Opinion
No. 80348-4-I
08-09-2021
The STATE of Washington, Respondent, v. Tedgy Carnell WRIGHT, Appellant.
Nielsen Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Eric J. Nielsen, Nielsen Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, Erin Irene Moody, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant(s). Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent(s).
Nielsen Koch PLLC, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122, Eric J. Nielsen, Nielsen Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, Erin Irene Moody, Attorney at Law, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant(s).
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave., Ste. W554, Seattle, WA, 98104-2362, for Respondent(s).
PUBLISHED IN PART OPINION
Bowman, J. ¶ 1 Tedgy Carnell Wright appeals several convictions resulting from a jury trial involving joined charges for two separate victims. Wright contends reversal is required because a jury question amounted to a statement of deadlock and the trial court violated his constitutional right to be present when it consulted with counsel in his absence. We hold that the jury question was not a declaration of deadlock prompting a critical stage in the proceedings and the court did not violate Wright's right to be present. In the unpublished part of this opinion, we conclude that the trial court did not abuse its discretion by denying Wright's motion to sever his charges and his counsel's failure to renew that motion did not prejudice Wright based on the evidence as it developed at trial. And the trial court did not deprive Wright of confrontation clause protections by excluding impeachment evidence, the prosecutor did not commit reversible misconduct during closing, and the court did not abuse its discretion by admitting two photomontages using Wright's booking photograph. Finally, cumulative error did not deprive Wright of a fair trial. We affirm.
FACTS
¶ 2 Wright appeals joined charges related to two separate incidents, one involving J.B. and one involving N.F.
J.B. Incident
¶ 3 J.B. is a single mom with a young son. She started working as an escort in 2018, advertising her services on websites. On May 29, 2018, a man, later identified as Wright, asked about engaging her services. She agreed to meet him at her home in Auburn.
¶ 4 J.B. let Wright in the house and he "immediately" began undressing. When Wright was undressed, J.B. noticed that "his body was saggy," as if he had "lost a lot of weight." Wright "said something about oral ... without a condom," and J.B. "told him no." Wright "got upset" and began putting his clothes on. As he dressed, Wright took a silver gun out of his jacket. J.B. told him to leave because she did not allow guns in her home. Wright "refused," took J.B.’s cell phone out of her hand, and told her to go upstairs. Wright threatened that if she "said anything about what's going on, ... he'd kill [her] and [her] son."
J.B. testified that her son was not home, but there were photographs of J.B. and her son on the walls.
¶ 5 Once they were upstairs, Wright "started basically telling [J.B.] what to do" while pointing the gun at her. He forced her to give him oral sex. Then Wright put on a condom and forced her to have vaginal sex. Afterward, Wright had J.B. walk with him to the bathroom, where she thought he put the condom in the toilet and washed his hands.
¶ 6 Wright returned to the bedroom and put on his clothes. He began searching J.B.’s room and her dresser while holding the gun. He took a pair of black Air Jordan tennis shoes with pink soles, two gold and diamond "grills," a picture of J.B. and her "ex," and J.B.’s wallet. He returned J.B.’s cell phone before he left in what "looked like" a black "newer Chrysler."
Mouthpieces.
¶ 7 After Wright left, J.B. was "scared" to call the police so she "called somebody close to [her]." The friend went to J.B.’s home and told her that she "needed to call the police." J.B. then called the police, who came to her home to take her statement and photographs. She also went to the hospital for a sexual assault examination. A forensic scientist from the Washington State Patrol Crime Laboratory (WSPCL) later testified that male DNA obtained from the perineal swabs in J.B.’s sexual assault kit matched a reference sample from Wright.
Deoxyribonucleic acid.
N.F. Incident
¶ 8 N.F. was not actively working as an escort. But she had advertised escort services online in the past, and some of her posts remained on the Internet. N.F. communicated with Wright over social media for a few months before they met. Wright would text N.F. asking to meet, but she ignored him because she had a boyfriend. In early June 2018, N.F. texted Wright that she was "ready and available" for sexual services because she was single. She agreed to meet him on June 17.
¶ 9 N.F. met Wright at a Subway restaurant in SeaTac. She parked her car and got into Wright's gray/silver Chrysler 200, where they talked for a while. Wright told N.F. he had friends that would pay her for sex. Wright offered to take N.F. for a drink, but N.F. did not want to leave her car at the Subway. So they decided to drop off N.F.’s car at her home and then "go by the water and just drink."
¶ 10 Rather than drive to the water, Wright drove N.F. to an apartment in Skyway. Once there, they listened to music and drank. Wright got "frisky" and offered N.F. $100 for oral sex. N.F. agreed. Wright gave her a $100 bill, and they went to the bedroom, where N.F. performed oral sex. At some point, Wright took off his shirt. N.F. made "a look of disgust" after seeing that Wright had a lot of "extra skin ... hanging down." Wright became "upset" and asked for his money back. When N.F. refused, Wright "went crazy." He "threw [her] on the ground," choked her with both hands around her neck, and vaginally raped her.
¶ 11 Afterward, N.F. went to the bathroom to check if Wright had been wearing a condom. She did not find one. When she returned to the bedroom to get dressed, she saw that Wright had a silver gun with a black handle and was going through her purse. N.F. and Wright fought over her purse. During the struggle, N.F. ripped the window blinds in the bedroom. Wright pulled off N.F.’s wig and false eyelashes and struck her in the head multiple times with his gun. N.F. tried to "sneakily" call 911 from her cell phone, but Wright "caught" her, took her phone, and "pistol whipped" her more. Wright then told N.F. that he saw her identification in her purse and if she did not "follow[ ] his directions," "I know where you live, I'll kill you and your whole family."
¶ 12 Wright ultimately gave N.F. her wig and clothing back and told her to get dressed. "He kept the gun in his hand the whole time." He told her to get in his car and then left her in Tukwila. Wright returned her two cell phones but kept her purse. N.F. called 911 and later directed officers to the Skyway apartment, identifying the unit by its broken blinds. Police took N.F. to a hospital, where she underwent a sexual assault examination, received stitches for the wounds on her head, and gave a statement to a detective.
¶ 13 The detective testified that at an interview the next day, N.F. said that Wright had taken $1,300 in cash from her purse and that she had marked the $20 and $100 bills with a "P" on the bottom right-hand corner of each bill. At a later search of the Skyway apartment, officers recovered $1,240 in $20 and $100 bills marked with a "P" and a locked toolbox containing a black and silver handgun. The detective also testified that officers found "black and pink Jordan's" in the Skyway apartment. The shoes appeared to be the same as those worn by J.B. in a photograph and matched her description of the shoes Wright stole from her apartment.
¶ 14 A WSPCL forensic scientist testified that vaginal swabs from N.F.’s sexual assault kit showed female DNA that matched N.F. and male DNA that matched Wright.
Trial
¶ 15 The State charged Wright with rape in the second degree of N.F.; robbery in the first degree of N.F. with a firearm enhancement; assault in the second degree of N.F. with a deadly weapon and a firearm enhancement; unlawful possession of a firearm in the first degree, committed on or about June 17, 2018; rape in the first degree of J.B. with a firearm enhancement; and unlawful possession of a firearm in the first degree, committed on or about May 29, 2018.
¶ 16 Wright moved to sever the two counts related to J.B. from the four counts related to N.F.. He also moved to sever the two unlawful firearm possession counts from the other charges involving each alleged victim. The trial court denied Wright's motion to sever the counts as to each victim but bifurcated trial on the two unlawful possession of a firearm charges from trial on the other counts. After the court considered the strength of the State's cases, Wright's defense of "general denial" for both victims, the court's ability to instruct the jury, the cross admissibility of evidence, and judicial economy, the court concluded:
The important consideration of judicial economy is served by trying these cases together. There already will be a bifurcated trial on firearms charges. Given the cross-admissibility of the evidence, there is no need for two trials involving such similar cases.
¶ 17 During discovery, Wright saw documentation that J.B. received $15,000 in lost wages benefits through the Department of Labor and Industries Crime Victims Compensation Program (CVCP). He told the court that there were "some questions" about "the veracity" of her application to CVCP. Wright later subpoenaed a CVCP claims consultant to testify at trial, intending to offer "relevant evidence that goes to [J.B.’s] bias of financial interest in the outcome of this case." Wright also intended to show that J.B. falsely represented that she worked as a receptionist for City Live Barbershop on her CVCP benefits application. The trial court quashed the subpoena. The court told defense, "[Y]ou can certainly ask [J.B.] about the representation she made to [CVCP] ... as part of assessing her credibility," but "we're not litigating whether the claim was properly paid or not, because that is collateral."
¶ 18 Before trial, the State moved to preclude defense counsel from asking whether J.B. had reported any income from City Live Barbershop to the IRS. The State argued the question "has no bearing on the issues of this case" and "its probative value is super low." Defense counsel asserted that the evidence "would establish that [J.B.] has no corroboration of her claim that she did in fact receive payment as she claims from City Live Barbershop" and that it was "relevant and material to the Defense that [J.B.] is not a credible person." The trial court granted the State's motion, noting that defense counsel already planned to call Gloria Wimberly, the barbershop's owner, to testify that J.B. was not in fact employed at the barbershop. The trial court also granted the State's motion to exclude all evidence or questioning about the Wells Fargo debit card that J.B. reported stolen by Wright. The court allowed defense only to "cross-examine [J.B.] about what she told the investigators and ... if her story has changed over time."
United States Internal Revenue Service.
¶ 19 After jury selection began but before the court empaneled a jury, defense counsel renewed Wright's motion to sever the counts related to J.B. from those related to N.F. to preserve the issue for appeal. Defense counsel did not provide any more argument about the motion. The court denied the renewed motion to sever but noted that Wright had preserved the issue for appeal.
¶ 20 Trial testimony began on March 26, 2019 and continued for two weeks. Wright did not testify but the court admitted a recorded statement he made to a detective on the day officers arrested him for the N.F. incident. Wright's defense theory as to the rape counts was consent. Defense counsel argued that Wright had paid J.B. for sex, pointing to evidence that at her defense interview, J.B. said Wright gave her two $100 bills "upon his entering her residence." Defense counsel also argued that J.B. was not credible, pointing out the inconsistencies in her various accounts of the incident and that she lied on her CVCP application about working for City Live Barbershop. As to N.F., defense counsel pointed out that although N.F. testified she was not posting advertisements as an escort at the time, she texted Wright that she was "ready and available" for sex work. Defense counsel also argued that N.F. agreed to go into the Skyway apartment and later agreed to perform oral sex.
¶ 21 On Thursday, April 11, 2019, the parties made closing arguments on all but the unlawful possession of firearm counts. After the State's closing, Wright moved for a mistrial. He asserted that during closing argument, the prosecutor impermissibly vouched for the victims’ credibility, commented on facts outside the record, and improperly argued that "one crime proved the other." The court denied the motion.
¶ 22 The jury began deliberating Thursday afternoon. On the morning of the following Tuesday, the jury inquired, "If we are unable to reach a verdict on a count, what happens?" The trial court conferred with defense counsel and the State, and they agreed to tell the jury, "See your instructions, particularly instructions #10 and #28." Wright was not present during the conference.
The conference itself is not in the record, and the trial court did not promptly memorialize the conference on the record. Instead, the only reference to the conference is during a later hearing on Wright's motion for a new trial.
¶ 23 On Tuesday afternoon, the jury returned guilty verdicts on the rape, robbery, and assault counts as charged. By special verdict, the jury found Wright guilty of the firearm enhancements related to the assault and two rape charges.
The trial court later vacated the conviction for assault of N.F. in the second degree based on the parties’ agreement that it merged into the robbery charge.
The trial then proceeded on the two unlawful possession of a firearm charges. The jury found Wright guilty of both unlawful possession of a firearm counts. Wright does not appeal these convictions or the court's decision to sever the unlawful possession of a firearm counts from the other charges.
¶ 24 Wright moved to arrest the judgment and for a new trial on multiple grounds. He argued among other things that "a new trial should be granted because the trial court erred in failing to have [Wright] present upon its consideration and response to a jury question that arose during jury deliberations." The trial court denied Wright's motion. The court acknowledged that Wright was not present at the conference but concluded that the law is "pretty clear that the matter of a jury question, at least on a point of law as was involved here, is not considered a critical phase of the proceeding for which the Defendant's presence is required."
¶ 25 The trial court sentenced Wright to an indeterminate sentence of 438 months. Wright appeals.
ANALYSIS
Right To Be Present
¶ 26 Wright contends the trial court deprived him of his right to be present during "a ‘critical stage’ of the trial" when it consulted with counsel about a jury question in his absence. We review de novo whether a trial court violated a defendant's constitutional right to be present. State v. Irby, 170 Wash.2d 874, 880, 246 P.3d 796 (2011).
¶ 27 A criminal defendant has a constitutional right to be present at all critical stages of a trial under article I, section 22 of the Washington State Constitution as well as the due process clause and the Sixth Amendment to the United States Constitution. Irby, 170 Wash.2d at 874, 246 P.3d 796. The core of this right is "the right to be present when evidence is being presented or whenever the defendant's presence has ‘a relation, reasonably substantial,’ to the opportunity to defend against the charge." State v. Bremer, 98 Wash. App. 832, 834, 991 P.2d 118 (2000) (quoting In re Pers. Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835 (1994) ). But the right is not absolute. Irby, 170 Wash.2d at 881, 246 P.3d 796. Rather, " ‘the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence.’ " Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct. 330, 78 L. Ed. 674 (1934) ). A defendant does not have a right to be present when his " ‘presence would be useless, or the benefit but a shadow.’ " Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting Snyder, 291 U.S. at 106-07, 54 S.Ct. 330 ).
U.S. Const. amend. XIV.
¶ 28 Generally, a defendant does not have the right to be present during in-chambers or bench conferences on legal matters that do not require the resolution of disputed facts. Lord, 123 Wash.2d at 306, 868 P.2d 835. For example, in State v. Sublett, 156 Wash. App. 160, 178, 231 P.3d 231 (2010), aff'd, 176 Wash.2d 58, 292 P.3d 715 (2012), a deliberating jury submitted a question to the court seeking clarification about the definition of "intent." Counsel and the judge met in chambers without the defendant to address the jury's question. Counsel agreed to answer the question by referring the jury back to their instructions. Sublett, 156 Wash. App. at 178, 231 P.3d 231. Sublett appealed his conviction, arguing that he had a right to be present when the court and counsel addressed the jury's question. Sublett, 156 Wash. App. at 181, 231 P.3d 231. We held that the conference "was not a critical stage of the proceedings because it involved only the purely legal issue of how to respond to the jury's request for a clarification in one of the trial court's instructions." Sublett, 156 Wash. App. at 183, 231 P.3d 231.
¶ 29 By contrast, a defendant has a constitutional right to be present when the court is responding to a declaration from a jury that they are "deadlocked." State v. Burdette, 178 Wash. App. 183, 201, 313 P.3d 1235 (2013). In Burdette, the jury sent a message to the court that stated, " ‘Jury is deadlocked over several issues relating to the defendant's intent.’ " Burdette, 178 Wash. App. at 189, 313 P.3d 1235. This "bald assertion of deadlock" came only a few hours after the jury began deliberating. Burdette, 178 Wash. App. at 196, 313 P.3d 1235. After consulting with counsel in chambers without the defendant, the court instructed the jury, " ‘[P]lease continue to deliberate in an effort to reach verdicts.’ " Burdette, 178 Wash. App. at 189, 313 P.3d 1235. The jury acquitted Burdette of one charge but returned a guilty verdict on the other. Burdette, 178 Wash. App. at 189, 313 P.3d 1235.
Alteration in original.
¶ 30 Burdette appealed his conviction, arguing he had a right to be present when the court discussed its response to the jury's communication. Burdette, 178 Wash. App. at 189-90, 313 P.3d 1235. We held that although the communication did not require the resolution of facts, "the defendant's presence at this stage has a direct relation to the fullness of his opportunity to defend against the charge." Burdette, 178 Wash. App. at 201, 313 P.3d 1235. We explained:
To a defendant, all may pivot on how long the court will require a deadlocked jury to continue deliberations before declaring a mistrial. In some situations, a defendant may desire a quick mistrial and in others more deliberations in hope of an acquittal. Whatever the case, much is at stake at this stage and a defendant may reasonably wish to actively participate by making his opinion known to his lawyer or, if allowed, to the judge.
Burdette, 178 Wash. App. at 201, 313 P.3d 1235.
¶ 31 Wright argues that Burdette should control here because "[l]ike the jury's question in Burdette, the question from Mr. Wright's jury related to deadlock." But the jury in Burdette did not pose a question. It made a "bald assertion of deadlock," which required the defendant's presence for participation in strategic decision-making about whether to seek a mistrial. Burdette, 178 Wash. App. at 195-96, 313 P.3d 1235.
¶ 32 Here, the jury heard testimony from several witnesses over two weeks about four separate charges involving two victims. After one and a half days of deliberations, the jury asked the trial court, "If we are unable to reach a verdict on a count, what happens?" Unlike Burdette, the jury's question was not an assertion of deadlock. Rather, it was a question about how to proceed in the event they were unable to reach a verdict on one of four separate counts. Resolution of the jury's question called for clarifying the court's instructions related to the deliberation process—a purely legal question. The court and counsel agreed to answer the question by referring the jury back to the instructions as a whole, and "particularly" instructions 10 and 28. ¶ 33 Jury instruction 10 stated, "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." Instruction 28 stated, in pertinent part:
The dissent contends this case is similar to Burdette because "the jury indicated that it was having trouble agreeing even though it did not use the term ‘deadlock.’ " Even if that were true, it still ignores that the jury question related to only one of four counts. Any discussion about whether to declare a mistrial and discharge the jury—the critical stage identified in Burdette—would not occur until after the jury had fully considered all four counts separately.
When you begin deliberating, you should first select a presiding juror. The presiding juror's duty is to see that you discuss the issues in this case in an orderly and reasonable manner, that you discuss each issue submitted for your decision fully and fairly, and that each one of you has a chance to be heard on every question before you.
....
You must fill in the blank provided in each verdict form the words "not guilty" or the word "guilty," according to the decision you reach.
Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the verdict forms to express your decision. The presiding juror must sign the verdict forms and notify the bailiff. The bailiff will bring you into court to declare your verdict.
¶ 34 Because the jury question did not amount to a declaration of deadlock, the parties did not discuss "how long the court will require a deadlocked jury to continue deliberations before declaring a mistrial." Burdette, 178 Wash. App. at 201, 313 P.3d 1235. As such, Wright's presence had no "relation, reasonably substantial," to his opportunity to defend against his charges. Lord, 123 Wash.2d at 306, 868 P.2d 835. The trial court did not violate Wright's constitutional right to be present at all critical stages of the proceedings.
Wright also complains that the trial court's answer to the jury's question was error. He contends that the court should have also emphasized jury instruction 2, which explains jurors should not "surrender [their] honest belief about the value or significance of evidence solely because of the opinions of [their] fellow jurors" or "change [their] mind just for the purpose of reaching a verdict." We first note that the court referred the jury to their instructions as a whole. In any event, the adequacy of the court's response to the jury's question is a different inquiry altogether than the nature of the jurors’ communication itself. And Wright does not claim instructional error on appeal. Instead, he argues that the violation of his right to be present is not harmless because the court's answer was unfair. Because we conclude that the court did not violate Wright's constitutional right to be present, we do not reach harmless error.
¶ 35 The rest of this opinion has no precedential value and should not be published in accordance with RCW 2.06.040.
I CONCUR:
Chun, J.
Coburn, J. (concurring in part and dissenting in part)
¶ 111 I respectfully dissent because the majority's decision today effectively establishes a higher threshold defendants must meet to trigger the right to presence at trial than what the constitution demands. Wright was denied his constitutional right to be present during a critical stage. Thus, I would hold that reversal is required because the State fails to show that Wright's absence was harmless beyond a reasonable doubt. I concur with the majority's resolution of the remaining issues.
¶ 112 After having the opportunity to deliberate for multiple days, the jury inquired, "If we are unable to reach a verdict on a count, what happens?" The majority holds that this inquiry did not implicate Wright's right to be present while the court considered its response because the jury did not declare it was, in fact, deadlocked. While a communication indicating a jury deadlock is certainly sufficient to trigger a defendant's right to be present, it is not necessary .
¶ 113 Wright contends the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution by consulting with counsel about the jury inquiry while Wright was absent. Wright does not separately analyze his federal and state constitutional claims. But I am nonetheless obliged to examine those claims separately "because [our Supreme Court] has previously interpreted the right to ‘appear and defend’ [under our State constitution] independently of federal due process jurisprudence.’ " State v. Irby, 170 Wash.2d 874, 885, 246 P.3d 796 (2011). I begin my analysis with Wright's federal constitutional claim.
¶ 114 "Under the Sixth and Fourteenth Amendments [to the United States Constitution], a criminal defendant has the right to attend all critical stages of his trial." State v. Pruitt, 145 Wash. App. 784, 798, 187 P.3d 326 (2008). A "critical stage" is a stage " ‘for which [the defendant's] presence has a relation, reasonably substantial, to the ful[l]ness of his opportunity to defend against the charge.’ " Pruitt, 145 Wash. App. at 798, 187 P.3d 326 (internal quotation marks omitted, second alteration in original) (quoting State v. Rice, 110 Wash.2d 577, 616, 757 P.2d 889 (1988) ). The right extends even to those situations when the defendant is not actually confronting witnesses or evidence against him. Pruitt, 145 Wash. App. at 798, 187 P.3d 326.
¶ 115 The right to be present is not unlimited. For example, the defendant has no right to be present " ‘when presence would be useless, or the benefit but a shadow.’ " Pruitt, 145 Wash. App. at 798, 187 P.3d 326 (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987) ). "But an accused ‘is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ " Pruitt, 145 Wash. App. at 798, 187 P.3d 326 (quoting Stincer, 482 U.S. at 745, 107 S.Ct. 2658 ). Indeed, " ‘[t]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence.’ " Pruitt, 145 Wash. App. at 798, 187 P.3d 326 (internal quotation marks omitted) (quoting State v. Wilson, 141 Wash. App. 597, 604, 171 P.3d 501 (2007) ).
¶ 116 In State v. Burdette, we considered whether a conference about a jury inquiry was a critical stage implicating the defendant's right to be present under the federal constitution. There, less than an hour after the court provided the jury with a corrected instruction as to one of the charges, the jury submitted a communication stating, " ‘Jury is deadlocked over several issues relating to the defendant's intent.’ " 178 Wash. App. 183, 195-96, 313 P.3d 1235 (2013). On appeal, we recognized that despite the inquiry's use of the term "deadlocked," the jury's communication "was not that it was hopelessly deadlocked on the case or any of its aspects, but rather was its first communication that it was having trouble agreeing." Burdette, 178 Wash. App. at 197, 313 P.3d 1235. We also recognized the jury's communication "was not a direct request for clarification of the jury instructions, but rather appears to be a request for instructions about how to proceed when the jury feels it is deadlocked on a specific issue ." Burdette, 178 Wash. App. at 195, 313 P.3d 1235 (emphasis added). The court thus distinguished the jury communication from one involving "only a purely legal question" and held the trial court violated the defendant's right to be present by consulting with counsel about the jury communication in the defendant's absence. Burdette, 178 Wash. App. at 200, 313 P.3d 1235 ; cf. State v. Sublett, 156 Wash. App. 160, 183, 231 P.3d 231 (2010) (holding that in-chambers conference involving "only the purely legal issue of how to respond to the jury's request for a clarification in one of the trial court's instructions" was not a critical stage of trial), aff'd on other grounds, 176 Wash.2d 58, 292 P.3d 715 (2012). The Burdette court explained,
[T]he essence of the ... jury communication was an inquiry as to how the jury should proceed when it felt deadlocked on the defendant's intent. To a defendant, all may pivot on how long the court will require a deadlocked jury to continue deliberations before declaring a mistrial. In some situations, a defendant may desire a quick mistrial and in others more deliberations in hope of an acquittal. Whatever the case, much is at stake at this stage and a defendant may reasonably wish to actively participate by making his opinion known to his lawyer or, if allowed, to the judge. For these reasons, the defendant's presence at this stage has a direct relation to the fullness of his opportunity to defendant against the charge. Therefore, ... [the defendant] had a right under the ... federal constitution[ ] to be present when
the response to the ... communication from the jury was discussed.
Burdette, 178 Wash. App. at 201, 313 P.3d 1235 (emphasis added).
¶ 117 Here, as in Burdette, the jury indicated that it was having trouble agreeing even though it did not use the term "deadlock." Cf. State v. Smith, 320 N.C. 404, 422, 358 S.E.2d 329 (1987) (observing, with regard to jury's inquiry about what would happen if its decision was not unanimous, "The jury here obviously was not unanimous when it posed the question; otherwise, it would not have inquired as to the effect of its failure to attain unanimity."). Furthermore, the jury submitted its inquiry more than four and a half days after it received the case and after one and a half days of active deliberation. The jury was not just inquiring out of procedural curiosity. Thus, like the jury inquiry in Burdette, the inquiry here was not a purely legal inquiry but rather "a request for instructions about how to proceed" when the jury feels it cannot come to an agreement. Burdette, 178 Wash. App. at 195, 313 P.3d 1235. And as the Burdette court observed, "much is at stake at this stage" in terms of the defendant's opportunity to weigh in on the matter. 178 Wash. App. at 201, 313 P.3d 1235. Particularly relevant here is the determination of what, if any, jury instructions should be emphasized in response to the inquiry. 178 Wash. App. at 201, 313 P.3d 1235.
The jury commenced deliberations the afternoon of Thursday, April 11, 2019. The record suggests the jury did not deliberate on Friday, April 12. However, the record reflects the jury was in deliberations the following Monday. The jury inquiry was dated Tuesday, April 16, 2019, at 11:06 a.m.
¶ 118 The majority concludes that the stakes are only high enough to trigger the right to presence if the jury actually indicates it is deadlocked. But the stakes are equally high when the jury indicates it is having trouble agreeing. This is because, just as is the case when the jury indicates a deadlock, the court's response could have the effect of either nudging the jury toward a verdict or increasing the chances of a mistrial. The majority's requirement that the jury use magic language to affirmatively indicate its disagreement—even when it is clear from the context the jury is having trouble agreeing—effectively sets a higher threshold to trigger the defendant's right to presence than what the constitution demands, i.e., that the defendant's presence have a reasonably substantial relation to the fullness of his opportunity to defend.
¶ 119 Because the jury's inquiry was not an inquiry involving only a purely legal question, the fact that Wright's attorney was present is irrelevant. Just as in jury selection, where the defendant's right to be present is well recognized, a defendant may, despite being a non-lawyer, actively contribute to a conference about a jury's inability to agree by providing input to his counsel. See State v. Bennett, 168 Wash. App. 197, 203, 275 P.3d 1224 (2012) (recognizing that the defendant's right to be present encompasses jury selection where the defendant may actively contribute to his own defense by offering input to counsel). Indeed, it is not difficult to imagine that had Wright been present for the discussion in this case, he would have discussed the jury's inquiry with his attorney and could have advocated for a mistrial or at least questioned why the court was elevating some instructions over others.
Perhaps recognizing this, the Federal Rules of Criminal Procedure, which require the defendant's presence at every trial stage, make an exception for conferences on legal questions , but not for conferences on non-legal questions. Fed. R. Crim. P. 43(a), (b)(3).
¶ 120 For the foregoing reasons, I would hold that the conference regarding the jury's inquiry was a critical stage of trial, and the trial court violated Wright's federal constitutional right to be present by consulting with counsel in Wright's absence.
¶ 121 I would also hold that the court violated Wright's state constitutional right to be present. "Unlike the United States Constitution, article I, section 22 of the Washington Constitution provides an explicit guaranty of the right to be present: ‘In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel.’ " Irby, 170 Wash.2d at 884-85, 246 P.3d 796 (quoting CONST. art. 1, § 22). Our Supreme Court has long recognized that this right applies "at every stage of the trial when [the defendant's] substantial rights may be affected." State v. Shutzler, 82 Wash. 365, 367, 144 P. 284 (1914), overruled on other grounds. In other words, the right to be present under our state constitution does not turn on what the defendant could contribute by his presence but on the effect of the proceeding on the defendant's substantial rights.
¶ 122 Here, the conference at which the court and counsel discussed the jury's inquiry was one at which Wright's substantial rights could be affected because, as discussed, the response to the inquiry could have the effect of either nudging the jury toward a verdict or increasing the chances of a mistrial. Accordingly, Wright was entitled to be present during that conference, and the trial court violated Wright's right to presence under article I, section 22 by conducting it in his absence.
¶ 123 Because I would hold the trial court erred by violating Wright's right to be present, I next consider whether that error was harmless. See Burdette, 178 Wash. App. at 201, 313 P.3d 1235 ("A violation of the right to be present at trial, whether anchored in due process or article I, section 22 of our state constitution, is subject to harmless error analysis."). " ‘[T]he burden of proving harmlessness is on the State and it must do so beyond a reasonable doubt.’ " Irby, 170 Wash.2d at 886, 246 P.3d 796.
¶ 124 The State points out that even though the Burdette court found a violation of the defendant's right to be present, it ultimately concluded the error was harmless because "the facts show it very unlikely that [the defendant]’s absence had any effect on the judge's response to the ... jury communication." 178 Wash. App. at 201-02, 313 P.3d 1235. The State argues that "[t]he same is true here."
¶ 125 I disagree. In Burdette, we concluded the defendant's absence was unlikely to have had any effect because (1) the jury's inquiry "could have come only after short deliberations," so the judge's response directing the jury to continue deliberating seemed "nearly inevitable" and (2) the defendant did not argue "what he would have said or done had he been present when the ... jury communication was discussed." 178 Wash. App. at 202, 313 P.3d 1235. Here, by contrast, the jury had been deliberating for more than a day and a half. Accordingly, this is not a case where it was "nearly inevitable" that the court would respond in a particular way to the jury's communication indicating it was having trouble agreeing as to "a count."
¶ 126 Furthermore, I agree with Wright that the trial court's response to the jury likely had the effect of emphasizing the need for a verdict. Specifically, the court's response did not, as the State asserts, merely direct the jury to refer to its instructions. Rather, the trial court responded, "See your instructions, particularly instructions #10 and #28 ." (Emphasis added.) Instruction 10 stated, "A separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." (Emphasis added.) Instruction 28 concluded by stating:
You must fill in the blank provided in each verdict form the words "not guilty" or the word "guilty," according to the decision you reach.
Because this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the verdict forms to express your decision. The presiding juror must sign the verdict forms and notify the bailiff. The bailiff will bring you into court to declare your verdict.
(Emphasis added.)
¶ 127 As Wright correctly points out, both of these instructions presume the jury will reach a verdict. By emphasizing these instructions, the trial court deemphasized other instructions, including Instruction 2, which directed the jurors: "You should not ... surrender your honest belief about the value or significance of evidence solely because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of reaching a verdict. " (Emphasis added.) In other words, even assuming a neutral response would have constituted harmless error, the court's response here was not neutral. Cf. State v. Jasper, 158 Wash. App. 518, 543, 245 P.3d 228 (2010) (holding that the court's error in responding to jury inquiry without consulting counsel was harmless because "[t]he trial court's response was neutral, did not convey any affirmative information, and did not communicate to the jury any information that was harmful to" the defendant); State v. Langdon, 42 Wash. App. 715, 717-18, 713 P.2d 120 (1986) (a court's instruction is neutral when it "simply refer[s] the jury back to the previous instructions"). Instead, the trial court emphasized instructions that could have had the effect of nudging the jury toward a verdict. The jury returned guilty verdicts less than two and a half hours after receiving the trial court's response, including, presumably, the lunch hour.
In State v. Besabe, we held that, even assuming the trial court failed to consult counsel before answering a jury inquiry about a potential contradiction between two instructions, that error was harmless where the court responded, " ‘Please follow all of the instructions, including instruction 30.’ " 166 Wash. App. 872, 882-83, 271 P.3d 387 (2012) (emphasis added). But a response directing the jury to "follow all" instructions, "including" certain instructions, is distinguishable from a response directing the jury to "[s]ee your instructions, particularly instructions #10 and #28." (Emphasis added.)
The trial court responded to the jury at 11:37 a.m. on April 16, 2019, and the jury was summoned to the courtroom at 2:06 p.m. that same day to read its verdict.
¶ 128 The State asserts that "Wright does not explain how any input from him would have likely changed the proposed response." But under a constitutional harmless error standard, it is the State's burden to show that Wright's input would not likely have changed the outcome and not the other way around. Furthermore, if Wright had been present, he likely would have, in discussing the jury's inquiry with his attorney, asked what could be done to try to ensure that jurors leaning toward acquittal would not give in to pressure from other jurors so as to increase the likelihood of a mistrial. This discussion would naturally have prompted defense counsel to request that Instruction 2 be included in the court's response to the jury, or at the very least, that the response simply refer to all of the instructions without emphasizing any particular ones.
The State does not argue that there was overwhelming untainted evidence of Wright's guilt. See State v. Barry, 183 Wash.2d 297, 303, 352 P.3d 161 (2015) (constitutional harmless error standard "can be met if there is overwhelming evidence of the defendant's guilt that is not tainted by the error").
¶ 129 Finally, the State, which merely asserts incorrectly that "the trial court responded, as trial courts usually do, that the jury should refer to its instructions," fails to persuade me that had the court's response been different, the jury would nonetheless have reached a verdict beyond a reasonable doubt. Cf. State v. A.M., 194 Wash.2d 33, 41, 448 P.3d 35 (2019) ("A constitutional error is harmless if ‘it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ " (internal quotation marks omitted) (quoting State v. Brown, 147 Wash.2d 330, 341, 58 P.3d 889 (2002) )). Put another way, I cannot assume, as the State appears to, that had Wright been present, "nothing would have changed—not defense counsel's arguments, the court's response, or the outcome in this ... case." See Roberts v. United States, 213 A.3d 593, 598 (D.C. Ct. App. 2019) (rejecting the government's argument that constitutional error was harmless because there was no evidence that defense counsel's arguments would have changed had the error not occurred). Thus, the State fails to establish that the trial court's error was harmless. Cf. Smith, 320 N.C. at 422, 358 S.E.2d 329 (reversing where the court responded to the jury's inquiry about what would happen if it was unable to reach a unanimous verdict "by reiterating the need for the jurors to confer together without violating individual judgments and again informing the jury that its decision must be unanimous," explaining that this response, in the context of the jury's inquiry, "probably resulted in coerced unanimity" and "probably conveyed the erroneous impression that a unanimous decision ... was required"). ¶ 130 I would hold that the trial court violated Wright's right to be present under both the federal and state constitutions by consulting with counsel about the jury inquiry in Wright's absence, and the State does not meet its burden to establish that the error was not harmless beyond a reasonable doubt. I would reverse on this basis, and thus, I respectfully dissent.