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State v. Winborne

Court of Appeals of Washington, Division 3

June 26, 2018


          Fearing, J.

         What 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.


         This 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.

         When 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.

         At 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.

         Tishawn 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 the Mercury.

         Later 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 Spokane.

         As 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.

         Sergeant 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.

         During 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.

         Tishawn 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 other officers.

         Spokane 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.


         The 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.

         At the 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 motion.

         At 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 side?

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 Winborne.

         During 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 behalf.

         During 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.

         During deliberations, the trial court received a note from the jury, which read:

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."

         August 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 verdict.

CP at 119.

         The jury found Tishawn Winborne guilty of both counts of attempting to elude a police vehicle, but acquitted Winborne of both assault charges.


         Witness as Juror

         Issue 1: Did the trial court err by allowing the juror who witnessed events on August 5 to remain seated on the jury?

         Answer 1: Yes.

         Tishawn 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.

         The 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.

         Washington 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).

         A 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 ...

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