State Of Washington, Respondent V. Tye Lane Groshong, Appellant

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FILED
4/29/2024
Court of Appeals
Division |
State of Washington

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84873-9-I
Respondent, DIVISION ONE
V.
TYE LANE GROSHONG, UNPUBLISHED OPINION
Appellant.

SMITH, C.J. — Following an altercation with his step-daughter, a jury
convicted Tye Groshong of assault in the fourth degree against a family member.
On appeal, Groshong contends that remote voir dire proceedings violated his
constitutional nght to in-person jury selection and interfered with his nght to a fair
and impartal jury. Because no nght to in-person jury selection exists and
because no violation to Groshong’s right to a fair and impartial jury occurred, we
affirm.

FACTS

In August 2021, Tye Groshong’s step-daughter, Shanna Backman-
Groshong, received a call from a neighbor that Groshong’s dog was loose
outside. The neighbor asked Backman-Groshong to pick up the dog and retum it
to her step-father’s house. Groshong was not at home when Backman-
Groshong went to retum the dog, so she took the dog home with her for the

night.

No. 84873-9-I/2
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The next day, as Backman-Groshong was in her car at home, preparing to
take the dog back to her step-father’s house, Groshong appeared outside her car
window. Groshong appeared angry. At one point, Groshong opened the car
door. He then proceeded to kick Backman-Groshong in the chest and stomach,
put his arm around her neck, and hit her in the face while she sat in her car.
When Backman-Groshong attempted to call 911, Groshong hit her again in the
face.
Groshong was later charged with assault in the second degree with a
domestic violence aggravator and with interfering with domestic violence
reporting.
During pretrial motions, Groshong objected to the use of technology to
conduct voir dire remotely. Groshong acknowledged that “[t]he Court has a lot of
leniency in conducting voir dire how they choose,” but asserted that remote voir
dire and wearing masks impeded his ability to communicate effectively with his
counsel. The trial court denied Groshong’s motion for in-person voir dire. As to
Groshong’s ability to communicate with his counsel, the court noted: “And I find
that the fact that you and your client are wearing masks doesn’t impede your
communication. You’re sitting right next to each other. You’re welcome to sit as
close as you want to talk.”
The jury acquitted Groshong of assault in the second degree and of
interfering with domestic violence reporting but convicted him of assault in the
fourth degree against a family member.
Groshong appeals.

No. 84873-9-I/3
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ANALYSIS
Voir Dire Procedures
Groshong asserts that remote voir dire violated his right to in-person jury
selection under article 1, section 21 of the Washington State Constitution and his
right to a fair jury trial. We disagree.
1. Article I, Section 21
We recently addressed whether article I, section 21 applied to jury
selection in State v. Booth, 24 Wn. App. 2d 586, 521 P.3d 196 (2022), review
denied, 1 Wn.3d 1006 (2023), and concluded that it did not.
In Booth, this court engaged in a Gunwall1 analysis to address whether
article I, sections 21 and 22 of our state constitution protect the use of
peremptory challenges in criminal jury selection proceedings. 24 Wn. App. 2d at
601-02. We explained that article I, section 21 governs a defendant’s right to a
jury trial while article I, section 22 governs jury selection and that the two sections
serve complementary roles. Booth, 23 Wn. App. 2d at 604. We reasoned that
article I, section 21 had “not been applied to regulate the process of jury
selection” and “to incorporate article I, section 22’s protections into article I,
section 21 would be to interpret the former as mere surplus to the latter.” Booth,
23 Wn. App. 2d at 604-05. Because article I, section 22 clearly governs jury
selection, we concluded that the text and structure of our state constitution
strongly opposed finding that article I, section 21 created additional rights in jury
selection. Booth, 23 Wn. App. 2d at 604.
1 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).

No. 84873-9-I/4
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Because article I, section 21 does not apply to jury selection, we disagree
with Groshong that it creates a right to in-person jury selection.
2. Ability to Select a Fair and Impartial Jury
Groshong also contends that remote jury selection violated his ability to
select a fair and impartial jury. We disagree.
Our federal and state constitutions guarantee criminal defendants the right
to an impartial jury. U.S. CONST. amend. VI; WASH. CONST. art. 1, § 22. This
guarantee includes “the right to have a jury drawn from a fair cross section of the
community.” State v. Meza, 22 Wn. App. 2d 514, 533, 512 P.3d 608, review
denied, 200 Wn.2d 1021 (2022).
Trial courts have wide discretion in conducting voir dire. State v. Wade,
28 Wn. App. 2d 100, 111, 534 P.3d 1221 (2023), review denied, 2 Wn.3d 1018
(2024). The trial court’s broad discretion in conducting voir dire is limited “only by
the need to assure a fair trial by an impartial jury.” State v. Brady, 116 Wn. App.
143, 147, 64 P.3d 1258 (2003). Absent an abuse of discretion and a showing of
prejudice, a trial court’s ruling on the scope and content of voir dire will not be
disturbed on appeal. Wade, 28 Wn. App. 2d at 111. The court abuses its
discretion if it “adopts a view that no reasonable person would take.” State v.
Sisouvanh, 175 Wn.2d 607, 623, 290 P.3d 942 (2012).
When Groshong proceeded to trial, Washington was still in the throes of
the COVID-192 pandemic. In response to the pandemic, our state supreme court
2 COVID-19 is the World Health Organization’s official name for
“coronavirus disease 2019,” a severe, highly contagious respiratory illness that
quickly spread throughout the world after being discovered in December 2019.

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issued a series of orders requiring courts to “conduct all [jury trial] proceedings
consistent with the most protective applicable public health guidance in their
jurisdiction.” Ord. re: Modification of Jury Trial Proc., In re Statewide Response
by Washington State Courts to the COVID-19 Public Health Emergency, at 3
(Wash. June 18, 2020).3 It also noted that “[t]he use of remote technology in jury
selection, including use of video for voir dire in criminal and civil trials, is
encouraged to reduce the risk of coronavirus exposure.” Ord. re: Modification of
Jury Trial Proc. at 3.
Here, the trial court adopted reasonable voir dire procedures in light of the
ongoing COVID-19 pandemic. Moreover, Groshong offers no examples of how
remote voir dire impacted his ability to select a fair and impartial jury. Absent any
evidence of prejudice, we disagree that his right to select a fair and impartial jury
was violated.
Victim Penalty Assessment and DNA Fee
Groshong also argues that because he is indigent, the victim penalty
assessment and DNA collection fee must be stricken. The State does not
oppose remand to strike the victim penalty assessment. Therefore, we remand
for the fee to be stricken. We note, however, that the judgment and sentence did
not impose a DNA collection fee on Groshong and therefore, the court does not
need to address the DNA collection fee on remand.
3 https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%
20Orders/Jury%20Resumption%20Order%20061820.pdf [https://perma.cc/S5YJ-
BWPR].

No. 84873-9-1/6

Affirmed and remanded to stnke victim penalty assessment fee.

Qh, 09.

WE CONCUR:

0

lane, pa