Opinion
No. 54335-4-II
09-28-2021
STATE of Washington, Respondent, v. Robert Jesse HILL, Appellant.
Stephanie Alice Taplin, Newbry Law Office, 623 Dwight St., Port Orchard, WA, 98366-4619, for Appellant. Andrew Yi, Pierce County Prosecuting Attorney's Off., 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402, for Respondent.
Stephanie Alice Taplin, Newbry Law Office, 623 Dwight St., Port Orchard, WA, 98366-4619, for Appellant.
Andrew Yi, Pierce County Prosecuting Attorney's Off., 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402, for Respondent.
PART PUBLISHED OPINION
Veljacic, J.
¶ 1 Robert Hill appeals his conviction for malicious mischief in the second degree, felony harassment, and burglary in the first degree. The charges stemmed from an incident where Hill was denied service at Urban Bud dispensary and refused to leave. Subsequently Hill engaged in a physical altercation with the security guard and then purposefully destroyed display cases and merchandise.
¶ 2 Hill argues that his right to a fair trial was tainted by jury misconduct and that the trial court abused its discretion by denying his motion for a mistrial. Hill also argues that the State violated his right to a unanimous verdict by failing to prove both alternative means of committing burglary, that the prosecutor committed misconduct by urging the jury to speculate about evidence outside the record and by misstating the burden of proof, and that cumulative error denied his right to a fair trial. Hill asserts that the trial court abused its discretion by failing to consider his request for an exceptional sentence. In his statement of additional grounds (SAG), he also argues that the State failed to present sufficient evidence of burglary in the first degree, he received ineffective assistance of counsel, and the prosecutor committed misconduct.
¶ 3 In the published portion of this opinion, we conclude that the court did not abuse its discretion in denying Hill's motion for a mistrial because Hill failed to show juror misconduct. In the unpublished portion, we conclude that burglary in the first degree is not an alternative means crime, and the State produced sufficient evidence to support the conviction. Additionally, we conclude that the prosecutor did not commit misconduct, Hill was not prejudiced by cumulative error, and the trial court did not abuse its discretion because it did not categorically refuse to consider mitigating evidence at sentencing. Finally, we conclude that Hill's SAG claims have no merit. Accordingly, we affirm.
FACTS
I. INCIDENT AT URBAN BUD
¶ 4 On August 31, 2019, Hill walked into Urban Bud dispensary. Hill had consumed several alcoholic drinks that afternoon and evening. Upon entering Urban Bud, Hill stopped just inside the door at a podium that acted as a "security check-in station." 3 Report of Proceedings (RP) at 214. Hill began to write on a clipboard on the podium, erroneously believing it was a sign-in sheet. Alvaro Salaverry, in his position as security guard, was in charge of checking customer identification before allowing them in the store. Salaverry was not at the station when Hill entered, but returned and asked Hill to leave, Hill refused, and eventually attempted to walk past Salaverry into the store. Salaverry grabbed Hill by his back pocket, pulling him backwards, and causing him to fall. They struggled and at one point Salaverry attempted to drag Hill out of the front door. Eventually, Salaverry restrained Hill by kneeling on his back or shoulder.
¶ 5 After hearing shouting from the front of the store, the store manager Christian Muridan walked over and saw Salaverry on the ground struggling to restrain Hill, who was "incoherent [and] screaming." 3 RP at 203. Muridan smelled alcohol when he approached and told Hill that he needed to leave "at least five times in his face," but received no response or acknowledgement that Hill had heard him. 3 RP at 203. Muridan called the police. Another employee, Ashlyn Thomas, also smelled alcohol when she approached and saw Hill "sprawled out on the ground screaming." 4 RP at 346. Thomas heard Hill yell for someone to call the police because someone was hurting him. Muridan told Salaverry to let Hill up to allow him to leave. Hill stood up and ran toward the back of the store and tried to kick open the unmarked door of the employee breakroom.
¶ 6 Salaverry tackled Hill in the breakroom doorway and attempted to restrain him with his arm around Hill's neck. Hill continued to shout and eventually turned his head and bit Salaverry's forearm, causing Salaverry to release him. Hill kicked out at Salaverry, grazing his nose. Hill got up off the floor, picked up the jug and base of a water dispenser from inside the breakroom and threw it into the middle of the store. He then began kicking nearby display cases containing glass paraphernalia, damaging the display's glass, doors, and contents.
¶ 7 Urban Bud had significant security measures including a security camera system that captured the incident from multiple angles.
¶ 8 The police eventually arrived and placed Hill under arrest. The State charged Hill by amended information with assault in the second degree, malicious mischief in the second degree, felony harassment, and burglary in the first degree. The matter proceeded to a jury trial.
II. JURY DELIBERATIONS
¶ 9 After the close of evidence, the jury began deliberating in the afternoon and continued into a second day. At 10:03 AM, the jury submitted a questions to the court. At 10:42, the jury informed the judicial assistant (JA) that it was deadlocked on one of the counts. At 10:51, juror 2 informed the JA that they wanted to leave, and when the jury was excused for a break 20 minutes later, juror 2 further informed the JA that they were "getting threats." 6 RP at 534.
The jury asked, "Is it necessary that the defendant spoke a threat to kill Salaverry for it to be a threat? Can the threat be a perceived act or behavior?" 6 RP at 530. The court responded, "Please review Instruction 22." 6 RP at 530. The jury also asked, "If defendant is guilty of criminal trespass, can he also claim self-defense?" 6 RP at 531. The court answered, "Please refer to Instruction 31." 6 RP at 532.
¶ 10 After consulting with the parties about juror 2's complaints, the judge polled the jury on whether it could reach a verdict on the remaining count and the jury unanimously agreed that it could not. Hill and the State agreed that the jury was deadlocked and agreed to voir dire juror 2 to determine whether they could continue to deliberate. The court then engaged in the following colloquy with juror 2:
THE COURT: ... I am going to ask that you not disclose anything about the—who's voted how or what the actual vote is on any count at this point.
Based on my polling of the jury, I understand that the jury is unable to agree on one of the counts. I don't know what that is. I don't want to know at this point.
JUROR NO. 2: Okay.
THE COURT: But I was concerned about the fact that you indicated to [the JA] that at one point you felt like you needed to leave
JUROR NO. 2: Uh-huh. (Juror answers affirmatively.).
THE COURT: And we[‘]re concerned about the way another or other jurors had been addressing you.
JUROR NO. 2: Yes.
THE COURT: And I think that you had indicated to [the JA] that it was threatening or felt?
JUROR NO. 2: Yes.
THE COURT: Could you go into a little more detail without letting us know how the jury has voted or who has voted?
JUROR NO. 2: That it—karma should come back at me, and someone should come to my house and do that to me, and [juror X] hopes that I am the next person that that happens to if I don't agree with [them].
THE COURT: ... Do you think at this time you can continue[?]
JUROR NO. 2: Yes, I can.
6 RP at 541-43.
¶ 11 Hill's counsel also questioned the juror and confirmed what juror X said, and that juror 2 had felt threatened by it.
¶ 12 The court opined that it did not believe it needed to dismiss or replace juror 2 because they indicated that they could continue, and the presiding juror indicated that the jury had been able to reach a verdict on three of the counts. The State agreed. Defense counsel moved for a mistrial, arguing, "Because we don't know when in the deliberation process those threats occurred, we don't know if that was for a particular count. ... And it's clear that [Juror 2] feels intimidated; although, [the juror] felt that [they] could continue. You know, we can't unring that bell." 6 RP at 545. The court opined that it was not "that unusual for deliberations to get heated and people to say untoward things." 6 RP at 546. The court then denied the motion for a mistrial.
¶ 13 The jury found Hill guilty of malicious mischief in the second degree, felony harassment, and burglary in the first degree, but did not reach a verdict on assault in the second degree. The court polled the jury and confirmed the verdict. Hill appeals.
ANALYSIS
I. JUROR MISCONDUCT
¶ 14 Hill argues that juror X committed misconduct that violated his right to a fair trial by an impartial jury when they threatened another juror. He also argues that the trial court erred by failing to grant a mistrial or ensuring that he was not prejudiced by interviewing other jurors. Hill contends that because the error was structural, it was not harmless.
¶ 15 The State argues that we should not consider the alleged misconduct because it inhered to the verdict, and therefore, the court did not abuse its discretion in denying the motion for a mistrial. The State also argues that Hill fails to prove that the juror's comment was misconduct, rather than just a heated discussion. We agree that Hill failed to prove juror misconduct.
A. Juror 2's Testimony Does Not Inhere to the Verdict
¶ 16 Central to the jury system is the secrecy of jury deliberations. Long v. Brusco Tug & Barge, Inc. , 185 Wash.2d 127, 131, 368 P.3d 478 (2016). Courts will not consider allegations of jury misconduct that inhere in the verdict. In re Pers. Restraint of Lui , 188 Wash.2d 525, 568, 397 P.3d 90 (2017). " ‘[F]acts linked to the juror's motive, intent, or belief, or describ[ing] their effect upon the jury’ or facts that cannot be rebutted by other testimony without probing any juror's mental processes" are matters that inhere to the verdict. Id . (internal quotation marks omitted) (quoting Long , 185 Wash.2d at 131, 368 P.3d 478 ). " ‘Only if a court concludes that juror declarations allege actual facts constituting misconduct, rather than matters inhering in the verdict, does it proceed to decide the effect the proved misconduct could have had upon the jury.’ " Id . (internal quotation marks omitted) (quoting Long , 185 Wash.2d at 132, 368 P.3d 478 ).
¶ 17 Further,
[i]t is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine ... the probable effect upon the verdict. It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors.
State v. Reynoldson , 168 Wash. App. 543, 548, 277 P.3d 700 (2012) (quoting State v. Parker , 25 Wash. 405, 415, 65 P. 776 (1901) ); see also State v. Marks , 90 Wash. App. 980, 986, 955 P.2d 406 (1998) ("Jurors may provide only factual information regarding actual conduct alleged to be misconduct, not about how such conduct affected their deliberations."); State v. Forsyth , 13 Wash. App. 133, 138, 533 P.2d 847 (1975) ("[T]he trial court may consider statements of fact set forth in the affidavit, but may not consider a juror's statement of the effect such facts had upon the verdict.").
¶ 18 The testimony of juror 2 did not probe into their own or others’ mental process. Juror 2 stated what juror X said to them and that they felt threatened. They provided factual information regarding the conduct alleged. Juror 2 did not state what effect juror X's statements had on their deliberations or other jurors’ thought processes. Further, the fact could be rebutted by testimony without probing into other jurors’ mental states. The court could have called juror X, who could have confirmed or denied that they made the threat alleged without discussing their mental process. The fact specifically alleged here does not inhere to the verdict, so we will consider whether juror X's statement was misconduct.
B. The Statement Does Not Rise to the Level of Misconduct
¶ 19 Under the United States Constitution, the Sixth and Fourteenth Amendments guarantee persons accused of a crime the right to a fair trial by an impartial jury. State v. Davis , 141 Wash.2d 798, 824-25, 10 P.3d 977 (2000). Article I, section 22 of the Washington State Constitution provides a similar right. State v. Guevara Diaz , 11 Wash. App. 2d 843, 851, 456 P.3d 869, review denied , 195 Wash.2d 1025, 466 P.3d 772 (2020). However, the right to a fair trial does not require a "perfect" trial. In re Pers. Restraint of Elmore , 162 Wash.2d 236, 267, 172 P.3d 335 (2007).
¶ 20 A party alleging juror misconduct has the burden to show misconduct occurred. Reynoldson , 168 Wash. App. at 547, 277 P.3d 700 ; State v. Hawkins , 72 Wash.2d 565, 568, 434 P.2d 584 (1967). A strong, affirmative showing of misconduct is required 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 Wash.2d 114, 117-18, 866 P.2d 631 (1994). A new trial is warranted "only where juror misconduct has prejudiced the defendant." Reynoldson , 168 Wash. App. at 548, 277 P.3d 700 ; State v. Depaz , 165 Wash.2d 842, 856, 204 P.3d 217 (2009).
¶ 21 There is a lack of Washington case law concerning a claim of misconduct based specifically on one juror threatening another, and none that establish what level the challenged behavior must reach in order to be misconduct. Accordingly, we glean principles from similar Washington cases as well as out-of-state authority to resolve the issue.
¶ 22 In a similar case, State v. Earl , a juror asked to be dismissed from deliberations and presented a letter from her psychologist indicating that she should not continue because she was in "psychological crisis" based on the fact that another juror had "verbally attacked her, called her insulting names, and impugned her integrity." 142 Wash. App. 768, 771, 177 P.3d 132 (2008). The court questioned the presiding juror, and determined that there were no problems with the jury. Id . at 773, 177 P.3d 132. It also questioned the juror, determined that she could not continue, and dismissed her. Id . The court elected not to identify or question the juror who made the insulting comment and told the jury to begin deliberations anew with an alternate juror. Id . at 771-73, 177 P.3d 132. Earl appealed, arguing in part that the trial court abused its discretion in failing to grant a mistrial, and in limiting the scope of the inquiry into the misconduct. Id . at 774, 177 P.3d 132. We disagreed, holding that Earl failed to meet his burden to show misconduct and that "[a] personal remark, even a derogatory one, between jurors during a deliberation break, is not juror misconduct if it does not involve the substance of the jury's deliberations." Id . at 775-76, 177 P.3d 132.
¶ 23 Other jurisdictions have similarly held that the court must balance the interest in maintaining the secrecy of jury deliberations with the right of the defendant to a fair trial. In order to affect that balance, courts will generally overturn a jury verdict for misconduct only if juror conduct is egregious enough to effect a juror's ability to engage in free and frank deliberation.
¶ 24 For example, in Colorado, courts have held that a juror's acts constitute misconduct "only if the alleged coercive acts [first] rise to the level of continuous violent, abusive, and profane language and conduct threatening or amounting to physical violence against a juror." People v. Mollaun , 194 P.3d 411, 418 (Colo. App. 2008). "To warrant a new trial, the evidence must reveal more than expressions of frustration, impatience, annoyance, or empty threats." People v. Rudnick , 878 P.2d 16, 22 (Colo. App. 1993). Similarly, Minnesota courts have held that a juror's acts rise to misconduct when one juror commits or threatens actual physical violence towards another juror. State v. Jackson , 615 N.W.2d 391, 396 (Minn. App. 2000). However, "[e]vidence of psychological intimidation, coercion, and persuasion" may not be used to establish a claim of juror misconduct in Minnesota. Id . (emphasis added).
¶ 25 Likewise, in Oregon, a juror commits misconduct when their actions " ‘amount[ ] to fraud, bribery, forcible coercion or any other obstruction of justice that would subject the offend[ing juror] to a criminal prosecution.’ " Hill v. Lagrand Indus. Supply Co. , 193 Or. App. 730, 735, 91 P.3d 768 (2004) (quoting Carson v. Brauer , 234 Or. 333, 345-46, 382 P.2d 79 (1963) ).
¶ 26 Finally, in People v. Keenan , the California Supreme Court reviewed a claim of misconduct arising from one juror stating to another: " ‘If you make this all for nothing, if you say we sat here for nothing, I'll kill you and there'll be another defendant out there—it'll be me.’ " 46 Cal. 3d 478, 540, 758 P.2d 1081, 250 Cal.Rptr. 550 (1988). There, the court concluded that the statement "was but an expression of frustration, temper, and strong conviction against the contrary views of another panelist," and rejected the defendant's motion for a new trial. Id . at 541, 758 P.2d 1081, 250 Cal.Rptr. 550.
¶ 27 As discussed above, the party alleging juror misconduct maintains the burden to show that misconduct occurred. Reynoldson , 168 Wash. App. at 547, 277 P.3d 700. Based on the foregoing authorities, we hold that a juror commits misconduct only if the alleged coercive acts rise to the level of actual or threatened physical violence or abuse. But mere expressions of frustration, temper, empty threats, and strong conviction against the contrary views of another panelist are insufficient to establish a claim of juror misconduct.
We note that, even if a party successfully demonstrates juror misconduct, such misconduct must nevertheless be prejudicial to warrant reversal. See Reynoldson , 168 Wash. App. at 548, 277 P.3d 700 ; See also Depaz , 165 Wash.2d at 856, 204 P.3d 217.
¶ 28 Here, juror X, obviously disagreeing with some position taken by juror 2, told juror 2 that "karma should come back at [them], and someone should come to [juror 2's] house and do that to [them], and [juror X] hopes that [juror 2 is] the next person that that happens to." 6 RP at 542.
¶ 29 While at the time, juror 2 may have subjectively felt intimidated or threatened, the statement was not a threat. See Anderson v. Miller , 346 F.3d 315, 329 (2d Cir. 2003) (holding that a reasonable juror, standing in the shoes of the jurors who had been threatened by another juror, would not have thought themselves to be facing a physical assault if they refused to vote for conviction). There is no indication that the statement was more than "an expression of frustration, temper, and strong conviction against the contrary views of another panelist." Keenan, 46 Cal. 3d at 541, 250 Cal.Rptr. 550, 758 P.2d 1081. Juror X was telling juror 2 to put themselves in the victim's place, albeit in an extremely offensive and disrespectful way. Furthermore, although juror 2 felt threatened, they were able to continue deliberating. The actions were not misconduct.
¶ 30 We conclude that Hill has failed to meet his burden of a strong, affirmative showing of misconduct that 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." Balisok , 123 Wash.2d at 117-18, 866 P.2d 631.
C. The Court Did Not Abuse its Discretion by Failing to Conduct Further Inquiry into the Allegation of Juror Misconduct
¶ 31 A trial judge has broad discretion to conduct an investigation of jury problems and may investigate accusations of juror misconduct in the manner most appropriate for a particular case. Elmore , 155 Wash.2d. at 773-75, 123 P.3d 72 ; see also Earl , 142 Wash. App. at 774-76, 177 P.3d 132 (holding that the trial court may limit the scope of its inquiry where the moving party does not satisfy its burden of proving juror misconduct or prejudice).
¶ 32 "We review a trial court's investigation of juror misconduct for abuse of discretion," which occurs when the trial court "acts on untenable grounds or its ruling is manifestly unreasonable." State v. Gaines , 194 Wash. App. 892, 896, 380 P.3d 540 (2016). We also apply the same standard in reviewing the trial court's denial of a mistrial, finding an abuse of discretion only when " ‘no reasonable judge would have reached the same conclusion.’ " State v. Rodriguez , 146 Wash.2d 260, 269, 45 P.3d 541 (2002) (quoting State v. Hopson , 113 Wash.2d 273, 284, 778 P.2d 1014 (1989) ).
¶ 33 The court appropriately questioned the juror to which the statement had been made and confirmed that the juror was able to continue deliberating. Both parties were given the opportunity to question juror 2, and Hill did not ask the court to question juror X. Because Hill failed to make any affirmative, prima facie showing of misconduct, the trial court's limitation of its inquiry into the alleged misconduct was not an abuse of discretion. Accordingly, the trial court also did not abuse its discretion in denying Hill's motion for a mistrial.
¶ 34 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Sutton, J.
Glasgow, A.C.J.