Opinion
No. 61601-3-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-01212-0, Gerald L. Knight, J., entered March 28, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Raymond Krona III challenges his conviction for bail jumping on the basis that the trial court injected improper considerations into deliberations when, in response to a question from the jury, it responded that the jury could make a statement after a verdict was reached. We affirm.
Background
Krona was arrested for driving with a suspended license and taken in a patrol car to the Sultan Police Department. During transport, the officer noticed Krona moving around excessively in the back seat, arching his back, and trying to reach the area where the seat back meets the seat base. When they arrived at the police station, the officer searched the back seat and found a baggie of crystal methamphetamine under the seat in the same area that Krona had been trying to reach during the ride. The officer had searched the car on his previous shift and no one had been in the car since the last search. The State charged Krona with one count of possessing a controlled substance, methamphetamine. On September 20, 2007, Krona failed to appear at a scheduled CrR 3.5 hearing. The State filed an amended information on November 15, 2007, adding one count of bail jumping for the failure to appear.
At trial, Krona denied that he possessed the methamphetamine found in the patrol car and that, during transport, he was squirming in order to get comfortable in the handcuffs. He admitted that he had notice of the date he was required to appear and intended to comply, but that he forgot to appear because he thought that the hearing was the following week.
During deliberations on March 11, 2008, the jury submitted two questions to the court. In the first note, at 9:55 a.m., the jurors asked: "If the defendant initially had knowledge of the requirement to appear but later forgot, can we find that the defendant did not have knowledge of this requirement to appear at the time of the scheduled hearing?" The court responded, "Re-read the instructions." Two and a half hours later, at 12:30 p.m., the jury sent another note, which asked, "Are we allowed to make a recomendation [sic] for sentencing and/or a statement to the court regarding one of the charges?" The court answered, "I will allow you to make a statement after I receive and announce your verdict." The jury deliberated for two more hours and then returned to open court with a verdict at 2:37 p.m.
The jury found Krona not guilty of count one, possession of a controlled substance, and guilty of count two, bail jumping. The court polled the jury and confirmed that each verdict was unanimous. The court then provided the jurors an opportunity to make a statement as requested by the jury's earlier note to the court. Speaking on behalf of the jury, one juror said: "We unanimously voted to convict on the charge of bail jumping, as you found. After much deliberation, all jurors agreed that the defendant's actions were irresponsible, and 9 of 12 believed that this failure to appear was unintentional. And that's our statement." The court thanked the jurors and made a few more remarks before releasing them.
Krona now argues that the trial court denied him a fair trial when it told jurors they could make a statement after they reached a verdict. In the alternative, he argues that he received ineffective assistance of counsel because his attorney failed to object to the court's response to the jury's second question.
Standard of Review
When challenging a supplemental jury instruction, a defendant must establish a reasonably substantial possibility that the trial court's intervention improperly influenced the jury's verdict.
State v. Watkins, 99 Wn.2d 166, 177-78, 660 P.2d 1117 (1983).
When reviewing a claim of ineffective assistance, we begin with the strong presumption that counsel's representation was effective. To overcome this presumption, a defendant must show that his counsel's representation fell below an objective standard of reasonableness considering all the circumstances and that the deficient representation affected the outcome of his case.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 334-35.
Discussion
Krona argues that by informing the jurors that they would be allowed to make a statement after the verdict was entered, the trial court injected improper considerations into jury deliberations. The thrust of Krona's argument is that the trial court improperly led the jury to believe that it had some influence over his sentence, thereby encouraging a compromise verdict. We hold that the trial court's response was neutral and not in error. Furthermore, if the court's response was in error, that error was harmless.
In a noncapital case, it is error to inform the jury about the penalty for the charged crime. In State v. Todd, our Supreme Court held that it was reversible error to instruct the jury concerning the possible minimum sentence the appellant might serve because the instruction suggested to the jury that it should give serious consideration to the possible minimum sentence in reaching its verdict. In that case, the jury sent the judge a note with sentencing recommendations for some of the defendants, which showed that the jury had given considerable weight to the sentencing consequences of its verdict. Here, by contrast, the jury was not instructed concerning the possible penalties for the charged crimes, and the jury's post-verdict statement did not include a sentencing recommendation.
State v. Townsend, 142 Wn.2d 838, 846, 15 P.3d 145 (2001).
78 Wn.2d 362, 474 P.2d 542 (1970).
Todd, 78 Wn.2d at 376-77.
Todd, 78 Wn.2d at 377.
Krona points to the jury's questions as evidence that they were struggling with the question of guilt on the bail jumping charge, arguing that the court injected improper considerations that influenced the verdict. However, the thought processes of the jury during deliberations "inhere in the verdict," and a question from the jury does not create an inference that the entire jury was confused or that any confusion was not clarified before the verdict was reached. Questions from the jury cannot be used to impeach a verdict.
State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988).
Ng, 110 Wn.2d at 43.
Here, when the jury asked whether it could make a sentencing recommendation and/or a statement, the court responded that a statement would be allowed. This response implied that the jury would not be allowed to make a sentencing recommendation. The court's statement was neutral and did not conflict with the jury instructions, including the following instruction: "You have nothing whatever to do with any punishment that may be imposed in case of a violation of the law. You may not consider the fact that punishment may follow conviction except insofar as it may tend to make you careful." We presume that the jury follows all of the court's instructions.
State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).
To the extent that the trial court's statement was in error, that error is harmless. There is no evidence that the jury was not careful in its deliberations or that the jury's knowledge of its ability to make a post-verdict statement influenced the verdict. In State v. Hicks, our Supreme Court held that although defense counsel's action in informing the jury that the case was noncapital amounted to deficient performance, the deficiency was not prejudicial because there was no indication that the jurors failed to take their duty seriously. Similarly, here, the jurors deliberated for an additional two hours after the court responded to their question, they acquitted Krona on the possession charge, and there is no indication that they failed to take their duty seriously.
163 Wn.2d 477, 181 P.3d 831 (2008).
Hicks, 163 Wn.2d at 488.
Any error is also harmless because the jury's knowledge that they could make a statement did not affect the outcome of this case. In State v. Townsend, our Supreme Court held that defense counsel's failure to object to a jury instruction that instructed the jury that the death penalty was not involved in the case was deficient performance. The deficiency did not affect the outcome because there was ample evidence to support the jury's verdict. Here, too, the evidence was overwhelming that Krona had notice of the requirement to appear in court but nevertheless failed to appear. Krona's sole defense — that he forgot the date he was supposed to appear — is not a defense to bail jumping. Thus, although the jury's questions and post-verdict statement show that the jurors seriously considered Krona's argument that he forgot to appear, the record does not show that they considered anything other than the evidence and jury instructions in reaching the verdict.
142 Wn.2d 838, 15 P.3d 145 (2001).
Townsend, 142 Wn.2d at 848-49.
State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004).
Affirmed.