Opinion
No. 60749-9-I.
January 20, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-07655-5, Steven C. Gonzalez, J., entered October 19, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
Seong Chang was charged and convicted of first degree arson. Chang asserts that the defense counsel and the prosecutor both noticed that one of the jurors was sleeping during his testimony. He contends that the trial court denied his right to a fair trial by an impartial jury when it refused to either remove the juror or question her to determine whether she remembered any of his testimony. Because Chang's argument relies largely on an error in the record that has since been corrected, we conclude that the trial court did not abuse its discretion in refusing to remove the juror. We further conclude that Chang's statement of additional grounds for review lacks merit. We affirm.
FACTS
Seong Chang was charged by information with one count of first degree arson. During a break in the trial, defense counsel informed the trial court that she believed a juror was "clearly dozing." Verbatim Report of Proceedings (VRP) (Aug. 20, 2007) at 98. The trial court noted that the juror "had her eyes closed a little bit." Id. Defense counsel requested that the trial court question the juror "to see if she recalls anything testified to" or remove the juror. Id. The prosecutor, noting that some people close their eyes when listening or concentrating on the evidence, argued against questioning the juror "unless it was extremely obvious that she was totally out during the trial." Id. at 99. He suggested that the court and the parties should keep an eye on the juror and address the issue later if necessary. Defense counsel asserted that "it was clear head nodding, like she was in and out repeatedly for a duration of the testimony." Id. at 99. The trial court stated, "We'll take it up later." Id.
The following morning, defense counsel renewed her motion to remove the juror. The prosecutor stated that he had intentionally watched the juror and noticed that she was awake and "bouncing her foot back and forth." VRP (Aug. 21, 2007) at 2. Defense counsel did not contest the prosecutor's observations or offer any observations of her own. The trial court noted that he had seen the juror "nodding a bit" before the afternoon break but "didn't notice her nodding at all after that." Id. The court ruled that there was insufficient evidence to remove her as a juror "based on the brief time I noticed her being sleepy." Id.
Chang was convicted as charged.
He now appeals.
ANALYSIS
Juror Misconduct
Chang argues that juror misconduct deprived him of his right to a fair trial and that the trial court failed to conduct an appropriate inquiry into the misconduct.
"The right of trial by jury means a trial by an unbiased and unprejudiced jury, free of disqualifying juror misconduct." State v. Tigano, 63 Wn. App. 336, 341, 818 P.2d 1369 (1991). The removal of an unfit juror is governed by RCW 2.36.110.
It shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.
Similarly, CrR 6.5 states, "If at any time before submission of the case to the jury a juror is found unable to perform the duties[,] the court shall order the juror discharged[.]" "RCW 2.36.110 and CrR 6.5 place a continuous obligation on the trial court to excuse any juror who is unfit and unable to perform the duties of a juror." State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000). There is no mandatory format for establishing a record of alleged juror misconduct. Jorden, 103 Wn. App. at 229. "Instead the trial judge has discretion to hear and resolve the misconduct issue in a way that avoids tainting the juror and, thus, avoids creating prejudice against either party." Id.
We review a trial court's investigation of juror misconduct and its decision whether to excuse a juror for abuse of discretion. State v. Earl, 142 Wn. App. 768, 774, 177 P.3d 132 (2008); Jorden, 103 Wn. App. at 226. A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based upon untenable grounds or reasons. State v. Base, 131 Wn. App. 207, 218-19, 126 P.3d 79 (2006). "The party alleging juror misconduct has the burden to show that misconduct occurred." Earl, 142 Wn. App. at 774. A new trial is warranted only where juror misconduct resulted in prejudice to the defendant. Id.
Chang argues that reversal is required because the trial court refused to question or excuse the juror, even though there was no dispute that she was asleep during trial. Citing United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983), Chang contends that the trial court is obligated to investigate an allegation of juror misconduct and determine whether a party is prejudiced. In Barrett, a juror asked to be removed because he had been sleeping during trial. The trial court refused to remove the juror because the Government refused to stipulate to the substitution. Id. at 1082. After the jury returned a guilty verdict, the defendant moved to permit the defense to interview the juror. The court denied the motion, stating, "[T]here was no juror asleep during this trial." Id. The Ninth Circuit held that without further inquiry into the matter, the trial court could not properly take judicial notice that there was no juror asleep. Id. at 1083.
But Chang's argument relies largely on an error in the verbatim report of proceedings. The prosecutor did not say that the juror was "clearly dozing." Rather, it was defense counsel who made this statement. After receiving Chang's opening appellate brief, the prosecutor reviewed the verbatim report of proceedings and discovered that the statement had been attributed to him. On September 22, 2008, the trial court held a hearing to address the error. Chang, his trial counsel, his appellate counsel, and the prosecutor participated in the hearing. The trial court ruled that defense counsel, not the prosecutor, made the statement at issue, and it entered an order correcting the trial record.
In light of this clarification, we conclude that the trial court did not abuse its discretion in denying Chang's request to question or remove the juror. The trial court listened to the arguments of the parties and personally observed the juror during the trial. Defense counsel thought that the juror was "clearly dozing." But the prosecutor did not think the juror was obviously sleeping, and the trial court only saw "her eyes closed a little bit" before the afternoon break. VRP (Aug. 20, 2007) at 98. The trial court and the prosecutor then began to pay particular attention to the juror. They did not notice any further problems. And defense counsel did not mention any additional evidence of misconduct. Under the circumstances, the trial court properly resolved the allegations of juror misconduct in a way that avoided the potential for tainting the juror and creating prejudice.
Statement of Additional Grounds for Review
In a statement of additional grounds for review, Chang relates his side of the story and challenges the veracity of the witnesses who testified against him. Chang's allegations impliedly raise a claim that the evidence was insufficient to convict him. This argument lacks merit. The test to review the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999). An insufficiency claim admits the truth of the State's evidence and any reasonable inferences from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We "defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence." State v. B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007).
Here, the State alleged that Chang knowingly and maliciously caused a fire in the basement apartment of Chung Cha Chi's home. Chang, who had been renting the basement apartment, testified that the fire started accidentally after he burned a letter and dropped it into a plastic trash can. But Chi and other witnesses testified that Chang had previously threatened to burn Chi's house down unless she loaned him $200,000 and allowed him to live in the apartment for free. And the fire investigator testified that Chang's version of events was inconsistent in many ways with the evidence at the scene. We conclude that there was sufficient to uphold the conviction.
Affirmed.