Opinion
No. 33674-0-II.
December 5, 2006.
Appeal from a judgment of the Superior Court for Jefferson County, No. 04-1-00001-2, Leonard W. Costello, J., entered August 15, 2005.
Counsel for Appellant(s), Thomas E. Weaver Jr., Attorney at Law, Po Box 1056, Bremerton, WA, 98337-0221.
Counsel for Respondent(s), John F. Raymond, Jefferson County Prosecutors Office, Po Box 1220, Port Townsend, WA, 98368-0920.
Affirmed by unpublished opinion per Houghton, C.J., concurred in by Hunt and Van Deren, J J.
Michelle Powers appeals her conviction of hit and run injury accident, RCW 46.52.020(4)(b). She claims that the conviction violates her double jeopardy rights because a superior court commissioner erroneously declared a deadlocked jury in a previous trial. We disagree and affirm.
FACTS
On December 31, 2003, as Powers drove on State Route 20, she hit a state trooper who was standing on the side of the road. According to the trooper, Powers continued past the spot where she hit him until he pulled her over further down the road.
The State charged Powers with one count of driving under the influence (DUI) and one count of hit and run injury accident. Trial before jury began on January 10, 2005. On January 12, the parties presented closing arguments, and the judge sent the jury to deliberate.
The judge who presided at trial was not available to take the verdict from the jury. The judge asked the parties if they had objections to a court commissioner taking the verdict. The State did not object and defense counsel stated, "I don't have an objection to the court commissioner taking the verdict, but I do know that Ms. Powers has an objection to court commissioner . . . taking the verdict if he were to make any decision with respect to scheduling sentencing or incarceration pending sentencing." III Report of Proceedings (RP) at 345. The judge listed commissioners who could take the verdict and he offered to take the verdict personally by telephone.
On January 13, while the jury deliberated, a commissioner heard arguments regarding instructions in response to a jury question. In response to the question, the commissioner submitted an additional instruction. Defense counsel raised an oral motion to revise the commissioner's ruling. The commissioner telephoned a superior court judge who declined to revise the commissioner's decision.
At the end of the discussion, the judge asked, "[I]s there going to be a Commissioner available for the verdict . . . `" RP at 376. In front of Powers, her counsel, and the State's attorney, the court clerk said, "If the parties are willing to have [the Commissioner] hear it, I know he's available." RP at 376. The judge responded, "Well, I should be available again at this number, too. And if worse comes to worse, I can take a verdict over the telephone." RP at 376.
The same day, proceedings continued with the commissioner presiding. The commissioner said, "I'm here on the Powers verdict. Can we bring in the jury — Well, any preliminary matters before the jury's brought in?" RP at 377. The State did not raise any matters. Defense counsel stated, "No, Your Honor." RP at 377.
The commissioner then brought in the jury and asked the presiding juror if the jury had reached a verdict. The presiding juror said that the jury had reached a verdict on the DUI count, but not on the hit and run count. The commissioner then asked the presiding juror if she believed there was any possibility the jury could reach a verdict on the hit and run count. The presiding juror replied, "No, at all [sic]." RP at 378.
The commissioner polled the jury as to whether it could reach a verdict on the hit and run count. Nine of the other jurors said "no" and two responded "it's hard to say" but could not give a "yes" or "no" answer. RP at 378-80.
The commissioner found the jury deadlocked as to the hit and run count. Defense counsel orally objected to the commissioner's ruling and asked that a "judge be called regarding the matter" and orally moved "for revision of [the commissioner's] decision in that regard." RP at 380. The commissioner restated that he found the jury deadlocked and declined to call a judge to review his decision.
Before the commissioner discharged the jurors, he asked if there was any reason he should not do so. Defense counsel orally renewed his objection "with respect to the court finding the jury deadlocked" on the hit and run count. RP at 383. Defense counsel said that a written motion to revise the commissioner's ruling would be filed, but none was. The State retried Powers on the hit and run count.
Before the second trial, Powers moved to dismiss on double jeopardy grounds, claiming that the commissioner abused his discretion in finding the jury deadlocked at the previous trial. In arguing the motion, defense counsel said he agreed that the commissioner could take the verdict. A superior court judge denied Powers' motion to dismiss.
A jury found Powers guilty of hit and run injury accident at her second trial. She appeals.
ANALYSIS Commissioner's Jurisdiction
Powers first contends that the commissioner did not have jurisdiction to find the jury deadlocked.
Article IV, section 23 of the Washington State Constitution gives superior court commissioners authority to act in any matter not requiring trial by jury, subject to revision by superior court judge. See State v. Goss, 78 Wn. App. 58, 59, 895 P.2d 861 (1995).
A party waives a claim that a court commissioner lacks authority where all parties consent to commissioner's authority at the time of the matter and the party does not raise the issue until after a jury renders a verdict. State v. Karas, 108 Wn. App. 692, 702, 32 P.3d 1016 (2001).
Powers did not argue the commissioner's lack of authority to accept the jury's verdict while the jury deliberated or at a later motion to dismiss, but rather she raises it for the first time on appeal. The record indicates that defense counsel consented to the commissioner's jurisdiction to accept the verdict. Counsel also agreed that the commissioner could determine whether the jury deadlocked. Before the commissioner discharged the jury, defense counsel objected to his decision, not his authority to make the decision. Accordingly any challenge of the commissioner's jurisdiction to accept the verdict was waived.
Revision of Commissioner's Decision
Next, Powers contends that the commissioner erred by declaring a deadlocked jury without contacting a superior court judge by telephone. Powers asserts that the commissioner ruled before she had an opportunity to enter a written motion to revise.
RCW 2.24.050 states in part,
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner.
(Emphasis added.)
Powers did not submit a written motion to revise the commissioner's decision, instead lodging an oral objection requesting that a superior court judge be contacted. Defense counsel also stated that a written motion challenging the decision would be filed.
RCW 2.24.050 does not require a commissioner to contact a superior court judge by telephone before making a ruling. Nor was Powers deprived of an opportunity to file a written motion to revise within 10 days after the commissioner's ruling. Her argument fails.
A superior court reviewed the commissioner's decision to declare a mistrial at Powers' motion for dismissal of her second trial on the hit and run count. The superior court judge found that the commissioner did not abuse his discretion and dismissed the motion.
Discharge of Jury
Finally, Powers claims that because the commissioner abused his discretion in finding the jury deadlocked on the hit and run count, the later conviction violated her double jeopardy rights.
A precipitous discharge of a jury resulting in a mistrial operates as an acquittal, and a new trial on the acquitted charge will place a defendant twice in jeopardy for the same offense, contrary to well established principles. U.S. Const. amend. V; Washington Const. art. I, § 9; State ex rel. Charles v. Bellingham Mun. Court, 26 Wn. App. 144, 147, 149, 612 P.2d 427 (1980). Although jeopardy attaches when a court empanels and swears in a jury, the attachment does not automatically preclude the discharge of the jury, but a new trial before another jury is permitted only where "there is a manifest necessity for the [mistrial], or the ends of public justice would otherwise be defeated." State v. Jones, 26 Wn. App. 1, 5, 612 P.2d 404 (1980) (quoting United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)).
Although the decision to discharge a jury lies within the trial court's broad discretion, there must be "extraordinary and striking" circumstances to justify the discharge. State v. Kirk, 64 Wn. App. 788, 793, 828 P.2d 1128 (1992). A trial court's belief that the jury deadlocked is the classic basis for declaring a mistrial. State v. Barnes, 85 Wn. App. 638, 656, 932 P.2d 669 (1997).
In determining whether a jury deadlocked, the trial court may consider the length of jury deliberations relative to the length of the trial and the complexity of issues and evidence. Barnes, 85 Wn. App. at 656. The trial court may rely on the representations of the presiding juror regarding whether the jury is deadlocked. Barnes, 85 Wn. App. at 657. There are no particular procedures that the trial court must follow in determining the probability of the jury reaching an agreement. Barnes, 85 Wn. App. at 657.
Here, the jury could not reach a verdict on the hit and run count. Trial on this count and the DUI count lasted three days. The jury deliberated for two days. When the commissioner asked the jury if it had reached a verdict on the hit and run count, the jury foreperson said, "No." RP at 377. When asked if there was any possibility that the jury would reach a verdict on the hit and run count, the foreperson said, "No, at all [sic]." RP at 378. After the commissioner polled the jury as to whether they could reach a verdict on the hit and run count, nine of the other jurors said "no" and two responded "it's hard to say" but could not give a "yes" or "no" answer. RP at 378-80. The commissioner then found that the jury deadlocked.
Based on the responses of the presiding juror and the other jury members, the length of deliberations relative to the length of trial, and the relatively simple nature of the hit and run count, the commissioner did not abuse his broad discretion to determine the jury deadlocked.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and VAN DEREN, J. concur.