State v. Briggs, 21435-7-I
| Decision Date | 31 July 1989 |
| Docket Number | No. 21435-7-I,21435-7-I |
| Citation | 55 Wn.App. 44,776 P.2d 1347 |
| Parties | STATE of Washington, Respondent, v. Tyrone BRIGGS, Appellant. |
| Court | Washington Court of Appeals |
David Allen, Richard Hansen, Donald Roistacher, Allen & Hansen, Seattle, for Tyrone Briggs.
Norm Maleng, King County Pros. Atty., Mark Larson, Deputy Pros. Atty., Seattle, for the State.
Tyrone Briggs appeals from his conviction for multiple counts of robbery, attempted robbery, assault, and attempted rape. A deadly weapon allegation accompanied each count. Briggs alleges that he did not receive a fair trial because of juror misconduct. We agree and reverse and remand for a new trial. Briggs raises additional issues that we address in this opinion only insofar as they are likely to arise on retrial.
The charges against Briggs arose from a series of attacks on five women that occurred near Harborview Hospital and Seattle University between November 28 and December 18, 1986. The prosecution's case rested primarily on eyewitness identification of Briggs by the victims and others who witnessed the assaults. The principal defense theory was that none of the victims ever noted that their attacker spoke with a stutter and that Briggs has a profound stutter. Briggs' first trial ended in a mistrial on May 12, 1987 when the jury was unable to reach a verdict. His second trial resulted in conviction on August 17, 1987.
After the verdict in the second trial, Briggs' counsel learned that one of the jurors had related in deliberations how he once had a speech production problem that only occurred in certain circumstances and was amenable to control. The court granted the defense motion for a mistrial on the grounds that the juror withheld information on voir dire concerning his speech disorder and that his comments amounted to an impermissible introduction of evidence into the jury's considerations. The court, however, reversed itself on November 19, 1987 and reinstated the verdict after hearing argument on the State's motion for reconsideration.
We first review appellant's argument that juror misconduct entitles him to a new trial.
During voir dire, appellant's counsel asked the panel that included juror Carroll White the following question: "Is there anyone in the panel who has any past experience, study or contact with stuttering or speech problems in general?" White did not respond to the question. After the verdict, the defense learned in the course of juror interviews that juror White had a history of a speech production disorder. 1 White signed a statement prepared by a defense investigator that provided, in part: White also characterized his problem as a "stutter-like hesitation" and as a "speech problem." White admitted discussing his speech problem during deliberations to help the jury understand certain evidence regarding appellant's stutter.
I offered this personal experience to the jury as an aid to understanding evidence of the stuttering issue. The stuttering issue was reduced in value to no reasonable doubt. My experience as a person with this speech problem pointed out to the jury's conclusion that Tyrone did not always stutter.
Two other jurors, Helen Klatt and Eleanor Smith, signed similar statements corroborating White's admissions. Klatt's statement provided, in part:
3. One member of the jury, Carroll White, spoke about his personal experience as a stutterer. White told us that he stuttered often and he was unaware of his stuttering until someone would point it out to him. He also explained that under certain circumstances he would be able to control his stuttering.
4. Carroll White introduced this subject and his personal experience as a stutterer to the jury in order to explain how Tyrone Briggs might be unaware of his stuttering and how someone like Tyrone might be able to commit the crimes without stuttering.
The trial court conducted a post-trial hearing on the issue of juror misconduct. The court reviewed the jurors' statements and heard testimony from juror White. White testified that he did not divulge his speech problem in voir dire because he regards it as a hesitancy or pausing between words and not a stutter, which he defines as an inability to form proper sounds. White testified that he is not, and does not know, a stutterer. White did, however, again admit discussing his speech problem during deliberations:
Based upon this evidence, the trial court made the following findings regarding White's failure to disclose the speech problem and his discussion of that problem during jury deliberations:
First, that Mr. White did not answer the question that he had a speech problem when so asked on voir dire as a general question. That this failure to answer that he had knowledge of speech problem or experience with a speech problem deprived the defense of an opportunity to inquire further as to any potential bias he may have on that subject.
Secondly, that stuttering and speech problems were material to this case, in fact, central. The State called an expert witness, a speech pathologist. I think that in and of itself is evidence of the centrality and materiality of this issue to the case.
Third, Mr. White discussed with the jury his personal experience with speech problems, including how he could overcome his speech problem and that Briggs might have used the same techniques.
Four, although Mr. White denies he is a stutterer, he signed a statement that states, "I have a problem with hesitation in my speech that I believe is like a stutter."
Even if we eliminated the word stutter and only talked about a speech problem, it would not materially affect the decision the Court is making today [to grant a new trial]. His discussion of his speech problems in the jury room, whether you characterize them as hesitation, whether you characterize them as slowness, or whether you characterize them as stuttering, was impermissible testimony, if you will, to the jury that did not come from the witness stand.
Three other jurors identified Mr. White as talking about his experience as a stutterer, and that is the word that was used in affidavits which were apparently prepared by the investigator for the defendant. Even if that was changed from stutterer to speech problem, or something less than stutterer, it is clear and Mr. White acknowledged that that was his only quarrel with what those jurors had to say about his discussions, that he clearly discussed his speech problems and what he did to overcome them with the other jurors, bringing before the jury his personal experience and his speech problem and the methods of overcoming them allowed impermissible evidence other than from the proceedings properly brought before the jury.
The Court makes no findings that Mr. White acted with an intent to deceive on voir dire.
The court ordered a new trial. At a later hearing the court explained that it had decided appellant was entitled to a new trial because "the combination of [White's] failure to disclose and his discussions during deliberation required a finding of misconduct even though juror White did not act intentionally." In arriving at this decision, the court relied upon Smith v. Kent, 11 Wash.App. 439, 523 P.2d 446 (1974). The Kent case held that a party is entitled to a new trial if juror misconduct deprived the party of the opportunity to exercise a challenge:
That misconduct may consist of a prospective juror's false answer to a material question that either (1) conceals or misrepresents his bias or prejudice, or (2) prevents the intelligent exercise by a litigant of his right to exercise a peremptory challenge 2 or his right to challenge a juror for cause.
Kent, at 443, 523 P.2d 446. The Kent rule applied to material omissions as well as to material misrepresentations.
It is jury misconduct warranting a new trial for a juror to give a false answer on a material matter during voir dire examination that conceals information properly requested by a litigant to enable him to determine whether or not to excuse the prospective juror ...
On November 18, 1987, however, after applying the standard of juror misconduct set forth in McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), the court granted the State's motion to reconsider, vacated the order granting a new trial, and reinstated the verdict. McDonough holds that
to obtain a new trial in such a situation [material nondisclosure on voir dire], a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.
McDonough, 464 U.S. at 556, 104 S.Ct. at 850. The trial court concluded that it should apply the McDonough rule, which is considerably more restrictive than is the Kent rule in determining if a new trial is required for a juror's material nondisclosure on voir dire, reasoning that there is "no persuasive reason why the courts of Washington would not follow the standard on nondisclosure announced by the Supreme Court in McDonough." Applying McDonough, the trial court determined that juror White's speech problem, had it been disclosed, would not have entitled appellant to a challenge for cause. The court also determined that White's discussion of his speech...
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