No. 23570-0-III.The Court of Appeals of Washington, Division Three.
January 9, 2007.
Petition for relief from personal restraint. Denied
by unpublished opinion per Kato, J., concurred in by Sweeney, C.J., and Brown, J.
Appeal from Asotin Superior Court, Docket No: 00-1-00006-7, Judgment or order under review, Date filed: 02/09/2001, Judge signing: Honorable Robert L Zagelow.
Counsel for Petitioner(s), Janet G. Gemberling, Gemberling
Dooris PS Po Box 20129, Spokane, WA, 99204-7129.
Counsel for Respondent(s), Benjamin Curler Nichols, Asotin County Prosecutors Office, Po Box 220, Asotin, WA, 99402-0220.
Kato, J.
Troy D. Kamps seeks relief from personal restraint imposed for his 2001 Asotin County conviction of one count each of first degree assault with a firearm enhancement and fourth degree assault. Mr. Kamps previously filed a direct appeal of his convictions and this court affirmed in an unpublished opinion. See State v. Kamps, noted at 116 Wn. App. 1073 (2003), review denied, 150 Wn.2d 1027 (2004).
In this petition, Mr. Kamps claims he was denied a fair trial due to alleged improper bailiff communications with the jury, ineffective assistance of counsel, and instructional errors. We reject his claims and deny the petition.
Mr. Kamps’ convictions stemmed from an altercation at his home in which he assaulted his girl friend Shannon Peterson and shot Benjamin Pourier nine times with a .22 caliber rifle. The jury rejected Mr. Kamps’ self-defense claim and found him guilty of the assault charges. The facts are otherwise well known to the parties and repeated only as necessary to address the issues raised in this petition.
1. Bailiff Communication Claim.
We first address Mr. Kamps’ claim that he is entitled to a new trial due to bailiff communications to the jury during deliberations that he contends were designed to hasten the verdict.
Following the guilty verdict, Mr. Kamps filed a motion for new trial alleging inappropriate communications by the bailiff with the jury during deliberations. He submitted affidavits from four jurors (not including the foreman), which generally indicated that the bailiff came into the jury room on a Friday evening and told the jurors, or the jury foreman, that if they had not reached a verdict by 6:00 p.m., they would have to return the following Wednesday, after the July 4th holiday, to finish. The bailiff also allegedly stated that the judge was from out of town and it would be inconvenient for him to return after the holiday. One juror, Harold Goff, said that because of this, he felt pressured to vote guilty to end the deliberations.
Mr. Kamps contended in his new trial motion that the bailiff’s conduct violated CrR 6.15(f)(2), which prohibits a judge from instructing a jury on the length of time required for deliberation, and RCW 4.44.300, which prohibits the bailiff from communicating with the jury unless ordered to do so by the judge. Mr. Kamps’ counsel also referred to State v. Crowell, 92 Wn.2d 143, 594 P.2d 905 (1979), where a new trial was ordered because the bailiff made comments that could be viewed as designed to hasten the jury’s verdict. The trial court did not seek to interview the bailiff or any of the jurors to determine what was actually said by the bailiff. The clerk’s minutes revealed that the jury returned its guilty verdict at 6:48 p.m. on that Friday evening. The trial court rejected Mr. Kamps’ bailiff communication claim on the basis none of the jurors said they were so rushed by anything the bailiff might have said that they would have ruled differently.
Mr. Kamps raised the bailiff communication issue on direct appeal in his pro se brief. He cited Crowell and argued this court should review for abuse of discretion the trial court’s decision on the issue of the bailiff rushing the jury to a decision. We rejected Mr. Kamps’ contention and reasoned:
The affidavits of three jurors state the bailiff entered the jury room once or twice and conveyed to the jury through the foreperson that they should render a decision soon so they would not have to come back the following week. Two of the jurors stated they felt rushed and “[i]t was apparent that other jurors felt that way also.” . . . Nevertheless, the affidavits do not indicate the jurors would have arrived at a different verdict had they spent more time deliberating. The affidavits alone do not establish Mr. Kamps was denied a fair trial.
Kamps, noted at 116 Wn. App. 1073, 2003 Wash. App. LEXIS 955, at *28-29.
Mr. Kamps renews the bailiff communication issue in this petition, contending the trial court erred in denying his motion for new trial and this court erred in its analysis upholding the trial court’s decision on direct appeal. We determined this to be a nonfrivolous issue under RAP 16.11(b), and that the interests of justice warranted revisiting it. See In re Pers. Restraint of Percer, 150 Wn.2d 41, 48, 75 P.3d 488 (2003); In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004). The Chief Judge referred the petition to a panel and appointed counsel for Mr. Kamps to provide supplemental briefing only as to the bailiff communication claim.
A criminal defendant is entitled to trial by a fair and impartial jury. U.S. Const. amends. VI, XIV § 1; Wash. Const. art. I, §§ 3, 21, 22; Duncan v. Louisiana, 391 U.S. 145, 177, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). “The right to a fair and impartial jury trial demands that a judge not bring to bear coercive pressure upon the deliberations of a criminal jury.” State v. Boogaard, 90 Wn.2d 733, 736-37, 585 P.2d 789 (1978). “As a general rule, a trial court should not communicate with the jury in the absence of the defendant.” See State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997). “The bailiff is in a sense the `alter-ego’ of the judge, and is therefore bound by the same constraints.” Id. “A bailiff is forbidden [from communicating] with the jury during deliberations except to inquire if it has reached a verdict, or to make innocuous or neutral statements.” State v. Johnson, 125 Wn. App. 443, 460, 105 P.3d 85 (2005). An improper communication between the bailiff and the jury is constitutional error, although the error may be so inconsequential as to be harmless. Id.; Bourgeois, 133 Wn.2d at 407.
But when a bailiff’s or judge’s statements to a jury can reasonably be viewed as designed to hasten the verdict, the remedy is a new trial. Crowell, 92 Wn.2d at 147-48. Preliminary to this determination, the trial court’s role is to first attempt to discover what was said by the bailiff. The remarks are then examined for their possible prejudice. Id. at 147; see also Johnson, 125 Wn. App. at 460. The trial court can then consider only a juror’s testimony, either oral or by affidavit, which shows facts about the bailiff’s misconduct; it cannot consider things that inhere in the verdict. Crowell, 92 Wn.2d at 146. Thus, a “juror’s testimony cannot be considered if `the facts alleged are linked to the juror’s motive, intent, or belief, or describe their effect upon him.'” Id. (quoting Gardner v. Malone, 60 Wn.2d 836, 841, 376 P.2d 651, 379 P.2d 918
(1962)).
In view of these principles, we initially considered this matter without oral argument on December 20, 2005, and determined that because the trial court did not attempt during Mr. Kamps’ new trial motion to discover what was said by the bailiff, unresolved factual questions remained in that regard. We thus ordered a reference hearing on January 6, 2006, for the superior court to determine by written findings of fact the actual content of any oral or written communication made or conveyed by the bailiff to any members of the jury pertaining to time constraints and/or hastening of deliberations to reach a verdict.
The superior court held the reference hearing on April 14, 2006, and heard testimony from eight jurors, including the foreman Craig Burns, and considered the affidavit of a ninth juror. The bailiff was unavailable to testify because of medical problems, including senile dementia. The court also considered the four post-trial juror affidavits filed in 2001, as well as an affidavit from the trial judge, Robert L. Zagelow. Based upon the reference hearing testimony and affidavits, the court made extensive findings with regard to the bailiff’s communications during jury deliberations. The court also found that Judge Zagelow did not instruct the bailiff or infer to the bailiff that he should tell the jury to hurry its deliberations. The court subsequently entered supplemental findings ultimately resolving any conflicts in the testimony and affidavits.
The reference hearing court ultimately found that the bailiff twice entered the jury room. The first time was during the early stages of deliberations to inquire about food and beverage choices. The second time was late in the day during deliberations. On that occasion, the bailiff spoke only to the foreman and inquired if the jury was close to reaching a verdict. The bailiff told the foreman that the judge was planning on suspending deliberations at 6:00 p.m. if a verdict had not been reached. The bailiff told the foreman that if no verdict was reached by 6:00 p.m. that Friday evening, the jury would be ordered to return on Wednesday, after the 4th of July weekend, to continue deliberations.
The court further found that all of the jurors were credible witnesses and any differences between their testimonies at the reference hearing and that in the prior post-trial affidavits in 2001 (for the few who signed such affidavits) was as a result of the passage of time and their inability to recall events almost five years old. The jurors who did not sign 2001 affidavits and who did not recall specific matters at the reference hearing were also laboring under the passage of time. The court found that at least two jurors testified they felt rushed to reach a verdict, but that nothing said by the bailiff to the foreman or the jury encouraged this feeling. Juror Harold Goff expressed the most concern about the verdict, but no statements attributed to the bailiff caused Juror Goff’s concern. The court finally found that any feeling of pressure or haste to reach a verdict that day was as a result of juror discussions during deliberations, and not comments by the bailiff.
This court does not disturb the trial court’s findings following a reference hearing if they are supported by substantial evidence. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 410, 972 P.2d 1250 (1999). Likewise, this court does not reweigh conflicting evidence, so long as some reasonable interpretation of the evidence supports the court’s findings. Id. Credibility determinations are for the trier of fact and are not subject to review. Id. at 410-11.
And Mr. Kamps does not challenge the evidentiary support for any of the court’s findings of fact. Rather, he accepts the court’s findings and makes a legal argument based upon the supplemental findings. He contends that the bailiff’s asking the foreman if the jury was close to a verdict, and then telling him that the jury would be required to return after the holiday to continue deliberations if it had not reached a verdict by 6:00 p.m., far exceeded the appropriate limited inquiry. He considers the bailiff’s comments more coercive than in Boogaard, where, according to Mr. Kamps, the jury was merely asked whether it could reach a verdict within a specified time. Mr. Kamps concludes that a reasonable juror might well objectively view the bailiff’s comments as designed to hasten the verdict, and thus a new trial is required.
The State responds that the facts of this case do not even approach the level of pressure that the polling of jury members by the judge presented in Boogaard, and that the bailiff’s statements here were in essence innocuous and cannot be reasonably viewed as designed to hasten the verdict. We agree with the State.
In Boogaard, the judge sent the bailiff in at 9:30 p.m. on the eve of a court holiday to inquire how the jury stood numerically (but not with respect to guilt or innocence) and was informed the vote was 10 to 2. Boogaard, 90 Wn.2d at 735. The judge then called the jury into the courtroom and asked the foreman the history of the vote. The judge also asked the foreman if he thought the jury could reach a verdict within a half hour. The foreman said yes, as did all of the jurors except one. The judge then instructed the jury to return to the jury room and deliberate for a half hour. Thirty minutes later, the jury sent word it had reached a verdict. The defendant was found guilty. Id.
In remanding the case for a new trial, the court reasoned:
The fact that one juror evidently capitulated in open court and the other gave in within the prescribed half hour justifies an inference that these changes of opinion were based not upon a change of view brought about by the persuasion of fellow jurors, but upon a response that was thought to be the judge’s wishes.
Id. at 739-40. Thus, the court concluded that examining the jurors as to the probability of reaching a verdict within a specified time placed a pressure of judicial influence on the minority of jurors that violated the right to trial by jury. Id. at 740.
Here, unlike in Boogaard, it is undisputed after the reference hearing that the pertinent communications occurred only between the bailiff and jury foreman. The bailiff did tell the foreman that the judge was planning on suspending deliberations at 6:00 p.m. if a verdict had not been reached, and that the jury would be ordered to return after the holiday to continue deliberations. But unlike the judge in Boogaard, the bailiff here did not give the jury any voting deadline or otherwise suggest the jury should be done with deliberations by a certain time. Nor did the bailiff inquire about the probability of a verdict being reached at any particular time. In essence, the reference hearing findings establish that the bailiff made neutral statements to the jury foreman about deliberation scheduling after Friday at 6:00 p.m. on a holiday weekend. Consistent with this conclusion and with the court’s supplemental findings, we also note that the court’s initial finding of fact 5 accurately reflects the jury foreman’s testimony at the reference hearing that the bailiff never said they had to come up with a decision by any particular time. See Report of Proceedings (RP) (April 14, 2006) at 61. And the jury foreman never told the jurors they needed to hurry and render a verdict. RP at 60.
Applying the Crowell standard, we conclude the bailiff’s statements are not reasonably viewed as designed to hasten the verdict and do not rise to the level of prejudicial constitutional error. Crowell, 92 Wn.2d at 147-48. And the court’s final supplemental finding that any feeling of pressure or haste to reach a verdict was as a result of juror discussions during deliberations (and not comments by the bailiff), is a correct reflection of the principle that the juror discussions inhere in the verdict and are not considered. Id. at 146; Gardner, 60 Wn.2d at 841.
We hold that Mr. Kamps was not denied the right to trial by a fair and impartial jury in this situation.
2. Other PRP Claims.
To obtain relief in a personal restraint petition, the petitioner must show actual and substantial prejudice resulting from alleged constitutional errors, or for alleged nonconstitutional errors, a fundamental defect that inherently results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d 506
(1990). To avoid dismissal the petition must be supported by facts,
not merely conclusory allegations. Id.
First, relying principally on State v. Rodriguez, 121 Wn. App. 180, 87 P.3d 1201 (2004), and State v. Walden, 131 Wn.2d 469, 932 P.2d 1237
(1997), Mr. Kamps claims his trial counsel gave him ineffective assistance by proposing jury instructions 6 and 15, that when read together incorrectly stated the law and thereby reduced the State’s burden to disprove self-defense.
To establish ineffective assistance of counsel, Mr. Kamps must show that his attorney’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). The first element of Strickland is met by showing that counsel’s performance was not reasonably effective under prevailing professional norms. The second test is met by showing a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. There is a strong presumption that counsel’s performance was reasonably effective. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
The court’s first degree assault jury instruction 5 included the element of “great bodily harm.” Instruction 6 defined great bodily harm for purposes of first degree assault:
Great bodily harm means bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.
RP (June 30, 2000) at 32-33.
The self-defense jury instruction 15 provided:
A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger.
Actual danger is not necessary for the use of force to be lawful.
RP (June 30, 2000) at 36.
Similar instructions were given in Rodriguez, but the only definition of “great bodily harm” given to the jury was for purposes of first degree assault. The problem arose when this definition was read into the self-defense instruction, which required the jury to find that in order to act in self-defense, the defendant had to believe he was in actual danger of probable death, or serious
disfigurement, or loss of a body part or function. This court stated:
[T]his is precisely the problem the Supreme Court warned against in State v. Walden[, 131 Wn.2d 469, 932 P.2d 1237 (1997)]. Like the instructions that the court found objectionable in Walden, the instructions here “[b]y defining [great bodily injury] to exclude ordinary batteries, a reasonable juror could read [the instruction] to prohibit consideration of the defendant’s subjective impressions of all the facts and circumstances, i.e., whether the defendant reasonably believed the battery at issue would result in great personal injury.” Walden, 131 Wn.2d at 477.
Rodriguez, 121 Wn. App. at 186 (footnote omitted).
This court held that defense counsel’s proposing these instructions advanced no legitimate defense trial strategy and the net effect was to decrease the State’s burden to disprove self-defense. The defendant was thus prejudiced by counsel’s performance because the instructions struck at the heart of the defense that the defendant was afraid of the victim but required the jury find the defendant was scared of death or at least permanent injury. Id. at 187.
Mr. Kamps likens his case to Rodriguez in that his counsel proposed instruction 15. But here, the trial court also gave the following additional instruction based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.04.01, at 22 (1994) pertaining to self-defense:
In determining whether a use of deadly force in self-defense was justifiable, the phrase, quote, “great personal injury” means an injury that the actor reasonably believed, in light of all the facts and circumstances known at the time, would produce severe pain and suffering if it were inflicted upon either the actor or another person.
RP (June 30, 2000) at 41; see also RP at 9-20. This instruction comports with Walden, 131 Wn.2d at 477-78. Both counsel argued from the standard stated in this instruction when discussing self-defense in closing argument. See RP (June 30, 2000) at 47, 53, 56, 61-62, 93, 98, 122-23.
Mr. Kamps makes no showing that he was prejudiced by any performance of counsel in this situation. He does not acknowledge that the court gave the additional pattern instruction based upon Walden, or provide analysis of how he was nonetheless prejudiced. He fails his burden under Cook, 114 Wn.2d at 813, on this claim.
Mr. Kamps next claims his counsel was ineffective for failing to propose a lesser degree instruction on third degree assault as pertains to the gunshot victim Mr. Pourier. The argument fails in light of the jury’s rejection of Mr. Kamps’ self-defense claim in favor of abundant evidence that he committed first degree assault by inflicting multiple gunshot wounds on Mr. Pourier without reasonable justification. The great bodily harm Mr. Kamps inflicted on Mr. Pourier precludes any rational inference that only the inferior crime of third degree assault was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 6 P.3d 1150 (2000).
Mr. Kamps makes no showing of prejudice from any performance of counsel under the Strickland standards for not requesting a third degree assault instruction. His claim fails.
Mr. Kamps next claims he was denied due process and the right to a fair trial when the court refused to give his requested burglary instructions in support of his theory that he was entitled to use a firearm to repel the crime of first degree burglary committed by Mr. Pourier and his companion Brandi Blankenship. This claim was rejected in the direct appeal and Mr. Kamps makes no showing that the ends of justice warrant revisiting the issue. Gentry, 137 Wn.2d at 388. We decline to do so.
Mr. Kamps next claims that the aggressor instruction 17 was unconstitutionally vague because it allowed the jury to find him the aggressor for either unlawful or lawful intentional acts provoking a belligerent response from the victim, Mr. Pourier. Mr. Kamps did not make this vagueness challenge at trial and is foreclosed from raising it now in this collateral attack. See State v. Benn, 120 Wn.2d 631, 673-74, 845 P.2d 289, cert. denied, 510 U.S. 944 (1993). In any event, the State’s clear theory at trial was that Mr. Kamps was the aggressor (and thus did not act in self-defense) because he shot Mr. Pourier in the back as Mr. Pourier merely stood in the living room. We do not further consider his challenges to the aggressor instruction.
Next, Mr. Kamps claims the trial court committed reversible error by failing to give a unanimity instruction regarding the fourth degree assault of Ms. Peterson. He contends the trial evidence showed he scared her by pointing the gun at her, and that he assaulted her by striking her and pulling her hair. Now, he contends for the first time in this petition that the jury could reasonably have found him guilty of fourth degree assault based upon his act of putting Ms. Peterson in apprehension of being shot. Thus, he contends the lack of a unanimity instruction deprived him of a fair trial as to the fourth degree assault charge. The claim lacks merit.
The State’s sole theory of the case as to the fourth degree assault charge was clearly that Mr. Kamps either struck Ms. Peterson or pulled her hair. He was not charged with pointing the gun at her, and whether he assaulted her in that fashion was never an issue in the case from either the prosecution or defense perspective. Indeed, Ms. Peterson testified she did not know if Mr. Kamps pointed the gun at her. RP (June 29, 2000) at 536-37. This was not a situation warranting a unanimity instruction and the court did not err by failing to sua sponte give one.
Finally, Mr. Kamps claims that the cumulation of errors has denied him a fair trial. Based upon our analyses above, we reject this claim.
Mr. Kamps makes no claim entitling him to relief in a personal restraint petition. He fails his burden under Cook, 114 Wn.2d at 813.
The petition is denied. Mr. Kamps’ additional motion for release pending disposition of this petition is also denied.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
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