Opinion
No. 54001-7-I
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No. 02-1-00615-8. Judgment or order under review. Date filed: 02/24/2004. Judge signing: Hon. John M Meyer.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Erik Pedersen, Attorney at Law, Skagit Co Prosc Atty Ofc, 605 S 3rd St, Mount Vernon, WA 98273-3867.
Thomas Edward Seguine, Skagit Co Prosecutor, 605 S 3rd, Mount Vernon, WA 98273-3867.
Robin E. Webb-Lakey, Attorney at Law, PO Box 36, Bow, WA 98232-0036.
When a criminal trial ends with a deadlocked jury, retrial does not violate the prohibition against double jeopardy so long as the trial court determines there is no reasonable probability of the jury arriving at an agreement even if given more time. In this case, the record of communication from the jury supports the trial court's assessment that the jury was genuinely deadlocked. The absence of a formal declaration of mistrial is not significant because it was clear that the court was excusing the jury.
FACTS
The State brought charges against Jay Hughes in 2002 for sexual misconduct with his son and his two daughters, aged 12, 11, and 8 at the time. The accusations against Hughes surfaced after he and his wife separated. Hughes went to trial on 14 counts of first degree rape of a child and seven counts of second degree rape of a child. The trial ended in a hung jury, except for an acquittal on one count. The State reduced the charges to 11 counts in an amended information, and the court scheduled a new trial date. Hughes unsuccessfully moved in this court for discretionary review to bar retrial based on double jeopardy. The retrial began on November 4, 2003. The jury convicted Hughes on all 11 counts. Hughes was sentenced to a term of 318 months on February 24, 2004. This appeal followed.
DISMISSAL OF JURY
Hughes contends the first trial court improperly discharged the jury without a sufficient basis to conclude that the jury was in fact deadlocked.
During deliberations, the jury submitted three different inquiries to the court, each time signaling the jury's concern that it might not be able to reach agreement. The first inquiry came on the first day, within minutes after the case was submitted:
Question from Jury: What do we do if we feel we cannot come to a unanimous decision on certain counts?
Judge's response: Do your best, that's all we can ask.
[Jury response:] That's weak — help — we need clarification.
Clerk's Papers at 25.
The jury deliberated for the remainder of the afternoon — about an hour and a half in total. The next day, a Friday, the jury deliberated the full day without resolution. The jury resumed on Monday. That day, the jury sent the court another question, reiterating that they were divided and asking to view a certain piece of evidence:
Question from Jury: We have made a decision on Counts 1, 5, 6 and 7. We remain divided on all other counts. Can we review the taped interview between Theresa LaVera and [A.B.]?
Clerk's Papers at 26.
After consultation with counsel, the trial court called the jury into open court and told them that they would not be able to review the tape. The court then dismissed the jury for the day, instructing them to return the following morning to continue deliberations:
[The Court]: You've asked a question, and the attorneys — I had them come over this time of day anyway. And I have reviewed the question with the attorneys.
The answer to your question, "Can we review the taped interviews between Theresa and [A.B.]," the answer to that unfortunately is no. I can't — you probably knew that before you asked it, but I can't give you any more than you already have. The reason we don't send back bits and pieces of interviews and testimony and things like that in trial is because it could have the effect of drawing undue influence on that particular small piece of testimony that now gets to go back with you and be analyzed in great detail. . . .
So what I'm going to do is send you home again and ask you to come back tomorrow morning and look at this one more time after a night's sleep, and we will address this again tomorrow and see where we are. You can do that for me. It's been a long haul. I realize that. It's the longest I've ever had a jury in Skagit County for a trial, so I appreciate your hard, hard work. Thank you very much. We'll see you tomorrow morning at 9:30.
Report of Proceedings (June 2, 2003) at 2-3.
Early in the afternoon of the following day, the jury sent out its third question to the court, this time inquiring about unanimity: Question from Jury: Need clarification. Unanimous verdict — does this mean all 12 for guilty/all 12 for not guilty? Judge's response: Yes.
Clerk's Papers at 27.
At some point after the jury had submitted this question, the court, with both counsel present, summoned the jury back into open court and ascertained from the foreperson that they were still divided on all but one count:
The Court: I'll bring them out and ask Ms. Mead, who's the foreperson, if they have reached an agreement on any of the counts, yes or no. And as to the counts that they haven't reached an agreement on, I'll ask if there's a reasonable probability of the jury reaching an agreement on those counts within a reasonable time which is the question that we use and see how she goes. And I'll probably ask her that question as to each individual count that's at issue, . . . and then we'll go from there and see where the afternoon takes us.
Okay. Kel, yard them out.
The Court: All right. Ms. Mead?
Jury Foreperson: Yes, sir.
The Court: I will ask you several questions here about our status of where we are. There were 21 counts.
Jury Foreperson: Yes.
The Court: Has the jury reached resolution on any of those counts?
Jury Foreperson: Yes, sir.
The Court: And what numbers are those?
Jury Foreperson: That would be the very first one which would be — I apologize — Count 1, Form A.
The Court: Count 1, all right. No resolution on 2 through 21?
Jury Foreperson: Correct.
The Court: All right. Now, let me ask you this question then as to
Count 2: Is there a reasonable probability of the jury reaching an agreement within more — within a reasonable time? Jury Foreperson: I don't believe so.
Report of Proceedings (June 3, 2003) at 2-3.
The court asked the same question as to counts 3 through 21, and in each case, the jury foreperson answered "No". The court then concluded that the jury was hung:
The Court: All right. At this point then I would, for the record, declare that the jury is hung on Counts 2 through 21 and would let that stand.
Report of Proceedings (June 3, 2003) at 5.
The question presented is whether the procedure used by the judge impermissibly placed Hughes in double jeopardy. The state and federal constitutional proscriptions against double jeopardy not only protect a defendant from a second prosecution for the same offense after a conviction or acquittal, but also protect the valued right of the defendant to have his trial completed by a particular tribunal. State v. Jones, 97 Wn.2d 159, 162, 641 P.2d 708 (1982). Nevertheless, a retrial is allowed where the discharge of the first jury was necessary in the interest of the proper administration of justice. Jones, 97 Wn.2d at 162. One such situation is where the first jury is genuinely unable to agree on a verdict. Jones, 97 Wn.2d at 163. Without exception, courts have held that the trial court "may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws." Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978).
A trial court's decision to declare a mistrial when the judge considers a jury deadlocked is accorded great deference. Jones, 97 Wn.2d at 163. The rationale for this deference is that the trial court is in the best position to "assess all the factors which must be considered in making a necessarily discretionary determination whether the jury will be able to reach a just verdict if it continues to deliberate." Arizona v. Washington, 434 U.S. at 510 n. 28. The factors to be considered include, but are not limited to, the length of time the jury had been deliberating, the length of the overall trial, and the volume and complexity of the evidence. Jones, 97 Wn.2d at 164.
Discharge of a jury is appropriate if it satisfactorily appears to the trial judge that there is no reasonable probability the jury could arrive at an agreement "even if given more time." Charles v. Bellingham Municipal Court, 26 Wn. App. 144, 148, 612 P.2d 427 (1980). Hughes contends that the first answer of "I don't believe so" by the jury foreperson was too equivocal to meet this standard. This might be so if that answer was the court's only information about the jury's difficulties. But the context here is a trial that lasted seven days and deliberations that lasted over a period of four days. Each of the three questions from the jury indicated that the jury was having trouble reaching a unanimous verdict. On day three of deliberations, it appeared that the jury had agreed on four of the counts. By the end of the fourth day, agreement had dwindled to one count. The court inquired as to each and every count and under the circumstances was entitled to believe the foreperson was answering unequivocally when she said she believed the jury could not reach a verdict on the remaining counts within a reasonable time. We conclude the trial court did not abuse its discretion in discharging the jury.
DECLARATION OF MISTRIAL
Hughes next argues that a retrial violates double jeopardy principles because there is nothing in the record — either in the transcript itself or in any later written order — indicating that the trial court expressly declared a mistrial. Hughes contends that such an express declaration of a mistrial is necessary before the State can retry a defendant after the first jury is discharged.
While a formal declaration of a mistrial might be preferable, the cases cited by Hughes does not support his assertion that such a declaration is necessary. There is no such holding in Richardson v. United States, 468 U.S. 317, 326, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984), or in United States v. Scott, 437 U.S. 82, 98 S. Ct. 2187, 57 L. Ed. 2d 65 (1978). Hughes relies primarily on United States v. Cavanaugh, 948 F.2d 405 (8th Cir. 1991). But Cavanaugh likewise does not hold that double jeopardy requires an express declaration of a mistrial. Rather, Cavanaugh holds that double jeopardy, and its policy of finality, bars retrial on a charge that the jury was not allowed to reach in the first trial due to the government's deliberate trial strategy. Cavanaugh, 948 F.2d at 417. This case is not like Cavanaugh. The jury considered the charges, but simply could not agree on them.
Hughes cites a Tennessee case where double jeopardy was found to bar a second trial. In State v. Skelton, 77 S.W.3d 791 (Tenn.App. 2001), the jury was unable to reach a unanimous verdict on the attempted murder charge. The trial court dismissed the jury and set a date for retrial, but did not declare a mistrial. While some language used in the opinion suggests the necessity of a formal declaration of a mistrial, a closer reading of the opinion shows it to be in conformity with our own cases in that the real problem was the trial court's decision to excuse the jury without first ascertaining that the jury was hopelessly deadlocked: Upon hearing that the jury's vote was split on the issue of guilt for the charge of attempted first degree murder, the trial court in the case sub judice summarily dismissed the jury without making any inquiries as to whether a valid verdict might be obtained or if the jury was hopelessly deadlocked. Under [State v.] Mounce, [ 859 S.W.2d 319 (Tenn. 1993)] where a trial judge declines to exercise the preferred alternative of instructing the jury further and/or request that it continue to deliberate for the purpose of returning a consistent verdict, a finding of manifest necessity to summarily conclude the trial is precluded. . . . Because manifest necessity was not proven in the case sub judice, declaring a mistrial would not have been proper.
"Even if a mistrial was intended, it would not provide an exception to double jeopardy because the record fails to show that manifest necessity existed and a `mistrial' was never actually declared." State v. Skelton, 77 S.W.3d 791, 797 (Tenn.App. 2001) (emphasis in original).
Skelton, 77 S.W.3d at 797.
The theme of Skelton is that if a jury is not genuinely deadlocked, there is no "manifest necessity" justifying a mistrial. This accords with our own precedent, as expressed in Charles v. Bellingham Municipal Court, 26 Wn. App. 144, 612 P.2d 427 (1980). Charles, contrary to Hughes' argument, does not support the proposition that a court must formally declare a mistrial in order to avoid placing a defendant in double jeopardy. The Charles court mentioned that the trial court had not formally declared a mistrial, but the reversible error was the court's decision to discharge the jury without ascertaining that they were genuinely deadlocked:
The record shows that the court discharged the jury immediately upon the foreman's statement that it had been unable to arrive at a verdict. The findings of fact and conclusions of law, entered more than 2 months after trial, reflect that only one factor was apparently taken into consideration; i.e., length of deliberation. The court found that "normal time" for jury deliberation was 45 minutes and that the jury in question had exceeded it by approximately 30 to 45 minutes. We are as unaware of any standards establishing "normal" jury deliberation time as we are of any authority requiring a mistrial when the jury deliberates beyond that period.
Although the trial court was not required to expressly find "manifest necessity," it is clear that the record must adequately disclose some basis upon which the court determines that the jury necessarily must be discharged.
Here the record reflects no such basis. We find that the municipal court's precipitous discharge of the jury operated as an acquittal. . . .
Charles, 26 Wn. App. at 148-49 (citations omitted).
We conclude the absence of a formal declaration of a mistrial does not bar retrial under the principles of double jeopardy. The court declared the jury was hung, and the record supports the court's conclusion that the deadlock was genuine.
EXCLUSION OF PRIOR OFFENSES
Before the second trial, the State moved to exclude reference to two prior convictions of Hughes' son, one of the child victims. The boy had a criminal history of two adjudications, one for first degree child molestation and the other for third degree assault with sexual motivation. The defense wanted this history to come into evidence to show that the boy had a motivation to falsely accuse Hughes of molesting him, as a way of deflecting the guilt he felt for his own offenses. The court granted the State's motion to exclude the evidence, a ruling to which Hughes assigns error.
The defense proposed to call an expert witness to explain that some people who commit sex offenses will fabricate stories about having been abused themselves. The prosecutor elicited the expert's agreement that in such a scenario, generally the claim is "that prior to their making the action of abuse of someone else they were abused themselves". The prosecutor then asserted that the alleged offenses by Hughes against his son occurred after, not before, the son's own offenses. The court agreed that given that chronology, there was no factual basis for the expert's testimony, and little if any probative value to the prior convictions of Hughes' son.
Report of Proceedings (Nov. 10, 2003) at 9.
After the court's ruling, defense counsel attempted to clarify the dates of incidents that gave rise to charges. But Hughes has pointed to nothing in the record that shows his son's offenses occurred after, rather than before, the incidents during which Hughes allegedly molested him. Thus, Hughes has not demonstrated that the prior conviction evidence was relevant. A defendant does not have a constitutional right to have irrelevant evidence admitted in his defense. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). The trial court did not err in excluding it.
Affirmed.
ELLINGTON and BAKER, JJ., Concur.