Opinion
Nos. 49780-4-I (consolidated with), 49997-1-I, 49831-2-I, 50513-1-I
Filed: December 1, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 01-1-00683-8. Judgment or order under review. Date filed: 12/31/2001.
Counsel for Appellant(s), Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
William John Crittenden, Attorney at Law, 927 N Northlake Way Ste 301, Seattle, WA 98103-3406.
Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Joseph L. Broadbent, Attorney at Law, 9594 1st Ave NE # 367, Seattle, WA 98115-2012.
Counsel for Respondent(s), Royce Scott Buckingham, Attorney at Law, Whatcom Co Prosc Atty Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
Laura D. Hayes, Attorney at Law, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225-4048.
David Stuart McEachran, Whatcom Co Courthouse, 311 Grand Ave, Bellingham, WA 98225-4048.
Melinda Beth Miller, Attorney at Law, PO Box 5842, Bellingham, WA 98227.
Jury misconduct is presumed prejudicial. Here, three jurors committed misconduct when they looked up key terms in their home dictionaries. Because the State did not demonstrate this misconduct could not have affected the verdict, a new trial should have been granted. We address other trial errors only insofar as they may arise on retrial.
BACKGROUND
Late one night in 2001, Franklin Roubideaux and Rory Sullivan came to blows over a disagreement about Franklin's relationship with Sullivan's sister. Later that night, Franklin and a group of other people broke into Sullivan's apartment. They smashed windows, kicked down the door, and assaulted Sullivan. This group included Seth Gladstone, Franklin and Cassidy Roubideaux, and Shannon Basil.
Because two of the participants have the same last name, they will be referred to by their first names, Franklin and Cassidy.
Sullivan initially tried to defend against the intruders, but eventually retreated to the rear bedroom where he had secured his mother and younger brother. As Sullivan squeezed through the door, Basil stabbed him in the side.
The four men were soon arrested, and charged with first-degree burglary and first-degree assault. They were tried together. All four were convicted of first-degree burglary and second-degree assault.
DISCUSSION Jury Misconduct
On the fourth day of the jury's deliberations, the bailiff overheard two jurors talking about having looked up a legal term in their home dictionaries. The trial judge was not available. After consulting the county's presiding judge, the bailiff told the two jurors not to discuss what they had learned through outside sources with the other members of the panel, and allowed deliberations to resume.
Not long afterward, the bailiff learned that a third juror had been discussing the definition of a legal term she had found in her home dictionary. While the presiding judge and counsel were considering what to do, the jury announced it had reached a verdict.
The presiding judge took the verdict. He then asked the jurors to identify themselves if they had looked up legal terms in their home dictionaries. He dismissed all who had not done so, and then questioned the three who had, to ascertain what terms they had looked up and whether they had shared the information with others. Two jurors had looked up `intent,' but stated they had not told other jurors what they had learned. One juror had looked up `burglary' and had told the rest of the jury about it.
The defendants moved for a new trial. The original judge heard the motion. The prosecutor and defense counsel agreed that the jury had committed misconduct, and that the State must prove, beyond a reasonable doubt, that the misconduct did not affect the verdict. The court insisted, however, that the correct test was whether there was a substantial likelihood the misconduct affected the verdict. The judge thought the dictionary definition of `burglary' in effect put a greater burden on the State, but remarked that `[w]hether or not the `intent' definition really made an awful lot of difference, I don't really know.' Report of Proceedings (RP) (Dec. 17, 2001) at 1127. Despite being `really bothered' by the jurors' misconduct, the judge denied the motion for a new trial. RP (Dec. 17, 2001) at 1125.
The right of trial by jury under our state constitution "means a trial by an unbiased and unprejudiced jury, free of disqualifying jury misconduct." State v. Tigano, 63 Wn. App. 336, 341, 818 P.2d 1369 (1991) (quoting Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 159, 776 P.2d 676 (1989)). A jury commits misconduct when it considers "information that is outside all the evidence admitted at trial, either orally or by document." State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 631 (1994) (quoting Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990)). By consulting home dictionaries for definitions of legal terms, this jury committed misconduct. See Adkins v. Aluminum Co. of America, 110 Wn.2d 128, 750 P.2d 142 (1988) (jury committed misconduct by consulting law dictionary for definition of `negligence' and `proximate cause'). A jury's misconduct is presumed to be prejudicial, and the State must overcome this presumption by proof beyond a reasonable doubt. State v. Brenner, 53 Wn. App. 367, 372, 768 P.2d 509 (1989). The State must demonstrate that the misconduct could not have affected the jury's determinations. Gardner, 60 Wn.2d at 841; Briggs, 55 Wn. App. at 56. Any doubt about whether the misconduct affected the verdict must be resolved against the verdict. Halverson v. Anderson, 82 Wn.2d 746, 752, 513 P.2d 827 (1973). The trial court employed an incorrect standard when, instead of requiring the State to show the misconduct could not have affected the jury's determinations, it placed the burden on the defendants to show a substantial likelihood that the misconduct did affect the verdict. Further, the court expressly stated its inability to tell whether the jury's consideration of an extrinsic definition of `intent' affected the verdict. This doubt should have been resolved against the verdict. The definitions of `intent' and `burglary' were central in this case, and their applications to the facts were sharply disputed. The jury was confused about the definition of `burglary,' and sent a note to the judge asking whether `burglary in the first degree [is] inclusive of assault [in the first degree].' Cassidy Clerk's Papers at 65. The `to convict' instruction required the jury to decide whether the defendants entered the apartment with `intent to commit an assault against Rory Sullivan therein; [t]hat in so entering or while in the building or in immediate flight from the building the defendant or an accomplice in the crime was armed with a deadly weapon or assaulted Rory Sullivan.' Cassidy Clerk's Papers at 78 (emphasis added). One juror obtained from her dictionary, and shared during deliberations, a definition of `burglary' as `the act or crime of breaking into a house at night with intent to commit a felony.' Cassidy Clerk's Papers at 31. This suggested the jury could convict based only on intent to commit `a felony.' The jury reached its verdict only and almost immediately after resorting to these extrinsic definitions. Under these circumstances, the jurors' misconduct was not shown to be harmless beyond a reasonable doubt.
It is improper to consider whether the evidence actually affected the jury's determinations, because the actual effect of the evidence inheres in the jury's verdict. Gardner, 60 Wn.2d at 841; Briggs, 55 Wn. App. at 55.
Appellants are entitled to a new trial. We address their remaining assignments of error only insofar as they are likely to recur on remand
Accomplice Liability Instruction
Over the appellants' objections, the trial court gave jury instructions that allowed the jury to convict the appellants as accomplices if they had general knowledge that their actions would promote `a crime,' i.e., any crime, rather than the crime of which they were accused. This was clear error. See State v. Roberts, 142 Wn.2d 471, 509-13, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 578-82, 14 P.3d 752 (2000). Should the State proceed on an accomplice theory on retrial, the court shall provide the jury with accomplice liability instructions that conform to the requirements of the Roberts and Cronin decisions.
Prosecutorial Misconduct and Comment on Franklin's Post-Arrest Silence
Appellants contend the prosecutor's conduct deprived them of a fair trial. The alleged misconduct includes comments made during closing argument, inquiries made of the defense expert, and a comment on Franklin's post-arrest silence.
A conviction will be reversed for prosecutorial misconduct only if `there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict.' State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). We will not consider claims of prosecutorial misconduct absent a contemporaneous objection, unless the conduct was `so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct.' State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Aside from the comment on Franklin's post-arrest silence, only one of the alleged instances of misconduct drew an objection from the defense. Because the remaining claims do not reach the threshold for our consideration, we address only the prosecutor's remarks on the credibility of witnesses and his comment on Franklin's post-arrest silence. Franklin objected when the prosecutor referred to the State's expert witness as `very credible,' and contends these remarks affected the jury's verdict. We are not persuaded there is a substantial likelihood this argument caused prejudice, and while the prosecutor could have chosen a better phrase, his argument did not amount to impermissible vouching.
In cross-examining a police officer about his on-the-scene investigation, Franklin's counsel implied the officer's investigation was incomplete. He inquired how the officer investigated Franklin's allegation that he was first assaulted by Sullivan. The officer testified he had not received this complaint at the time. On redirect, the prosecutor sought to rehabilitate the officer's testimony by asking whether Franklin had complained of an assault by Sullivan. At one point, he asked the officer if Franklin had claimed he was a victim rather than a suspect `when [he] was being arrested and taken to jail.' RP (Oct. 10, 2001) at 351. This inquiry touched upon Franklin's post-arrest silence, and should not be repeated on retrial.
Unanimity Instruction
Cassidy and Franklin argue the trial court erred by failing to instruct the jury it must come to a unanimous decision as to the means by which the two committed burglary. A unanimity instruction on the means of committing a crime is required only when the evidence is not sufficient to support each alternative theory presented to the jury. State v. Ortega-Martinez, 124 Wn.2d 702, 707-08, 881 P.2d 231 (1994). Evidence is sufficient to justify a conviction if "after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." Ortega-Martinez, 124 Wn.2d at 708 (quoting State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990)).
The `to convict' instruction allowed the jury to convict if it found: (1) that the defendant or an accomplice was armed with a deadly weapon, or (2) that the defendant or an accomplice assaulted Sullivan. Sullivan testified that Basil stabbed him with a knife, and the treating physician confirmed that Sullivan suffered a stab wound. Given this testimony, a rational trier of fact could conclude beyond a reasonable doubt that Basil assaulted Sullivan with a deadly weapon. Both means by which the burglary could have been committed were thus supported by sufficient evidence. The court did not err by failing to give a unanimity instruction.
Jury Selection
Appellants argue the prosecutor violated their rights to equal protection when he used a peremptory challenge to remove the only non-white member of the venire. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). We address this issue because the trial court did not engage in the correct analysis.
To successfully contest a preemptory challenge, a defendant must first make out a prima facie case of racial motivation. State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996). Once a defendant establishes a prima facie case, the burden shifts to the State to give a race-neutral explanation. Batson, 476 U.S. at 96-98; Luvene, 127 Wn.2d at 699. This two-step analysis requires that the court first determine whether the defendants have made out a prima facie case, then elicit the prosecutor's response, and, finally, to rule upon whether the prosecutor's explanation reveals a discriminatory intent. State v. Wright, 78 Wn. App. 93, 100, 896 P.2d 713 (1995) (`Although the trial court must evaluate whether there is an apparent nondiscriminatory explanation for a set of strikes, it should not elicit the prosecutor's race-neutral explanation before determining whether the defense has established a prima facie case. To do so would collapse the Batson 2-part analysis.').
In this case, the trial court failed to make either of the required rulings and inappropriately prevented defense counsel from making a complete record of their challenge. Should this issue arise on retrial, the court shall engage in the required two-part analysis.
Investigatory Stop
Appellants were stopped after a police officer received a dispatch concerning a fight involving several Native American persons in a particular location. The appellants rely on our decision in State v. O'Cain, 108 Wn. App. 542, 31 P.3d 733 (2001) to argue that, absent a showing of reliability, the dispatch information cannot raise an articulable suspicion to justify the stop. This reliance on O'Cain is misplaced. That case involved a computerized database listing stolen vehicles, the accuracy of which had not been established. Here, the dispatch information came from a witness who reported the fight and its location, and gave a general description of the people involved. The responding officer located people meeting that description at the scene, in a vehicle with what appeared to be blood smeared on the passenger window and door. At that point, the officer had a sufficient factual foundation to conduct an investigatory stop. The trial court did not err by denying the motion to suppress.
Severance
Franklin and Cassidy both contend the trial court abused its discretion by refusing to sever their trials from one another's and from those of the other defendants, on the grounds that their defenses were incompatible. Neither Franklin nor Cassidy, however, established that their defenses were irreconcilable with those of any other defendant. See State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991) (holding defendants must demonstrate `that the conflict is so prejudicial that defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty' to justify a severance). The trial court did not abuse its discretion in denying the motion.
Franklin's Sentence
Franklin was sentenced under the Persistent Offender Accountability Act (POAA) because of prior convictions for second-degree robbery and vehicular homicide. Franklin argues the convictions were not constitutionally valid and cannot be used to enhance his sentence. The State proved the existence of the prior convictions by submitting Franklin's guilty plea forms. Franklin contends his statements on plea of guilty affirmatively establish he did not understand the elements of the crimes for which he was charged because the statements do not include all elements of the crimes. Although Franklin's written explanations do not explicitly include each element of the crime, Franklin signed the guilty plea forms, which expressly include the elements of the crime and the facts establishing each element. Franklin's prior convictions were not facially invalid.
Franklin's statement on plea of guilty for second-degree robbery states: `I kept a can of spray paint from Shawn Bowen by force.' Franklin Clerk's Papers at 74. Franklin's statement concerning the vehicular homicide declares: `I drove under the influence of alcohol. I got in an accident. Valentina LaClair died. She was my wife and I am very sorry for what I did.' Franklin Clerk's Papers at 90.
Franklin's guilty plea form for second-degree robbery states: The elements of the crime/s I am pleading guilty to are: (1) That on or about JUNE 25, 1992, the defendant, with intent to deprive, did unlawfully take and retain personal property, to-wit: a can of primer spray paint, a wallet with credit cards and identification in it, a cigarette lighter, cigarettes, and a portable radio cassette player, from the person of SHAWN D. BOWEN; (2) That the taking was against such person's will by the use or threatened use of immediate force, violence or fear of injury to such person; (3) That the above events occurred in Whatcom County, Washington. Franklin Clerk's Papers at 69. Franklin's guilty plea form for vehicular homicide states:
I am charged with the crime of VEHICULAR HOMICIDE. The elements of this crime are: That the defendant, FRANKLIN B. ROUBIDEAUX, JR., then and there being in said county and state, on or about the 3rd day of October, 1993, did drive a vehicle while under the influence of intoxicating liquor which was the proximate cause of injury to VALENTINA LACLAIR, a human being, [whose] death occurred within three years as a proximate result of that injury, in violation of RCW 46.61.520(1), said crime being a class `B' felony.
Franklin Clerk's Papers at 85.
Gladstone's Sentence
Gladstone's sentence included a provision for a term of community custody of `18 to 36 months or the period of earned release awarded pursuant to [former] RCW 9.94A.150(1) and (2), which ever is longer.' Gladstone Clerk's Papers at 8. Gladstone argues we must remand his case for imposition of the precise term of community custody, citing State v. Nelson, 100 Wn. App. 226, 996 P.2d 651 (2000).
However, as anticipated in Nelson, the precise term of community placement cannot be specified because it is contingent on the amount of early release actually earned. `[A] sentence need not include this information to be definite and certain.' State v. Mitchell, 114 Wn. App. 713, 714, 59 P.3d 717 (2002). The sentence was not fatally imprecise. Reversed and remanded for retrial.
APPELWICK and BAKER, JJ., concur.