IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 70323-4-
Respondent, DIVISION ONE
FELIPE A. MAGNEY, UNPUBLISHED
Appellant. FILED: March 9. 2015
Cox, J. - Felipe Magney appeals his convictions for robbery in the first
degree and other crimes. He first argues that court erred by ruling that his
custodial statements to police officers were admissible in violation of Miranda v.
Arizona.1 He next argues that the court's failure to enter written CrR 3.5 findings
of fact and conclusions of law requires a remand. Lastly, he claims that the court
abused its discretion when it allowed a juror to serve after he disclosed his
brother was a security guard at a certain bar.
Because Magney's custodial statements were not admitted at trial, any
error in the pretrial ruling to admit them was harmless beyond a reasonable
doubt. The trial court's CrR 3.5 findings and conclusions have now been
entered, and there is no claim of tailoring or other prejudice. And the court did
not abuse its discretion in allowing the juror to serve. We affirm.
1 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 70323-4-1/2
The State charged Magney and a co-defendant with multiple felonies,
including multiple counts of robbery and one count of drive-by-shooting. The
charges stemmed from an incident outside of a bar, where Magney and his co-
defendant allegedly stole a car at gunpoint.
After Magney was arrested, he spoke to police officers on several
occasions. Police read him his Miranda rights each time, and he twice invoked
his rights.
Before trial, the court held a CrR 3.5 hearing to determine if statements
made by Magney and his co-defendant would be admissible. Although the court
ruled the statements would be admissible at trial, in fact, the State decided not to
introduce them into evidence at trial.
Shortly after the jury was empaneled, one juror informed the bailiff that his
brother worked as a security guard at the bar where some of the events took
place. The bailiff then disclosed this in open court. The court questioned this
juror on the record. But, in the absence of any further questions from any party,
the court permitted the juror to remain on the panel.
During trial, the court dismissed one count of robbery against Magney.
The jury convicted Magney of all remaining counts.
Magney appeals.
STATEMENTS TO OFFICERS
Magney argues that the court erred by ruling pretrial that some of his
custodial statements to police officers were admissible in violation of Miranda.
No. 70323-4-1/3
Because these statements were never actually admitted at trial, any error in the
court's pretrial ruling was harmless beyond a reasonable doubt.
When a trial court admits statements in violation of Miranda, it is a
constitutional error.2 "'A constitutional error is harmless if the appellate court is
convinced beyond a reasonable doubt that any reasonable jury would have
reached the same result in the absence of the error.'"3
Here, the challenged statements were never offered by the State or
admitted into evidence. Thus, any error in the court's pretrial ruling admitting
these statements was harmless beyond a reasonable doubt.
In his brief, Magney states that the court admitted these statements. But
he provides no citation to the record. Moreover, Magney did not file a reply brief
to contest the State's assertion in its brief that the statements were never
admitted. Finally, our independent review of the record shows that the
statements were never actually admitted. Thus, Magney's arguments are
unpersuasive.
CR 3.5 FINDINGS AND CONCLUSIONS
Magney argues that this court should remand his case because the trial
court failed to enter findings of fact and conclusions of law following the CR 3.5
hearing. Because these have been entered and there is no claim of tailoring or
other prejudice, we disagree.
2 See In re Pers. Restraint of Cross. 180 Wn.2d 664, 688, 327 P.3d 660
(2014).
3 State v. Franklin. 180 Wn.2d 371, 382, 325 P.3d 159 (2014) (quoting
State v. Watt. 160 Wn.2d 626, 635, 160 P.3d 640 (2007)).
No. 70323-4-1/4
CrR 3.5 requires the trial court to enter written findings of fact and
conclusions of law following a hearing. But a trial court may enter its findings
while an appeal is pending.4 That happened here.
When the trial court enters its findings and conclusions after the
appellant's brief is filed, this court will reverse only if the appellant shows
prejudice from the delay or "that the findings and conclusions were tailored to
meet the issues presented in his brief."5 There is no claim of tailoring or other
prejudice here. Accordingly, we reject this argument.
INVESTIGATION OF JUROR BIAS
Magney argues that the court erred by failing to investigate a juror's
fitness to serve. Magney concedes that the juror was not disqualified from
service. But he argues that the court failed to adequately investigate whether the
juror was biased. We disagree.
Under RCW 2.36.110, the court must dismiss unfit jurors. This statute
creates a "continuous obligation" of the court to investigate whether a juror is
unfit.6
On appeal, we "grant[] broad discretion to the trial judge in conducting an
investigation of jury problems."7
4 State v. Quincv, 122 Wn. App. 395, 398, 95 P.3d 353 (2004).
6 State v. Elmore. 155 Wn.2d 758, 773, 123 P.3d 72 (2005).
7 Id.
No. 70323-4-1/5
Here, the court did not abuse its discretion when it allowed the juror to
continue to serve. The court questioned the juror on the record. The court asked
the juror if he had "spoken to [his] brother about anything that might relate to
issues involved in this case." The juror said that he had not. The court then
asked the juror about his brother's employment at the bar and confirmed that the
juror had no outside knowledge of the case. Finally, the court asked the juror if
he would follow the instruction not to discuss the case with his brother. The juror
answered that he would.
After questioning the juror, the court told counsel to consider the situation
over the weekend and raise any concerns when trial resumed. The court also
told counsel to let it know ifthey wanted the court to ask the juror any additional
questions. When trial resumed, counsel did not either raise any concerns about
the juror or request that the court ask the juror any additional questions. The
court did not abuse its discretion by permitting the juror to remain on the case
after following these procedures.
Magney argues that his case must be reversed under State v. Cho.8 But
that case is not analogous to Magney's case.
In Cho. a juror did not disclose that he was a former police officer.9 The
record in that case "raise[d] a troubling inference of deliberate concealment."10
8 108 Wn. App. 315, 30 P.3d 496 (2001).
9 id at 319.
10 Id. at 327.
No. 70323-4-1/6
This court remanded that case for the trial court to make findings on whether the
juror was impliedly biased.11
Magney's case does not raise any inference that the juror was biased or
deliberately concealed any facts. In fact, it was the juror who informed the bailiff
that his brother worked at the bar. And the court examined the juror about
potential bias and appears to have concluded that the juror would be unbiased in
deciding the case. There was no abuse in this discretionary determination.
Accordingly, Cho is distinguishable from the present case.
We affirm the judgment and sentence.
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WE CONCUR:
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11 Id. at 328-29.