Opinion
No. 59458-3-I.
August 25, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-10342-2, Laura C. Inveen, J., entered December 15, 2006.
Affirmed by unpublished opinion per Cox, J., concurred in by Agid and Ellington, JJ.
UNPUBLISHED
A trial court must carefully balance between "unnecessarily interfering with the jury's deliberative function and making sufficient inquiry" whether there is a reasonable probability of the jury reaching a verdict within a reasonable time. Once deliberations begin, the court should not instruct the jury in such a way as to suggest the need for agreement, the consequences of disagreement, or the length of time a jury will be required to deliberate. Precipitously discharging the jury may be a ground for denying a new trial on the basis of double jeopardy.
State v. McCullum, 28 Wn. App. 145, 150-51, 622 P.2d 873 (1981), rev'd on other grounds, 98 Wn.2d 484, 656 P.2d 1064 (1983).
CrR 6.15(f)(2).
McCullum, 28 Wn. App. at 151.
Here, the trial court properly exercised its discretion by giving an instruction based on WPIC 4.70. Moreover, there is nothing in this record to support the claim that the trial court coerced the jury to reach its verdict that Petros Habtemariam was guilty of first degree assault with a firearm. We affirm.
Police officers responded to a "shots fired" call at the parking lot outside of the Soundtrack Bar and Grill in Seattle. Upon arriving at the scene, they discovered Daniel Hadera with multiple gunshot wounds inside his vehicle. Based on interviews with witnesses at the scene and further investigation, police later arrested Habtemariam.
The State charged him with one count of first degree assault with a firearm allegation. The jury trial involved two full days of testimony. The primary issue at trial was the identity of the shooter.
Bethany Doehne testified that she was in the bar that night and recalled seeing Habtemariam, who was called "Kevin," talking with people in the bar. Doehne walked outside to take a phone call. She heard yelling and saw Kevin fire several shots into a car. He then put his gun in his pants and walked away, toward a nearby grocery store. Doehne went into the bar, told her friend Carrie Richardson what happened, and the two of them went back outside. They watched Kevin stand in the grocery store parking lot and then run away. Doehne described Kevin as wearing a white t-shirt, shorts, basketball shoes, and a nylon hair covering.
Doehne positively identified Habtemariam in a photographic montage approximately one week later. She also identified him at trial.
Katharine Weber worked as a bartender at the bar that night. She knew Kevin as a regular customer of the Soundtrack bar. She testified that Kevin was a customer on the night of the shooting and that he got into an argument with other patrons of the bar. Kevin left the bar at some point during the evening, and a few minutes later, Weber heard gunshots. She went outside and found the victim in his car, slumped over the wheel. The victim was one of the patrons with whom Kevin had been arguing inside the bar. Contrary to Doehne's trial testimony, Weber testified that she believed Kevin was wearing a colorful shirt that night.
Several additional trial witnesses corroborated Doehne's version of events. They each heard gunshots, saw a male matching Habtemariam's description walk away from the crime scene toward the grocery store parking lot, and then saw him run away. None of the additional witnesses saw the actual shooting. One of these witnesses, Doehne's friend Carrie Richardson, identified Habtemariam in a photographic montage on the same date as did Doehne.
Jury deliberations lasted approximately a day and a half. We discuss these deliberations more fully later in this opinion. The jury found Habtemariam guilty of first degree assault with a firearm.
Habtemariam appeals.
PROBABILITY OF VERDICT
Habtemariam argues that the trial court coerced an invalid verdict by instructing the jury based on WPIC 4.70 and directing them to continue to deliberate. We disagree.
The right to a fair and impartial jury trial requires that a judge refrain from exerting coercive pressure upon the jury's deliberations. A trial court must carefully balance between "unnecessarily interfering with the jury's deliberative function and making sufficient inquiry" whether there is a reasonable probability of the jury reaching a verdict within a reasonable time before discharging a jury. Once deliberations begin, the court should not instruct the jury in such a way as to suggest the need for agreement, the consequences of disagreement, or the length of time a jury will be required to deliberate. Precipitously discharging the jury may be a ground for denying a new trial on the basis of double jeopardy.
State v. Jones, 97 Wn.2d 159, 164, 641 P.2d 708 (1982).
State v. McCullum, 28 Wn. App. 145, 150-51, 622 P.2d 873 (1981), rev'd on other grounds, 98 Wn.2d 484, 656 P.2d 1064 (1983).
CrR 6.15(f)(2).
McCullum, 28 Wn. App. at 151.
WPIC 4.70 sets forth the suggested colloquy "when the jury is brought back into the courtroom during deliberations either because the jury has indicated that it may be deadlocked or the judge is contemplating the possible discharge of the jury as a deadlocked jury." According to the instruction, the trial court should ask the presiding juror to answer "yes" or "no" whether there is a reasonable probability of the jury reaching a verdict within a reasonable time. The question may also be asked of each juror.
WPIC 4.70, Note on Use.
Id.
A trial court has broad discretion in assessing whether a jury is genuinely deadlocked. The trial court should consider factors such as the length of time the jury had been deliberating, the length of trial, the complexity of the evidence, any progress in the deliberations, and the jury's own assessment that it is deadlocked. The trial judge should only grant a mistrial if he or she thinks there is no reasonable probability that the jury will reach a verdict if given more time.
State v. Taylor, 109 Wn.2d 438, 442, 745 P.2d 510 (1987), disapproved of in part on other grounds by State v. Labanowski, 117 Wn.2d 405, 417, 816 P.2d 26 (1991).
Id. at 443.
Id.
To prove a violation of his right to a fair trial, a defendant must show a "reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention." In reviewing the trial court's influence, we consider all the circumstances of the trial court's intervention. We also consider the length of time the jury deliberated after the allegedly coercive intervention because it is relevant to whether the jury was likely coerced.
State v. Watkins, 99 Wn.2d 166, 178, 660 P.2d 1117 (1983).
Id. at 177.
See McCullum, 28 Wn. App. at 153.
In this case, the court's written instructions to the jury stated that "Testimony will rarely, if ever, be repeated for you during your deliberations." The court further instructed the jury that if they had questions during deliberations, they should write out the question but "not state how the jury has voted."
Clerk's Papers at 32.
Id.
After being instructed, the jury began deliberating at 1:05 p.m. on November 30. At 3:20 p.m., the jury submitted the following note, "Can we get a copy of Bethany Doehne's statement?"
Shortly thereafter, the court responded in writing by stating, "Bethany Doehne's statement was not admitted into evidence." At 3:50 p.m., the jury was excused for that day.
The jury resumed deliberations at 9:00 a.m. on December 1. At 11:17 a.m., the presiding juror submitted the following written inquiry, "Can we have the testimony of Bethany Doehne re-read to us? Or a transcript of her testimony?"
At 11:35 a.m., the court responded in writing, "The transcript is not available. Testimony will not be repeated." At 11:42 a.m., the jury submitted the following note, "The jury is deadlocked and cannot come to a unanimous decision." At 12:04 p.m., the court responded, "You are to continue deliberating at this time."
At 2:18 p.m. on the same day, the jury submitted the following note, "Did Bethany Doehne identify Kevin as the shooter on the night of 7/22/05 in the statement she gave at the Sound Track Bar to Officer Steve Owings?" At 2:38 p.m., the court responded in writing, "Bethany Doehne's statement was not introduced into evidence."
At 2:50 p.m., the jury stated in writing as follows, "The jury is deadlocked with no change in our 11 to 1 vote [and] without an opportunity to review Bethany Doehne's statement or testimony, we do not feel we will get to a unanimous decision."
After this last communication from the jury, the trial court conferred on the record with counsel. The court first made a record that each of the court's prior responses to jury questions had been given after conferring with counsel and with their concurrence. The court also noted that the last communication from the jury, contrary to the court's instructions not to disclose the status of their deliberations, indicated that the vote stood at 11 to 1. The same communication reiterated the request for the statement or testimony of Doehne. The court then sought input from both counsel on how to proceed.
The prosecutor asked that the jury be allowed to continue to deliberate at least for the time left in the court day. The defense, noting the repeated jury requests for evidence from Doehne — the only eyewitness to the actual shooting — indicated that continued deliberations would be "browbeating" the holdout juror. Counsel, however, did not move for a mistrial.
Report of Proceedings (December 1, 2006) at 373.
The court decided to follow the procedures outlined in WPIC 4.70. At 3:50 p.m., the jury returned to court, and the following interaction between the court and the jury ensued:
THE COURT: . . . I've got an instruction to read to you. And I'm going to direct it to the entire panel, but I'm going to then follow it up with a question of the foreperson.
And if you could just raise your hand so I know who you are?
So members of the jury, you have been called back into the courtroom to discuss the subject of the reasonable probability of reaching a verdict within a reasonable period of time. First, a word of caution. Because you have already commenced your deliberations, it is important that you do not make any remarks which may adversely affect the rights of either party or which may disclose opinions of the members of the jury.
I'm going to ask the foreperson if there is a reasonable probability of the jury reaching an agreement within a reasonable time. The foreperson is directed to answer either yes or no to any question or questions I ask and not to say anything else. Do not disclose any other information or indicate the status of your deliberations.
So Mr. Presiding Juror or Mr. Foreperson, is there a reasonable probability of the jury reaching an agreement within a reasonable time?
THE PRESIDING JUROR: No.
THE COURT: Go ahead and be seated.
Now I'm going to ask, asking you not for anything other than a yes or no answer, is there anyone in the jury panel that disagrees with the foreperson's answer, whether or not there is a reasonable probability of the jury reaching an agreement within a reasonable time?
There is a juror that feels that and is raising her hand. And that's Juror Number 7.
All right. At this point, I am going to direct you to go back in the jury room to resume your deliberations.
Report of Proceedings (December 1, 2006) at 377-78.
Sometime thereafter, the jury orally requested a response to their prior written inquiry at 2:50 p.m. That inquiry sought to review "Doehne's statement or testimony."
At 4:03 p.m., the trial court responded in writing, "Please continue your deliberations — you have received all of the evidence. Re-read the instructions."
At 4:15 p.m., the jury returned with a guilty verdict.
The trial court did not abuse its discretion in giving its instruction based on WPIC 4.70 once the presiding juror indicated that the jury was deadlocked. As Habtemariam indicates, the primary issue in dispute after the two-day trial was the identity of the assailant. Moreover, it appears from the series of questions from the jury during its deliberations that its focus was on the evidence from Doehne, the only eyewitness to the actual shooting. No other witness at trial actually saw the accused shoot the victim. But these facts alone did not warrant declaring a mistrial.
After receipt of the jury's message that it was deadlocked and consultation with counsel, the court strictly followed the procedures outlined in WPIC 4.70. While the presiding juror indicated in response to the court's question that the jury was deadlocked, one juror disagreed by raising her hand in response to the court's question to the entire panel. Based on this interaction between the court and the jury, the judge had a tenable basis to direct the jury to continue deliberations. Juror number seven indicated that there was still a reasonable possibility of reaching a verdict, arguably the most important factor in determining whether to grant a mistrial.
See United States v. Lansdown, 460 F.2d 164, 169 (4th Cir. 1972) (considering the jury's assessment whether it is deadlocked to be a more important factor than the length of deliberations in determining whether to grant a mistrial),cited with approval in McCullum, 28 Wn. App. at 152.
As the trial court correctly noted in colloquy with counsel outside the presence of the jury, it would have been improper to mention any time restraints on further deliberations. At no time did the trial court indicate to the jury any time constraints on its deliberations. There is simply nothing here to indicate any coercion of the jury.
At oral argument, Habtemariam argued that the court coerced a verdict because of the jury's additional request for evidence from Doehne after the court had given its instruction based on WPIC 4.70. Specifically, he argued that the jury's reiteration of its prior request and the renewed denial by the court, coupled with the short time period to the verdict, indicates coercion. We disagree.
None of the cases Habtemariam cites suggests that a short time period between the trial court's communication with the jury and the verdict is the most important factor in assessing whether the verdict was coerced. It would be mere speculation to assume that the relatively short time period in this case indicated coercion. But more is required than mere speculation that the instructions influenced the verdict. For example, one could also conclude that any doubts of the holdout juror were finally resolved after being again told by the trial court that all the evidence from Doehne was before the jury and none would be repeated.
Even if the judge's intervention had a tendency to influence the verdict, reversal is not warranted unless there is a "reasonably substantial possibility" that it did so. Here, nothing suggests such a possibility.
Watkins, 99 Wn.2d at 178.
The trial judge did not give any instructions that even subtly suggested the minority juror should abandon his or her viewpoint. The judge merely instructed the jurors to continue deliberating, informed them that they had all of the admitted evidence, and ordered them to re-read the court's earlier instructions. This was proper because it reminded the jury that all jury instructions continued to apply, and it did not place undue influence on any one instruction.
See State v. Lee, 77 Wn. App. 119, 125, 889 P.2d 944 (1995) (The trial court did not suggest a desired outcome to the jury or nullify its earlier instructions when it reminded the jury that all prior instructions continued to apply.), rev'd on other grounds, 128 Wn.2d 151, 904 P.2d 1143 (1995).
The initial instructions, which the court directed the jury to review, specified that it was unlikely that trial testimony would be repeated during deliberations. Repeating that instruction is not coercion.
Likewise, the jury's erroneous revelation of its 11 to 1 vote does not indicate coercion. Unlike in the cases cited by Habtemariam, the trial court here did not inquire about these specifics. The jury's improper revelation of that information simply does not render the court's response coercive.
In short, Habtemariam fails in his burden to show that there was any coercion.
Habtemariam compares the trial court's instructions in this case with the coercive instructions in State v. Boogaard and Iverson v. Pacific American Fisheries. Unlike Habtemariam's case, bothBoogaard and Iverson involved coercive instructions that either violated or would have violated the current CrR 6.15(f)(2) by suggesting the need for agreement, the consequences of no agreement, or the length of time a jury will be required to deliberate.
90 Wn.2d 733, 585 P.2d 789 (1978).
73 Wn.2d 973, 442 P.2d 243 (1968).
In Boogaard, the jury began deliberating in the afternoon following a trial that lasted less than two days. At 9:30 p.m., the night duty judge asked the jury where they stood in their vote. They responded that the vote was 10 to 2. The following day was a court holiday.
Id. at 735.
The judge called the jury into the courtroom. He asked the jury foreperson to disclose the history of the vote and how long the vote had stood at each division. He then asked the foreperson if he thought the jury could reach a verdict in a half hour. The foreperson responded affirmatively. The judge polled each juror individually, and all except one believed they could reach a verdict in a half hour. Thirty minutes later, the jury rendered a verdict.
Id.
Id.
Id.
The court held that the trial court's interactions coerced the jury's verdict. The in-court inquiry about the history of the jury's votes combined with asking individual jurors whether they could reach a verdict within 30 minutes had the tendency to pressure the minority jurors. "The suggestion implicit in this questioning process, though unintended, was that the jury should, in the opinion of the judge, come to an agreement soon, preferably within a half hour, and that the agreement should be in accord with the majority opinion. . . ." The court concluded that the questioning was designed to hasten the verdict, and it therefore influenced the jury's decision.
Id. at 739.
Id.
Id. at 740.
In Iverson, decided before CrR 6.15, the jury indicated it was deadlocked 9 to 3 for the defendant after eight hours of deliberation (at 10:00 p.m.). The trial court read to the jury then-current WPI 1.05, which stated in its entirety:
Any verdict you reach must be agreed upon by ten jurors. In your deliberations you should examine the questions submitted with a proper regard and consideration for the opinions of each other. You should listen to each other's arguments with an open mind, and give due consideration to the opinions of your fellow jurors without surrendering your own convictions for the law contemplates that by your discussion you should harmonize your views if possible and thereby arrive at a verdict. On the other hand, the law does not contemplate that you compromise with your consciences nor yield your views for the mere purpose of agreement. You should make every reasonable effort to reach a verdict.
Again let me remind you that you should not single out any instruction or part thereof, including this one, and place undue emphasis upon it. In your deliberations continue to consider the instructions as a whole.
Id. at 974 n. 2 (emphasis added).
Ten minutes later, the jury rendered a verdict of 11 to 1 in favor of the defendant. The supreme court held,
Id. at 975.
[T]he immediate return of the jury, after they had been instructed to harmonize their differences and reach a verdict if possible, when considered in conjunction with the jurors' knowledge that the trial court had been informed they stood 9 to 3 for the defendant, represents almost conclusive evidence that two jurors were pressured into a change of position.
Id.
In contrast here, the trial judge did not inquire into the history of the jury's votes, pressure the jury to render a verdict within a particular time, or instruct them to reconsider their views once they began deliberating. She simply did not do or say anything to the jury to suggest it should do anything other than continue deliberating and re-read the jury instructions. When they indicated they were deadlocked, she inquired of the jury generally and instructed them to continue deliberating when one juror indicated further deliberation could lead to a verdict. Her "carefully neutral" instructions are quite different from those in Boogaard andIverson.
See Watkins, 99 Wn.2d at 178 (upholding a supplemental instruction that clarified the verdict forms in part because the judge's explanation was neutral and likely did not coerce the jury's verdict).
Habtemariam argues that the trial court's knowledge of the jury's 11 to 1 split rendered its instructions coercive. He also argues that the short length of time the jury deliberated after the court's intervention is important. But no case suggests that any one factor is dispositive. We conclude that in the absence of any coercive instructions by the judge, these two factors are not sufficient to render her intervention coercive in this case.
Habtemariam also argues that State v. McCullum and State v. Lee are distinguishable from his case. While the facts in those cases are not entirely the same as those here, the principles from those cases are equally applicable here.
28 Wn. App. 145, 622 P.2d 873 (1981), rev'd on other grounds, 98 Wn.2d 484, 656 P.2d 1064 (1983).
77 Wn. App. 119, 889 P.2d 944 (1995), rev'd on other grounds, 128 Wn.2d 151, 904 P.2d 1143 (1995).
Habtemariam also asserts that unlike in Lee, there was no instruction here to remind the jury that all prior instructions continued to apply. To the contrary, the trial court in this case instructed the jury to re-read all of the prior instructions. This was proper and reiterated to the jury that all prior instructions continued to apply.
Clerk's Papers at 45 ("Re-read the instructions.").
STATEMENT OF ADDITIONAL GROUNDS
Habtemariam raises several additional grounds for review. They are not persuasive.
He first argues that the photographic montage used for identification violated his right to due process. An impermissibly suggestive photographic lineup violates a defendant's due process rights when it creates an irreparable probability of misidentification. To establish a suggestive lineup, the defendant must show that the montage directs undue attention to a particular photograph.
State v. Ramires, 109 Wn. App. 749, 761, 37 P.3d 343 (2002).
Id.
Here, Habtemariam cites no law to support his claim that merely having two witnesses in the same room at the time of identification, without more, leads to an irreparable probability of misidentification. There is nothing in the record to support that the lineup was in fact suggestive.
Habtemariam also argues that his counsel was ineffective in three respects. This claim does not warrant relief.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the outcome would have been different. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
Matter of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
First, Habtemariam argues that his counsel was ineffective for failing to object to the allegedly suggestive photographic lineup. Because he failed to establish that the procedure was suggestive, there is no showing of deficient performance.
Second, Habetmariam asserts that his counsel was ineffective because he allegedly obtained a statement from the victim prior to trial and disclosed it to the State the day before trial. These assertions are not supported by the record and fail to establish that his counsel made any error.
Third, Habtemariam argues that his counsel was ineffective because he tried the case despite having a conflict of interest.
Defense counsel moved to withdraw before trial, claiming he had a conflict between his duty to prepare his client's case for trial and his preoccupation with a pending sanctions motion against him. In his supporting declaration, counsel admitted being ineffective at that time. At the hearing on the motion to withdraw, the trial court clarified that defense counsel had been fully prepared for trial until he had received some last-minute discovery from the State. The new discovery consisted of statements by witnesses who already appeared on the State's witness list, and the State would not offer the new statements as evidence at trial. The trial court continued the trial date to November 20, giving counsel approximately three and a half additional weeks to prepare. The court denied defense counsel's motion to withdraw.
Clerk's Papers at 10 ("My outrage and my concern for my practice, myself and my family, I believe, faithfully overrode my duties to my client. . . . Mr. Habtemariam's rights to Effective Assistance of Counsel have been denied! . . . I have not been effectively representing Mr. Habtemariam since Friday. . . .").
Counsel's declaration does not support that his actions fell below an objective standard of reasonableness. Although he felt compelled to defend himself rather than respond to the new discovery, the trial court gave him ample time to finish his trial preparations after the sanctions motion had been resolved. There simply is nothing in this record to establish any prejudice to the outcome of the trial from counsel's actions.
We affirm the judgment and sentence.
WE CONCUR: