Opinion
No. 60092-3-I.
December 8, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-07399-8, Richard D. Eadie, J., entered April 26, 2007.
Affirmed by unpublished per curiam opinion.
Nhan Nguyen appeals from the judgment entered on a jury's verdict finding him guilty of one count of violation of the Uniform Controlled Substances Act for delivering cocaine. At trial, inadmissible testimony was elicited by the State. Nguyen argues that although the trial court sustained his objection to the testimony, struck the evidence from the record, and instructed the jury to disregard the evidence, this remedy was insufficient because the instruction to the jury was given orally, rather than in writing. In addition, Nguyen argues that the trial court erred by not sua sponte granting a mistrial. We conclude that the trial court's remedy was sufficient and that it would not have been proper for the trial court to have granted a mistrial on its own motion.
Ch. 69.50 RCW.
Accordingly, we affirm.
I
At trial, a detective testified to a previously undisclosed statement made by Nguyen. At the prosecutor's request, in the absence of the jury, the trial court held a CrR 3.5 hearing. After the hearing, the trial court sustained Nguyen's objection to the admissibility of the statement, ordered the testimony stricken from the record, and orally instructed the jury not to consider the testimony. The trial court declined to give Nguyen's proposed written jury instruction on the issue.
The proposed written instruction is not in our record.
Nguyen did not request a mistrial.
II
Nguyen first argues that the trial court erred by not granting his request for a written instruction advising the jury to disregard the stricken testimony. Nguyen's sole support for this argument is his citation to two century-old cases, State v. Burnam, 71 Wash. 199, 128 P. 218 (1912), and State v. Mayo, 42 Wash. 540, 85 P. 251 (1906). Both cases discuss a statute that is no longer in effect. That statute dealt with the then-new phenomenon of court stenographers. Under the 1903 statute, jury instructions were required to be in writing if requested by a party unless the court's instructions were transcribed by a stenographer under the control of the court. See Mayo, 42 Wash. at 547-58. Neither case remains viable authority today.
In his briefing, Nguyen alleges that the prosecutor committed three instances of misconduct by (1) failing to disclose a custodial statement of the defendant in discovery; (2) failing to request a pretrial CrR 3.5 hearing; and (3) failing to inform the police witness of the trial court's order that no statements by the defendant would be presented at trial. But, at Nguyen's request, the trial court struck the evidence. Thus, at issue here is whether the trial court's remedy was sufficient — not whether the prosecutor committed misconduct.
Laws of 1903, ch. 81, §§ 1 (4).
As a practical matter, judges orally instruct juries every day. More to the point, oral instructions in response to evidentiary rulings are commonplace. In this case, the trial court sustained an objection, struck the evidence from the record, and then orally instructed the jury not to consider the stricken evidence. In addition, at the conclusion of the case, the trial court properly gave the jury a written instruction that included the direction that, "[i]f evidence was not admitted or was stricken from the record, then you are not to consider it in reaching your verdict." The remedy provided by the trial court was sufficient.
The pattern jury instructions approved for use in our trial courts contain numerous examples of suggested oral instructions. See, e.g., 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.01; 1.02; 4.61; and 31.01. (3d ed. 2008).
Thus, although Nguyen's proposed written jury instruction was not given, the trial court did instruct the jury in writing to disregard evidence stricken from the record, a fact not addressed by Nguyen in his briefing.
III
Nguyen also argues that a mistrial should have been ordered sua sponte by the trial court. Mistrials are only granted in limited circumstances where the trial court cannot otherwise adequately correct an error or trial irregularity. Mistrials should be limited to circumstances wherein "`nothing the trial court could have said or DONe would have remedied the harm DONe to the defendant.'" State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979) (quoting State v. Swenson, 62 Wn.2d 259, 280, 382 P.2d 614 (1963)).
In this case, the trial irregularity was cured by the trial court's remedial actions. After the trial court ruled the evidence to be inadmissible, it struck it from the record. It then asked defense counsel to draft a curative instruction. Defense counsel's proposed instruction, in which the jury was instructed to disregard the stricken evidence, was read to the jury. Later, at the conclusion of the case, the trial court similarly instructed the jury in writing.
Furthermore, Nguyen did not move for a mistrial. Jeopardy attached when the jury was sworn. State v. Heaven, 127 Wn. App. 156, 161, 110 P.3d 835 (2005). Nguyen had a right to proceed to verdict before this jury. The trial court would have erred by declaring a mistrial and preventing the jury from reaching a verdict. Moreover, in the absence of Nguyen's request for a mistrial, principles of double jeopardy might have precluded retrial. See State v. Jones, 97 Wn.2d 159, 162, 641 P.2d 708 (1982). The trial court did not err by not sua sponte declaring a mistrial.
Affirmed.