State v. Jeffries, 52323-1

• Citation: 722 P.2d 99
• Decision Date: 25 July 1986
• Docket Number: No. 52323-1,52323-1
• Parties: STATE of Washington, Respondent, v. Patrick James JEFFRIES, Petitioner.
• Court: United States State Supreme Court of Washington

Page 99

722 P.2d 99

STATE of Washington, Respondent, v. Patrick James JEFFRIES, Petitioner.

No. 52323-1.

Supreme Court of Washington.

July 25, 1986.

ORDER

DOLLIVER, Chief Justice.

This matter came before this court at its June 5, 1986 en banc conference. Patrick James Jeffries was convicted of two counts of aggravated first degree murder and a jury sentenced him to death. This court affirmed his conviction and death sentence on March 27, 1986, 105 Wash.2d 398, 717 P.2d 722. Mr. Jeffries has filed a personal restraint petition asking us to review our earlier decision and to overturn his death sentence and murder conviction.

Mr. Jeffries alleges in his personal restraint petition that there was juror misconduct which denied him a fair trial. Specifically, he has submitted affidavits from two jurors who claim that they knew that Mr. Jeffries had a criminal record. One of these two jurors alleged that a third juror mentioned Mr. Jeffries' prior criminal history in the jury room during the early phases of the trial. This third juror denies making any such statement.

These affidavits do not justify a reversal of Mr. Jeffries' aggravated murder conviction and we deny this petition. In order to obtain post-conviction relief by use of a personal restraint petition, the petitioner must show "actual and substantial prejudice created by the alleged error." In re Taylor, 105 Wash.2d 683, 686-87, 717 P.2d 755 (1986); In re Hews, 99 Wash.2d 80, 86, 660 P.2d 263 (1983). The burden of proof is placed on the defendant. In re Hagler, 97 Wash.2d 818, 826, 650 P.2d 1103 (1982).

Where juror misconduct is alleged, the petitioner must therefore state facts which indicate that whatever prejudice resulted actually denied him a fair trial. However, neither Mr. Jeffries in his petition nor the State in its response, may use statements of the jurors as to the effect of the misconduct. Such statements cannot be considered as they inhere in the jury's verdict; a juror cannot admit or deny the effect of alleged misconduct. State v. Hawkins, 72 Wash.2d 565, 571, 434 P.2d 584 (1967). Therefore, we disregard the affidavits describing the effect the alleged juror misconduct had on the jury verdict. We only consider the fact that two or three jurors, at one point early in the trial heard that Mr. Jeffries had a criminal record.

With these considerations in mind, it is clear this petition must be denied. Mr. Jeffries has not alleged facts which, even if true, show that he was denied a fair trial. The alleged misconduct occurred in the early stages in trial, weeks before any deliberations were commenced. Over two and a half years passed between the trial and the time the alleged misconduct was discovered, indicating that the jurors involved did not believe the misconduct to be significant. In sum, the record unequivocally shows that Mr. Jeffries murdered Phil and Inez Skiff. With such overwhelming evidence, we cannot accept petitioner's argument that he was denied a fair trial because of this alleged juror misconduct.

For the reasons stated above, it is hereby ORDERED that defendant's personal restraint petition is DENIED.

BRACHTENBACH, DORE, ANDERSEN, CALLOW and DURHAM, JJ., concur.

UTTER, Justice (dissenting).

I dissent from the majority's order. The order does not fully reveal the details and seriousness of the various jurors' affidavits. While it cites State v. Hawkins, 72 Wash.2d 565, 571, 434 P.2d 584 (1967), key elements of that decision are not mentioned. In addition, it fails to distinguish the separate issues of the impact of the alleged misconduct on the guilt and penalty phases of Jeffries' trial. This is a death penalty case and meticulous care with the facts and law is demanded. This standard is not met by the majority.

The facts require more detail than the majority provides. At both the guilt and penalty phases of Jeffries' aggravated murder trial, the court properly ruled that Mr. Jeffries' criminal record was not admissible for any purpose. Extensive and sensational pretrial publicity of the murders had prompted defense counsel to request a change of venue. The change was denied and the jurors were repeatedly admonished to avoid all media reports of the case and to report to the court, not to the jury, of any information on the case they might acquire outside of the proceedings. On November 18, 1983, Jeffries was sentenced to death on two counts of aggravated murder.

Two years later, two jurors from that trial filed affidavits stating that, during the course of the trial, they heard a third juror, allegedly Erin Thomas (Affidavit of Thomas Tyszko, Jan. 22, 1986, Brief of Respondent, app. 9), tell the jury either that "Jeffries is a convicted armed robber" (Tyszko Affidavit, Dec. 10, 1985, Brief of Petitioner, attachment A), or that Jeffries "had a record." Affidavit of Kathleen Sims, Oct. 25, 1985, Brief of Petitioner, attachment B; see also Sims Affidavit, Jan. 23, 1986, Brief of Respondent, app. 6. Thomas denies ever having made the comments or even having any knowledge of Jeffries' record. See Affidavit of Erin Thomas, Brief of Respondent, app. 8.

After the prosecutor had acquired affidavits from 8 of the 12 jurors, who swore that they did not hear or make such comments, and from defendant's affiants who did not waiver in their assertions but claimed not to have been affected by the prejudicial information, defense counsel again took affidavits from Sims and Tyszko. Both jurors held fast to their original statements. Sims also indicated that during the penalty phase of the trial, "there was some discussion of Mr. Jeffries' character in the light of his possible record." Sims Affidavit, Reply Brief of Appellant, app. A. In his most recent affidavit, Tyszko further elaborates on the form as well as content of Thomas' alleged statement and indicated that his delay in reporting the statement was rooted in the fear that Clallam County could ill-afford the costs of any new trial resulting from his report. Tyszko Affidavit, Reply Brief of Appellant, app. B.

I agree with the majority that generally a personal restraint petitioner has the burden, In re Hagler, 97 Wash.2d 818, 826, 650 P.2d 1103 (1982), to show "actual and substantial prejudice created by the alleged error." In re Taylor, 105 Wash.2d 683, 686-87, 717 P.2d 755 (1986); In re Hews, 99 Wash.2d 80, 86, 660 P.2d 263 (1983). The majority also properly cites State v. Hawkins, supra, for the proposition that jurors cannot admit or deny the effects of their misconduct, because such effects inhere in the verdict. See also Gardner v. Malone, 60 Wash.2d 836, 840-41, 376 P.2d 651 (1962).

Unfortunately, the majority omits mention of the essential holding of Hawkins. In that manslaughter case, a juror, apparently to test the defendant witness' veracity, had sought information outside of proceedings of the defendant's military training. 72 Wash.2d at 566, 434 P.2d 584. In affirming the trial court's grant of a new trial, the Hawkins court declared:

That the taking of evidence outside the court by a juror constitutes misconduct depriving the defendant of a fair trial cannot be doubted. It is a violation of the defendant's right to confront the witnesses against him and to cross-examine them; it is punishable by the civil contempt statute (RCW 7.20.010), and it is held to be grounds for a new trial by the courts. See 39 Am.Jur. New Trial § 79 (1942); 53 Am.Jur. Trial § 896 (1945); 58 A.L.R.2d 592.

72 Wash.2d at 571, 434 P.2d 584.

The alleged violations of this principle are even more serious in the case before us. The death penalty Jeffries must face calls us, or should call us, to even greater efforts to assure a fair trial than was the case in Hawkins. Moreover, the information provided the Jeffries jury had been expressly (and properly) excluded by the trial court. As in Hawkins, jurors had been admonished not to seek or consider extrajudicial information. Finally, that the juror in Hawkins actively sought the prejudicial information is irrelevant. Even if, in the fact-finding hearing, no juror is found to have solicited the proscribed information, our result should parallel Hawkins. The Hawkins remedy was clearly based on prejudice suffered by the defendant and not on some misdirected need to sanction jurors. See also State v. Smith, 55 Wash.2d 482, 484, 348 P.2d 417 (1960).

The overwhelming majority of jurisdictions acknowledge not only that a juror's taking of evidence outside the courtroom is...