No. 25905-2-II.The Court of Appeals of Washington, Division Two.
Filed: October 26, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Cowlitz County, No. 99-1-01118-7, Hon. Randolph Furman, April 20, 2000, Judgment or order under review.
Counsel for Appellant(s), Edwin N. Norton, Cowlitz Co Dep Pros Atty, 312 S.W. 1st Ave, Kelso, WA 98626-1739.
Counsel for Respondent(s), James K. Morgan, Attorney At Law, 1555 3rd Ave Ste a, Longview, WA 98632-3228.
HUNT, A.C.J.
The State appeals the trial court’s grant of a new trial to Leopoloda Herrera-Bejar following his criminal conviction for delivery of a controlled substance. Herrera-Bejar cross-appeals. Holding that the trial court did not abuse its discretion, we affirm and remand for a new trial.
FACTS
Police videotaped Eusevit Parra-Bustamonte delivering a controlled substance to an undercover detective; they saw him make a second delivery.
The State charged Herrera-Bejar, allegedly Parra-Bustamonte’s driver, with two counts of delivery of a controlled substance under RCW 69.50.401(a)(1).
The videotape of the first drug transaction was admitted at trial without objection and played for the jury. Sergeant Douglas Ray Taylor testified that during the videotaping, he was 20 to 30 yards from the transaction, which occurred around 7:00 p.m. during mid-October when it was dark. The video was the best quality available under the circumstances.[1]
Herrera-Bejar’s defense was that he was not the person depicted in the videotape as Parra-Bustamonte’s driver during the sale. Herrera-Bejar called Parra-Bustamonte[2] to testify for the defense. Parra-Bustamonte acknowledged that he had delivered the controlled substances. But he also testified that: (1) he `went {to sell drugs} with a friend, . . . Mr. Pedro Ortiz;’ (2) he was involved in selling drugs with Romeo Herrera-Bejar, Leopoloda Herrera-Bejar’s brother; (3) he is `in the same family with Herrera-Bejar, but pretty far, far removed;’ and (4) Pedro Ortiz was the driver depicted in one of the State’s photo exhibits.
Herrera-Bejar asked that the jury have free access to the videotape in the jury room so that they could review it as many times as they wished. Concerned about over-emphasis of the video, the trial court ruled:
{I}t’s my preference that we have the machine here in the courtroom, and if the jury indicates that they would like to have it, then we would make a decision, and we will have the bailiff turn it on and off for them. Decide how many times, and then exercise discretion how many times they’re going to sit and watch it. But I think I need to maintain control so I can exercise discretion.
I understand counsel’s (meaning Herrera-Bejar’s) position. If he feels it’s best evidence of his argument, maybe we will let them look at it a lot, and maybe we won’t.
Report of Proceedings (RP) at 81-82.
Herrera-Bejar then asked, `Can the jury be informed they have the right to request that opportunity?’ The trial court answered, `Yes.’ Herrera-Bejar responded,
For the record, your honor, I would obviously argue where you have the defense asking to have the jury have this type of access to evidence accumulated by the State, I don’t think the Court of Appeals is going to have a problem with that.
RP at 82.
The court instructed the jury as follows:
THE COURT: Ladies and gentlemen . . . We are going to maintain the television, the video playback equipment in the court room.
Remember, if, during your deliberation, you want to view that, advise the bailiff. He will contact me, and we will make arrangements for you to see it, but we need to maintain obvious control over it and keep it in the courtroom. . . .
RP at 143.
In the jury’s absence the court advised the parties, `{M}y suggestion is that I probably let them look at it in its entirety three or four times, and after that I’ll talk to you guys about having them look at it any more than that.’ RP at 144. Neither party objected.
After the jury began deliberating, they asked the bailiff if they could see the videotape again. The bailiff showed it to the jury in the courtroom four times within about 15 minutes. When the jury asked to see the tape a fifth time, the bailiff refused.[3] The bailiff attempted to track down the judge but could not reach him.
The jury reached a verdict. When the judge returned to the court, the bailiff told him about the jury’s request to see the tape again. The jury found Herrera-Bejar guilty as charged. He moved for a new trial based on several issues, including restriction of the jury’s access to the videotape. The trial court ruled:
The court considers the tape issue an objective issue . . . either I was in error in limiting them to watching it 4 times or an error occurred by not having the opportunity to let them look at it again, so I will grant a new trial based on the . . . on the basis of objective impeachment concerning my limitations on viewing the videotape. I cannot say that that did not effect the ability of the jury to reach a decision in this case.
RP 19-22. The court later clarified its ruling as follows:
I cannot say that the jury’s inability to see the tape more time did not prejudice and the outcome, certainly can’t say that beyond a reasonable doubt. So it’s my position that earlier I should have just let them look at it to their hearts’ content or I should have been informed that they wanted to see it again.
RP at 31.
The trial court entered findings of fact and conclusions of law, the pertinent parts of which are as follows:
A. Findings of Fact
1. The Court was concerned about the videotape {of the transaction of drugs} going to the jury without any limitation on the number of times the videotape could be replayed by the jury. The Court felt it necessary to exercise discretion and control.
2. The videotape was played during the trial to the jury.
3. The Court kept the tape cassette which needed the State’s equipment to be played back.
4. If the jury wanted to see the video again, the Court allowed them to do that up to four times.
5. The Court ordered that if the jury wanted to view the video more than four times, I {Judge Furman} would consider the request.
6. The bailiff, Harlan Burrus allowed the jury to view the videotape four times in chambers and stopped the videotape and used the pause function during the view of the videotape. Although the videotape took less than two minutes to play through, the bailiff took 15 minutes to show the video four times to the jury because of pauses and stops during playback.
7. The still photo made from the video recording was admitted into evidence and the jury had constant access to the still photo during the entire time of it’s deliberation.
8. The Court did not want to lose discretion and control over the videotape to the jury.
9. An additional request to view the videotape came to Mr. Harlan Burrus the bailiff. Mr. Burrus told the jury that they could only view the video four times. Mr. Burrus intended to convey the request to view an additional time to the Court.
10. Mr. Burrus, the bailiff, attempted to call the Judge on a cell phone number at the time of the note and was unable to contact the Judge.
11. The Judge was at Juvenile Court at the time of the note and not at home.
12. This Court cannot be sure what it would have done had the request to view the videotape been conveyed to the Court. The Court feels it probably would have granted the request to view the videotape an additional time.
13. The note of the jury to the bailiff, written on a napkin, was a long time before the verdict, maybe an hour.
14. It is this Court’s practice when a note comes out that this Court would contact the lawyers before responding.
15. The Court became aware of the jury note upon returning to the courthouse and believes that it reviewed the note but is not sure.
16. The jury went out at 10:45 a.m. and their verdict returned at 4:00 p.m.
17. The time between the note and the verdict was not enough time to indicate a deadlock or that the jury was unable to reach a verdict.
18. The Court gave instruction number 2 which instructs the jury to work together to reach a verdict. Here, by affidavit, the presiding juror said that she and another juror changed verdict for the purpose of reaching a verdict.
B. Conclusions Of Law
1. Error occurred by not exercising discretion allowing the jury to view the videotape an additional time or because the additional request to view the videotape was not relayed to the court. Cannot say that the jur{y’s} ability to view the tape an additional time did not prejudice defendant.
Clerk’s Papers at 134-136 (emphasis added).
The State appeals the trial court’s grant of a new trial on Count I, the drug sale depicted in the videotape. Because we affirm, we do not address the issues that Herrera-Bejar raises in his cross appeal.
ANALYSIS
CrR 7.6(a)(8) provides that a defendant should receive a new trial when `substantial justice has not been done.’ A trial court has discretion to order a new trial for failure of substantial justice. Zorotovich v. Washington Toll Bridge Auth., 4 Wn. App. 801, 484 P.2d 928, rev’d on other grounds, 80 Wn.2d 106, 491 P.2d 1295 (1971). We will not disturb a trial court’s grant or denial of a new trial unless it constitutes a manifest abuse of discretion. State v. Copeland, 130 Wn.2d 244, 294, 922 P.2d 1304 (1996); State v. Williams, 96 Wn.2d 215, 221-22, 634 P.2d 868
(1981).[4] A far stronger showing of abuse of discretion is required to set aside an order granting new trial than one denying a new trial. State v. Slanaker, 58 Wn. App. 161, 163, 791 P.2d 575 (1990) (citing State v. Brent, 30 Wn.2d 286, 290, 191 P.2d 682 (1948)).
The cases the State cites affirm the various trial courts’ exercise of discretion in granting or denying a new trial. Neither in its brief nor at oral argument has the State presented a case in which the appellate court has found an abuse of discretion by the trial court in a case analogous to the one before us.
Here, the trial court clearly set forth its reason for granting a new trial. Upon reflection post-verdict, the trial court candidly admitted that it had erred either in limiting the jury to viewing the videotape four times or in inadvertently foreclosing from them the opportunity to view it again.[5] Contrary to the State’s argument, the trial court did not have to find certain prejudice. It was sufficient that the trial court found the converse: It could not say beyond a reasonable doubt that the jury’s inability to view the tape one more time did not prejudice the jury in reaching their verdict.
There being no manifest abuse of discretion in the trial court’s grant of a new trial, we affirm.
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.
We concur: SEINFELD, J., HOUGHTON, J.