State v. Brenner
| Decision Date | 30 January 1989 |
| Docket Number | Nos. 20227-8-,21593-1-I,s. 20227-8- |
| Citation | 53 Wn.App. 367,768 P.2d 509 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Christopher J. BRENNER, Appellant. |
Karen A. Klein, Seattle, for Christopher J. Brenner.
Jeffrey Baird, Jeanne E. Tweten, Deputy Pros. Atty., Seattle, for State of Wash.
Christopher J. Brenner appeals his conviction of second degree murder and second degree burglary asserting numerous trial court errors. We affirm.
Chris Brenner and Troy Green decided to steal a transmission from a wrecking yard in Kent on November 30, 1985. They collected two hand guns before leaving Chris Brenner's house to take on their journey: a .357 magnum and a .22-caliber pistol. Late at night they drove to a deserted road behind the yard of an automobile wrecking business where Brenner parked his car. The two traversed a field on foot to an 8-foot fence surrounding the wrecking yard. Green climbed over the fence and selected a transmission to steal. After hoisting it over the fence they carried the transmission a short distance. Because the transmission was heavy, Brenner decided to walk back to the road and get his car so that they could load it into his trunk.
Meanwhile, Casey Thompson, William Phelps and Sam Burns had been driving and decided to patrol the wrecking yards in the same vicinity. The three had various connections to Kent wrecking yards, either as owner or employee. From time to time they would patrol the wrecking yards to prevent theft. While driving near one of the junk yards the three spotted Brenner's car parked on the side of the deserted road behind the wrecking yard. They did not know who owned the car or why it was there but they suspected that it was connected with an on-going theft. Thompson and Phelps disabled Brenner's car by removing the coil wire and waited nearby for its owner to return. Burns drove home while his comrades removed the wire and returned with an axe and a club studded with nails.
Having left Green with the transmission, Brenner came back to his car and discovered that it would not start. Burns then drove up alongside Brenner's car and jumped out with the club in his hand. Burns approached Brenner, who remained seated in his car, and questioned him as to why he was behind the junk yard in the middle of the night. Green heard some commotion and ran back to Brenner's car. Green started fist fighting with Burns and Thompson. The men wrestled on the ground, and a gun went off. Hearing the gun shot, Brenner grabbed his gun and stepped out of his car. He fired his .357 into the air hoping to stop the fight. This apparently created no response from the men who continued their fisticuffs. Brenner testified that he immediately turned and saw Thompson coming at him with a gun. Brenner warned him, "stay back, I've got a gun." But according to Brenner, the man kept coming at him. Brenner lowered his gun and shot Thompson in the chest. Thompson bled to death.
The State charged Brenner with second degree murder and second degree burglary. A jury convicted Brenner following a lengthy trial, and the court sentenced him to 123 months in prison.
During voir dire, defense counsel examined a juror who had in the past served as a King County reserve police officer. Defense counsel asked juror Fisher, "I take it after several years you probably built up a pretty good bond with a lot of police officers?" Fisher replied, "No, I wouldn't say so, because you move a lot." Counsel for both sides passed Fisher for cause on January 13, 1987. Thereafter, Fisher became foreman of the jury. On January 15, 1987, another prospective juror, who had been excused from jury duty, spoke with the court in the absence of the jury and counsel. The juror expressed his disappointment that he had been excused whereas Fisher had not. The juror pointed out that Fisher repeatedly met and lunched with a police officer. At the time of this colloquy defense counsel had one remaining peremptory challenge, but the court did not inform counsel of its discussion with the juror.
After trial had commenced, defense counsel learned that juror Fisher had been meeting with Officer Blum of the King County Police daily for lunch. Thereafter, the court conducted an examination of juror Fisher in which Fisher admitted meeting with the police officer daily but denied discussing the case. The court ordered juror Fisher to have no further contact with the officer until the conclusion of the case. Subsequently, defense counsel moved to strike juror Fisher for cause. Based on the fact that Fisher had responded in the negative when asked whether he had built up good bonds "with a lot of police officers", counsel argued that Fisher's answers on voir dire were untruthful. Counsel maintained that the defense was misled not to exercise its one remaining peremptory challenge so as to excuse Fisher. The court denied defense counsel's motion.
The day after the court admonished the juror not to meet with the officer, juror Fisher was seen with the officer. Counsel again moved the court for removal of Fisher, and the court again denied counsel's request.
Brenner argues that juror Fisher's answer on voir dire misled defense counsel when questioned whether he had "built up a pretty good bond with a lot of police officers". Brenner asserts that Fisher concealed information concerning his friendship with the King County police officer. Brenner further asserts that Fisher's response to a question posed by the court in a special hearing during trial constitutes jury misconduct. The court asked Fisher how often he met with Officer Blum, and Fisher replied that they met daily. Brenner argues that this response is somehow untrue because Fisher did not specify that his daily meetings with the officer were for lunch and to drive home together.
Jury misconduct in the form of false answers on voir dire concealing material matters warrants granting a new trial. State v. Simmons, 59 Wash.2d 381, 392, 368 P.2d 378 (1962); Smith v. Kent, 11 Wash.App. 439, 444, 523 P.2d 446 (1974). Here, juror Fisher's answer to counsel's question on voir dire was not false although it may not have revealed all matters which the defense wished to know. The trial court believed the answer to be appropriate and correct. On voir dire, jurors are not obligated to volunteer information or provide answers to unasked questions. State v. Gilmore, 59 Wash.2d 514, 515-16, 368 P.2d 722 (1962). We find that the record does not show that Fisher responded with false answers or that he failed to volunteer necessary information.
Communications between a third person and a juror about an ongoing trial constitute misconduct which warrants a new trial if such communications prejudice the defendant. State v. Murphy, 44 Wash.App. 290, 296, 721 P.2d 30 (1986); see State v. Lemieux, 75 Wash.2d 89, 91, 448 P.2d 943 (1968); see also State v. Saraceno, 23 Wash.App. 473, 474-75, 596 P.2d 297 (1979). Once misconduct is shown, prejudice is presumed. The State has the burden to overcome this presumption by proof beyond a reasonable doubt. Murphy, 44 Wash.App. at 296, 721 P.2d 30.
We find that juror Fisher's daily meetings with Officer Blum do not constitute juror misconduct. At the very least, a juror must discuss the pending case with a non-juror to create misconduct. In fact, courts have found no prejudice even where the juror has discussed the case with a third party or a witness. See, e.g., State v. Theobald, 78 Wash.2d 184, 186, 470 P.2d 188 (1970); State v. Lemieux, 75 Wash.2d at 90-91, 448 P.2d 943. Here, nothing in the record shows that Fisher discussed the case with anyone outside of the courtroom--including Officer Blum. The State proved to the satisfaction of the trial court that Fisher did not discuss the case with Officer Blum. The State thereby established beyond a reasonable doubt that no actual prejudice occurred.
Fisher's answers to questions posed by the court in the special hearing are characterized by counsel as lies. However, we find no misstatements of fact in Fisher's responses. The colloquy consisted of the following:
Finally, Fisher's meeting with Officer Blum subsequent to the court's admonition not to meet with Blum, while not to be condoned, did not prejudice the defense. Because no evidence exists in the record showing that Fisher discussed the case with Officer Blum, no reasonable ground exists that would indicate Brenner was denied a fair trial.
We next address whether the trial court violated the appearance of fairness doctrine by not disclosing the contents of the discussion with the excused prospective juror. Brenner asserts that he was denied his right to a fair and impartial tribunal because the court violated the "appearance of fairness" doctrine. He argues that after the colloquy with the excused juror, the court had a duty to disclose the facts learned concerning juror Fisher. Counsel submits that had the defense known juror Fisher was friends with a police officer, it would have peremptorily challenged him.
This state has long adhered to the "appearance of fairness" doctrine. "The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial." State v. Madry, 8 Wash.App. 61, 70, 504 P.2d 1156 (1972). Generally, the appearance of fairness doctrine requires the court to inquire as to how the proceedings would appear to a reasonably prudent and disinterested person. Chicago, Milwaukee, St. Paul, &...
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