State v. Hall

507 P.3d 853

STATE of Washington, Respondent,

v.Joseph Henry HALL, Appellant.

No. 80996-2-I

Court of Appeals of Washington, Division 1.

FILED April 11, 2022

Kevin Andrew March, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, Pllc Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, for Appellant.

Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent.

PUBLISHED OPINION

Mann, J.

¶1 RCW 4.44.300 forbids a bailiff from communicating with the jury during its deliberations, except to inquire if they have reached a verdict. The bailiff is in a sense the "alter ego" of the judge, and improper communication between the court and the jury is an error of constitutional dimensions impacting the right to a fair and impartial jury. When a bailiff communicates with a jury, the trial court must examine the remarks for "possible prejudicial impact." If the court determines the communication had a possible prejudicial impact, a mistrial is required.

¶2 Joseph Hall was convicted of two counts of first degree rape of a child. The trial court declared a mistrial on two counts of first degree child molestation due to a deadlocked jury. On appeal, Hall advances multiple arguments, including: (1) that the trial court erred in denying his motion for a mistrial based on comments made by the bailiff to the jury and (2) double jeopardy precludes retrial of the two counts of first degree child molestation. Because we cannot conclude that the bailiff's comments did not have a possible prejudicial impact on the verdict, we agree that the trial court erred in denying Hall's motion for a mistrial. Because the trial court properly exercised its discretion in discharging the jury, however, double jeopardy does not preclude retrial of the two counts of first degree child molestation. We reverse and remand for a new trial.

FACTS

¶3 The State charged Hall with two counts of first degree child rape and two counts of first degree child molestation.¹ A jury trial in Snohomish County Superior Court began on October 15, 2019. The case was submitted to the jury on October 23, 2019. On the eighth day of deliberations, November 1, the bailiff received a question from the jury. The bailiff described the event as follows:

So I received the juror question asking me if Juror 4 could be dismissed. The juror stated that she was not ill but just wanted to leave, and they asked if they could call in the alternate. I told them that if they did that, they'd have to start over and that generally that's not what the alternate is for, but they told me to ask it anyway.

¶4 After the exchange, the bailiff requested the jury write its question on one of the jury forms. The jury question stated, "Juror # 4 would like to be dismissed and an alternate to take her place." Then, according to the bailiff:

The jury rang again about 20 minutes later and asked what would happen if they reached a verdict of guilty on two counts and did not answer the other ones. I said that that is not a question I can answer, but if you want to write it down, we can call the attorneys in. And they said that they would wait until they heard back on the first question.

¶5 After receiving the jury's initial question, the trial court began a colloquy with counsel. Defense counsel was en route to court and participated at first by telephone. Shortly after, the trial court received a second inquiry from the jury about a verdict. The colloquy was halted until defense counsel arrived in court. When defense counsel arrived, the court informed the parties that it had received a second inquiry from the jury. The notice stated, "We have a verdict on 1 and 2. Can we leave 3 and 4 blank or hung?"

¶6 Before the court could address this question, defense counsel moved for a mistrial based on juror misconduct over the exchange with the bailiff, as well as the potential discussion of the case outside of deliberations. Rather than decide on the motion, the court proposed polling the jury. Defense counsel did not object.

¶7 The court brought in the jury and instructed them that the questions asked would require yes or no answers only. The court first asked the presiding juror, "There is an indication that a verdict has been reached on one or more of the counts; is that correct?" The juror answered yes. The court then asked, "Yes or no, is there a reasonable probability of the jury reaching a verdict as to all of the counts within a reasonable length of time," to which the presiding juror also answered yes. The court then asked the remaining jurors the same questions—all jurors answered yes to first; all but two answered no to the second.

¶8 Following the polling, the jury returned to the jury room and the trial court brought out each juror individually to ask if the bailiff's comments about the substitution of juror 4 influenced their responses to the previous questions. All jurors answered no.

¶9 After concluding the polling, the trial court denied Hall's motion for mistrial. The trial court explained that while it violated the jury's instruction not to write questions suggesting its verdict, the jury could still change its mind in accordance with the instruction on the law. The court then proposed that it ask the jury if its initial request for juror 4 to withdraw was still outstanding and, if not, that it instruct the jury to return to deliberations.

¶10 The trial court again called in the jury and asked if the request that juror 4 be dismissed was withdrawn. The presiding juror answered that the request was withdrawn. The court then instructed the jury that if it had questions about how to respond on their verdict forms, or if there is an inability to reach a verdict, they already have instructions in their packet.

¶11 Within 10 minutes of the jury returning to deliberations, the trial court received notice that juror 4 wanted to be excused. The court then brought in juror 4 to inquire into the reason they wanted to be excused. The following exchange occurred:

THE COURT: ... I am going to try and ask some questions to understand why you would like to be excused. So I am going to try to ask this in a series of yes/no questions, and if I don't get to the right question, I will ask you to identify that I still have not gotten to the right place. Okay?

So are you asking to be excused because you are unable to continue as a juror in this case because of other obligations or something else that's a responsibility of yours outside [of] this courthouse?

JUROR 4: No.

THE COURT: Okay. Are you asking to be excused because of the deliberations themselves, either the questions you are being called to answer as a juror in this case or just the process of deliberations?

JUROR 4: If I understand your question then, yes.

THE COURT: So what do you think my question is asking?

JUROR 4: I am asking to be excused because the charges that we are deliberating are difficult for me.

THE COURT: Is that the nature or is that the basis for your request or—

JUROR 4: Deep down it is. Am I allowed to talk right now?

THE COURT: I guess I am—I want to be very careful in part because it is essential that your remarks not reveal to any of us the deliberations that the jury has been engaged in now. Today is day eight of jury deliberations, so it is evident that the jury has been committed to this process for an extended period of time. Does the length of the deliberations have anything to do with your request to be excused?

JUROR 4: No. I think I could answer about it. I am just terrified of making the wrong call. Like—

THE COURT: All right.

JUROR 4: —it's a lot of responsibility and a lot of weight.

THE COURT: Anything else you think we should know?

JUROR 4: It's really hard to be in a room with 11 other people all day long.

THE COURT: Anything else?

JUROR 4: (Juror 4 nodded.)

THE COURT: Do you feel that at this point in time your—you have been able to fulfill your role as a juror in accordance with the Court's instructions in the law?

JUROR 4: Have I done it so far?

THE COURT: Yes.

JUROR 4: Yeah.

The parties had no questions and juror 4 returned to the jury room.

¶12 Defense counsel again expressed her concerns that juror 4 may be hastened or coerced. The court declined to dismiss juror 4 and, instead, concluded that under CrR 6.10 it would direct the jury to return the decisions that they had made at that point and to declare mistrial as to any counts that they had not yet agreed on "whatever that agreement [was]." The court expressed that it did not know whether the jury could do it that day or when the courthouse opened the following Monday. The court delivered final instructions to the jury:

THE COURT: Please be seated. Members of the jury, I asked you all to be brought in because I am going to give you an instruction at this point in the case. The information that I have received by—from the questions I have asked you indicates that the jury should be directed to return whatever verdict you have reached on the counts that you have addressed and that a mistrial should be declared as to any counts you have not been able to unanimously address. I know you don't have the materials with you in this department's jury room, so those will be brought to you. I am not telling you that you need to do that at this moment in time, but the courthouse will be open for a while longer this evening, and then it will be open again on Monday. Does that make sense? It does not make sense? Okay. So the presiding juror is shaking her head.

There is a process that the Court follows when it appears that the jury will not be able to reach a unanimous decision as to any or all counts in a case. There are many factors that a judge in my position weighs when considering that question, and here I have concluded that the deliberations, which have been ongoing for eight days. You have been a responsible and conscientious jury in terms of arriving promptly every morning, starting your deliberations

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