Opinion
No. 57401-9-I.
August 20, 2007.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-00650-6, Gerald L. Knight, J., entered November 18, 2005.
Affirmed by unpublished opinion per Baker, J., concurred in by Schindler, A.C.J., and Becker, J.
Michael Kyzar challenges his conviction for first degree manslaughter, arguing that his right to a jury trial was compromised by a biased juror, that the evidence was insufficient to establish his liability as principal or accomplice, and that he was entitled to a jury instruction on defense of another. We affirm.
I.
On August 24, 2004, two unrelated groups of people went out drinking at Turner's, a bar in downtown Everett. The first group consisted of defendant Michael Kyzar and his friends Erik Shreffner, Cory Decker, and Rob Emmerson. The second group included Russell Walden, Joel Rule, Robert Gobat, and several others. Later in the evening, both groups independently moved to Petosa's, a bar located about two blocks away from Turner's. Both groups were drinking heavily. Shreffner stood up to give a toast and fell over, bruising his face. At closing time, Walden's friend Rule got into an altercation with an unnamed man. Police responded and broke up the fight.
Co-defendant Shreffner was tried and convicted separately. This court recently upheld his conviction in State v. Shreffner, noted at 136 Wn. App. 1035 (2007).
Walden and Gobat left Petosa's and walked half a block north on Broadway to a gas station to buy cigarettes. Kyzar and his friends left Petosa's and headed north as well. When the two groups crossed paths at the gas station, Shreffner started a verbal confrontation. Gobat said that Shreffner yelled and lunged at him, so Gobat stepped to the side and Shreffner fell to the ground. Shreffner and Walden were yelling at each each other. Gobat said that he and Kyzar started swinging at each other, but none of their punches connected. Neither Gobat nor Emmerson saw Walden get into a fistfight.
Police quickly arrived and broke up the fight. As Officer John DeRousse arrived, he saw Walden walking away from Shreffner, Kyzar, and Decker. Walden said Kyzar's group was mad at him for refusing to tell them who was involved in the earlier fight at Petosa's. Walden was briefly arrested on an outstanding warrant, but released when it was found to be erroneous. Gobat left the scene without contacting police to avoid arrest on his own outstanding warrant. Walden, now alone, began walking north on Broadway.
Meanwhile, Kyzar, Shreffner and Decker returned to Turner's. On the way, Shreffner fell down in the street and sustained further injuries. He became increasingly agitated after that. At Turner's, the two women bartenders locked up the bar for the night while Kyzar and his friends went to the outdoor beer garden. Shreffner was described by various witnesses as appearing "befuddled," "upset," and "pumped up." Kyzar was emotional and appeared to be crying. After a few minutes, the women left the men in the beer garden.
Emmerson went home after Shreffner hit him in the jaw. Kyzar, Shreffner, and Decker congregated around the corner of Hewitt and Broadway, where they encountered Walden. Witness testimony concerning the ensuing events differs considerably. At 2:03 a.m., Shreffner called his girlfriend Jessica Smith, telling her that he was about to get "jumped" and asking her to come and get him. At 2:17 a.m., Officer DeRousse saw Walden arguing with Shreffner by an espresso stand, with Kyzar and Decker waiting by the crosswalk across the street. Shreffner appeared agitated and was yelling "Who was it?" Walden shrugged his shoulders. Officer DeRousse made a U-turn and talked to Shreffner, Kyzar, and Decker. Kyzar and Decker were trying to calm Shreffner down. Officer DeRousse asked Walden if he was OK, and Walden waved, so Officer DeRousse decided that the situation had been defused and he left.
At 2:22 a.m., a 911 call came in of a "man down" at the intersection of Hewitt and Broadway. Officer DeRousse and Officer Steven Sieverson arrived at the scene a few minutes later and found Walden lying face down in a pool of blood. Walden was unconscious and breathing with difficulty. Walden's blood alcohol level was .24 when he arrived at the hospital. He never regained consciousness, and died six days later after his family agreed to remove life support. The medical examiner testified that the cause of death was loss of oxygen to the brain caused by blunt force trauma to the head. He did not think the damage could have been caused by a single blow, and ruled the death a homicide.
There were three witnesses to the confrontation leading to Walden's death. Ronald Craig had been at Petosa's and remembered seeing Shreffner being drunk, loud and belligerent. After leaving Petosa's and taking a friend home, he drove past the intersection of Hewitt and Broadway and saw a man lying face down in the street. He saw Shreffner punching and kicking the fallen man forcefully on the upper body and head. He heard and saw two other men across the street yelling "Erik, let's go." Shreffner gave the fallen man one last kick and joined them. Craig called 911 and waited for the police to arrive.
Michael Beckwith, who was up early to help a friend with a newspaper route, was walking east on Hewitt toward Broadway when he saw a police car do a U-turn and stop on Broadway, then leave. Beckwith, who was half a block away, saw a group of four men on the corner "jostling and scuffling." Suddenly he saw a large man fall face down on the street, without trying to catch or stop himself at all. Beckwith was unable to see who or what had caused the man to fall. Two of the men then crossed the street. Beckwith later identified one of them as Kyzar. The third man, who had spiky blond hair, twice started to walk away and twice returned to stomp on the fallen man's head. He heard the other two men yelling "Erik, come on, let's go" from across the street. The blond man then joined the others and they walked toward Turner's. Beckwith stood over the fallen man and waited for police.
The testimony of the third witness, Shreffner's girlfriend Jessica Smith, differs considerably from that of Craig and Beckwith. Smith said that she arrived to pick up Shreffner after he called her. She saw him confront a large man at the espresso stand by the corner. She said Shreffner and the large man were just talking and not fighting. As Smith drove up to the parking lot by the espresso stand, Kyzar came up and told her to get out of there. She then saw Kyzar sneak up from behind, jump in the air, and strike the large man in midair on the back of the head. The man fell flat to the ground. She then pulled into the espresso stand, yelled at Shreffner to get in the car, and told Kyzar to "stop it." Kyzar again told her to leave, so she drove a short distance away, parked facing north on Broadway, and continued watching. She said she saw Kyzar roll the fallen man over while Shreffner stumbled around. Eventually the fallen man got back up and walked across the street toward Kyzar's group. She saw Decker holding Kyzar back, with Kyzar flailing his arms and trying to push Decker toward Shreffner and Walden. A police car arrived, and she saw Shreffner and Walden talking to the police. After the police car left, she saw all four men scuffling by the espresso stand, and the large man's shirt being pulled as he seemed to be trying to get away. He stumbled out of the group and then somehow got back in. She did not see him kick or throw any punches. Smith then saw the large man down on the ground again, but did not see how that happened. She said that Kyzar was standing over the fallen man, kicking and stomping him "too many [times] to count." She said Shreffner never did anything to harm Walden. After the fight was over, Kyzar, Shreffner, Decker, and Smith went to Turner's. She said that Kyzar told Shreffner "he got what he deserved, he fucked with our friend. Don't worry about it, Erik, we took care of it for you."
When police went to Turner's, the group initially refused to answer the door, then denied that there was anyone named Mike there. Kyzar told police that Walden had been confrontational, that Shreffner never touched Walden, and that Walden just fell down in the street. However, one of Kyzar's acquaintances testified that Kyzar later admitted that he "punched this guy" by the espresso stand, and another testified that Kyzar said, "Just because I hit a man doesn't mean I murdered him."
Kyzar was charged with second degree felony murder, with second degree assault as the predicate felony, and in the alternative with first degree manslaughter. Kyzar did not testify at trial. At the close of the State's case, Kyzar moved to dismiss, arguing that Smith's testimony was not credible as a matter of law and that there was insufficient evidence that Kyzar acted as an accomplice. The trial court denied the motion. The jury deadlocked on the felony murder charge and found Kyzar guilty of first degree manslaughter.
At the conclusion of Kyzar's trial, Juror 16 approached the prosecutor and asked "if I ever figured out who she was." The prosecutor did not know what Juror 16 was referring to, as she had never met or communicated with her prior to Kyzar's trial. Juror 16 said that her son Tim O. was the victim in an assault that had occurred two months prior to Kyzar's trial and charged by the same prosecutor. Tim O. sustained major injuries after being hit in the head with a 2 × 4, but he survived. Juror 16 had seen her son with the suspects earlier in the day, and thus had been subpoenaed as a witness.
The prosecutor immediately disclosed the juror contact to defense counsel and asked Juror 16 to give a statement. That statement read:
I arrived at jury duty on Monday thinking I would not get selected because of my son's pending court date that I had received a suboena for to appear in court. I sat through selections waiting to be asked a question that would allow me to mention my son's case but none was asked and I ended up be on the jury. Tuesday after jury duty I began to think that the prosecutor could be the same person who was proceduting my son's case. I had never seen or talked to the procecuting attorney and I did not know the name of my son's procecuting attorney. So I went home Tuesday and pulled out my suboena and looked at the name. At that time I realized that Julie More was the same attorney as my son's. I did not share this info with any of the other jurors and at no time did the knowledge I learned affect the dessicion about this case. I feel that I was fair and impartial in my decision. (Misspellings in original.)
Voir dire was partially transcribed. Juror 16 was asked about her prior jury service, and was asked questions about the nature of the charge in that case. She was asked whether she knew any of the attorneys or litigants, and did not respond. When asked if she had friends or relatives in the legal profession, she said that her husband was a paralegal in the Attorney General's office. She did not respond when asked whether "[a]ny prospective juror know of any reason why you believe you could not be a fair and impartial juror?" The trial court recalled that Juror 16 had been asked in a biographical information form whether she had ever been the victim of a crime, and she answered no. However, based on the available record, there is no indication that jurors had been asked whether a close family member had ever been the victim of a crime.
Kyzar moved for a new trial based on juror misconduct. The trial court denied the motion, ruling that there was no evidence that Juror 16 had failed to honestly answer any question posed to her or that she had lied about her ability to be fair and impartial. The court declined to assume perjury or that Juror 16 had a motive to lie. The court stated that Kyzar's motion turned on whether Juror 16 intentionally and deliberately withheld information to be deceptive, and decided that she had not. Therefore, there was no actual bias or sufficient proof of implied bias. The trial court then sentenced Kyzar at the low end of the standard range. Kyzar now appeals.
II.
Kyzar argues that he is entitled to a new trial based on juror misconduct. The federal and state constitutions provide that the right of trial by jury shall be preserved and remain inviolate. This includes the right to a jury free of disqualifying misconduct. To obtain a new trial based on juror misconduct, the movant must demonstrate 1) that a juror failed to disclose material information during voir dire, and 2) that a truthful disclosure of the information would have provided a basis for a challenge for cause. A challenge for cause may be based on actual or implied bias. A trial court's decision to deny a new trial will be disturbed only for a clear abuse of discretion or when it is predicted on an erroneous interpretation of the law.
U.S. Const. amend. VI; Wash. Const. Art. I, § 21.
In re Detention of Broten, 130 Wn. App. 326, 336, 122 P.3d 942 (2005).
State v. Cho, 108 Wn. App. 315, 321, 30 P.3d 496 (2001).
RCW 4.44.170(1), (2); RCW 4.44.180.
Cho, 108 Wn. App. at 320.
Kyzar argues that he is entitled to a new trial under the rule of State v. Cho. In Cho, a potential juror managed to avoid disclosing that he was a retired police officer by giving extremely narrow answers to questions at voir dire. The State argued that there was no material nondisclosure because he was never specifically asked whether he was a former police officer. The Cho court ruled that "[w]here a juror's responses on voir dire do not demonstrate actual bias, in exceptional cases the courts will draw a conclusive presumption of implied bias from the juror's factual circumstances." This may occur where the juror deliberately withholds information during voir dire to increase the chances of being seated on the jury. Applying this rule, the Cho court held that even though the juror's answers were technically not untruthful, they raised a troubling inference of deliberate concealment to avoid being excused from the jury. Accordingly, the case was remanded to the trial court for an evidentiary hearing on implied bias.
108 Wn. App. 315, 30 P.3d 496 (2001).
Cho, 108 Wn. App. at 328.
Cho, 108 Wn. App. at 326.
Cho, 108 Wn. App. at 325.
Cho, 108 Wn. App. at 325 (citing McCoy v. Goldston, 652 F.2d 654, 659 (6th Cir. 1981)).
Cho, 108 Wn. App. at 327.
Cho, 108 Wn. App. at 329.
According to Kyzar, Juror 16 similarly knew during voir dire that information concerning her son was important, yet she deliberately chose not to reveal it. Therefore, Juror 16 knowingly failed to disclose material information during voir dire, and this constituted implied bias that would have led to a successful challenge for cause. Kyzar further contends that Juror 16 should have immediately notified the court when she checked her subpoena and discovered that the prosecutor in Kyzar's case was the same as in her son's case. The State contends that Juror 16 did not answer any question dishonestly and was not deliberately deceptive.
We hold that the trial court did not abuse its discretion in finding that Kyzar did not meet his burden of demonstrating juror misconduct. Unlike the retired police officer in Cho, there is no evidence that Juror 16 engaged in deliberate concealment by crafting her answers to remain on the jury. Rather, she waited for an opportunity to raise the issue, and, when it was not forthcoming, she remained silent. Although it would have been helpful for Juror 16 to bring up this information at voir dire, "[a] prospective juror is not obligated to volunteer information or provide answers to unasked questions." Nor was she required to disclose independently that she discovered the prosecutor's name on her subpoena during the course of the trial. Because the first prong of the juror misconduct test has not been met, we do not reach the second prong. Accordingly, we need not analyze the question of whether truthful disclosure of the information would have provided a basis for a challenge for cause.
Cho, 108 Wn. App. at 327 (citing State v. Brenner, 53 Wn. App. 367, 372, 768 P.2d 509 (1989)).
Kyzar next argues that there was insufficient evidence to support his conviction for first degree manslaughter. Evidence is sufficient to affirm a criminal conviction if any rational trier of fact, viewing the evidence most favorably toward the State, could have found the essential elements of the charged crime were proved beyond a reasonable doubt. All reasonable inferences must be drawn in favor of the State and interpreted most strongly against the defendant.
State v. Jensen, 57 Wn. App. 501, 504, 789 P.2d 772 (1990), aff'd, 116 Wn.2d 466, 805 P.2d 806 (1991).
State v. Soderholm, 68 Wn. App. 363, 373, 842 P.2d 1039 (1993).
To find Kyzar guilty, the jury had to find he either recklessly caused Walden's death or was an accomplice to another who recklessly caused Walden's death. "Reckless" is defined as acting with knowledge of and disregard for a "substantial risk that a wrongful act may occur," and that the "disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation." Accomplice liability arises if the person "solicits, commands, encourages, . . . requests, . . . aids or agrees to aid" another person to commit a crime, "with knowledge that it will promote or facilitate the commission of the crime." Mere presence at the scene of the crime is insufficient to prove accomplice liability. The accomplice must do something in association with the principal to accomplish the crime.
In re Welfare of Wilson, 91 Wn.2d 487, 491-92, 588 P.2d 1161 (1979) (quoting State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973)).
State v. Boast, 87 Wn.2d 447, 455-56, 553 P.2d 1322 (1976).
According to Kyzar, the evidence at best established only that he was in the group during the scuffle. Kyzar further contends that even if he participated initially by punching Walden, there was no evidence that he knew or had reason to know that Walden would die as a result of the scuffle, or that he aided or encouraged Shreffner to kick and stomp on Walden's head. Rather, his criminal complicity ended when he crossed the street and yelled at Shreffner to stop the assault. Thus, the State failed to prove that his conduct was reckless. Kyzar acknowledges Jessica Smith's testimony, but argues that no rational trier of fact could find that Kyzar committed the fatal assault beyond a reasonable doubt based on her biased and conflicting testimony.
We hold that there was sufficient evidence to support the conviction. Smith's credibility was certainly subject to challenge at trial, particularly where her version of events exonerated her boyfriend Shreffner and conflicted with that of the other witnesses. However, credibility and weight determinations are for the trier of fact to decide and are not subject to appellate review. The jury also heard testimony from witnesses other than Smith who stated that Kyzar was actively involved in the "scuffle" that resulted in Walden's falling face first to the ground and that Kyzar later admitted hitting Walden. This evidence supports an inference that Kyzar assisted or actively participated in the attack on Walden, at least up to the point that Kyzar crossed the street and urged Shreffner to leave. Kyzar may not have known that these acts would lead to Walden's death, but under the circumstances, the jury could find that he acted with reckless disregard that a death could occur as a result of a three-against-one fight among extremely intoxicated men, at least one of whom was angry and agitated.
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Next, Kyzar argues for the first time on appeal that his counsel should have argued and requested an instruction on defense of self or others. A failure to request an instruction waives the issue for appeal unless manifest constitutional error occurs. Kyzar attempts to overcome this hurdle by arguing that trial counsel was constitutionally ineffective for failing to raise this defense. To prevail in a claim of ineffective assistance of counsel, the defendant must demonstrate (1) that defense counsel's representation was deficient in that it fell below an objective standard of reasonableness based on consideration of all of the circumstances, and (2) this deficient performance resulted in actual prejudice. Deficient performance is not shown by matters that go to trial strategy or tactics. Defendant must show a reasonable probability that, except for counsel's unprofessional performance, the results would have been different. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance.
RAP 2.5(a)(3); State v. Ortega, 134 Wn. App. 617, 625, 142 P.3d 175 (2006).
State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
Hendrickson, 129 Wn.2d at 77-78.
Hendrickson, 129 Wn.2d at 77-78.
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Kyzar argues that counsel's performance was deficient because there was sufficient evidence to support a defense of self or others instruction. He claims that an intoxicated Walden had several confrontations with Shreffner in Kyzar's presence, making it reasonable for Kyzar to believe that Shreffner was in danger of great bodily harm from Walden. We reject this argument. A defendant is not entitled to an instruction which lacks evidentiary support. The evidence does not suggest that Walden was the aggressor in the circumstances that led to his death. Rather, it indicates that Walden was alone when he was attacked by Kyzar's group and that Shreffner's injuries resulted not from being "jumped," but from his own intoxicated encounters with the ground. Even if defense counsel had requested such an instruction, the trial court would not have abused its discretion in denying it. Nor did the trial court have an independent duty to instruct the jury on defense of another where defense counsel did not request it. A competent defendant "'has a constitutional right to at least broadly control his own defense.'"
State v. Staley, 123 Wn.2d 794, 803, 872 P.2d 502 (1994).
State v. McSorley, 128 Wn. App. 598, 604-05, 116 P.3d 431 (2005) (quoting State v. Jones, 99 Wn.2d 735,740, 664 P.2d 1216 (1983)).
AFFIRMED.