Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division OneFeb 28, 2011
160 Wn. App. 1015 (Wash. Ct. App. 2011)

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  • Cunningham v. Uttecht

    …(Id. (quoting State v. Cunningham, 2011 WL 693699, at *6-7 (Wash. Ct. App. Feb. 28, 2011).) The Court agrees…

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No. 64425-4-I.

Filed: February 28, 2011.

Appeal from a judgment of the Superior Court for Whatcorn County, No. 09-1-00642-6, Charles R. Snyder, J., entered November 3, 2009.

Affirmed by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Appelwick, J.

Daniel Cunningham contends the trial court erred by refusing to declare a mistrial when the jury reported an impasse and then improperly pressured the jury to convict by directing it to continue deliberations. We affirm.


The State charged Cunningham with one count of robbery in the first degree while armed with a deadly weapon. The trial lasted over the course of one afternoon and one morning. Jurors began deliberating at about 3:00 p.m. on a Monday. At 11:00 a.m. the following day, jurors sent a note to the judge indicating they were at an impasse in their deliberations, with 10 voting guilty and 2 voting not guilty.

The court called the jury to the courtroom and the presiding juror reported the panel had been deadlocked for one hour the previous afternoon and all of that morning. The court asked, "Do you anticipate with further deliberation you would be able to make further progress?" The presiding juror responded, "I don't believe so, no."

Report of Proceedings (Sept. 15, 2009) at 5.


Aware that one of the jurors was unavailable after 3:30 that afternoon, the court observed, "That poses a bit of a dilemma for the court at this point." The court instructed the jury to take their lunch recess "to get away from the process" and then resume deliberating. The jury was to inform the court "if you are still unable to make any progress at that point in time. I will leave that to you as to when you think that's appropriate, but I am going to ask you to continue to try." The court explained that if the jury was making progress when the one juror had to leave, "we'll call in the alternate because we have an alternate available to do that."


Id. at 6.


Id. at 6-7.

Cunningham moved for a mistrial. The court denied the motion, concluding the jury should be given one more opportunity to come to agreement.

Shortly after 3:00 p.m., the court called the jury back to the courtroom. The presiding juror indicated there had been progress and a change in the direction of deliberations since the noon hour. After the court ascertained that all but the one juror were available to deliberate, it stated:

Well, this is a situation where we have chosen an alternate juror in the event another juror could not complete deliberations. It's my belief, from what you have told me, that you're still deliberating and progressing towards a decision, and under those circumstances I think it's my duty to call in the alternate juror to bring you in tomorrow morning. You will begin your deliberations anew with the alternate juror. You will have to startfrom square one.

Id. at 15-16.

The court excused the one juror and directed the rest to return the following morning at 9:00 a.m.

Two hours after it began deliberating with the alternate juror, the jury returned a guilty verdict.


Cunningham contends the court's refusal to declare a mistrial when the jury first indicated it was at an impasse was an abuse of discretion, and that its instruction to continue deliberating improperly pressured the jurors to convict. We disagree.

A court has discretion to discharge the jury and declare a mistrial where it appears there is no probability of the jurors reaching agreement. We review with great deference the trial court's determination of whether a deadlock exists.

RCW 4.44.330; CrR 6.10.

In determining whether a nonunanimous jury is truly deadlocked, the trial court considers "the length of time the jury has been deliberating in light of the length of the trial and the volume and complexity of the evidence," as well as the progress of deliberations. "The jury's own assessment that it is deadlocked, while helpful, is not itself sufficient ground for declaring a mistrial." It is appropriate to discharge the jury "only when it `appears to the trial judge that there is no reasonable probability of the jury arriving at an agreement even if given more time.'"

Taylor, 109 Wn.2d at 443; see also State ex rel. Charles v. Bellingham Municipal Court, 26 Wn. App. 144, 148, 612 P.3d 427 (1980).

Taylor, 109 Wn.2d at 443 (quoting Charles, 26 Wn. App. at 148).

The trial in this case lasted only about a day and the parties agree the case was not complex. The jury reached an impasse after only a short period of deliberations. Although the presiding juror indicated agreement was unlikely, the court "is in the best position to determine whether a jury's stalemate is only a temporary step in the deliberation process or the unalterable conclusion to that process." Here, the court decided there was a reasonable probability the jury could reach an agreement if given a break "to get away from the process." We cannot say this was an abuse its discretion.

Id. at 442.

The next issue is whether the court's instruction to continue deliberating and other comments improperly pressured the minority jurors to change their votes to guilty simply to achieve unanimity.

A criminal defendant has a right to a jury verdict uninfluenced by factors outside the evidence, the court's proper instructions, and the arguments of counsel. Criminal Rule (Cr.R) 6.15(f)(2) therefore prohibits courts from giving instructions that suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.

State v. Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 (1978).


Cunningham contends the court violated CrR 6.15(f)(2) by telling the jury that failure to reach a verdict before one juror had to leave would create a "dilemma" for the court and necessitate starting deliberations anew with the alternate juror. Cunningham argues this information improperly influenced the jury, especially since the jury was aware the court knew there were only two dissenting votes.

Cunningham relies principally on Iverson v. Pacific American Fisheries. There, the jury informed the court it was deadlocked, 9 to 3 for the defendant, after eight hours of deliberations. The court instructed the jury to resume deliberations and make every reasonable effort to reach a verdict. Ten minutes later, the jury returned a defense verdict. The court granted a new trial because "the immediate return of the jury, after they had been instructed to harmonize their differences and reach a verdict if possible, when considered in conjunction with the jurors' knowledge that the trial court had been informed they stood 9 to 3 for the defendant, represents almost conclusive evidence that two jurors were pressured into a change of position."

Id. at 243-44.

Id. at 244 n. 2.

Id. at 244.


We see no parallel to Iverson. Here, the jury did not immediately reach a verdict upon learning of the potential "dilemma" that its failure to reach a verdict by 3:30 p.m. would create. Neither did the jury report a continued stalemate. Instead, the jury did the one thing the court said would cause the "dilemma" and require starting deliberations anew the next day: it reported making progress toward agreement. Further, the jury returned no verdict until it was recomposed with the alternate juror. Cunningham does not suggest the court acted in any way to influence this newly composed jury.

To demonstrate judicial coercion, Cunningham must provide "more than mere speculation" about how a court's intervention might have influenced the jury's verdict. He must show "a reasonably substantial possibility that the verdict was improperly influenced." He cannot.

Id. at 178.



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