No. 55141-8-I.The Court of Appeals of Washington, Division One.
October 9, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-1-01158-1, Catherine D. Shaffer, J., entered October 18, 2004.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.
Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Carla Barbieri Carlstrom, King Co Prosecutor’s Office, 516 3rd Ave Ste W554, Seattle, WA, 98104-2390.
PER CURIAM.
Jose Mendoza-Garcia challenges his convictions of two counts of second degree rape, contending the trial court erred by discharging a juror who indicated she was unable to follow the court’s instructions to decide the case for herself because of outside pressures of her job and family. Because this was not a case of jurors accusing another juror of forestalling a verdict by engaging in nullification, the trial court was not required to reinstruct the jury and send it back for further deliberation before questioning the juror. Mendoza-Garcia’s sentencing and pro se supplemental claims also lack merit.
We affirm.
FACTS
Mendoza-Garcia’s case was submitted to the jury on Wednesday, June 30, 2004. The jury deliberated through the next day and was discharged until July 6, after the long holiday weekend. On the morning of July 6, the trial judge called the parties into the courtroom. She informed the parties that at the end of deliberations on July 1, two of the jurors had contacted the bailiff with concerns about another juror. The two jurors told the bailiff that the third juror “indicated that she simply would vote with the rest of the jury, that she wanted to finish and get out of there.”[1] The jurors said they advised her to think about it over the weekend and come back ready to work. That morning, July 6, the judge had the bailiff ask the reporting jurors to identify the third juror and not discuss the matter with other jurors. They identified the other juror as Juror No. 1.
The judge informed counsel she thought it appropriate to bring the juror into the courtroom and ask her if she was concerned about the time deliberations were taking and if she felt pressured to finish deliberations within a particular time. If so, the judge indicated she would likely bring the alternate in to start deliberations anew, and if the juror said there was no problem, she would have the juror continue deliberating. The judge then asked for counsel’s input.
The prosecutor said before taking a position he would want to know what sort of pressure the juror was feeling and the reason for it. He was inclined not to restart deliberations if possible, and suggested the court give an instruction to remind the juror of her obligations. The judge agreed that the juror could continue deliberating in good faith, there was not a concern, but was worried that the juror would not deliberate in good faith. Defense counsel agreed with the prosecutor.
When Juror 1 was brought into the courtroom, the judge instructed her:
“Don’t tell me anything about what is going on in deliberations or how deliberations stand” and asked if she was feeling concerns about the time the deliberations were taking.[2] The juror responded, “I just have a lot going on. I am moving my youngest daughter down to Arizona in a couple weeks and work is piling up. I have to work nights and weekends.”[3]
After confirming Juror 1 felt pressured because of these problems, the judge asked if it was affecting her deliberations. Apparently displaying increasing emotional distress, the juror responded with questions about hung juries, how long deliberations could take and whether a verdict must be unanimous. The judge indicated that a verdict did have to be unanimous, did not otherwise comment on the nature of deadlocked juries and directed the juror to focus on whether she could continue to deliberate “no matter how long it takes”.[4] When asked whether she could follow the court’s instruction to make up her mind for herself and not change her belief regarding the evidence just to return a verdict, Juror 1 said her personal concerns could alter her decision and she was having trouble following the instruction.
The judge had the juror wait outside and heard from counsel, who commented on the juror’s emotional level and wondered if her concern was whether deliberations would take weeks or just days. The judge found Juror 1’s answers unambiguous and concluded she had no choice but to discharge her:
[S]he is feeling a need to get deliberations over with because of outside pressures. She said that she would like to be fair and do her job here, but she is having great difficulty doing that because of her concern about how long deliberations are taking.
When I asked her specifically if she could follow the jury instruction about assessing the evidence and adhering to her honest belief as to the weight or effect of the evidence, she said that she could no longer do that because of the pressure that she is under.
I don’t see that I can retain a juror, who is unable to follow one of the specific jury instructions and one of the most important, too, which is she individually determine what her view is in this case and not cave in simply because of the desire to return a verdict, or because of the beliefs of the other jurors.
That is an express instruction that I gave the jurors. I know that they are all quite familiar with it, since they all have their own copy of the instructions. I will note both of your exceptions if, in fact, you are making an objection here, but my inclination here is to excuse her.
I, frankly, agree with [defense counsel] that she is an emotional juror from the way that she behaved in voir dire, but this is the most emotional upset that I have seen her.
She was literally in tears at the end of our inquiry this morning, which I thought was a gentle one.
My feeling is that it is appropriate to excuse her and bring in [the alternate juror].[5]
Defense counsel noted his objection, the court discharged Juror 1, and the replacement juror was brought in and deliberations began anew. Later that day the jury returned a guilty verdict. Mendoza-Garcia appeals.
DECISION
Dismissal of an unfit juror is governed by RCW 2.36.110:
It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
CrR 6.5 provides the procedure for such a dismissal in a criminal case, allowing for alternate jurors to be recalled any time a regular juror is unable to serve and requiring the reconstituted panel to be instructed to begin deliberations anew.
At issue is whether the trial judge erred under State v. Elmore, 155 Wn.2d 758, 123 P.3d 72 (2005). In Elmore, after two days of deliberations in a home invasion robbery murder trial, two jurors communicated in writing to the judge that they believed another juror was refusing to convict under any view of the facts and refusing to follow the law. One wrote he thought Juror 8 was either nuts, criminal or related to the defendant, and the other, the presiding juror, wrote that Juror 8 said he did not care what the judge said and said he would not convict anyone based on what the law says. The presiding juror also wrote that Juror 8 had “disregarded every witness statement regarding the defendant as credible.” Elmore, 155 Wn.2d at 763.
The trial judge heard argument and indicated she believed there was a basis to replace the juror under the statute. The judge was reluctant to question the juror because of the risk of delving into his mental processes, but eventually agreed, after counsel for the State and defense both expressed a desire that the juror be interviewed, to question him to supplement the record.
Upon questioning, Juror 8 denied refusing to follow the law, but said his comment about the instructions was that it did not matter what the papers said, what mattered was if they believed the witnesses. Understanding the juror’s statements about the paper not mattering as a reference to the jury instructions, the judge concluded Juror 8 had manifested unfitness by reason of bias or prejudice with respect to the instructions as a whole. Elmore, 155 Wn.2d at 765. The court declined the State’s suggestion to interview the other jurors to assess their credibility, but later noted a written finding that Juror 8 was not credible.
A panel from Division II of this court applied a de novo standard of review, found the trial judge had improperly intruded into jury deliberations by making credibility determinations, and reversed. The Supreme Court accepted review and affirmed the reversal, but clarified the evidentiary and review standards:
We hold that in analyzing the evidence obtained from investigation, the trial judge must apply a heightened evidentiary standard: a deliberating juror must not be dismissed where there is any reasonable possibility that the impetus for dismissal is the juror’s views of the sufficiency of the evidence. However, once the trial court has applied the correct standard, the court’s conclusion as to whether the juror should be dismissed is reviewable only for abuse of discretion. Here, the trial court based its decision to dismiss the deliberating juror on very limited evidence, and there is no indication that it applied a heightened evidentiary standard in making the dismissal decision. We affirm the Court of Appeals and remand to the superior court for a new trial.
Elmore, 155 Wn.2d at 761.
Mendoza-Garcia does not contend that the trial judge failed to apply the correct evidentiary standard, but argues rather that the court committed reversible error by not following another aspect of Elmore. In reaching its result, the Elmore court described the scope of the trial court’s duty to meet its continuing obligation under the statute and court rule to investigation allegations of juror unfitness. The Elmore court noted that while trial courts were generally held to have broad discretion in conducting such investigations, “a study of the case law reveals that some general guidelines have emerged”, one of which was that “if a juror or jurors accuse another juror of refusing to deliberate or attempting nullification, the trial court should first attempt to resolve the problem by reinstructing the jury.” Elmore, 155 Wn.2d at 774.
Mendoza-Garcia relies on this language. He contends the trial court must be reversed because the other jurors indicated Juror 1 expressed her intent not to follow the law and the court failed to reinstruct the jury and have it continue deliberating. The State, on the other hand, contends that Elmore is properly distinguished because this case differs from the circumstances of jurors accusing another juror of delaying a verdict through nullification as was involved in Elmore. We conclude the State has the better argument.
In Elmore and in the cases from other jurisdictions it cited, the record suggested that a majority of jurors desired to have a holdout juror removed to facilitate a verdict. Because of the risk that what some jurors perceive as nullification is actually disagreement about the weight of the evidence, extra caution is required in that setting. Reinstructing the jury before engaging in any inquiry is sensible: if such a juror ultimately joins the majority or persuades other jurors to his or her position, there is no danger that judicial inquiry intruded too far into deliberations or that the court inadvertently sent a signal in favor of a particular outcome by discharging a lone holdout. In short, the passage of time may cure the problem, and at the very least, will not exacerbate it.
Here, in contrast, the passage of time would apparently not only have failed to remedy the problem, it would have placed it beyond cure. Continuing deliberations would have facilitated just what the other two jurors were concerned about, namely that Juror 1, who had been properly deliberating by adhering to her view of the evidence, would cease following the law by abandoning her personal position on the evidence only because of outside pressures. The court thus would arguably have erred under the statute by allowing a juror to remain who intended to render a verdict contrary to her view of the evidence. And once the verdict was entered, the situation would be beyond remedy.
Neither Elmore nor the cases it relied on in announcing its guidelines for dealing with accusations of juror nullification addressed the situation at issue here, and accordingly, on these facts, Elmore does not mandate reversal.
Rather, in the way it addressed the situation, the trial court demonstrated employment of the correct evidentiary standard, and under Elmore, was therefore vested with broad discretion in how to discharge its duty to investigate the situation. Elmore, 155 Wn.2d at 761. And given the unique circumstances, we believe the court correctly navigated the difficult terrain. By focusing on Juror 1’s ability to deliberate in the face of outside pressures rather than on her relationship with other jurors, the current state of deliberations, or how the court would determine when the jury was deadlocked, the court properly focused its inquiry on the legitimate purposes of the statute. Moreover, the court had the benefit of seeing Juror 1’s affect and demeanor as she answered the questions, which this court does not. In sum, we find no deprivation of Mendoza-Garcia’s right to a jury trial.
Mendoza-Garcia also challenges his sentencing requirement that he provide DNA samples. But we rejected his Fourth Amendment challenge in State v. Surge, 122 Wn. App. 448, 460, 94 P.3d 345
(2004), review granted, 153 Wn.2d 1008, 111 P.3d 1190 (2005). Mendoza-Garcia also advances an argument under the Washington Constitution, but we do not consider it because he fails to provide the necessary analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). State v. Nguyen, No. 55443-3-I, (Wash.Ct.App. Sept. 11, 2006); State v. Reichenbach, 153 Wn.2d 126, 131 n. 1, 101 P.3d 80 (2004).
Finally, Mendoza-Garcia has filed a pro se supplemental statement of grounds for additional review. His claims, however, are all either without merit or cannot be resolved upon the existing record. His first ground, pertaining to evidence of the victim’s mental health and associated records, fails because the court appropriately exercised its discretion by admitting relevant evidence that allowed the defense to present helpful expert testimony without admitting details that were irrelevant, unfairly prejudicial and misleading. The second ground, regarding the victim taking a drug test with reportedly negative results, fails because the court properly limited the inquiry to the extent relevant to the victim’s ability to recall and report the events forming the basis of the charges. Mendoza-Garcia’s third and fourth grounds, relating to the handling of various pieces of forensic evidence, fail because his complaints go only to weight rather than admissibility. See State v. Campbell, 103 Wn.2d 1, 37, 691 P.2d 929 (1984)). Finally, Mendoza-Garcia’s fifth ground, challenging calculation of his restitution obligation and credit for time served, depends on facts outside the current record. Accordingly, he must bring his claim in another proceeding, such as a personal restraint petition, where he can properly place new facts before the court. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
We affirm.
DWYER and APPELWICK, JJ.
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