Opinion
No. 54074-2-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-08627-1. Judgment or order under review. Date filed: 04/02/2004. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Corey Marika Endo, Federal Public Defender, 1601 5th Ave Ste 700, Seattle, WA 98101-1642.
Eddie Lam Russell (info Only) (Appearing Pro Se), 2021 E John #13, Seattle, WA 98112.
Counsel for Respondent(s), Dana Cashman, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Eddie Russell was convicted by jury verdict of delivery of cocaine. On appeal, Russell contends his constitutional rights were violated when the jury deliberated in the presence of an alternate juror, the trial court responded to a jury inquiry without notifying defense counsel, and the trial court used Russell's prior convictions to calculate his offender score. Finding no reversible error, we affirm.
FACTS
Late one evening, Russell was arrested after an undercover police officer signaled that the officer had purchased an illegal substance from him. Police found another small plastic bindle containing cocaine and the prerecorded buy money in the general vicinity. The State charged Russell with one count of delivery of cocaine and one count of possession of cocaine.
At trial, the undercover officer identified Russell as the person who sold cocaine to him in exchange for $20 in cash. Following closing arguments, the trial court excused the alternate juror and sent the jury to begin its deliberations. The jury found Russell guilty of delivering cocaine and not guilty of possession. At sentencing, the trial court imposed a reduced sentence under the special Drug Offender Sentencing Alternative. This appeal followed.
DECISION
Russell contends he was unfairly prejudiced by a trial irregularity during jury deliberations. Russell bases this argument on the following exchange that took place between the court and the prosecutor almost immediately after the jury had been sent to the jury room:
THE COURT: We're still on the record. The — I guess one question might be, we did not include the standard instruction on delivery. If you want to take a look at what the juror wrote.
If you want to submit an additional instruction, we could have additional argument, because they will not have yet deliberated. But —
[PROSECUTOR]: I will go and run another instruction, Your Honor. My apologies, for whatever reason that was not included in there.
THE COURT: Well, I don't mind doing it. But I'm just saying, if you want the jurors to — as I say, I don't want to give them an instruction then neither of you has had a chance to discuss with them. The instruction is not complicated.
So we're going to wait a moment, because I'[ll] probably need to bring the jurors back to have some argument about delivery.
[PROSECUTOR]: And, Your Honor, if there could be an instruction to the jury in the interim to hold off on their deliberation.
THE COURT: They're not supposed to deliberate anyway. The alternate is still in there. So, as I say, it's sort of a — from the ashes, it's actually a relative good opportunity.
Relying on remarks made by the trial court during this colloquy, Russell asserts that the alternate juror was impermissibly present in the jury room during deliberations. Because the effect of that presence cannot be adequately assessed, Russell argues, his delivery conviction must be reversed. He relies on State v. Cuzick, 85 Wn.2d 146, 530 P.2d 288 (1975), to support his argument. That case, however, is readily distinguishable.
In Cuzick, the court held the presence of an alternate juror in the jury room during deliberations invalidated the verdict because the presence of an outsider 'violates the cardinal requirement that juries must deliberate in private.' 85 Wn.2d at 149. As the court explained:
[W]e adhere to those cases which hold that prejudice will be presumed to flow from a substantial intrusion of an unauthorized person into the jury room unless 'it affirmatively appears that there was not, and could not have been, any prejudice.' Where, as here, the intrusion involves the visible presence of a nonjuror for the full length of deliberations, the presumption of prejudice clearly has not been so conclusively defeated. Cuzick, 85 Wn.2d at 150 (citations omitted).
Unlike the situation in Cuzick, there is no showing that the alternate in this case was, in fact, present during jury deliberations. 'A party seeking review has the burden of perfecting the record so that the appellate court has before it all the evidence relevant to the issue.' State v. Garcia, 45 Wn. App. 132, 140, 724 P.2d 412 (1986). There is no support in the record for Russell's assertion that the jury asked for a definition instruction on delivery, which is the cornerstone of Russell's claim that the alternate was in the jury room during deliberations. Nor are we willing to speculate about what the court was referring to when it commented on something 'the juror wrote.' The remarks, by themselves, are simply too cryptic and vague for us to conclude that the jurors submitted a formal inquiry right after they were sent to the jury room. Presumably, the trial court would not have believed, as it did, that jury deliberations had not yet begun when the alternate was in the jury room if the jury had already submitted a written inquiry on a topic. We find no manifest error.
Russell next contends the trial court committed reversible error by responding to a jury inquiry without first notifying him or his attorney. During its second day of deliberations, the jury sent the court a written inquiry: 'To find the defendant 'not guilty' must all 12 members agree?' The trial court responded: 'To reach any verdict on either count, all 12 jurors must agree on that count.' Russell now argues that the court's response to the jury inquiry violated his constitutional rights and his delivery conviction must be reversed. We disagree.
The record does not indicate that the trial court contacted Russell or his attorney before responding to the jury inquiry. We therefore assume defense counsel was neither present nor consulted on the subject.
Communications between the judge and the jury in the absence of the defendant or defense counsel are prohibited. State v. Caliguri, 99 Wn.2d 501, 508, 664 P.2d 466 (1983). Although an improper communication is an error of constitutional magnitude, the ex parte communication may be so inconsequential that it is harmless error. Caliguri, 99 Wn.2d at 509. 'Once a defendant raises the possibility that he or she was prejudiced by an improper communication between the court and jury, the State bears the burden of showing that the error was harmless beyond a reasonable doubt.' State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997).
We conclude any error was harmless in this case. While it is true that the court did more than merely refer the jury back to previous instructions, the response to the jury inquiry is nothing more than a neutral explanation of one aspect of an instruction it had already given the jury. Russell does not dispute that the trial court's response was both a fair characterization of the instruction and a correct statement of the law. And while the court should not pressure the jury into making a decision, the trial court in this case did not suggest any desired outcome or otherwise vary from its previous instructions on the duty to deliberate. There was no reversible error.
That instruction states:
Upon retiring to the jury room for your deliberation of this case, your first duty is to select a foreperson. It is his or her duty to see that discussion is carried on in a sensible and orderly fashion, that the issues submitted for your decision are fully and fairly discussed, and that every juror has an opportunity to be heard and to participate in the deliberations upon each question before the jury.
You will be furnished with all of the exhibits admitted into evidence, these instructions, and a verdict form.
You must fill in the blank provided in the verdict form the words 'not guilty' or the word 'guilty', according to the decision you reach.
Since this is a criminal case, each of you must agree for you to return a verdict. When all of you have so agreed, fill in the verdict form to express your decision. The foreperson will sign it and notify the bailiff, who will conduct you into court to declare your verdict.
Russell also contends that the trial court violated his right to a jury determination of all elements of the delivery charge when the court failed to present his two prior out-of-state convictions to the jury because they were used to increase his offender score from four to six. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Russell argues that the existence of these prior convictions and their classification is a fact that must be proved beyond a reasonable doubt to a jury. But '[p]rior convictions need not be proved to a jury.' State v. Alkire, 124 Wn. App. 169, 177, 100 P.3d 837 (2004); State v. Van Buren, 123 Wn. App. 634, 645-46, 98 P.2d 1235 (2004) (calculation of offender score is not a factual matter for the jury and is properly determined by the sentencing judge). Here, Russell's prior convictions were not used to increase his punishment, but rather to determine the proper standard range. Under the circumstances, Russell's sentence is neither inconsistent with Apprendi and Blakely, nor otherwise improper.
Russell submits a pro se statement of additional grounds for review pursuant to RAP 10.10, alleging that the trial court impermissibly pressured jurors to reach a verdict and that his offender score should be four points rather than six points. These claims are the same as those Russell's appellate counsel raised. We have already rejected them.
Affirmed.
AGID, COX and BAKER, JJ., concur.