STATE v. KIER, 50852-1-I (Wash.App. 11-24-2003)

No. 50852-1-IThe Court of Appeals of Washington, Division One.
Filed: November 24, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 99-1-04351-7 Judgment or order under review Date filed: 07/26/2002

Counsel for Appellant(s), Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Catherine Lynn Floit, Attorney at Law, P.O. Box 27713, Seattle, WA 98165.

Herbert Kier (Appearing Pro Se), Washington State Penitentiary, Doc # 750754, 1313 N. 13th Avenue, Walla Walla, WA 99362-1065.

David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), Catherine Marie McDowall, King County Prosecutor’s Office, 516 3rd Ave, Seattle, WA 98104-2390.

BECKER, J.

Contrary to the contention of appellant Herbert Kier, neither the law nor our previous opinion[1] in this matter required the court to conduct an evidentiary hearing into Kier’s allegation of juror misconduct. The trial court, on remand after our previous opinion, entered findings of fact that have adequately resolved our concerns. We conclude there was no juror misconduct that affected the verdict, and the conviction is affirmed. A jury convicted Herbert Kier in July, 1999, of first degree robbery and second degree assault. Kier filed a motion for a new trial alleging that juror Vernette Stowers committed misconduct by introducing facts not in evidence. Kier supported his motion with the affidavit of juror Carol Allen. According to Allen, Stowers said in deliberations that through her job with King County Department of Corrections, she had personal knowledge that Kier had a criminal record and had previously been incarcerated. Stowers reportedly also said she knew Kier had been in a fight while in jail, resulting in disciplinary action, and that he was in a street gang. Allen alleged that Stowers’ disclosures affected the verdict:

I have no doubt that the information set forth materially affected the deliberations of the jury and caused the jury to reach verdicts of guilty on both of the charges against Mr. Kier.

In all likelihood I would have maintained my initial vote of not guilty on both charges were it not for this information and the pressure I felt from the other jurors to convict Mr. Kier after they became aware of this information from Ms. Stowers.

The State responded to Kier’s motion for a new trial with the affidavits of Stowers and three other jurors. Stowers denied telling other jurors Kier had a criminal record. She did admit to saying that she had access to that information through her job. Stowers also admitted telling the other jurors that she may have seen Kier before at the jail and she thought he may have been in a fight there. One of the other jurors agreed that Stowers said she might have seen Kier in the jail. The two other jurors did not recall any pertinent facts.

The trial court denied Kier’s motion for a new trial without holding a fact — finding hearing. The court found that if true, the alleged misconduct would have affected the verdict, but did not make any finding as to what actually occurred except to find that Allen was not credible. Kier appealed this ruling. He argued that Allen’s affidavit raised a question of fact that required an evidentiary fact-finding hearing and that the trial court’s failure to hold such a hearing violated his constitutional right to due process. We rejected the argument that the court was obligated to conduct a fact-finding hearing with live witness testimony. This court nevertheless concluded that the finding of Allen’s lack of credibility did not resolve the matter because the State’s own affidavits raised issues of fact. `Because the affidavits raise unresolved questions of fact about juror misconduct, we remand for a fact-finding hearing on this issue.’ State v. Kier, noted at 109 Wn. App. 1020, 2001 WL 1463810, at *3. On remand, Kier asked for a hearing with live testimony. He requested that jurors be subpoenaed to testify at an evidentiary hearing. The trial court decided instead to contact jurors by mail. Four regular jurors and one alternate responded to the court’s inquiry and completed a questionnaire.

Their responses indicated they did not recall any facts that would have supported the allegations of juror Allen. Kier again moved for a new trial. The trial court considered the original affidavits and the additional questionnaires, heard argument, and entered findings of fact and conclusions of law. The court’s ultimate conclusion was that `There was no conduct or discussion by any juror during deliberations which constituted juror misconduct, or which impermissibly affected the verdicts in this case.’ Kier assigns error to the first two findings entered by the court in support of that conclusion:

1. There is no evidence other than her affidavit to support Juror Carol Allen’s allegation that Juror Vernette Stowers told the jury that she had personal knowledge that Mr. Kier had a criminal record and had been incarcerated on previous occasions. Juror Chad Roberts responded in his Affidavit that juror Stowers ‘ may have said she had seen him in jail.’ Without finding that this statement was, in fact, made, the Court finds that even if it were made it would have had no impermissible affect on the deliberations or the verdicts because there was testimony during trial that Mr. Kier had been arrested for this incident. In addition, jail guards were present during the entire proceedings, as is the procedure with in-custody defendants.

2. Juror Allen alleged that Juror Stowers told the jury that she had personal knowledge that Mr. Kier had engaged in misconduct or was disciplined for misconduct while he was incarcerated on previous occasions in the King County Jail. Ms. Stowers recalled Jurors asking if she had seen Kier before, and replying ‘ I thought I might have seen him while working and that he may have been in a fight.’ The Court finds that this statement, if made, was cast in such uncertain terms as to have no legal effect in light of the fact that the other jurors did not even recall the comment having been made. None of the respondents, including Ms. Stowers, recall any mention that Mr. Kier may have been disciplined for misconduct, and the Court finds that this did not occur.

Kier argues that these findings are not supported by the evidence. We reject this argument. The affidavits of the jurors support the findings. Kier emphasizes Stowers’ admitted statement to the effect that she thought she had seen Kier in jail, where he may have been in a fight. The trial court found that if such statement was indeed made, it `was cast in such uncertain terms as to have no legal effect’ on the verdict. Kier contends that the statement must have affected the verdict. We disagree. We review for abuse of discretion a trial court’s determination whether jury misconduct occurred and whether a new trial is warranted. Richards v. Overlake Hospital, 59 Wn. App. 266, 271, 796 P.2d 737 (1990). The trial court was in a better position than this court to evaluate the effect of such a remark. We cannot find that the trial court abused its discretion here or that such a remark requires, as a matter of law, a new trial. Kier next contends that our previous holding required the trial court to summon the jurors to give live testimony, and that the court erred by finding facts based only on affidavits. Kier misreads our prior ruling.

We acknowledged that in some cases an evidentiary hearing is the only appropriate course of action, but we distinguished those cases from Kier’s.

In an appropriate case, a trial court may resolve questions of juror misconduct based solely on affidavits. Dean v. Group Health Cooperative of Puget Sound, 62 Wn. App. 829, 838, 816 P.2d 757 (1991). Kier argues in the alternative that reversal is appropriate because of the lengthy delay in the case, citing State v. Jackson, 75 Wn. App. 537, 544, 879 P.2d 307 (1994), review denied, 126 Wn.2d 1003 (1995). This case is unlike Jackson, a case where the trial court denied a motion for a new trial based on a prima facie showing of a juror’s racial bias that did not come to light until after the verdict. This court determined that the trial court should have conducted an evidentiary hearing before denying the motion for a new trial, because the conviction might have been affirmable if the State had had the opportunity to make a record of testimony to rebut the showing of apparent bias. This court concluded it was too late for that remedy as the appeal process had consumed more than two years and recollections would be unreliable after so much time. Kier’s situation is different because here, the problem was merely one of unresolved factual issues. The trial court did not need to hear testimony from live witnesses. The existing affidavits provided an adequate basis for the trial court’s fact finding exercise and its renewed conclusion that there was no misconduct calling for a new trial.

Finally, Kier argues that the trial court erred when it specified that the term of community placement he would serve would last for 24 months or for the period of earned early release awarded pursuant to RCW 9.94A.150, whichever is longer. He contends that this portion of the judgment and sentence is ambiguous and that the court should have calculated the precise term of his community placement. We reject this argument. State v. Mitchell, 114 Wn. App. 713, 59 P.3d 717 (2002).

The State asserts that there is a different type of error in the term of community placement. Because robbery in the first degree is a violent offense, rather than a serious violent offense, the applicable term of community placement is 12 months, not 24 months. RCW 9.94A.700(1)(a). We agree with the State and remand for correction of the term of community placement.

The conviction is affirmed. The case is remanded for correction of the sentence in accordance with the State’s concession.

ELLINGTON and AGID, JJ., concur.