The State asks this court to review the Court of Appeals decision inState v. Fire, 100 Wn. App. 722, 724, *Page 154 729, 998 P.2d 362 (2000), which reversed Mink Fire's convictions and remanded for a new trial because the trial court should have excused a potential juror for cause. The State asks this court to determine whether that juror should have been dismissed for cause and whether, where a defendant exercises a peremptory challenge to remove a juror who should have been excused for cause and the defendant subsequently exhausts all of his peremptory challenges, the remedy is automatic reversal without a further showing of prejudice.
We find that even if that juror should have been dismissed for cause, Fire exercised one of his peremptory challenges to remove the juror, and there is no showing that a biased juror, against whom the peremptory challenge might have been used, sat on his panel. Following the reasoning in United States v. Martinez-Salazar, 528 U.S. 304, 307, 315-16,120 S.Ct. 774, 145 L.Ed.2d 792 (2000) and State v. Roberts, 142 Wn.2d 471,517-18, 14 P.3d 713 (2000), we conclude that Fire did not lose a peremptory challenge, but exercised it. Therefore, he has not demonstrated prejudice and has not been deprived of any constitutional right. Without having to decide whether the juror should have been removed for cause, we reverse the Court of Appeals and remand for actions consistent with this opinion.
FACTS Fire was charged with three counts of child molestation in the first degree. During voir dire the prosecuting attorney asked if any of the jurors could not completely put aside what he or she had heard about the case outside of the courtroom. After no one answered, the prosecutor began to question Juror No. 8:
*Page 155MR. SILVERMAN: Juror Number 8. I'm picking on you, but why is it you feel you could do that that you could put that aside, whatever it was?
JUROR NO. 8: Well, that is a hard one.
MR. SILVERMAN: That's why I'm asking it.
JUROR NO. 8: To be completely honest, I would — this type of criminal activity, I have strong opinions on.
MR. SILVERMAN: O.K. And are those opinions that you have on these types of cases, is that going to affect your deliberations if you're a juror?
JUROR NO. 8: Very good possibility.
MR. SILVERMAN: Why is it that you feel that that might happen?
JUROR NO. 8: Can I be blunt?1
At that point the prosecuting attorney interrupted and indicated he would continue the conversation without the other jurors present. When Juror No. 8 was the sole juror present, the court asked him if he would like to say anything regarding reasons for sitting or not sitting on the jury.
JUROR NO. 8: The subject matter in this case. You know, if it was, you know, somebody stealing a car or even someone getting murdered, that's, you know, fine with me. But a case in this nature, you know. I consider him a baby raper, and it should be severely punished. I'm very opinionated when it comes to this kind of a crime. I hold innocent — or children from conception on very dear, and they should be protected.
THE COURT: You realize that this is just an accusation?
JUROR NO. 8: Yes, I do, ma'am.
*Page 156THE COURT: Because of that, do you still feel that you could not start out with — do you feel that you could start out with a clean slate, an open mind, and listen to the evidence in order to determine whether you feel that the defendant is innocent or guilty?
JUROR NO. 8: Yes. But in the case in this — in any — probably any other case, yes, but in something like this, I'd be leaning to the accusation is there, and this type of case should be, you know, is very serious personally to me.
. . . .
MR. SILVERMAN: O.K. Are you telling me that you feel that your strong feelings about these types of offenses is such that that would even affect the role in making a determination of guilt or innocence?
JUROR NO. 8: That possibility is there.
. . . .
JUROR NO. 8: . . . I'm saying that reasonable — if reasonable has some leeway, 40, 60, I'd probably be on the 40 [side] on this particular kind of case instead of being in the middle. You know, I hate to, in something — a different subject matter, it would be completely different.
. . . .
MR. SILVERMAN: And you — if you were given instructions on what [proving charges beyond a reasonable doubt] means and the other instructions, you would follow the instructions as given to you by the Court?
JUROR NO. 8: Yes.
MR. SILVERMAN: But you do have some strong feelings about the case, but you'd still follow the law?
JUROR NO. 8: Yes.2
In declining to excuse Juror No. 8 for cause, the court cited the juror's indication that he would be able to follow the instructions and the law. Fire's counsel later renewed his challenge to Juror No. 8 for cause, and the court once again declined to excuse him. Fire's counsel then exercised Fire's second peremptory challenge to excuse Juror No. 8 and subsequently exhausted his six peremptory challenges.
The jury found Fire guilty on November 5, 1998. On appeal Fire raised three issues including prosecutorial misconduct.3 The Court of Appeals held that Juror No. 8's *Page 157 responses indicated actual bias and that the trial court abused its discretion in failing to excuse him. Stating that it was bound by the decision in State v. Parnell, 77 Wn.2d 503, 508, 463 P.2d 134 (1969), the appeals court determined that the remedy is reversal; it remanded Fire's case for a new trial. In its petition for review the State raised only the issues of whether the court erred in not excusing Juror No. 8 and whether the remedy was correct. This court granted review on October 1, 2000.
ANALYSIS At issue in this case is whether the trial court abused its discretion in denying a challenge for cause to Juror No. 8 and whether, without a further showing of prejudice, reversal is the remedy for a trial court's error in not dismissing a potential juror for cause where the defendant later uses a peremptory challenge to remove that juror and exhausts his remaining challenges before the final selection of the jury. FollowingCaruso v. Local Union No. 690, 107 Wn.2d 524, 534-35, 730 P.2d 1299 (1987) and Roberts, we may determine the second issue without reaching the first. Thus we consider whether, even if Juror No. 8 should have been excused for cause, Fire has alleged a situation which requires reversal of his conviction to cure the error.
The United States Constitution does not provide a basis for granting relief to Fire. The central federal legal issue in Fire's case has been definitively resolved in United States v. Martinez-Salazar, 528 U.S. 304. That case is directly on point:
We focus on this sequence of events: the erroneous refusal of a trial judge to dismiss a potential juror for cause, followed by the defendant's exercise of a peremptory challenge to remove that juror. Confronting that order of events, the United States Court *Page 158 of Appeals for the Ninth Circuit ruled that the Due Process Clause of the Fifth Amendment requires automatic reversal of a conviction whenever the defendant goes on to exhaust his peremptory challenges during jury selection. 146 F.3d 653 (1998).Id. at 307.We reverse the Ninth Circuit's judgment. . . . We hold . . . that if the defendant elects to cure such an error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.
The Court focused on the Ninth Circuit's conclusion that Martinez-Salazar was "forced" to exercise a peremptory challenge to cure an erroneous for-cause refusal. Id. at 314. The Court reasoned that a hard choice is not the same as no choice; Martinez-Salazar chose to exercise a peremptory challenge because he did not want a particular person to sit on the jury. Id. at 315. Instead of allowing the juror to sit and pursuing a Sixth Amendment challenge on appeal following the conviction, the defendant chose instead to use his peremptory challenge curatively. Id. In removing the juror, Martinez-Salazar did not lose a peremptory challenge, but used it for what it was for: to help secure an impartial jury. Id. at 315-16. Martinez-Salazar, together with his codefendants, exercised 11 peremptory challenges, which is all he was entitled to under the rule. Id. at 315.
As the Court indicated, if a defendant believes that a juror should have been excused for cause and the trial court refused his for-cause challenge, he may elect not to use a peremptory challenge and allow the juror to be seated. After conviction, he can win reversal on appeal if he can show that the trial court abused its discretion in denying the for-cause challenge.4 *Page 159
In Fire's case, even if Juror No. 8 should have been excused for cause, Fire exercised one of his peremptory challenges to remove him from the jury. Fire does not further show or even attempt to show that a biased juror sat on his panel. Thus, under the rule in Martinez-Salazar, Fire has not been deprived of any federal constitutional right.
Although the Court of Appeals in Fire recognized the existence and import of Martinez-Salazar, it stated it was bound by the decisions of this court. Fire, 100 Wn. App. at 727. After finding that Juror No. 8 should have been excused for cause, the Court of Appeals applied the rule in Parnell and reversed Fire's conviction. Id. at 729. The appeals court implicitly argues that although Fire may not have had any grounds for relief under the United States Constitution and federal case law, he does under the Washington Constitution and Washington case law.
Washington law contains two conflicting lines of cases concerning whether a defendant who shows that a trial court erred in not excusing a juror for cause demonstrates prejudice where the defendant exercised a peremptory challenge to remove that juror and later exhausted his peremptory challenges. One line follows the Parnell rule and the other arises out of State v. Latham, 100 Wn.2d 59, 64, 667 P.2d 56 (1983), which noted that the use of a peremptory challenge cures the error and that a further showing of prejudice is required. The Latham line culminates in this court's decision in Roberts, which cites as authority both Latham and Martinez-Salazar. Roberts, 142 Wn.2d at 517. Roberts, which was filed after the appeals court announced its decision in Fire, makes it difficult to revive the Parnell rule.
The Parnell rule arose from State v. Stentz, 30 Wn. 134, 143, 70 P. 241 (1902), quoted in Parnell, 77 Wn.2d at 508:
"A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be *Page 160 considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury."
As a result, the Parnell court set aside the defendant's conviction and sentence and granted her a new trial. Parnell, 77 Wn.2d at 508. The reason this court gave for such a remedy was that every defendant is entitled to a fair trial before 12 unbiased jurors and furthermore, "[n]ot only should there be a fair trial, but there should be no lingering doubt about it." Id. Even though in this situation no biased juror was seated, the prejudice occurs in the deprivation of one peremptory challenge to which a defendant is entitled. Stentz,30 Wn. at 147. Where a trial court wrongfully compels a defendant to exhaust peremptory challenges on jurors who should have been dismissed for cause, "his rights were invaded as much as though the jurors had been accepted after his peremptory challenges were exhausted." State v.Rutten, 13 Wn. 203, 204, 40 P. 30 (1895).
Latham, issued in 1983, chipped away at the Parnell rule. In Latham, a case similar to Fire, this court found that the defendant failed to show that the two jurors complained of should have been excused for cause.Latham, 100 Wn.2d at 64. Nevertheless, this court went on to enunciate a rule before declining to apply it:
Finally, we note the use of a peremptory challenge to remove a juror who should have been removed for cause "cures" the error. Where, as here, the juror is excused through a peremptory challenge, the defendant must show that the use of the peremptory challenge actually prejudiced his case. Petitioner contends, however, that because he was forced to use two peremptory challenges on these jurors, he was prejudiced. He argues the use of these challenges denied him the opportunity to exclude any jurors who may have had strong opinions about drug use. Because we hold the trial court did not err by refusing petitioner's challenges for cause, we need not address this issue.Id. (citations omitted). Although this court in Latham never explicitly says that the petitioner exhausted his peremptory *Page 161 challenges, that appears to be the case since he complains about not being able to use his peremptory challenges on other jurors. Id. at 63, 64. Under this set of facts the Parnell rule indicates that the petitioner has demonstrated prejudice. By not simply reaffirming theParnell rule and by implying that a further showing may be needed, this court undermined Parnell without, strictly speaking, reaching the issue.
After Latham appeared, more cases relied on it than on Parnell. SeeCaruso v. Local Union No. 690, 107 Wn.2d at 534-35; State v. Rupe,108 Wn.2d 734, 749-50, 743 P.2d 210 (1987); State v. Bernson,40 Wn. App. 729, 741, 700 P.2d 758 (1985).
In Roberts this court tacitly abandoned the Parnell rule without overturning it. Roberts assigned error to the trial court's denial of his for-cause challenges against 13 jurors. Roberts, 142 Wn.2d at 517. Four of the jurors were seated in the jury box, but Roberts used his peremptory challenges to remove them, thereby exhausting his peremptory challenges. Id. At the close of jury selection, the trial court offered Roberts two free peremptory challenges because of a surplus of jurors.Id. at 487. Roberts declined. Id. Under the Parnell rule, Roberts alleged a situation in which he was prejudiced. Even if he had accepted the two extra peremptory challenges, the erroneous denial of four of his for-cause challenges would have forced Roberts to lose two peremptory challenges to which he was entitled. Under Parnell, Roberts would have demonstrated that his case was prejudiced by the court's actions. This court did not determine whether any of the four contested jurors should have been excused for cause. Instead, it disposed of the issue by discussing the legal sufficiency of Roberts' case. CitingMartinez-Salazar and Latham, this court said that "an erroneous denial of a challenge for cause may be cured when the challenged juror is removed by peremptory challenge." Id. at 517. Since Roberts removed the four jurors through his peremptory challenges, none of them sat on the *Page 162 jury.5 "`So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.'" Id. at 518 (quotingRoss v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)). This court concluded by holding that "because Roberts has not demonstrated that jurors who should have been removed for cause actually sat on the panel, his rights were not violated." Id. at 518. Because Roberts' rights would have been violated under the Parnell rule and this court found no violation, after Roberts, Washington law followsMartinez-Salazar, not Parnell.
There remains a question whether Roberts can be distinguished from theParnell line of cases and from this case because Roberts did not exhaust all of his peremptory challenges. Because the Parnell rule is stated in terms of the defendant's having to exhaust his peremptory challenges, and Roberts did not, it might be argued that he could not demonstrate prejudice under Parnell. Hence, following this reasoning, Roberts does not tacitly overrule Parnell, but follows it.
But the rule in Parnell represents a specific case of a more general rule that the forced use of at least one peremptory challenge constitutes the loss or deprivation of that challenge and that a showing that a defendant was forced to use even one challenge means she has demonstrated prejudice. That more general rule applies to Roberts' situation even though he did not exhaust his peremptory challenges. Roberts alleged a situation in which even if he had exhausted his peremptory challenges by exercising the two additional challenges offered him, he would still have been forced to use two peremptory challenges. Under Martinez-Salazar, the forced use of a peremptory challenge is merely an exercise of the challenge and not the deprivation or loss of a challenge.Martinez-Salazar, *Page 163 528 U.S. at 314-15. Following Ross and Martinez-Salazar, this court inRoberts held that the defendant's rights were not violated simply because he had to use peremptory challenges to achieve an impartial jury. Roberts,142 Wn.2d at 518. After Roberts, this court no longer recognizes that the forced use of a peremptory challenge constitutes the loss or deprivation of a challenge. Therefore, the rule in Stentz enunciated in Parnell is no longer viable in Washington law.
No Washington case has thus far recognized a difference between the right to an impartial jury guaranteed under the federal constitution and that guaranteed under the Washington constitution. Rutten, 13 Wn. at 208, calls the right of the defendant to be tried by an impartial jury a "constitutional right" without distinguishing between the federal and state constitutions. Similarly, Stentz refers to "the constitutional guaranty to the accused of a trial by an impartial jury" without specifying which constitution provides the guaranty. Stentz, 30 Wn. at 143.Parnell cites both state and federal case law in support of the proposition that the right to a trial by jury includes the right to an unbiased and unprejudiced jury. Parnell, 77 Wn.2d at 507. In our analysis of Roberts' peremptory challenge claims, this court relied for authority upon both state and federal cases. Roberts, 142 Wn.2d at 517-18. Thus, Washington law does not recognize that article I, section 22 of the Washington State Constitution provides more protection than does the Sixth Amendment to the United States Constitution. Hence, Martinez-Salazar defines the scope of a defendant's right to an impartial jury in this situation.
Furthermore, Fire neither argues that the Washington State Constitution provides more protection than the federal constitution nor addresses the criteria identified in State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808 (1986). This court will not consider a claim that the Washington Constitution guarantees more protection than the federal constitution unless the party making the claim adequately briefs and argues theGunwall factors. State v. Davis, 141 Wn.2d 798, 834, 10 P.3d 977 (2000). If the party has not *Page 164 engaged in a Gunwall analysis, this court will consider his claim only under federal constitutional law. See State v. Sullivan, 143 Wn.2d 162,180 n. 73, 19 P.3d 1012 (2001); City of Spokane v. Douglass, 115 Wn.2d 171,176, 795 P.2d 693 (1990). On this basis as well, Martinez-Salazarcontrols, and Fire's claim that he suffered prejudice fails.
A claim that the basis for the Parnell rule exists in Washington common law rather than upon constitutional grounds is not borne out by an examination of the case law. The Rutten court stated that its power to review the decision of the trial court rested upon its role as protector of a constitutional right:
While the statute gives to the court the right to determine the question of the impartiality of the juror, yet, this being a constitutional right, this court will review the discretion of the lower court in passing upon this question; and from the whole of the examination of these jurors, and especially juror Stark, we are satisfied that the right of the defendant to be tried by an impartial jury was invaded.Rutten, 13 Wn. at 208 (emphasis added). The Stentz court continued to cite constitutional, not common law, grounds as the basis of its power to review the lower court: "The discretion of the trial court to determine partiality or impartiality in a jury is subject to review by the appellate court under the constitutional guaranty to the accused of a trial by an impartial jury." Stentz, 30 Wn. at 143. McMahon v. Carlisle-PennellLumber Co., 135 Wn. 27, 28-29, 236 P. 797 (1925), recognized that a constitutional right was at issue: "In State v. Rutten, 13 Wn. 203,43 P. 30, we held that the constitutional rights of a defendant were invaded when the defendant was required to exhaust his peremptory challenges on jurors who should have been dismissed for cause." Thus, theParnell rule, a direct quotation from Stentz, is based upon the constitutional right of a defendant to a trial by an impartial jury, and since no Washington case states that the Washington constitution contains a more expansive right to an impartial jury than does the federal constitution, the United States *Page 165 Supreme Court remains the controlling authority on this issue.
Hence, even if one does not agree that we adopted the Martinez-Salazar rule in Roberts, previous case law provides no basis for avoiding that rule. Here we expressly abandon the Parnell rule and adopt that enunciated by the United States Supreme Court in Martinez-Salazar. Accordingly, Fire has failed to show that he was prejudiced where no biased juror sat on his panel.
CONCLUSION After Martinez-Salazar and Roberts, if a defendant through the use of a peremptory challenge elects to cure a trial court's error in not excusing a juror for cause, exhausts his peremptory challenges before the completion of jury selection, and is subsequently convicted by a jury on which no biased juror sat, he has not demonstrated prejudice, and reversal of his conviction is not warranted. The decision of the Court of Appeals is reversed, and Fire's case is remanded to the trial court for actions consistent with this opinion.
ALEXANDER, C.J., and SMITH, IRELAND, and OWENS, JJ., concur.