State v. Elmore

Page 72

123 P.3d 72

155 Wn.2d 758

STATE of Washington, Petitioner, v. Roberta Jean ELMORE, Respondent.

No. 75637-6.

Supreme Court of Washington, En Banc.

Argued May 17, 2005.

Decided November 10, 2005.

John Christopher Hillman, Pierce County Prosecuting Attorney, Tacoma, for Petitioner.

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, for Respondent.

BRIDGE, J.

¶ 1 Roberta Elmore appeals her convictions for first degree murder, first degree burglary, first degree kidnapping, second degree assault, and conspiracy to commit robbery in the second degree, all of which were based on her complicity in the invasion of the home of a severely disabled man and the shooting death of one of his caregivers. Elmore contends that her rights to an impartial jury, a unanimous jury verdict, and due process under the federal and state constitutions were violated when the trial judge dismissed a deliberating juror after other jurors accused him of refusing to convict under any view of the facts and refusing to follow the law.

¶ 2 We recognize that in the rare case where a deliberating juror is accused of attempting jury nullification,¹ the trial judge is faced with a "delicate and complex task," in that he or she must adequately investigate the allegations, but also must take care to respect the principle of jury secrecy. United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997). We hold that in analyzing the evidence obtained from investigation, the trial judge must apply a heightened evidentiary standard: a deliberating juror must not be dismissed where there is any reasonable possibility that the impetus for dismissal is the juror's views of the sufficiency of the evidence. However, once the trial court has applied the correct standard, the court's conclusion as to whether the juror should be dismissed is reviewable only for abuse of discretion. Here, the trial court based its decision to dismiss the deliberating juror on very limited evidence, and there is no indication that it applied a heightened evidentiary standard in making the dismissal decision. We affirm the Court of Appeals and remand to the superior court for a new trial.

I Facts and Procedural History

¶ 3 In December 1996, Roberta Elmore was hired by an escort service. Elmore went on her first call to the home of Dennis Robertson, a quadriplegic man who shared his home with two other disabled gentlemen. But after a misunderstanding as to what was expected of her, Elmore left Robertson's home and the escort service forced Elmore to return Robertson's payment and fired her. Elmore expressed anger to various friends about the incident and reportedly enlisted Gordon Crockett and Thorsten Jerde to rob the Robertson residence, giving them details about the location of the safe she had seen in the bedroom and showing them where Robertson lived. In addition, Elmore reportedly gave Crockett and Jerde bullets for the gun that they planned to use during the robbery.

¶ 4 In the early morning hours of December 11, 1996, Crockett and Jerde enlisted two others to help with the robbery. After gaining entry to the house on a ruse, Crockett and Jerde entered Robertson's bedroom and Crockett ordered Scott Claycamp, Robertson's caregiver, to the floor. Jerde grabbed the safe and left the room. Crockett shot Claycamp in the back of the head and Claycamp died later that day.

¶ 5 All of the participants, including Elmore, initially pleaded guilty to first degree felony murder, State v. Jerde, 93 Wash.App. 774, 776, 970 P.2d 781 (1999), but the Court of Appeals reversed and remanded for Elmore to elect either to withdraw her guilty plea or to enforce the plea agreement before a different judge. Elmore elected to withdraw her guilty plea, and the State proceeded to trial on charges of first degree felony murder, first degree burglary, first degree kidnapping, second degree assault, and conspiracy to commit murder in the first degree. Jerde and another participant testified at Elmore's trial, but Crockett did not. Elmore took the stand and admitted that she had asked Crockett to collect the money she believed Robertson owed her and that she showed Crockett and Jerde where Robertson lived. However, she asserted that her husband had given bullets to Crockett and Jerde, and she denied encouraging the men to rob Robertson or hurt anyone in the house.

¶ 6 The jury began deliberations on the morning of October 10, 2001. On the morning of October 12, the court received two notes from individual jurors claiming that Juror 8 was refusing to follow the instructions:

  Jurrer [sic] # 8
  I don't care what law says
  Will not lissen [sic] to deliberation
  Is
     Nuts
    Criminal
    Related
  or all of the above
  From # 12

Ex. 128.

Your Honor:

As the presiding juror, I feel compelled to ask your assistance. We have a juror on the panel who has made statements which lead me to believe he was predisposed to not follow the instructions given by you or to follow the law contained in those instructions.

Prior to adjourning on Thursday, this juror said "I don't care what the judge said. The law is shit and I won't convict anyone based on what the law says."

This juror has disregarded every witness statement regarding the defendant as credible.

Ex. 129 (emphasis added). The trial judge discussed the notes with counsel and then questioned the presiding juror, verifying that the second note was accurate and that it referred to Juror 8. The court then questioned Juror 12 about the first note and clarified that the top line, "I don't care what [the] law says," was a quote from Juror 8. Ex. 128. When Juror 12 tried to explain the circumstances of the statement, the judge cut him off, apparently being careful not to delve into the details of deliberations.

¶ 7 The trial judge then heard argument from counsel as to whether the information provided was sufficient to remove Juror 8 and replace him with an alternate pursuant to RCW 2.36.110 (making it the duty of the trial judge to excuse any juror who, in the opinion of the trial judge, has manifested unfitness by reason of bias or prejudice) and Criminal Rule (CrR) 6.5 (allowing replacement of a deliberating juror with an alternate but requiring the jury to begin deliberations anew). The prosecutor argued that the notes and testimony from the two complaining jurors were sufficient to support removal of Juror 8, even without testimony from Juror 8 himself. Defense counsel argued that the notes were insufficient to support either questioning Juror 8 or discharging him.

¶ 8 Without questioning Juror 8, the trial court concluded that the notes and testimony were sufficient by themselves to show that Juror 8 was refusing to follow the law and refusing to deliberate. The trial judge was reluctant to inquire of Juror 8, presumably because doing so could delve into his mental processes as a juror or prejudice him against the State. Even though the note from Juror 5 also commented as to witness credibility, the trial court determined that this fact did not overcome Juror No 8's reported refusal to follow the law. Thus, based only on the notes and testimony from the complaining jurors, the trial judge found that under RCW 2.36.110 she "must excuse him as being unfit for jury duty." Report of Proceedings (RP) at 1174.

¶ 9 Defense counsel objected, emphasizing the trial judge's failure to interview Juror 8. The prosecutor agreed and encouraged the judge to interview Juror 8 for the purpose of supplementing the record with a determination as to the credibility of each testifying juror. The trial judge indicated that she did not believe an interview was necessary because the statements from the other jurors were sufficient to support the dismissal, and she expressed concern that even if Juror 8 denied making the comments, he could not continue to deliberate and a mistrial might be required. Eventually, the trial judge reiterated that her decision was final but agreed to question Juror 8 to supplement the record.

¶ 10 Upon questioning by the trial judge, Juror 8 denied stating that the law was "shit" and denied refusing to follow the law or convict, no matter what the law said. RP at 1182-83. He explained that the comment occurred during a discussion of "whether evidence was credible or not and whether a witness was credible:"

I did not say it that way.

I said that it does not matter what this paper says, it matters if we believe — on what the witnesses have to say, if we believe the witnesses are credible. If we believe the witnesses are credible, then we vote one way. But if we do not believe what the witnesses say, then we are obligated to vote the other way. And what's in the thing doesn't mandate how we have to vote. It's what we believe the testimony — you know, is the testimony credible?

RP at 1183. After Juror 8's testimony, the prosecutor asked the trial court to either make a determination as to the relative credibility of the jurors or to question more jurors about their perceptions of Juror 8's comments. Defense counsel asked the trial judge to reconsider her decision to dismiss Juror 8 or, in the alternative, to grant a mistrial. The trial judge concluded that

Juror No. 8 denies that he said it the way the presiding juror and Juror No. 12 had written it. And then he proceeded to tell us further that it does not matter what this paper says, it matters whether we believe what the witnesses have to say, if we believe the witnesses are credible. And I believe that his own statements are sufficient to show that he has manifested unfitness by reason of bias or prejudice with respect to the instructions on the law as a whole in this matter.

So for that reason, I will be denying the request to bring out further jurors and also to reconsider my decision in this case.

RP at 1185-86. The trial judge also denied the motion for mistrial. She then entered a written order disqualifying Juror 8, finding that he had at times refused to participate...