Opinion
No. 59769-8-I.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-05721-6, Joan E. DuBuque, J., entered March 26, 2007.
Affirmed by unpublished per curiam opinion.
A jury convicted appellant Adren Conley of assault in the fourth degree. The State presented evidence of numerous acts of assault, and the trial court gave an instruction to assure juror unanimity as to which act constituted assault. Nevertheless, according to defense counsel, some of the jurors said after the trial that they were not unanimous. Because the mental processes of the jurors inhered in the verdict, the trial court properly denied Conley's request for a new trial.
Conley and his ex-girlfriend got into an argument that led to the State charging Conley with two counts of domestic violence related crimes: first degree theft of a cell phone and fourth degree assault.
Assault is the intentional unlawful touching of the body of another. State v. Parker, 81 Wn. App. 731, 737, 915 P.2d 1174 (1996). At trial, Conley's ex-girlfriend testified to several acts of assault that occurred on August 22, 2006: (1) Conley hit her a couple of times with his open hand while they were in her car. (2) When she got out of the car and started walking away he chased her and started pulling her back to the car. (3) He took her keys from her and threw them at her back. (4) She got away from him but he came up behind her, picked her up in a bear hug and threw her in the air so that she fell on the ground. (5) He took her purse and hit her with it.
Any one of these acts, if proven, would constitute fourth degree assault. A jury must unanimously agree on the act that supports a conviction. State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173 (1984). When the State alleges multiple acts, any of which are sufficient to prove a count charged, the State must either elect the act upon which it will rely for conviction, or the court must instruct the jury that it must unanimously agree that one particular act was proved beyond a reasonable doubt. Petrich, 101 Wn.2d at 572. Here, the jury was instructed that they must unanimously agree that a particular act of assault occurred in order to convict Conley on the charge of fourth degree assault:
The State alleges that the defendant committed acts of assault on multiple occasions. To convict the defendant on any
count of assault in the fourth degree, one particular act of assault must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of assault.
Clerk's Papers at 39 (Jury Instruction 16).
The jury found Conley guilty of fourth degree assault but not guilty of theft. It appears that the jurors were polled, and each said unanimously that "it was their verdict and it was the verdict of the jury."
Report of Proceedings (March 22, 2007) at 8.
Conley moved for a new trial. In support of the motion, his attorney filed a certification asserting that the jurors had not reached agreement about any particular act of assault:
Following the verdict, a number of members of the jury spoke with myself and the prosecuting attorney. . . .
After speaking with these jury members in the presence of [the prosecuting attorney], it is my recollection that the jury was not unanimous in concluding any particular act of assault occurred, as required by Jury Instruction Number 16.
It is my recollection that members of the jury said they concluded an assault occurred by agreeing that "something" had happened, but never reached an agreement on which specific act constituted the assault.
I invite [the prosecuting attorney] to declare her recollection of this conversation with the jurors about what occurred, and if it differs from mine, would request the Court stay this hearing pending interviews with members of the jury. I would also request that contact information for the jurors be provided to both defense counsel and the State.
Clerk's Papers at 47 (Certification in support of defense motion for a new trial).
The trial court denied Conley's motion for a new trial on the basis that the issue raised by defense counsel inhered in the jurors' thought processes. Conley appeals.
A trial court's ruling on a motion for a new trial will not be reversed on appeal unless there is a showing of abuse of discretion. As a general rule, appellate courts are reluctant to inquire into how a jury arrives at its verdict. A strong, affirmative showing of misconduct is necessary in order to overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury. State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994).
The trial court stated that its ruling was governed squarely by State v. Havens, 70 Wn. App. 251, 852 P.2d 1120 (1993). In Havens, the defendant was charged with one count of child rape for incidents that occurred during a seven-month period. The victim testified to several incidents of fellatio occurring within this time period. The court instructed that the jury must be unanimous as to a particular act, as required by Petrich. Havens was found guilty as charged. He moved for a new trial on the basis that the jury verdict was not unanimous. He submitted the affidavit of a juror who stated that the jurors did not realize they needed to agree to a particular act of fellatio and had agreed only that an act of fellatio occurred during the time period. The trial court denied the motion for a new trial. This court affirmed, recognizing the well established policy that forbids inquiries into the privacy of the jury's deliberations. The jurors' mental processes inhered in the verdict. Havens, 70 Wn. App. at 256. The court further noted that "any defect in the voting procedure was cured by the jury poll. Since the jury was polled, there is no doubt that the verdict was unanimous and was the result of each juror's individual determination." Havens, 70 Wn. App. at 257.
Here, Conley contends defense counsel's affidavit is evidence of misconduct requiring a new trial. He argues it is undisputed evidence that the jury did not follow the court's Petrich instruction, and that the trial court should have made an inquiry into how the jurors applied the instruction or permitted counsel to conduct juror interviews. The State responds that a claim of misconduct occurring in a jury room cannot be shown by the affidavit of a third person based on hearsay. We need not decide that issue because even if defense counsel's affidavit is considered, the inquiry he sought would have meant delving into the mental processes of the jury. A jury verdict cannot be impeached in this manner. Havens is directly on point and Conley has not supplied contrary authority.
We do not, however, endorse Havens' statement that the polling of the jury assures that the jury followed the Petrich instruction. See State v. Beasley, 126 Wn. App. 670, 684, 109 P.3d 849 (2005). In Beasley, the court asked each juror the two typical questions: (1) were these your verdicts; and (2) were these the verdicts of the jury. "Neither of these questions specifically asks whether the jury found a specific act, or that all acts proved, constituted the crime charged." Beasley, 126 Wn. App. at 684. We agree with Beasley that jury polling would be a cumbersome and difficult method of assuring unanimity in a multiple act case. It is wiser to "simply give the unanimity instruction." Beasley, 126 Wn. App. at 685.
A proper unanimity instruction was given in this case. Accordingly, the court did not abuse its discretion when it denied Conley's motion for a new trial based on juror misconduct.
Affirmed.