Opinion
No. 61354-5-I.
March 30, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-08073-9, Charles W. Mertel, J., entered February 13, 2008.
Affirmed by unpublished opinion per Lau, J., concurred in by Ellington and Appelwick, JJ.
UNPUBLISHED OPINION
Phuong Mai appeals his conviction for assault in the second degree — domestic violence. He argues that the trial court abused its discretion when it permitted jurors to submit questions to witnesses without incorporating all of the procedural guidelines recommended in the comment to WPIC 4.66. But these procedures are not mandatory. They are guidelines designed to reduce the possibility that juror questions will prejudice a defendant's constitutional rights. Moreover, before an appellate court can reverse a conviction based on the trial court's adoption of a particular procedure for juror questions, the defendant must establish actual prejudice. Because Mai fails to show he was prejudiced by the juror questioning procedure, we affirm.
FACTS
The State charged Phuong Mai with assaulting his girl friend, My Kim Hoang. At trial, Mai's landlord testified that when he heard a commotion between Mai and Hoang, he told them to keep quiet so he could sleep. He woke up because the police knocked on his door after Hoang called 911.
In the 911 tape played for the jury, Hoang told the dispatcher she had been beaten up. After she hung up, the dispatcher called back and Mai answered. He told the dispatcher that Hoang was drunk and asleep. Hoang then took the phone and said she called 911 because of a nightmare.
Police Officer David Peplowski testified that Mai opened the door a few minutes after he knocked on it. Mai told him that Hoang was drunk and sleeping and that "everything was okay." Officer Peplowski explained that he still needed to see her, and Mai asked him to wait while he went to get her. As he waited, Officer Peplowski noticed some blood on the steps, so he followed Mai up the stairs. When they got to the top of the stairs, Mai said Hoang was still sleeping and that she was fine. But Officer Peplowski looked inside an upstairs bedroom and saw Hoang lying on the bed with a blood-covered towel over her face. He also noticed broken glass in the room and blood on Mai's hand.
Police Officer Carl Matsumoto also responded to Hoang's 911 call. He testified that Hoang told him Mai had assaulted her before and that she did not want to go to court because she feared he would come after her again. He took photographs to document Hoang's appearance, and these pictures were shown to the jury.
At Harborview Medical Center, Hoang gave a signed statement to Police Officer Molly Clark. According to her statement, Hoang and Mai argued because he saved a picture of another woman on his cell phone. When Hoang told Mai he should date the other woman, he slammed her into a wall and hit her all over her body. At one point, he choked her until she could no longer breathe. And Mai hit her every few months when she disagreed with him. When medical personnel removed some of Hoang's clothing, Officer Clark observed deep, extreme bruising on Hoang's back, arms, and legs.
Dr. Sarita Lobo examined Hoang and testified that she was alert and oriented. Although her blood alcohol level was approximately twice the legal limit, Hoang did not appear overly intoxicated or slur her speech. Dr. Lobo said Hoang told her Mai assaulted her — punching her with his fists and slamming her to the ground. While at Harborview, Hoang also met with social worker Tracy Hirai-Seaton. She testified that Hoang appeared oriented and acknowledged that her boyfriend assaulted her.
At trial, Hoang denied that Mai assaulted her that night or hit her in the past. She testified that she did not recall providing a written statement to Officer Clark, even though she admitted that the signature on the statement looked like her signature. She also did not recall telling Officer Matsumoto, Officer Clark, Dr. Lobo, or Hirai-Seaton that Mai had assaulted her. Rather, she claimed that when she opened her truck door to get her planner, several unknown assailants attacked her. She said the assailants did not steal anything and she was not sexually assaulted. She then explained that she might have initially blamed Mai because he was the first person she saw when she regained consciousness.
Officer Peplowski later testified that when he located Hoang's truck, the door was closed and locked and there was no blood nearby.
In his opening comments to the jury, the trial judge explained,
Secondly, you're allowed to ask questions during the course of this trial. And the procedure for doing that is that you would write the question out on a page of that notebook, tear it out and give it to the bailiff at the next break. I then share the questions with the attorneys and they decide whether or not to respond to the question or deal with it, or however they want to deal with it.
What often happens is early in the trial you'll have a question that they have perhaps a witness scheduled to answer later on. So, sometimes those things will be covered. At any rate, but you are allowed to ask questions and that's how you do it. So, just write it out and give it to the bailiff at the next break.
Record of Proceedings (RP) Supp. (Jan. 23, 2008) at 2. Neither party objected at the time the court gave this instruction. But both attorneys expressed surprise when, during a break in the State's examination of Hoang and outside the presence of the jury, the court transmitted several written jury questions to them. At this point, the following exchange occurred:
THE COURT: Now, as you heard me instruct them, I leave it up to you to decide how you want to do it and if at all. Questions are totally yours to deal with. . . .
. . . .
[Defense Attorney]: . . . There's a process of them writing a question and having the Court then read that question to the jury is what I'm objecting to. I didn't suggest that individual jurors would be actually speaking —
THE COURT: . . . That's not what's happening.
. . . .
THE COURT: The questions are being writ[ten] I'm not reading these questions to the jury or to anybody else.
[Defense attorney]: Okay.
THE COURT: I'm transmitting them to you and the deputy prosecuting attorney. You'll then read the questions, you'll then decide what you want to do with the questions, if anything. And that's exactly what I told this jury this morning in their instructions when you were here and listening.
[Defense attorney]: Yeah.
THE COURT: So this is not brand new news to you. But in any event, you'll be given copies of these questions, you can answer them, you can not answer them, it's completely your call.
[Defense attorney]: Okay, I was not aware of that, either, and I'm sorry if I didn't hear that, and I'm not sure that —
THE COURT: Okay.
[Defense attorney]: — we understood, [the deputy prosecuting attorney] and I understood exactly what the procedure was. But in any case, we would still object to there being communication between the jurors and Counsel at this point.
1 RP (Jan. 23-24, 2008) at 59-62. Although Mai's counsel objected to communication between jury and counsel, he did not object to any specific juror question. Some of the questions were answered by subsequent witness testimony while others were not addressed.
And Mai did not object when the State used some of the juror questions to examine witnesses. Instead, he exploited the State's reliance on juror questions by arguing in closing remarks,
"The State cannot prove their case to a certainty in this case. You know, some of you were writing questions throughout. I'm not going to specifically reference any particular question that was written during the case. But when you're back and you're deliberating, you're thinking about this case, I want you to think, you know, when I thought about that question, you know, was that a reasonable question to ask?
"You know, was that something that, you know, really was just silly of me? I shouldn't have bothered to put the ink down on the paper, or was that reasonable of you to ask those questions? There are good reasons to ask those questions. And were those questions answered? If they were all answered and, you know, you don't have a doubt as to whether or not Mr. Mai was the one who assaulted Ms. Hoang and whether or not substantial injury resulted, then it's your job to convict him.
"That's your job. If you all agree on that, that's your job. But if you don't, you still have questions, you still realize that it was reasonable to ask those questions, then this case has not been proven beyond a reasonable doubt if you still have questions." 2 RP (Jan. 24, 2008) at 221-22.
The State incorporated the following questions into its witness examinations: Did Hoang drink at the restaurant? What was Hoang's blood alcohol content when she showed up at Harborview? Is Hoang still dating Mai? What was Hoang's relationship with Mai? How long were they in a relationship? What is their current relationship? Were the car keys ever found? If so, where were they? Was Hoang's car found locked during the response to the call? What time of day was the 911 call received?
The jury questions that were not asked were the following: Did anyone hear the screaming? Were other drugs used that night other than alcohol? Prescription drugs? Illegal drugs? Did the noise start right after Hoang and Mai got back? How is the distribution of blood around the room reconciled with Hoang's claims the defendant helped her to bed after the attack at her car? What are the differing degrees of assault and what are the differences?
One of the juror questions was whether on the night of the assault, Hoang used drugs other than alcohol. Hoang tested positive for cocaine and opiates in an emergency room drug test. Although the trial court ruled the test result inadmissible, it allowed Mai to ask Dr. Lobo about Hoang's blood alcohol level.
The jury convicted Mai as charged, and the court sentenced him to a standard range sentence. He now appeals.
ANALYSIS
Mai's only contention on appeal is that the trial court erred in its handling of juror questions. A trial court has discretion to determine whether to allow and how to deal with juror questioning of witnesses in criminal cases. State v. Monroe, 65 Wn. App. 245, 251, 828 P.2d 24 (1992). But because allowing jurors to ask questions of witnesses can pose risks to a defendant's due process rights, the practice is generally discouraged, and it is recommended that trial courts follow certain procedures with respect to juror questions if the court allows them. State v. Munoz, 67 Wn. App. 533, 536-38, 837 P.2d 636 (1992). In Monroe and Munoz, we cautioned trial courts to follow the procedures outlined in the comment to 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.66 at 130 (3d ed. 2008) (WPIC).
WPIC 4.66 has been withdrawn, but the associated comment has been retained.
The comment to WPIC 4.66 makes several recommendations to mitigate the risks associated with juror questioning. It suggests that trial courts not raise the issue unless a juror first asks. It also suggests that the trial court permit only written questions and that it require that the jurors wait until both attorneys have completed their examinations of a witness before submitting questions. It further recommends that the trial court instruct the jurors not to express opinions about testimony or argue with witnesses through their questions. If jurors submit questions, the trial court is to give counsel an opportunity to object to the questions in such a way that the jurors do not know which party is objecting or why. If the trial court sustains an objection and disallows a question, it should inform the jury that the rules of evidence do not permit certain questions.
Mai argues that the trial court erred because it did not employ all of these recommended procedures. He complains that the court encouraged jurors to submit questions by raising the issue in its opening remarks instead of waiting for a juror to make an inquiry. He also notes that the trial court never informed the jurors that their questions might not be answered because they were legally objectionable. But deviations from the recommended procedure do not necessarily constitute an abuse of discretion. See Munoz, 67 Wn. App. at 538 (describing departures as "minor" and noting only that it is "preferable" for a court to follow the procedures outlined in WPIC 4.66). Moreover, even assuming the trial court abused its discretion in adopting the juror questioning procedure here, reversal is not warranted unless Mai can establish that the procedure prejudiced him. Munoz, 67 Wn. App. at 537 ("A procedure involving juror questioning must result in actual prejudice before an appellate court is justified in reversing a judgment.").
Although the trial court raised the issue of juror questioning first, it allowed the attorneys to object to any question outside the presence of the jury, required jurors to submit questions in writing, and allowed the attorneys to determine the timing and method for submitting juror questions to witnesses. Additionally, the trial court explained to the jury that a decision whether to answer a particular juror question could depend on testimony of later witnesses.
Here, the only juror question Mai cites as being prejudicial is the one asking whether Hoang had used drugs other than alcohol on the night of the assault. His argument for how this question prejudiced him is puzzling. The defense theory was that Hoang was attacked by unknown assailants when she went outside to her truck. Further, the defense theorized that Hoang mistakenly accused Mai of assaulting her because he was the first person she saw after regaining consciousness and she was generally confused. To bolster this theory about Hoang's state of mind, Mai sought to introduce emergency room test results showing that she had cocaine, opiates, and alcohol in her bloodstream. The trial court ruled that the cocaine and opiate test results were inadmissible. But it allowed Mai to inquire about Hoang's blood alcohol level, which was twice the legal limit. According to Mai, he was prejudiced because without the drug test evidence, the juror who asked whether Hoang used drugs that evening "was left to assume no such evidence existed." Br. of Appellant at 13.
Mai's claim of prejudice rests in part on his erroneous contention that the trial court refused to allow evidence of Hoang's recent drug use. The record shows, however, that although the trial court permitted Mai to ask any witness about Hoang's drug use, he did not.
Mai did not assign error to this ruling.
We disagree. Mai does not explain how this assertion resulted in prejudice. Nor does he identify prejudice associated with the juror questioning procedure. Absent a showing of actual prejudice that affected the trial's outcome, Mai's prejudice claim fails. Moreover, Mai's argument fails because it ignores the court's instruction to the jury to consider only the evidence admitted during the trial. And we presume that jurors follow the instructions they are given. State v. Johnson, 147 Wn. App. 276, 288, 194 P.3d 1009 (2008). Here, there is no evidence in the record, and Mai points to none, that the jury disregarded the instructions of the court.
Mai's argument also overlooks the overwhelming evidence supporting the jury's verdict. Even though Hoang claimed that she was assaulted outside after she opened her truck door, Officer Peplowski testified that he found the truck door closed and locked and that there was no blood nearby. Additionally, there was no evidence of robbery or sexual assault, and Hoang offered no explanation or motive for the attack by unknown assailants. In contrast to the lack of blood near Hoang's truck, Officer Peplowski testified that he saw large amounts of blood inside the house — on the stair steps, in Mai's bedroom, and on Mai's hand. The jury heard Hoang's voice on the 911 call when she said she had been beaten up. And they heard Mai's landlord testify that he heard a commotion between Mai and Hoang coming from Mai's room. They also heard Mai state that Hoang was sleeping when she clearly was not and that he told Officer Peplowski that "everything was okay" even as Hoang lay injured in Mai's room.
Mai argued that Hoang was confused and intoxicated. But Dr. Lobo testified that Hoang was alert, oriented, and not slurring her speech. Additionally, Dr. Lobo testified that Hoang said her boyfriend assaulted her and the injuries were consistent with her description of the assault. Officer Clark testified that she observed deep, extreme bruising on Hoang's back, arms, and legs. She also testified about Hoang's signed written statement in which Hoang described how Mai assaulted her.
The jury saw photographs of Hoang's injuries taken soon after the assault. And they heard several witnesses testify that Hoang told them on the night of the assault that Mai punched and hit her and that he hit her every few months. We conclude that overwhelming evidence supports the jury's verdict.
Finally, our review of the record indicates that the juror questions were "relatively innocuous; they were specific and factual in nature. The questions sought clarification of previous testimony and did not introduce new or unrelated subject matter." United States v. Lewin, 900 F.2d 145, 148 (8th Cir. 1990) (holding no abuse of discretion in allowing juror questioning).
Because Mai does not demonstrate he was prejudiced by the procedure for juror questioning, we affirm.
We noted in Munoz and Monroe and reiterate, "[I]t is preferable to follow the procedures outlined in [the Comment to] WPIC 4.66, especially the practice of instructing the jury on the subject only if a juror expresses a desire to question a witness. Potentially serious problems could arise from juror questions. In some instances, the adversarial procedure of a trial could be compromised." Munoz, 67 Wn. App. at 538; see also Monroe, 65 Wn. App. at 251.