For more than one hundred years Washington courts have held a criminal defendant is presumed to be prejudiced if forced to use his last peremptory challenge to remove a juror who should have been removed for cause. Today's ruling ignores this well-established precedent and overrules sub silentio no fewer than six decisions of this court.
The majority asserts, "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." Majority at 7. One line, claims the majority, follows the rule in State v. Parnell, 77 Wn.2d 503, 463 P.2d 134 (1969), the other follows the rule in State v. Latham, 100 Wn.2d 59,667 P.2d 56 (1983). Majority at 7-8.
However when Parnell was decided in 1969 there was already long-standing precedent holding a criminal *Page 169 defendant is presumed to have been prejudiced if forced to exhaust his peremptory challenges to remove a juror who should have been removed for cause. This rule dates to the earliest years of our statehood.
In 1893, D.C. Moody killed James Warner and was convicted of manslaughter. State v. Moody, 7 Wn. 395, 395, 35 P. 132 (1893). During jury selection Moody challenged Charles Nelson for cause. Id. at 396. The trial court denied the challenge. Id. On appeal this court determined if the trial court erred:
Id. at 397 (emphasis added). The implication is, of course, Moody would have been injured had he exhausted all of his peremptory challenges to cure the court's error.[It] was without prejudice, for the reason that said Nelson did not sit as a juror in the case, as he was peremptorily challenged by . . . [Moody], who was in no manner injured by having to exercise his right in that regard as he did not exhaust all of his peremptory challenges during the impaneling of the jury.
If there were ever any doubt on this issue it was resolved two years later by State v. Rutten, 13 Wn. 203, 43 P. 30 (1895). Rutten appealed his murder conviction asserting, inter alia, the trial court erroneously denied several of his for cause challenges to potential jurors. Rutten,13 Wn. at 204. Rutten exhausted his peremptory challenges to remove the objectionable jurors. Id. When we addressed the matter on appeal, we noted, "if the court wrongfully compelled [Rutten] 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." Id. Rutten was cited with approval in State v. Stentz, 30 Wn. 134, 70 P. 241 (1902). Stentz was charged with manslaughter when he killed M.W. Orton by running over him with a horse drawn wagon. Id. at 134-35. During voir dire it was discovered one of the veniremen, Mr. Sperry, was on the state's witness list. Id. at 136. Stentz challenged Mr. Sperry for cause but the challenge was denied. Id. at 137. *Page 170 Stentz then used his final peremptory challenge to remove Sperry from the panel. Id. Even without Sperry, the jury returned a guilty verdict.
On appeal we held the trial court erred when it failed to strike Mr. Sperry for cause. Id. at 143. We opined, "A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be 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." Id. (citing Rutten, 13 Wn. 203). We concluded: "Inasmuch as [Stentz] was compelled to get rid of the juror Sperry by a peremptory challenge, the accused was deprived of one peremptory challenge to which he was by law entitled. For that reason, the judgment of the court is reversed, and the cause remanded for a new trial." Id. at 147. Thus by 1902 the rule in Washington was firmly established.
Moreover, today's majority completely ignores the critical case in our peremptory challenge jurisprudence; the case which distinguishes the law in Washington from that of other jurisdictions. The question presented inMcMahon v. Carlisle-Pennell Lumber Co., 135 Wn. 27, 28, 236 P. 797 (1925) was whether the trial court committed prejudicial error during jury selection. Prospective juror Burchett was challenged for cause since he was an employee of the Carlisle-Pennell Lumber Co. Id. The challenge was denied. "Thereafter [McMahon] peremptorily challenged the juror, and before securing the jury had exhausted all three of the peremptory challenges allowed him by law." Id.
On appeal we held denial of the for cause challenge was clearly error.Id. We cited State v. Rutten, State v. Stentz, State v. Moody, and Statev. Muller, 114 Wn. 660, 195 P. 1047 (1921) with approval as authority for the proposition that a defendant is presumed to have been prejudiced if he is compelled to exhaust his peremptory challenge on a juror who should have been removed for cause. McMahon, 135 Wn. at 28-29. More importantly we recognized while the majority of foreign jurisdictions do not presume prejudice in *Page 171 such cases, Washington does not follow the majority rule:
McMahon, 135 Wn. at 30. We therefore concluded, "Under the authority of our own decisions" (Rutten, Stentz, Moody, and Muller), McMahon had been prejudiced when he was forced to use a peremptory challenge to strike jurors who should have been removed for cause, and he was therefore entitled to a new trial. Id. at 31.The rule stated by the majority [of courts] is that, where the court refuses a challenge for cause, and the party challenging removes the juror by a peremptory challenge and exhausts all his peremptory challenges, while it is error it will not be considered prejudicial unless the record discloses that some juror was kept upon the panel who was not fair and impartial. . . . But we think that the majority rule entirely overlooks at least one of the purposes of the peremptory challenges allowed by law. . . . [I]t seems to us that the right to peremptory challenges is given to enable parties to excuse from the jury those whom they may, for any reason, feel would not make fair jurors even though nothing is disclosed on the voir dire.
But here the majority concludes even if the objectionable 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." Majority at 1. But controlling Washington precedent does not require Mr. Fire to make such a showing. Quite the contrary.
The fundamental nature of a peremptory challenge is the basis of our decision to distinguish Washington law from that of the majority of other courts. "`A peremptory challenge is an objection to a juror for which no reason need be given, but upon which the court shall exclude him.'"6McMahon, 135 Wn. at 31 (quoting Rem. Comp. Stat. § 325). McMahon held, "If no reason need be given, we should not require the injured party to affirmatively show by the record that there were reasons for excusing some other *Page 172 juror that sat on the panel." McMahon, 135 Wn. at 31. Notwithstanding, the majority here would require Fire to show the jurors seated after he exhausted his peremptory challenges were actually biased. This is contrary to McMahon. McMahon is long-standing precedent established by this court. It is directly on point.
Ten years after McMahon came State v. Patterson, 183 Wn. 239, 243-44,48 P.2d 193 (1935), in which the defendant Patterson assigned error on appeal to the trial court's denial of two challenges for cause against prospective jurors. Patterson exhausted his peremptory challenges to remove the objectionable jurors when the court failed to remove them for cause. Id. While we ultimately determined the trial court did not err, we recognized if we did determine the trial court erred, the error could not be cured by Patterson's use of the peremptory challenges:.
Patterson, 183 Wn. at 244.We have held that a refusal to sustain challenges for proper cause, necessitating the use of his peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been, as in this case, compelled subsequently to exhaust all his peremptory challenges before the completion of the jury.
We again expressed our commitment to this rule in State v. Parnell,77 Wn.2d 503, 463 P.2d 134 (1969). Vivian Parnell was convicted of violating Washington's Uniform Narcotic Drug Act. Parnell, 77 Wn.2d at 504. Her sole argument on appeal was the trial court erroneously denied a for cause challenge to a potential juror. Id. Parnell argued she was compelled to exhaust her peremptory challenges to remove the objectionable juror and was thus entitled to a new trial. We agreed and held:
Parnell, 77 Wn.2d at 508 (quoting Stentz, 30 Wn. 143). Consequently we reversed Parnell's conviction and remanded for a new trial. Id. at 508.Any error involved in failing to grant the defendant's challenge for cause against venireman Martin was not obviated by the fact that he did not sit on the jury. To remove him from the panel required the exercise of one of the defendant's six peremptory challenges. All of her peremptory challenges were *Page 173 eventually used, and she requested an additional peremptory to replace the one used on venireman Martin. This was denied. . . .
A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be 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.
The majority here asserts State v. Latham, 100 Wn.2d 59, 667 P.2d 56 (1983) "chipped away at the Parnell rule." Majority at 8. However Latham is patently distinguishable and never addresses the issue raised in Parnell. James Latham was charged with first degree arson after a fire severely damaged his home. Latham, 100 Wn.2d at 60, 61, 56, 57. During voir dire Latham asserted for cause challenges against two potential jurors who were both firemen. Id. at 61. The trial court denied both challenges whereupon Latham utilized his peremptory challenges to remove both firemen from the panel. Id. Nevertheless Latham was convicted. Id. at 62. On appeal Latham argued the trial court committed reversible error when it erroneously denied his challenges for cause thereby requiring him to use his peremptory challenges to secure an unbiased panel. Id. at 64.
On review we determined Latham's argument was based on a false premise: The trial court did not err when it denied his challenges for cause. Id. Therefore we never addressed the issue of whether Latham was prejudiced by using his peremptory challenges. See Latham, 100 Wn.2d at 64 ("Because we hold the trial court did not err by refusing petitioner's challenges for cause, we need not address this issue.").
Today's majority mistakenly concludes this court "undermined Parnell" when we did not apply its rule to the facts in Latham. Majority at 8. However the Stentz rule, which *Page 174 we reiterated in Parnell, applies only where (1) the trial court erroneously denies a challenge for cause, and (2) the proponent of the challenge then exhausts his peremptory challenges to remove the objectionable juror. See Stentz, 30 Wn. at 143 ("A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be 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."); see also Parnell,77 Wn.2d at 508 (same). It would have been completely inappropriate to apply the Stentz rule in Latham, as that case did not involve an erroneous denial of a proper challenge for cause. Latham, 100 Wn.2d at 63-64 ("Latham has failed to show that the two jurors should have been excused for bias."). We have distinguished Parnell on this basis before. SeeState v. Gilcrist, 91 Wn.2d 603, 611, 590 P.2d 809 (1979).
Moreover, as the majority concedes, Latham never expressly says the petitioner exhausted his peremptory challenges. Majority at 8. This is a critical component of the Parnell rule. Significantly Latham relies onState v. Robinson, 75 Wn.2d 230, 231, 450 P.2d 180 (1969) (decided the same year as Parnell), which holds a defendant must exhaust all of his peremptory challenges in order to show he was prejudiced by the exercise of a peremptory challenge. The rule that there can be no prejudice unless the defendant exhausts his peremptory challenges is well established. SeeState v. Tharp, 42 Wn.2d 494, 500, 256 P.2d 482 (1953); Rich v. Campbell,164 Wn. 393, 395, 2 P.2d 886 (1931); State v. Muller, 114 Wn. 660, 661,195 P. 1047 (1921); State v. Champoux, 33 Wn. 339, 352, 74 P. 557 (1903); State v. McCann, 16 Wn. 249, 251, 47 P. 443 (1896).
Nor did Latham involve the erroneous denial of a for cause challenge. Moreover it is not apparent that the petitioner in Latham exhausted all of his peremptory challenges. Thus Latham cannot properly be said to undermine the holding in Parnell. The majority claims Caruso v. *Page 175 Local Union No. 690, 107 Wn.2d 524, 730 P.2d 1299 (1987); State v. Rupe,108 Wn.2d 734, 743 P.2d 210 (1987); and State v. Bernson,40 Wn. App. 729, 700 P.2d 758 (1985) follow Latham rather than Parnell. However nothing in Caruso suggests the defendant exhausted his peremptory challenges when he struck the juror he felt should have been removed for cause. Thus, Parnell does not apply. Further, Parnell applies in neitherRupe nor Bernson. The trial courts in both cases properly denied the for cause challenges which formed the basis of appeal. Rupe, 108 Wn.2d at 749,750; Bernson, 40 Wn. App. at 741. This is a critical distinction asParnell applies only where a trial court erroneously denies a proper challenge for cause.
Similarly misplaced is the majority's reliance on State v. Roberts,142 Wn.2d 471, 14 P.3d 713 (2000). The majority suggests, "In Roberts this court tacitly abandoned the Parnell rule without overturning it." Majority at 9. Not so. Parnell was not applicable in Roberts for two reasons: (1) it was never established that the trial court erred when it denied Roberts' for cause challenges, and (2) even though Roberts exhausted his peremptory challenges to remove jurors he found objectionable, the trial court offered him two additional peremptory challenges which he declined to accept. Roberts, 142 Wn.2d at 517, 518. The majority is wrong again when it asserts, "Under the Parnell rule, Roberts alleged a situation in which he was prejudiced." Majority at 9.Parnell applies only where the trial court erroneously denies a proper challenge for cause and the defendant exhausts his peremptory challenges. Parnell, 77 Wn.2d at 508. As the majority acknowledges not only was Roberts given extra peremptory challenges which he declined to exercise, he also never established the challenged jurors should have been removed for cause. Majority at 161-62.
Further the language in Roberts which states "an erroneous denial of a challenge for cause may be cured when the challenged juror is removed by peremptory challenge," Roberts, 142 Wn.2d at 517, is in no way inconsistent with *Page 176 the rule in Parnell. For example, assume a criminal defendant has six peremptory challenges7 and he uses three to remove objectionable jurors. He then challenges a fourth juror for cause but the trial court erroneously denies the challenge. The defendant then exercises the fourth of his six peremptory challenges to remove the juror who should have been removed for cause. Thereafter the jury is empanelled without the defendant ever having exercised his fifth and sixth peremptory challenges. In such instance the trial court's error has clearly been "cured." The defendant has not been prejudiced because the biased juror did not sit on the panel AND because the defendant was not compelled to exhaust all of his peremptory challenges.
However that is fundamentally different from our situation in this case where the defendant is compelled to exhaust all his peremptory challenges to remove a venireman who should have been removed for cause. While this might seem to cure the error of the trial court, the defendant is nevertheless prejudiced because he is denied the use of a peremptory challenge to which he is entitled by law.
Roberts and Parnell are easily distinguished. Roberts never established his for cause challenges were erroneously denied. Roberts,142 Wn.2d at 518. Further he was given extra peremptory challenges which he declined to use. Id. In contrast, Parnell did establish the trial court erroneously denied her challenge for cause and she was required to exhaust her peremptory challenges to remove the objectionable juror from the panel. Parnell, 77 Wn.2d at 507, 508. To suggest Roberts overrulesParnell, tacitly or otherwise, is incredible.
Finally the Supreme Court's decision in United States v.Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) while instructive, is by no means dispositive. Nor is the fact that Mr. Fire has not provided an independent state constitutional analysis pursuant to State v. *Page 177 Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). The basis for the rule that a defendant is presumed to be prejudiced when he is compelled to exhaust his peremptory challenges to remove a juror who should have been removed for cause is found in neither the state nor the federal constitution. Rather it is firmly ensconced in Washington common law.8 We have long since considered, and rejected, the position recently adopted by the Supreme Court in Martinez-Salazar. See McMahon, 135 Wn. 27. We are the final arbiters of Washington law and for one hundred years our jurisprudence has consistently held, "A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be 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." Stentz, 30 Wn. at 143.
For the foregoing reasons I dissent from this profoundly *Page 178 mistaken majority opinion. I would affirm the ruling of the Court of Appeals and remand this case for a new trial.
JOHNSON, MADSEN, and CHAMBERS, JJ., concur with SANDERS, J.
Reconsideration denied February 20, 2002.