Opinion
No. 33694-4-II.
December 5, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-1-05039-5, Beverly G. Grant, J., entered July 22, 2005.
Counsel for Appellant(s), Reed Manley Benjamin Speir, Attorney at Law, 3800 Bridgeport Way W Ste A23, University Place, WA, 98466-4495.
Counsel for Respondent(s), Michelle Hyer, Pierce County Prosecutor, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2102.
Affirmed by unpublished opinion per Van Deren, J., concurred in by Houghton, C.J., and Hunt, J.
Celine K. McCoy appeals her convictions for first and second degree theft. She claims that (1) the trial judge should have recused herself after McCoy alleged they attended the same church and the judge had previously represented her; (2) the trial court should have granted her a continuance to procure the presence of two out-of-state witnesses; (3) juror misconduct resulted in an unfair trial; and (4) there was insufficient evidence of the corpus delicti of the charged crimes. We hold that (1) McCoy presented insufficient evidence of the judge's actual or potential bias; (2) there is no evidence in the record that the out-of-state witnesses were material; (3) the juror she complains of was removed from the jury before deliberations; and (4) McCoy did not raise a corpus delicti objection at trial, thus precluding her raising that issue here. Accordingly, we affirm.
FACTS
Smiley Auto office manager, Linda Petty, was reconciling bank statements when she noticed a discrepancy between a reported deposit and her photocopy of the corresponding deposit slip. She called the bank and discovered that the deposit slip had been altered, reducing the amount of the deposit from $976 to $676. As she continued checking the account, she found that two other cash deposits, in the amounts of $2,326.52 and $2,300.01, were missing.
Petty asked another Smiley Auto employee, Celine McCoy, about the missing deposits. McCoy, who did not usually make deposits, had done so "as a favor to [Petty] because [she] was on the way out of town." Report of Proceedings (RP) (May 18, 2005) at 59. McCoy told Petty that she had given the deposit receipts to her, but Petty insisted she did not have them. Later, McCoy changed her explanation and told Petty that the funds were missing because "the manager of the car lot had told her that he was going to lend her some money and that she needed the money." RP (May 18, 2005) at 58. When confronted, McCoy admitted to a police officer and to one of the car lot's owners that she had taken the money.
In October 2003, the State charged McCoy with two counts of first degree theft and two counts of second degree theft based on the missing money. The State dropped one count of second degree theft on the first day of trial. The case was originally scheduled for trial in December 2003 but, before the case finally went to trial in May 2005, the trial court granted eight continuances at McCoy's request. Trial was further delayed by McCoy's failure to appear once and by her five changes of counsel.
On the eve of the May 2005 trial, McCoy made several attempts to further delay the proceedings. On May 11, her counsel unsuccessfully asked for a continuance, claiming that McCoy had recently disclosed the names of two out-of-state witnesses and that he did not yet know the precise testimony of these witnesses or whether their testimony would be material.On May 12, counsel again moved to continue the trial because a half an hour earlier McCoy indicated that she had been a victim of domestic violence and may have suffered brain damage that would render her incompetent or could raise a diminished capacity defense. Because McCoy was able to understand the proceedings and to communicate with her counsel, the trial court denied the motion.
On May 17, the first day of trial, McCoy's counsel asked the trial court for a continuance in order to procure the two missing witnesses, this time stating that their testimony was material to McCoy's consent defense. Because a different judge had denied the same motion the day before, the trial court ordered the trial to proceed. McCoy then claimed that she was not ready for trial because she had suffered a death in the family the preceding night. When the trial court still insisted on proceeding, McCoy asked the trial judge to recuse herself because McCoy and the judge attended the same church and because the judge had represented McCoy in a personal injury case in 1998. McCoy produced no evidence of either claim. The judge stated that she did not recognize McCoy. When McCoy then stated that she wanted to hire new counsel, the trial court stated that "all of these road blocks are just ruses" and insisted that the trial go forward. RP (May 17, 2005) at 19.
After the State rested, McCoy moved for a mistrial on the basis that she believed one of the State's witnesses lied on the stand, but she could not call her intended witnesses to contradict him. The trial court reviewed the lengthy record of continuances and delays and determined that McCoy had been given ample time and notice to complete her investigation and denied the motion. The defense then rested without calling any witnesses.
After the judge instructed the jury, the judicial assistant noticed that Juror No. 12 had a book titled, The Hidden Jury: and Other Secret Tactics Lawyers Use to Win, authored by Paul M. Lisnek, with a foreword by Johnnie Cochran. The trial court questioned Juror No. 12 about the book. He stated that he had brought in the book for the first time that day, he had no discussions with any other jurors about the book, but one juror had commented on the title and he had responded, "Yes." RP (May 18, 2005) at 88. The chapter titles, as read into the record by the trial court, undermined and demeaned the jury trial process.
The chapter titles are: Chapter 1: Fair and Impartial? Not a Chance, Chapter 2: My World and Welcome to It, Chapter 3: If It Doesn't Fit, You'd Best Quit, Chapter 4: A Match Made in Heaven . . . Or at Least in Science, Chapter 5: If Men Are from Mars and Women Are from Venus, Then Lawyers Are from Uranus, Chapter 6: First Thing We Do, Let's Kill All the Lawyers . . ., Chapter 7: Nothing But the Truth . . . Sort Of, Chapter 8: It Ain't Over until the Last Juror Sings, and Chapter 9: Fair, But Partial: As Good as It Gets.
The State argued that no harm had been done because the book had nothing to do with McCoy's case and seemed to be about courts in general. McCoy claimed that the book implied a great divide between the appearance and the reality of the court system and moved to strike Juror No. 12 for cause and for a mistrial based on juror misconduct.
The trial court granted McCoy's motion to remove Juror No. 12 and examined each of the remaining jurors about their exposure to the book. Seven jurors said they had seen the book. Only one juror described a brief conversation with Juror No. 12 about the book. He told Juror No. 12 that it seemed like a "funny book" to have on a jury. RP (May 18, 2005) at 105. The trial judge denied the mistrial motion, stating that "it appears that no one had any conversation about the subject matter or topic or any substance about the book other than that they saw it on the table in the jury room or saw it downstairs, that he was sort of isolated from the others reading a book." RP (May 18, 2005) at 108.
The jury found McCoy guilty on one count of first degree theft and one count of second degree theft, and not guilty on one count of first degree theft.
ANALYSIS
i. appearance of fairness
McCoy first argues that the trial judge violated the appearance of fairness doctrine by refusing to recuse herself when McCoy claimed that she and the judge attended the same church and that the judge had previously represented her. "`Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing.'" State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995) (quoting State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992)); see also State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996) ("Due process, the appearance of fairness doctrine and Canon 3(D)(1) of the Code of Judicial Conduct (CJC) also require a judge to disqualify himself if he is biased against a party or his impartiality may reasonably be questioned.") (citing In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)). But recusal lies within the trial court's sound discretion, Bilal, 77 Wn. App. at 722, and the claimant bears the burden of showing a judge's actual or potential bias. State v. Perala, 132 Wn. App. 98, 113 (citing State v. Post, 118 Wn.2d 596, 619 n. 9, 826 P.2d 172, modified by 837 P.2d 599 (1992)). McCoy has not met this burden.
Dominguez is directly on point. There, the judge had previously represented the defendant in a criminal proceeding and had prosecuted the defendant in a later proceeding. Dominguez, 81 Wn. App. at 327-28. The defendant also claimed to have filed a lawsuit or disciplinary complaint against the judge following the case in which the judge had represented him. Dominguez, 81 Wn. App. at 327. Division Three of this court held that the defendant's "bare oral assertion" that he had filed an action against the judge did not meet the evidentiary requirement for showing a violation. Dominguez, 81 Wn. App. at 329.
Moreover, the court held that the fact the judge had acted, in his professional capacity, once for the defendant and once against him, on unrelated cases, did not establish potential bias. Dominguez, 81 Wn. App. at 329.
McCoy presented no evidence beyond her oral assertions that she and the trial judge attended the same church or that the trial judge had previously represented her. Here, no reasonable, disinterested observer would find that the trial judge was biased against McCoy simply on the basis of attending the same church, especially when the judge did not recognize her. Furthermore, her claim that the judge had represented her in a civil action, if true, is weaker evidence of bias than the criminal prosecution and representation in Dominguez.
Accordingly, McCoy has not shown that the appearance of fairness was violated by the trial judge's refusal to recuse herself and McCoy is not entitled to a new trial on that basis. ii. denial of the motion to continue
McCoy also claims that the trial court violated her right to present a defense by denying her motion to continue the trial in order to secure the presence of witnesses. We review the trial court's denial of a continuance for abuse of discretion. State v. Hurd, 127 Wn.2d 592, 594, 902 P.2d 651 (1995) (citing Public Util. Dist. No. 1 of Klickitat County v. International Ins. Co., 124 Wn.2d 789, 813, 881 P.2d 1020 (1994)). `"A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds."' State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)).
Although a criminal defendant enjoys the right to present witnesses, this right is limited to "those witnesses who are material to the defense." State v. Smith, 101 Wn.2d 36, 41, 677 P.2d 100 (1984) (citing Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967)). The defendant bears the burden of proving materiality, which is accomplished by "establishing a colorable need for the person to be summoned." Smith, 101 Wn.2d at 42 (citing Ashley v. Wainwright, 639 F.2d 258 (5th Cir. 1981)). A defendant's mere expectation that a witness would testify favorably to her "does not satisfy the materiality requirement; [the defendant] must present specific facts to which the witnesses would testify." State v. Wimbish, 100 Wn. App. 78, 85, 995 P.2d 626 (2000) (citing State v. Etheridge, 74 Wn.2d 102, 112, 443 P.2d 536 (1968)).
McCoy did not identify the witnesses she wished to call, nor did she make an offer of proof about their expected material testimony. Thus, she has not demonstrated that the missing witnesses' testimony was material and, without an offer of proof from McCoy, the record contains no evidence about the nature and substance of their testimony. Defense counsel's oral statement that the witnesses were material lacks the required showing of specific, material facts to which they would testify.
Moreover, the case was originally set for trial on December 15, 2003. McCoy's motion to continue the trial on May 11, 2005, followed numerous continuances granted at McCoy's request. The trial court did not err in finding that McCoy had ample time to investigate and procure the presence of any material witnesses. Accordingly, even if McCoy could show the materiality of the witnesses' testimony, her claim fails because she has not shown that the trial court's denial of yet another continuance was unreasonable or untenable in light of a 17-month delay from the original trial date.
In a related argument, McCoy claims that the refusal to grant her continuance request violated her right to cross-examine the witnesses against her. But the defense cross-examined all the State's witnesses. Thus, we find no merit in this argument.
iii. juror misconduct
McCoy contends that she was denied her right to a fair trial due to juror misconduct because several jurors saw the cover and title of the book in Juror No. 12's possession. We review a trial court's decision about whether to grant a new trial due to alleged juror misconduct for abuse of discretion. State v. Adamo, 128 Wash. 419, 423, 223 P. 9 (1924); State v. Harris, 62 Wn.2d 858, 865-66, 385 P.2d 18 (1963). A new trial is warranted only where the misconduct is prejudicial, that is, where the "extraneous information could have affected the jury's deliberations." State v. Barnes, 85 Wn. App. 638, 669, 932 P.2d 669 (1997) (citing State v. Tigano, 63 Wn. App. 336, 341, 818 P.2d 1369 (1991)).
Jurors are sworn to return a verdict based on the evidence and are instructed to disregard matters outside the evidence. See Adamo, 128 Wash. at 422. While criminal defendants have the right to a fair trial before a fair jury, this does not mean they are entitled to a new trial "because of every slight misstep or deviation from the customary rules governing trials." Adamo, 128 Wash. at 424. McCoy has not shown an abuse of discretion by the trial court in refusing to grant her motion for a mistrial.
The extraneous material here involved a commentary on the judicial system in general. A systemic commentary in the jury room did compel reversal in State v. Rinkes, 70 Wn.2d 854, 425 P.2d 658 (1967). There, the day after the jury was impaneled, a local newspaper published an editorial criticizing "supposedly lenient court decisions in criminal actions" and "certain allegedly liberal probation policies of some of the judges of the [trial court]." Rinkes, 70 Wn.2d at 860. The defendants submitted the editorial to the court in support of their motion for continuance or change of venue, and the material inadvertently was given to the jury with the admitted exhibits. Rinkes, 70 Wn.2d at 862. Finding the admission of the editorial to be prejudicial error, the Supreme Court reversed the convictions. Rinkes, 70 Wn.2d at 863.
Here, the book in question differs from the editorial in Rinkes in three important ways.First, the prejudicial effect of the book is not nearly as obvious. As the Court in Rinkes explained, the editorial:
was clearly intended to influence the readers of it to be concerned about the purported leniency to alleged criminals of Seattle area judges. It was so calculated that it may well have evoked in jury members feelings or convictions of the necessity for being stricter and less careful about observing legal principles and procedure in dealing with defendants accused of crime.
Rinkes, 70 Wn.2d at 862-63. In contrast, Juror No. 12's book discussed the judicial system in general, not necessarily just the criminal justice system and certainly not the system in our state courts.
By comparison, in Adamo, a newspaper report about a prior trial of the same case was found in the jury restroom. Adamo, 128 Wash. at 420. After the verdict, a juror reported that he had seen the clipping and noticed the headline stating that the "[defendant] had been convicted and sentenced to ten years." Adamo, 128 Wash. at 420-21. In affirming the second conviction, the Supreme Court noted that the article "was apparently a fair report of the result of the first trial." Adamo, 128 Wash. at 421. Had the article "been an attack on the [defendant], or had expressed opinions concerning his guilt. . .or had been a grossly unfair statement of the former trial, then the Court might presume prejudice." Adamo, 128 Wash. at 422. Similarly, if McCoy could show that the book contained inflammatory language against criminal defendants or their attorneys, then we might infer prejudice. But McCoy has made no such showing.
Second, the trial court excused Juror No. 12 and questioned the remaining jurors and concluded that none had read the book or conversed with Juror No. 12 about the book's subject matter. In Harris, a newspaper article stating that the defendant was on parole following a rape conviction was found in the jury room. Harris, 62 Wn.2d at 863. The trial court interrogated the jury, finding that although one juror had seen the headline, none had read the line about the prior conviction. Harris, 62 Wn.2d at 864. The trial court denied the defendant's mistrial motion and the Supreme Court affirmed. Harris, 62 Wn.2d at 866. Rinkes distinguished Harris based on the trial court's examination of the jurors. Rinkes, 70 Wn.2d at 863. Here, whatever commentary against criminal defendants the book may have contained, the trial court satisfactorily determined that none of the remaining jurors had read it.
Finally, the jury was instructed not to consider extraneous evidence and the book was extraneous. Rinkes distinguished Adamo because the Adamo jury "was instructed not to consider the extraneous newspaper material, and could be presumed not to have done so, since it was a matter outside the evidence." Rinkes, 70 Wn.2d at 863. In Rinkes, on the other hand, the offending material was entered into evidence and marked as an exhibit, and the jury was specifically instructed to consider all exhibits. Rinkes, 70 Wn.2d at 863.
We follow the reasoning in Adamo and presume that the jury followed the trial court's instruction to disregard extraneous material. See Adamo, 128 Wash. at 422. Thus, the trial court did not abuse its discretion in denying the mistrial motion.
iv. corpus delicti
McCoy also argues that there was insufficient evidence to establish the corpus delicti of the crimes. An issue cannot be raised for the first time on appeal unless it is a "manifest error affecting a constitutional right." RAP 2.5(a).
In applying this rule to a corpus delicti challenge, Division One has noted that "[t]he failure to comply with the corpus delicti rule is a non-constitutional error requiring a proper objection below." State v. C.D.W., 76 Wn. App. 761, 764, 887 P.2d 911 (1995) (citing People v. Wright, 52 Cal. 3d 367, 802 P.2d 221, 245, 276 Cal. Rptr. 731 (1990)). Because McCoy neither raised a corpus delicti objection below nor has argued that this is a manifest constitutional error, we decline to review it.
Affirmed.
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.
HOUGHTON, C.J. and HUNT, J. concur.