No. 50004-0-I.The Court of Appeals of Washington, Division One.
Filed: February 24, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County, No. 011002344, Hon. Michael F. Moynihan, February 8, 2002, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Oliver R. Davis, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Rosemary H. Kaholokula, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225.
Laura D. Hayes, Whatcom County Prosecutor’s Office, Whatcom County Pros Ofc, 311 Grand Ave, Bellingham, WA 98225.
Kimberly A. Thulin, Whatcom County Prosecutor’s Office, 311 Grand Ave #201, Bellingham, WA 98225.
PER CURIAM.
Appellant Derek Arnold was convicted of one count of possession of a controlled substance in a jury trial. He appeals and asks us to remand the case for a hearing to determine the extent of and prejudice from apparent juror misconduct during juror deliberations. We deny Arnold’s request because the trial court is not required sua sponte to hold a hearing investigating juror misconduct, and the error at issue is not a manifest error that can be raised for the first time on appeal. Arnold failed to object to the judge’s handling of the issue at trial, request a hearing on the issue, or file any post-trial motions for a new trial due to juror misconduct.
FACTS
Arnold was charged with possession of a controlled substance with intent to deliver after United States Customs officials discovered two large duffel bags containing approximately 90 pounds of marijuana in Arnold’s truck in Blaine, Washington. Arnold’s trial began on February 4, 2002. At trial, Arnold claimed that he unwittingly possessed the marijuana and alleged that someone must have placed the marijuana in his vehicle while he waited at a Pannu trucking lot. The jury was instructed on the defense of unwitting possession and Arnold’s burden of proof on that defense.
On the morning of February 7, 2002, the trial court’s bailiff saw Juror No. 7 carrying a large book toward the jury room. He stopped the juror and asked him what he was carrying. The juror showed him a Black’s Law Dictionary. The bailiff told the juror that he could not use the book in deliberations and asked him if he had used it at home. The juror stated that he had looked up the term `preponderance of the evidence.’ The bailiff sent a note to the trial judge, telling him what had happened. The trial judge placed the letter in the superior court file, but neither the record nor the minutes indicate whether either trial counsel was informed of the incident at that time. After one day of deliberations, the jury returned with a verdict of guilty on the lesser included offense of possession of a controlled substance. After polling the jury, the trial judge asked Juror No. 7, `Didn’t I tell you people that you were not to bring in books or go on the internet?’ He then stated, `I’ll be a lot clearer in the future.’ Arnold did not request a hearing on the matter at trial, he did not object to the judge’s handling of the matter, nor did he file any post-trial motions with regard to jury misconduct. He did file a timely notice of appeal.
ANALYSIS
The first issue is whether a trial court must hold an investigatory hearing sua sponte when it becomes aware of credible allegations of juror misconduct. Arnold argues that his failure to request a hearing does not preclude this court from reviewing the issue because a trial court has a duty to act on its own to protect the criminal defendant’s right to due process, which was allegedly undermined in this case.[1] We reject Arnold’s argument for two reasons.
First, the cases he cites are factually and procedurally distinguishable from this case. In each of the federal cases Arnold cites, only some of the defendants requested a hearing on the issue of jury misconduct. But each provided notice to the trial judge by objecting to the judge’s response to the alleged misconduct, requesting a mistrial, or filing a post-trial motion for a new trial based on jury misconduct. In this case, Arnold’s attorney failed to object to the judge’s response to the situation, request a mistrial, or file any post-trial motions. Arnold points out that the record does not reflect whether his attorney knew of the alleged juror misconduct when it occurred. We disagree. The record confirms that his attorney was present when the judge questioned Juror No. 7 about the misconduct during jury polling and could have objected then. And after trial when he could have done so, Arnold failed to file a post-trial motion for a new trial based upon alleged jury misconduct.
Second, Washington and federal appellate courts have concluded that the decision to conduct a hearing about juror misconduct is generally within the discretion of the trial court.[2] In this case, the bailiff intercepted the material before Juror No. 7 entered the jury room and reminded the juror that the material could not be used in the deliberations. The trial court could reasonably have found that a hearing on the issue was unnecessary because the juror misconduct was only remotely prejudicial or was avoided altogether because the bailiff intercepted the material before it reached the jury room and reminded the juror that it could not be used in the deliberations. Arnold’s failure to object suggests that the misconduct was of little concern to Arnold’s own attorney as well. In addition, although Arnold cites two federal cases in which the Sixth Circuit imposed a duty on the trial court to hold an investigatory hearing for jury misconduct, the misconduct in those cases was very serious.[3] And even then, the court only reluctantly imposed responsibility on the trial courts.
Because we conclude that the trial court is not required to sua sponte hold an evidentiary hearing on juror misconduct, we must decide whether Arnold may raise the issue for the first time on appeal. RAP 2.5(a) provides that an issue may not be raised for the first time on appeal unless the issue raised is a manifest error affecting a constitutional right. To determine whether the error is one that can be raised for the first time on appeal, we must make a cursory determination about whether the alleged error in fact suggests a constitutional issue and then decide whether the alleged error is manifest. If the court determines the error is manifest then it must address the merits of the constitutional issue.
Finally, if we determine there was a constitutional error, we do a harmless error analysis.[4] The issue here is a constitutional one because a criminal defendant has a constitutional right to a trial by an impartial jury; therefore, we proceed to the second part of the analysis, determining whether the error is `manifest.’ To demonstrate that an error is manifest, Arnold must show the alleged error `actually affected his or her rights.’[5] `If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest.’[6]
Because the record reveals no actual prejudice and Arnold provides no argument that the error actually prejudiced him at trial, we conclude there was no manifest error that would permit us to review this issue.
(1954); United States v. Davis, 177 F.3d 552, 556-57 (6th Cir. 1999) (a credible claim of extraneous influence on a jury imposed a duty on the district court to hold a Remmer hearing); United States v. Rigsby, 45 F.3d 120, 124-25 (6th Cir. 1995) (court must investigate sufficiently to assure itself that the defendant’s constitutional rights have not been violated), cert. denied., 514 U.S. 1134 (1995).