Opinion
No. 58602-5-I.
September 24, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-14023-1, Sharon S. Armstrong, J., entered July 7, 2006.
Affirmed by unpublished per curiam opinion.
After jury deliberations have begun, the trial court must not interfere with or instruct the jury in any way that suggests the need for agreement, the consequences of no agreement, or the length of time the jury will be required to deliberate. This does not mean, however, that all instructions after the jury has begun its deliberations are prohibited. Here, after a day of deliberations, the jury sent a note asking what to do because they were deadlocked nine to three and believed there had been enough discussion. The court instructed the jury to continue deliberating. Because there is no showing that the court influenced or coerced the verdict with this instruction, appellant's conviction is affirmed.
The State charged Tadesse Ayele with three counts of second degree rape and, in the alternative, three counts of third degree rape of a child. The trial lasted two days. Closing arguments took place on May 4, 2006. The jury began deliberating at 1:30 p.m. that day and continued until 4:05 p.m. The jury reconvened the next morning, May 5. At 1:51 p.m. the jury sent a written inquiry to the court:
We have reached a conclusion on A1, B1, and C1 regarding the second degree charge. We have been debating the remaining item for A1, B1, and C1 as well as A2, B2, C2 and have a current deadlock (9 to 3). What should we do as we believe enough discussion has occurred? []
Clerks Papers at 69.
The court contacted counsel and proposed to instruct the jury to merely continue its deliberations. Ayele objected:
DEFENSE COUNSEL: Your Honor, I was going to propose calling either the foreperson or the jury out to see if any further discussion was going to be conducive.[]
Report of Proceedings, May 5, 2006 at 330.
The court rejected this approach:
COURT: You know, I would normally do that but I wouldn't do it this early so — and I let them go a little closer to the end of the day and then we can all make a judgment about whether we think there's any point in them continuing after that. But, you know, it's pretty early in the day. []
Report of Proceedings, May 5, 2006 at 330.
The judge sent the following instruction at 2:15 p.m.: "Please continue your deliberations." At 4:48 p.m. the jury returned with a verdict finding Ayele guilty of three counts of rape in the third degree.
Clerks Papers at 70.
Ayele appeals his conviction. He contends the instruction to continue deliberating violated his right to a fair and impartial jury, free from coercive pressure by the court. See State v. Jones, 97 Wn.2d 159, 164, 641 P.2d 708 (1982).
To demonstrate judicial coercion a defendant must provide "more than mere speculation" about how the trial court's intervention might have influenced the jury's verdict. Watkins, 99 Wn.2d at 177. The defendant must establish "a reasonably substantial possibility" that the verdict was improperly influenced by the trial court's intervention. Watkins, 99 Wn.2d at 178. The jury's own assessment that it is deadlocked is not controlling; the trial judge "is in the best position to determine whether a jury's stalemate is only a temporary step in the deliberation process or the unalterable conclusion to that process." State v. Taylor, 109 Wn.2d 438, 442, 745 P.2d 510 (1987).
A court rule forbids certain types of supplemental instructions. "After jury deliberations have begun, the court shall not instruct the jury in such a way as to suggest the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate." CrR 6.15(f)(2). See State v. Boogaard, 90 Wn.2d 733, 792, 585 P.2d 789 (1978). It does not, however, prohibit trial courts from issuing all supplemental instructions after jury deliberation begins. It only prohibits those instructions that (1) suggest the need for agreement, (2) the consequences of no agreement, or (3) the length of time a jury will be required to deliberate. State v. Watkins, 99 Wn.2d 166, 175, 660 P.2d 1117 (1983).
Ayele contends that since the jury knew the judge was aware they were split nine to three, they would have interpreted the instruction to continue deliberating as an attempt to coerce the three jurors who were in the minority.
In Boogaard, the trial court asked the bailiff to inquire as to the numerical split between the jurors (not as to guilt or innocence) in order to determine whether the court should permit the jury to continue deliberating, recess for the night, or declare a mistrial. After learning the numerical split, the Boogaard court called the jury into the courtroom, asked the foreman to disclose the history of the vote, asked for his opinion on the probability of agreement within 30 minutes, and asked each juror whether or not they believed a verdict could be reached within the stated timeframe. The jury returned a guilty verdict within 30 minutes.
The Supreme Court reversed and remanded for a new trial. The court concluded that, under the circumstances, "it was inevitable that the minority jurors should feel the pressure of judicial influence." Boogaard, 90 Wn.2d at 739. Notably, however, the court did not hold it was improper for the trial court merely to inquire about the progress of deliberations, including the inquiry about the numerical split. Boogaard, 90 Wn.2d at 739. Where the trial court erred was by questioning the jury in a manner that implied a time limit. Merely instructing jurors that they should continue to deliberate is not impermissible under Boogaard.
Factually, this case is more similar to State v. McCullum. 28 Wn. App. 145, 622 P.2d 873 (1981) where the conviction was affirmed despite claims of improper communication and juror misconduct. The jury foreman sent the trial court a note after two days of deliberating. ?`At this time we are at 11 for guilty. . . 1 against.'" The judge replied ?`continue your deliberations.'" McCullum, 28 Wn. App. at 148. The conviction was affirmed. On appeal this instruction was held not to be coercive or improper.
In this case the trial court responded to a jury inquiry with a concise and neutral order. As in McCullum, it was neither coercive nor improper. Because the court did not suggest the need for agreement, the consequences of not reaching agreement, or the length of time the jury would be required to deliberate, we find no violation of Ayele's right to a fair and impartial jury.
Statement of Additional Grounds
In his statement of additional grounds for review, Ayele contends that a statement given during interrogation may have been used against him. He does not identify the allegedly improper statement. During a pretrial hearing the State acknowledged that Ayele had given some statements while in custody. Admissibility of these statements was not at issue because the State indicated that it did not intend to offer the statements. Because the record does not show that the statements were ever introduced, they provide no basis for review.
Ayele alleges that there was some irregularity about the victim's birth certificate. Any such irregularity is irrelevant because the State met its burden of proving the victim's age through testimony at trial.
Report of Proceedings, May 1, 2004 at 48; May 2, 2004 at 90, 103-106, 117-118.
Ayele claims a possible speedy trial violation. Defense counsel informed the trial court of Ayele's concern about delay but did not argue that there was a violation of the speedy trial rule. In his statement of additional grounds, Ayele likewise has not identified any reason to suspect that the various continuances violated the rule.
Finally, Ayele asserts that his sentence is too long due to an error in calculation. Defense counsel also brought Ayele's concern about this issue to the trial court's attention, but represented that the sentence was calculated correctly. In view of his position taken at trial, Ayele has not identified a basis for challenging his sentence on direct review.
Affirmed.