Opinion
No. 61897-1-I.
September 14, 2009.
Appeal from the Superior Court, Snohomish County, No. 06-1-02810-9, Ellen J. Fair, J., entered May 15, 2008.
Affirmed by unpublished opinion per Appel-wick, J., concurred in by Schindler, C.J., and Agid, J.
Perez appeals his conviction for second degree murder, claiming that the trial court abused its discretion in denying his motion for a new trial based on juror misconduct. Because a juror's experiment in his own home was nothing more than the application of everyday common sense and perception to the testimony offered at trial, we disagree and affirm.
FACTS
In June 2006, Daniel Perez was an inmate at the Washington State Reformatory where he shared a cell with Cory Garzina. On June 19, guards successfully completed the 3:00 a.m. regularly scheduled count of inmates, but the 10:50 a.m. count did not reconcile. Guards found Perez sitting in his cell with his back to the wall, facing his bunk. When he failed to respond to initial commands, a sergeant kneeled down to talk to Perez and saw a man stuffed under the bunk facing the wall. The sergeant commanded Perez to stand and be handcuffed. Perez complied. The body under the bunk was Garzina. He had been strangled to death. A Department of Corrections officer found an unknotted cord wrapped so tightly around Garzina's neck that it was embedded into the skin.
Later that day, Perez told a lieutenant, "`I just want you to know I'm the one that did that shit.'" Holding up his hands, he said, "`See these marks? These are from the rope.'" Officer Robert Hoover of the Monroe Correctional Center and Sergeant Cindy Chessie of the Monroe Police Department interviewed Perez that evening. Perez said that he had been having mental health difficulties and he had a nightmare that Garzina was going to kill him. He decided to act first and he remembered grabbing some rope and tying it around Garzina's neck, before blacking out. Perez also showed the marks on his hands to the officers.
The State charged Perez with aggravated first degree murder with a deadly weapon. At trial, the medical examiner stated his opinion that Garzina's death occurred around 8:30 a.m. and was "something other than a suicide." The State presented evidence of the prison's camera monitoring system indicating that between 6:30 and 10:50 a.m., only Perez was seen leaving or entering the cell he shared with Garzina. Prison personnel also testified that both Perez and Garzina were called to a counselor's office to receive infraction notices that morning, but only Perez appeared sometime between 8:30 and 9:00 a.m.
Perez testified that on June 18, an inmate known as "Wedo" told him to be out of his cell in the morning, because "there's going to be some business handled with your cellmate." According to Perez, he believed that someone was going to fight with Garzina in the cell. He claimed that such fights happened often and that inmates could easily get in and out of other cells without attracting the attention of the guards. Perez testified that he left the cell on June 19 for morning recreation time. On his way back to his cell, around 10:30 a.m., Wedo and "Nica" threatened that if he "said anything about what happened to [his] cellmate, that [he] would end up dead or [his] family would end up dead." Although he did not know what they were talking about at the time, when he returned to his cell, he found Garzina dead.
Perez also testified that while he was in segregation on June 19, he was so distressed that he wanted to kill himself. So he pulled the elastic waistband off of his underpants and wrapped it tightly around his hands until red marks appeared on his hands as he prepared to tie it around his neck. But he was interrupted by the lieutenant's arrival. Perez also claimed that when he learned that he would be transferred to the Special Offenders Unit, he was afraid that Wedo and Nica would think he had "snitched" and kill him or his family, so he decided to confess to murdering Garzina.
The jury found Perez guilty of second degree murder while armed with a deadly weapon. After the verdict, the presiding juror contacted a prosecutor and reported that one of the jurors pulled on the waistband of his underwear and reported to the jury that it would be difficult to pull the band off. Perez filed a motion for a new trial based on juror misconduct.
After considering the jurors' answers to a questionnaire as well as arguments from counsel, the trial court found that
one of the jurors went home, either attempted to or succeeded in removing the waistband of underwear and stretched it around his hand and saw if there were marks and then made a comment to at least most of the other jurors with respect to what had been done.
After discussing the nature of the misconduct claim in its oral ruling, the trial court ultimately made its decision solely based on the lack of prejudice, stating:
The [c]ourt would find that in the context of what I think can fairly be characterized as overwhelming evidence in this case, even if this "experiment" can be characterized as misconduct, that it did not put jurors in possession of material facts in this particular case which could have affected the verdict.
Perez states in his brief that the trial court found that the juror had committed misconduct. We do not agree that this is an accurate reading of the record.
Perez appeals.
DISCUSSION
Perez contends that the trial court erred in denying his motion for a new trial based on juror misconduct. He argues that a juror improperly injected extrinsic evidence into the deliberation process by conducting an experiment outside of the court and discussing it with other jurors. Perez also contends that the trial court failed to apply the correct standard when considering prejudice.
We review a trial court's decision to deny a new trial for abuse of discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 301 (1994). A jury's consideration of novel or extrinsic evidence, that is, information outside all the evidence admitted at trial, is misconduct and can be grounds for a new trial. Balisok, 123 Wn.2d at 118. Only a "strong, affirmative showing of misconduct . . . [will] overcome the policy favoring stable and certain verdicts and the secret, frank and free discussion of the evidence by the jury." Balisok, 123 Wn.2d at 117-18.
Without identifying a particular jury instruction that he contends was violated or citing any Washington authority, Perez suggests that any experiment conducted by a juror outside the courtroom is per se misconduct. But a juror's experiment or reenactment of a crime in accordance with his recollection of the testimony is nothing more than "an application of everyday perceptions and common sense to the issues presented at trial." Balisok, 123 Wn.2d at 118 (internal quotation marks omitted) (quoting People v. Harris, 84 A.D.2d 63, 105 445 N.Y.S.2d 520 (1981)). In this context, misconduct occurs only if such an experiment or reenactment results in the jury's discovery of "`material facts which should have been supported by evidence upon the trial, but which was not offered.'" Balisok, 123 Wn.2d at 119 (quoting State v. Everson, 166 Wn. 534, 536-37, 7 P.2d 603 (1932)). Perez offers no relevant authority to support any other standard for analyzing a claim of juror misconduct involving an experiment conducted by a single juror outside of the jury room.
Perez's citations to cases from foreign jurisdictions, involving instructions forbidding experiments and standards for evaluating juror misconduct, differing from Washington authority are not persuasive. See, Bell v. California, 63 Cal. App. 4th 919, 932 (Cal. Ct. App. 1998) (jury had been instructed not to conduct experiments); Ex parte Thomas, 666 So. 2d 855, 857 (1995) (judge informed jury that experimentation was improper); New York v. Legister, 75 N.Y.2d 832, 833, 552 N.Y.S.2d 906 (N.Y. 1990) (new trial ordered based on juror's "conscious, contrived experimentation, directly material to a critical point at issue in the trial," where risk of prejudice to defendant was apparent); Carter v. Texas, 753 S.W.2d 432, 435 (1988) (new trial required based on showing that jury experiment led to discovery of new fact, detrimental to defendant, which influenced the jury).
Although the trial court declined to determine whether the juror committed misconduct and instead relied on the lack of prejudice to deny the motion for a new trial, we are satisfied that the juror's report of his experiment with underwear did not constitute extrinsic evidence. Perez testified that he pulled the elastic band off of the "Fruit of the Loom" underwear he was wearing and wrapped the elastic band tightly around his hands. He agreed on cross-examination that his underwear was "like most elastic underwear that most people are familiar with." The State did not dispute Perez's description of his underwear or offer any evidence to refute his testimony about tearing the band off of his underwear. The juror's experiment with underwear in his home was nothing more than an application of everyday perceptions and common sense to the testimony presented at trial by Perez. To the extent he succeeded in tearing the elastic band off his underwear, his experiment was corroborative of Perez' story. Whether wrapping the band around his hands caused him to have red marks is not probative of whether Perez would have experienced red marks without more information. The experiment was not novel or extrinsic evidence, because it did not produce any specialized information that was outside the general life experiences of the typical juror, who, as Perez himself acknowledged, would be familiar with the type of elastic underwear about which he testified. See, e.g., State v. Tandecki, 120 Wn. App. 303, 311, 84 P.3d 1262 (2004) (jury's discussion of matters within the common experience of vast majority of jurors does not constitute consideration of extrinsic evidence), aff'd, 153 Wn.2d 842, 109 P.3d 398 (2005). The information about the experiment did not provide the jury with material facts which should have been supported by substantial evidence. The trial court did not abuse its discretion by denying Perez's motion for a new trial.
STATEMENT OF ADDITIONAL GROUNDS
In his Statement of Additional Grounds for Review, Perez contends that the trial court abused its discretion in granting continuances, and that the court thereby violated his right to a speedy trial. The defense sought and was granted continuances on January 18, 2007, March 15, 2007, June 29, 2007 and October 5, 2007. The State obtained continuances on August 9, 2007 and October 12, 2007. In particular, Perez complains that the trial court abused its discretion by granting a continuance to the State based on the unavailability of a necessary witness without requiring proof that the witness had been issued a subpoena.
The trial court's decisions granting or denying motions for continuances will not be disturbed absent a manifest abuse of discretion. State v. Woods, 143 Wn.2d 561, 579, 23 P.3d 1046 (2001).
Only the August 9 hearing involved a motion based on the schedule of a State witness. The State requested a continuance to allow Detective Chessie of the Monroe Police Department to attend a training program. The trial court granted the continuance based on its findings that the detective was a necessary witness, that the training program was unique and necessary to the detective's job, and that Perez would not be prejudiced by a delay of the trial. In response to Perez's objections regarding the lack of subpoena, the trial court clarified that it was "not the issue of whether or not she's going to be present" for the trial, but "whether I'm going to continue the trial date in order to allow her to attend the training." Perez does not claim or establish any prejudice to his ability to present his case resulting from the continuance. Under these circumstances, Perez fails to demonstrate any abuse of discretion.
Affirmed.
WE CONCUR: