Opinion
No. 33422-4-II.
June 27, 2006.
Appeal from a judgment of the Superior Court for Clark County, No. 02-2-05115-8, Barbara D. Johnson, J., entered June 13, 2005.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Kraig Christian Newman, Grays Harbor Co PA, 102 W Broadway Ave Rm 102, Montesano, WA 98563-3621.
Affirmed by unpublished opinion per QuinnBrintnall, C.J., concurred in by Armstrong and Penoyar, JJ.
Donald Erickson appeals his conviction for second degree assault, arguing that the trial court erred when it (1) denied his motion for a mistrial based on the revelation during trial that one of the jurors knew the victim's sister-in-law and had previously heard about the incident; and (2) denied him the opportunity to present an affirmative defense of necessity and consequently refused to instruct the jury on the affirmative defense of necessity. Finding no error, we affirm.
FACTS
Donald Erickson and Muriah Derhaag were formerly married and had two children together — a son and a daughter. Muriah is currently married to Lawrence Derhaag. On two occasions in November 2004, Derhaag allegedly assaulted Erickson's 11-year-old daughter. Erickson believed that Derhaag twice kicked Erickson's daughter's chair while she sat in it, bruising her tailbone and causing her pain.
At about 6 p.m. on January 14, 2005, Erickson went to the Derhaags' home. He found Derhaag in the garage. The two talked briefly before Derhaag received a telephone call and stepped out of the garage for five to ten minutes. When Derhaag returned to the garage, Erickson immediately struck him in the face. Erickson continued to strike Derhaag until he fell to the ground. When Derhaag attempted to get up, Erickson continued to hit him until Derhaag stayed on the ground.
When the beating ended, Erickson left the garage and found Muriah. He told her that Derhaag needed help because Derhaag had `slipped and cut himself shaving in the shower.' Report of Proceedings (RP) at 173. Derhaag regained his feet and wandered outside of the garage until he found Muriah, who called 911. Derhaag was initially taken to Grays Harbor community hospital but was subsequently airlifted to Harborview Medical Center in Seattle. He remained at Harborview for a week and a half and underwent surgery for facial fractures. At Erickson's trial, two months after the assault, Derhaag still suffered from facial and neck pain.
The State charged Erickson with second degree assault, alleging that on January 14, 2005, Erickson `did intentionally assault Lawrence D. Derhaag, thereby recklessly inflicting substantial bodily harm.' Clerk's Papers at 30.
The State moved in limine to exclude Erickson's affirmative defense of necessity and to prevent Erickson from presenting evidence of Derhaag's alleged abuse of Erickson's daughter. The trial court granted the State's motion, finding that `no reasonable jury could say that [Erickson] reasonably believed that he had to go and beat this man the way he did more than a month after the alleged incidents of kicking the chair.' RP at 17-18. The trial court also concluded that no reasonable juror would find that the harm sought to be avoided — the chair kicking — was comparable to the `severe beating' that occurred. RP at 18. Finally, the trial court found that a reasonable legal alternative existed and that Erickson could have prevented any abuse to his daughter by contacting the police or Child Protective Services (CPS).
The trial court also refused to instruct the jury on Erickson's affirmative defense of necessity.
After two days of testimony, juror number 11, Debra Warring, indicated that she realized she knew a member of Derhaag's family when she recognized Muriah's sister, Roberta Olsen, who was sitting in the courtroom. She related that she and Olsen worked together and that she had previously heard, through a third person at work, about the assault. The parties learned that Olsen told Warring's assistant about the assault and that the assistant then related it to Warring. Warring said that the assistant was very vague about the incident and had provided very few details. Warring stated that she and Olsen were not friends and that they did not socialize outside of work. The trial court asked Warring whether she could disregard what she had previously heard and not let it affect her deliberation on the evidence at trial. Warring stated that she could.
Based on Warring's association with Muriah's sister, Erickson moved for a mistrial, which the court denied.
The jury convicted Erickson of second degree assault and the trial court sentenced him to nine months in jail. He appeals.
ANALYSIS
A. Denial of Motion for Mistrial
Erickson argues that the court erred when it denied his motion for a mistrial based on Warring's admission that she knew Derhaag's sister-in-law and that she had previously heard about the assault.
Both the United States and Washington Constitutions guarantee a right to trial by jury. US Const. amend. VI; Wash. Const. art. $b/b$, § 21; In re Personal Restraint of Broten, 130 Wn. App. 326, 336, 122 P.3d 942 (2005). This right entitles a defendant to a trial by an unbiased, unprejudiced jury. Broten, 130 Wn. App. at 336. Although a defendant is entitled to a fair trial, it does not mean that he is entitled to a perfect trial. Broten, 130 Wn. App. at 336.
We review a trial court's decision whether to grant a mistrial for abuse of discretion. Broten, 130 Wn. App. at 336. A trial court abuses its discretion when it acts on unreasonable or untenable grounds. Broten, 130 Wn. App. at 336.
A juror's failure to disclose a material fact during voir dire can amount to juror misconduct. Broten, 130 Wn. App. at 337. But a defendant is entitled to a new trial only if (1) the juror failed to honestly answer a material question during voir dire; and (2) an honest answer would have provided a valid basis for a challenge for cause. Broten, 130 Wn. App. at 337 (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)). A mistaken, but honest, response during voir dire does not constitute juror misconduct. Broten, 130 Wn. App. at 338 (citation omitted).
In Broten, we found no misconduct when a juror failed to disclose during voir dire that she had previously been stalked and that Broten may have been her stalker. 130 Wn. App. at 333, 337. During trial, the juror informed the court that, after hearing the trial testimony, she thought that Broten had stalked her and that she had not revealed the stalking incident during voir dire because she `did not think of it until later in the trial.' Broten, 130 Wn. App. at 333. In response, the State was able to determine that Broten had been incarcerated when the juror was stalked. Broten, 130 Wn. App. at 333. The juror then informed the court that she no longer thought Broten had been her stalker. Broten, 130 Wn. App. at 333. She also said that her experience would not affect her deliberations. Broten, 130 Wn. App. at 333. On appeal, we held that the juror did not intentionally give false or misleading answers during voir dire and that she diligently reported the stalking incident to the court. Broten, 130 Wn. App. at 337-38. Thus, we held that Broten failed to meet the first prong of the McDonough test. Broten 130 Wn. App. at 337-38. Since Broten did not meet the first prong, we did not address the second prong. Broten, 130 Wn. App. at 338.
Similarly here, the evidence shows that Warring did not intentionally provide false or misleading answers during voir dire. She realized that she had heard about the assault after she saw Olsen in the audience. And like the juror in Broten, Warring diligently reported the information to the court. Thus, Erickson fails to meet the first prong of the McDonough test and we need not address the second prong. See, e.g., Broten, 130 Wn. App. at 338.
The trial court did not abuse its discretion when it denied Erickson's motion for a mistrial based on Warring's report that she knew Derhaag's sister-in-law.
B. Affirmative Defense of Necessity
Erickson next argues that the trial court erred when it (1) granted the State's motion in limine to preclude him from presenting evidence that before the assault on Derhaag, Derhaag had kicked Erickson's daughter's chair; and (2) refused to instruct the jury on the affirmative defense of necessity.
Both parties are entitled to jury instructions embodying their theory of the case. State v. Parker, 127 Wn. App. 352, 354, 110 P.3d 1152 (2005). But to be entitled to an instruction, the evidence must support that theory. Parker, 127 Wn. App. at 354.
The defense of necessity is available to a defendant when `the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.' Parker, 127 Wn. App. at 354 (quoting State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994). In order to be entitled to a necessity instruction, a defendant must show that (1) he believed it necessary to commit a crime in order to avoid or minimize harm; (2) the harm the defendant sought to avoid was greater than the harm resulting from the violation of the law; and (3) no legal alternative existed. State v. Jeffrey, 77 Wn. App. 222, 225, 889 P.2d 956 (1995).
In order to show that a defendant had no reasonable legal alternative, he must show that `he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefits of the alternative.' Parker, 127 Wn. App. at 355 (quoting United States v. Harper, 802 F.2d 115, 118 (5th Cir. 1986).
Here, the harm Erickson sought to avoid, Derhaag's alleged abuse of Erickson's daughter, did not outweigh the harm he inflicted in assaulting Derhaag. Certainly any alleged child abuse is inappropriate and we do not condone it; but kicking a chair in which a child is seated is not a greater harm than the beating that Erickson inflicted on Derhaag. And Erickson offered no other evidence of abuse committed by Derhaag. Derhaag spent a week and a half in a trauma hospital and required reconstructive surgery to repair facial injuries. Such harm far outweighs that allegedly inflicted on Erickson's daughter.
Furthermore, Erickson had a reasonable legal alternative to assaulting Derhaag. Erickson admitted that he had tried to speak with his former wife about Derhaag's interaction with the child but that he had not contacted CPS, sought any type of protective order on the child's behalf, or sought a motion to modify the parenting plan so that he was the primary residential parent for his daughter.
Erickson argues that there is no evidence that contacting CPS would have resulted in an investigation on his daughter's behalf. And he argues that Derhaag could have retaliated against the child if Erickson had taken any of the legal alternatives.
But Erickson points to no evidence in the record showing that he (1) tried any legal alternatives (other than speaking to his former wife); or (2) had a history of futile attempts that failed to prevent any abuse to the child. His conjecture of what might have happened does not satisfy the requirement that he demonstrate a history of futile attempts to stop the alleged abuse. Thus, Erickson failed to present substantial evidence supporting a necessity defense and the trial court did not err when it granted the State's motion to exclude evidence of the alleged abuse and did not instruct the jury on the defense.
Finding no error, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and HUNT, J., concur.