clerk identified the male as Winborne.
Officer Juan Rodriguez later left the Motel 6, he glimpsed
Tishawn Winborne standing in the motel parking lot. A
suspicious Rodriguez trailed Winborne momentarily before
Winborne entered the Mercury, which car Rodriguez recognized
from the surveillance footage. A records search of the
Mercury's license plate number identified the vehicle as
stolen. Rodriguez called for assistance and followed
Winborne, in an undercover car, as Winborne drove the
Mercury. A chase ensued.
10:30 a.m., on August 5, Tishawn Winborne sped through
Spokane residential streets at forty miles per hour with
Police Officer Juan Rodriguez tailing him. Winborne did not
stop at one stop sign. Spokane Police Officer Daniel Cole
responded to Officer Rodriguez's request for assistance,
pulled his marked squad car behind Winborne's Mercury,
and activated his emergency lights, which activity provoked
Winborne to accelerate. Rodriguez ended his pursuit.
Winborne drove hastily westbound on Frederick Street and
crossed a controlled intersection with Monroe Street without
stopping but traveling at thirty miles per hour. Officer Cole
continued in pursuit a block and a half behind Winborne.
After crossing Monroe Street, Winborne reached forty-five
miles per hour with a posted limit of twenty-five miles per
hour. A block and a quarter after Monroe Street, Officer Cole
ceased his pursuit because Winborne did not slow and in the
interest of public safety. Winborne turned southbound at a
"T" intersection, and Cole thereafter lost sight of
on August 5, Spokane Police Sergeant Kurt Vigesaa discovered
the Mercury parked near the intersection of Hemlock and York
Streets. Sergeant Vigesaa attached a global positioning
system device to the automobile, and, on Sunday, August 6,
Vigesaa saw from his computer that the Mercury had journeyed
to the town of Wellpinit, forty-four miles northwest of
Spokane. When the Mercury commenced its return trip to
Spokane on August 6, Sergeant Vigesaa positioned his squad
car to intercept the car along Nine Mile Road north of
Sergeant Kurt Vigesaa reposed in his Dodge Charger patrol
car, he espied Tishawn Winborne driving the Mercury pass
Vigessa. Sergeant Vigesaa activated his emergency lights,
which prompted Winborne to accelerate the Mercury to seventy
miles per hour despite Nine Mile Road's limit of
fifty-miles per hour. Vigesaa, while traveling at
seventy-eight miles per hour, deployed a Star Chase device,
which attached to the rear of the Mercury.
Kurt Vigesaa retreated and monitored the Mercury's
movement from his squad car computer. The Mercury traveled
wildly for thirteen minutes across Spokane, while Vigesaa
observed the car speeding past other cars and weaving through
a medium flow of traffic. The Star Chase system recorded the
Mercury traveling as fast as ninety-eight miles per hour. The
Mercury traveled on Spokane's busy Francis Street at
eighty-four miles per hour without any officer in immediate
pursuit. Winborne continued to wind through a succession of
side streets with twenty-five and thirty mile per hour speed
limits, while traveling around sixty miles per hour.
Tishawn Winborne's hurried drive from west to east across
Spokane, he temporarily drove south in the northbound lane of
a street. He corrected onto the right side of the road, but
then returned to driving in England and nearly struck an
intercepting patrol car. At the last second, he corrected his
lane of travel and narrowly avoided striking the police car.
Winborne eventually parked his automobile on North Crestline
Street. Sergeant Kurt Vigesaa, with aid from dispatch,
located the Mercury and witnessed Winborne exit the vehicle.
Vigesaa identified himself as a law enforcement officer and
directed Winborne to stop. Winborne saw Vigesaa in his police
garb and fled. Winborne ran upstairs, followed by Sergeant
Vigesaa. Vigesaa again identified himself as a police officer
and ordered Winborne to stop. Winborne turned to run before
being detained, after a physical struggle, with Vigesaa and
Police Officer Stephanie Kennedy asked Tishawn Winborne,
after his arrest, about stealing the car. Winborne responded:
"it doesn't matter; she knows better than to press
charges." Report of Proceedings (RP) at 338. When
questioned about the pursuit, he replied:
You guys just couldn't catch up. Who drives the Charger?
He's slow. I should have taken that-I should have-I
should take that thing and teach him how to drive.
RP at 339.
State of Washington charged Tishawn Winborne with theft of a
motor vehicle, two counts of attempting to elude a police
vehicle, one count of second degree assault, and one count of
third degree assault. The assault charges arise from his
resisting of police officers.
start of trial, Tishawn Winborne moved in limine to preclude
the State's witnesses from testifying regarding ultimate
factual issues such as whether Winborne "eluded" or
drove "recklessly." The trial court denied the
beginning of voir dire, the court inquired of the jury panel
as a whole:
The second set of questions have to do with your
qualifications to sit on a jury in this-or as a juror in this
case. Has anyone here heard anything about this case before?
Anyone express to you an opinion concerning this case? Do you
know either the defendant or any of the lawyers on either
RP at 83. No juror answered that he or she knew the defendant
or had heard any information about the prosecution. Neither
the court nor counsel directly asked jury veniremen and
venirewomen as to whether they witnessed any of the fast
driving of Tishawn Winborne or of the police pursuit of
trial, State witnesses repeatedly testified to Tishawn
Winborne's driving "recklessly" or
"eluding" law enforcement. One officer testified,
"[o]bviously he [Winborne] was eluding me." RP at
252. At the close of the State's case, the trial court
dismissed the theft of a motor vehicle charge because of
insufficient evidence. Winborne did not testify on his
summation, defense counsel argued that Tishawn Winborne, on
August 5, did not drive as fast as to what Officers Juan
Rodriguez and Daniel Cole testified. Counsel argued that
Officer Cole, with emergency lights flashing, only pursued
Winborne for one and one-half blocks. According to
Winborne's counsel, during this short distance, Winborne
would not necessarily know that the officer sought to stop
him, particularly since Winborne drove one and a quarter
block forward of Cole. Based on these assumed facts, counsel
claimed his client did not willfully refuse to stop on August
5. Defense counsel also argued to the jury that Tishawn
Winborne did not drive recklessly on August 5.
deliberations, the trial court received a note from the jury,
A juror now realizes he was witness to some of the events of
August 5th. Does this disqualify him?
Clerk's Papers (CP) at 146. We hereafter refer to the
juror who witnessed events as "juror W."
5, the date noted in the juror message, was the day of the
first pursuit. As a result of the jury message, Tishawn
Winborne expressed concern regarding the one juror's
ability to separate personal observations from evidence
presented during trial. Winborne moved for the juror to be
excused and an alternate seated. In the alternative, Winborne
asked the court to remind the jury that it must base its
decision only on evidence heard during trial. The State
suggested that the trial court respond to the juror question
by questioning the juror about what he witnessed. The trial
court denied Winborne's motion to dismiss the juror and
rejected the State's suggestion. The trial court
instructed the jury to review each of the jury instructions
provided by the court. One such instruction read, in part:
It is your duty to decide the facts in this case based upon
the evidence presented to you during this trial. . . .
. . . .
The evidence that you are to consider during your
deliberations consists of the testimony that you have heard
from witnesses, and the exhibits that I have admitted, during
the trial. If evidence was not admitted or was stricken from
the record, then you are not to consider it in reaching your
CP at 119.
jury found Tishawn Winborne guilty of both counts of
attempting to elude a police vehicle, but acquitted Winborne
of both assault charges.
1: Did the trial court err by allowing the juror who
witnessed events on August 5 to remain seated on the
Winborne assigns error to the trial court's failure to
excuse juror W, who observed events on August 5. Winborne
contends that refusal to unseat the juror violated his due
process rights and his constitutional right to an impartial
jury. He further asserts that the presence of a factual
witness on the jury constitutes one of the rare circumstances
in which an appellate court can presume bias, which requires
reversal even without a showing of actual prejudice. Winborne
adds that, at the least, the trial court should have
questioned juror W about his or her ability to continue to
serve. Although Winborne does not assert the right to
confrontation of witnesses, we note that his challenge of
juror W implicates the confrontation clause.
State responds by contending that simply witnessing events
does not render a juror inherently biased. The State insists
that the juror hid nothing from the court, did not prejudge
the prosecution, and lacked an interest in the outcome. The
State further argues that juror W witnessed such a tangential
part of the crime that he did not realize his sighting until
after completion of evidence. According to the State, in all
likelihood, juror W only saw Tishawn Winborne or a police
officer drive past. Therefore, the State contends that
Winborne fails to establish an implied bias to support a
challenge for cause.
Constitution art. I, § 21 affords an accused the right
to a jury of twelve persons. Washington Constitution art. I,
§ 22 lists additional rights of an accused as including
the right "to meet the witnesses against him face to
face . . . [and] to have a speedy public trial by an
impartial jury." The right to trial by jury requires a
trial by an unbiased and unprejudiced jury. Smith v.
Kent, 11 Wn.App. 439, 443, 523 P.2d 446 (1974). Trial
judges carry an obligation to ensure those rights by
dismissing unfit jurors during trial. State v.
Berniard, 182 Wn.App. 106, 117, 327 P.3d 1290 (2014).
number of statutes and one court rule address removal of
potential jurors or jurors. RCW 2.36.110 declares:
It shall be the duty of a judge to excuse from further jury
service any juror, who in the opinion of the judge, has
manifested unfitness as a juror by reason of bias, prejudice,
indifference, inattention or any physical or mental defect or
by reason of conduct or practices incompatible with proper
and efficient jury service.
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 performing the duties of a juror in
the particular action without prejudice ...