Opinion
No. 58728-5-I.
October 8, 2007.
Appeal from a judgment of the Superior Court for Island County, No. 06-1-00099-5, Vickie I. Churchill, J., entered August 4, 2006.
Reversed and remanded by unpublished per curiam opinion.
The trial court may correct an erroneous verdict form only under limited circumstances. Where, as here, the court has discharged the jury and the jury has left the court's control, the court has no authority to reconvene the jury for the purpose of ascertaining its actual decision and conforming an inaccurate verdict form. Accordingly, we reverse Aaron Flynn's conviction for one count of attempted second degree theft.
FACTS
The State alleged that Aaron Flynn stole lumber from a lumberyard and charged him with one count of second degree theft. The trial court instructed the jury on both the charged offense and the lesser included crime of attempted second degree theft. Defense counsel provided Verdict Form B for the charge of attempted second degree theft. Unlike the verdict form for the second degree theft charge, Verdict Form B did not contain a blank line with directions to "write in `not guilty' or `guilty.'" Instead, except for a line for the presiding juror's signature, Verdict Form B provided in its entirety:
We the jury, having found the defendant, AARON FLYNN, not guilty of the crime of Theft in the Second Degree, as charged, or being unable to unanimously agree as to that charge, find the defendant, AARON FLYNN, of the crime of an attempt to commit Theft in the Second Degree.
On July 26, 2006, at the conclusion of deliberations, the presiding juror announced that the jury had reached a verdict. The court clerk read Verdict Form B in open court, precisely as written, with no indication of the actual verdict on the lesser included offense. The court polled the individual jurors, who confirmed the verdict was the individual and collective decision. The court then announced that the verdict had been received and filed, thanked and discharged the jury, and set the matter for sentencing.
On August 2, 2006, the parties informed the court they had discovered that there was no blank line on Verdict Form B for the verdict and that no one had read the actual verdict into the record. The deputy prosecutor stated that after talking with the jurors, the parties had the "impression" the jury "seemed to have convicted [Flynn] of attempted theft; however, we have . . . nothing on the record."
The court reconvened the jury, directed the clerk to administer the oath, and then asked each juror to identify his or her verdict on the attempted second degree theft charge. Defense counsel objected "because the jury has been released of its oath since the trial has been completed."
Each juror stated that the individual and collective verdict on the attempted second degree theft charge was guilty. The presiding juror explained that some of the jurors had noticed the problem with Verdict Form B, but eventually decided they could use the form as written. The trial court then entered a guilty verdict on the charge of attempted second degree theft, filed the judgment and sentence, and imposed sentence.
DECISION
On appeal, Flynn contends the trial court lacked authority to reconvene the jury and enter a corrected guilty verdict. We agree.
Although the issue arises infrequently, the law in Washington has long been that until the court discharges the jury and the jury leaves the court's actual control, the jury may correct or modify an erroneous verdict, and the trial court can correct defective verdict forms and ascertain whether the verdict expresses the jury's true intent. See State v. Badda, 68 Wn.2d 50, 60-61, 411 P.2d 411 (1966). But once the court has fully discharged the jury, "the authority of the court to amend or correct its verdict is limited strictly to matters of form or clerical error." Beglinger v. Shield, 164 Wash. 147, 153, 2 P.2d 681 (1931). The law presumes the jury is contaminated when jurors "pass from the sterility of the court's control and . . . separate or disperse and mingle with outsiders." State v. Edwards, 15 Wn. App. 848, 850, 552 P.2d 1095 (1976), review denied, 88 Wn.2d 1003 (1977).
Although not directly on point, we find the decision in State v. Zwiefelhofer, 75 Wn. App. 440, 880 P.2d 58 (1994), to be instructive. In Zwiefelhofer, after the jury returned not guilty verdicts on the two counts against the defendant, the trial court released the defendant from custody and discharged the jury. After the jury was discharged, the presiding juror informed the deputy prosecutor that she had mistakenly entered "not guilty" rather than "guilty" on one of the defendant's verdict forms. When all of the jurors agreed that the presiding juror had made a mistake in completing the verdict form, the court vacated the not guilty verdict and entered a judgment of conviction. Zwiefelhofer, 75 Wn. App. at 443.
On appeal, the court concluded that vacation of the not guilty verdict and entry of the conviction had violated the defendant's double jeopardy rights and involved "more than a mere clerical error." Zwiefelhofer, 75 Wn. App. at 444. The court also noted that before being called back, the jurors had mingled with non-jurors and several jurors had discussed the case with others.
In this case, although the jurors announced they had reached a verdict, the trial court discharged the jury without ascertaining the nature of that verdict. Not until it reconvened the jury, about one week later, did the court ascertain the actual verdict and enter judgment based on that verdict. Under the circumstances, this correction involved much more than a mere clerical error. Because the court was not authorized to reconvene the jury, it erred in entering the verdict based on the jurors' statements about the verdict. We therefore reverse Flynn's judgment and sentence.
The State's sole contention on appeal is that the invited error doctrine bars Flynn's challenge. Under this doctrine, a party cannot set up an error at trial and then complain about that error on appeal. In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995). We will deem such an error waived "if the party asserting such error materially contributed thereto." In re K.R., 128 Wn.2d at 147 (citing State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds in State v. Olson, 126 Wn.2d 315, 893 P.2d 629 (1995)).
The State argues that Flynn set up the alleged error by submitting a verdict form that omitted a space for the jury to record its verdict. But Flynn has not challenged the use of Verdict Form B, but rather the trial court's procedure after discovery of the error. The court expressly instructed the jury to fill in the blank on Verdict Form B with the words "guilty" or "not guilty" or, if it could not agree on a verdict, to leave the blank empty. We do not find that the absence of the blank line on the verdict form constituted a meaningful hindrance to the jury's ability to follow these instructions. Nor do we find that the omission contributed materially to the jury's failure to state its decision in open court or to the trial court's failure to ascertain or file the jury's actual verdict. Under the circumstances, the invited error doctrine does not preclude Flynn's challenge to the trial court's decision to reconvene the jury.
Finally, Flynn argues that double jeopardy bars the State from retrying him. But because we vacate Flynn's conviction for reasons other than insufficient evidence, double jeopardy is not implicated. See State v. Ervin, 158 Wn.2d 746, 757-58, 147 P.3d 567 (2006).
We reverse Flynn's conviction for attempted second degree theft and remand for further proceedings.