State v. Brinkley, 13640-6-II

• Decision Date: 06 August 1992
• Docket Number: No. 13640-6-II,13640-6-II
• Citation: 837 P.2d 20,66 Wn.App. 844
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Timothy BRINKLEY, Appellant.

Page 844

66 Wn.App. 844

837 P.2d 20

The STATE of Washington, Respondent, v. Timothy BRINKLEY, Appellant.

No. 13640-6-II.

Court of Appeals of Washington,

Division 2.

Aug. 6, 1992.

Kent R. Bratt, Bremerton, (court appointed on appeal), for appellant.

Pamela B. Loginsky, Michael B. Savage, Kitsap County Prosecutors, Port Orchard, for respondent.

ALEXANDER, Judge.

Timothy Brinkley appeals his conviction on a charge of attempted first degree robbery. He contends on appeal that the trial court erred in permitting the State to reopen its case in order to present witnesses to address a question from a juror. We affirm.

Brinkley was charged in Kitsap County Superior Court with attempted first degree robbery. On the third day of his jury trial, immediately after the defense had rested and the State had indicated that it had no rebuttal witnesses, a juror indicated to the trial court that he had a question. The trial judge instructed the juror to reduce the question to writing and deliver it to the bailiff who would transmit it to the court. The jury was excused.

The trial court then read the juror's written question to both counsel, outside the presence of the jury. The juror's question was as follows:

In the case of the missing jewelry and Mickey Mouse watch, were they returned to the victim, Mr. Phillips? If not, how come he is (sic) wearing the Mickey Mouse watch when he testified?

Upon hearing the question, the State moved to reopen its case in order to respond to the juror's question. It indicated that the crime victim, Phillips, would testify that he had purchased a Mickey Mouse watch after the incident, to replace the one that had been taken from him. Brinkley's counsel objected, contending that his client would be prejudiced by reopening because he would need to present additional testimony from two police officers (Keizer and Harris). He also indicated that he would have to interview the sales clerk who supposedly sold the new Mickey Mouse watch to Phillips after the attempted robbery. The trial court granted the State's motion, but indicated it would give defense counsel "additional time or additional subpoenas, or whatever you need to respond to that, ..."

The State recalled Phillips after Brinkley's counsel was given an opportunity to interview him. Phillips admitted that he had worn a Mickey Mouse watch in court on the previous day. He said that this watch had been purchased to replace the one that had been stolen. ¹ Phillips recalled that he bought the new watch at Sears but said he would not recognize the sales clerk who sold it to him.

The State also recalled Detectives Keizer and Harris. Keizer testified that he had no knowledge of any missing property being recovered. Harris testified that he was not present when Phillips described the missing watch to Keizer. Brinkley's counsel cross examined Keiser and Harris, but he did not call any additional witnesses on Brinkley's behalf. The jury convicted Brinkley of attempted first degree robbery.

Brinkley's only contention on appeal is that the trial court erred in permitting the State to reopen its case to address the question submitted by the juror. He argues, initially, that it was error for the trial court to "transmit" the juror's question to both counsel. At argument before this court, Brinkley's counsel conceded that he was not relying heavily on that argument. The concession is understandable. A trial court has a great deal of discretionary power to deal with unexpected events that occur at a trial and the trial court's decision as to how to deal with such events will be upheld unless abuse of discretion is clearly shown. State v. Swenson, 62 Wash.2d 259, 382 P.2d 614 (1963). Here, the trial court was faced with an unusual circumstance. It wisely chose to deal with it in the exact manner prescribed in Washington Pattern Jury Instructions-Criminal (WPIC). ² Once having received the juror's communication, the trial court did not abuse its discretion in informing counsel of the juror's question. Indeed, it would have been improper for the court not to do so before it made its determination as to the proper course of action. ³

The more difficult question is whether the trial court properly exercised its discretion when it allowed the State to reopen its case in order to respond to the juror's question. Brinkley's counsel suggests that while it might not have been error to allow these same witnesses to be called earlier in the trial in order to address what turned out to be the juror's concern, it was error to allow it at after both parties had rested. We disagree.

Generally, the issue of whether to allow a party to reopen its case to present further evidence is a matter within the discretion of the trial court. E.g., State v. Sanchez, 60 Wash.App. 687, 696, 806 P.2d 782 (1991). A trial court's actions in regard to reopening of a case will be upheld except upon a showing of manifest abuse of discretion and prejudice resulting to the complaining party. E.g., Sanchez, 60 Wash.App. at 696, 806 P.2d 782; State v. Vickers, 18 Wash.App. 111, 113, 567 P.2d 675 (1977); Seattle v. Heath, 10 Wash.App. 949, 520 P.2d 1392 (1973) (citations omitted). "Abuse of discretion is discretion exercised on untenable grounds for untenable reasons." Sanchez, 60 Wash.App. at 696, 806 P.2d 782 (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)).

Washington courts have upheld trial court decisions allowing the prosecution to reopen to present further evidence after the defense has moved for dismissal on the basis of insufficiency of the evidence. In re Estes v. Hopp, 73 Wash.2d 263, 264-65, 438 P.2d 205 (1968) (proof of ownership of stolen car); Vickers, 18 Wash.App. at 113, 567 P.2d 675 (proof of jurisdiction where crime occurred); Heath, 10 Wn.App. at 953 (proof of driving record in traffic charges). Moreover, in bench trials, where the trial court is also the trier of fact, at least one appellate court has held it is not an abuse of discretion to allow the State to reopen, after the defense had rested, to address a specific question of the trial court. State v. Johnson, 1 Wash.App. 602, 464 P.2d 442 (1969).

Because the prosecution may properly be allowed to present additional evidence to resolve deficiencies in its case pointed out by the defendant, and to address the trial court's questions in a bench trial after both sides have rested, we see no logical basis for concluding that it is a per se abuse of discretion to allow the State to reopen, after the defense has rested its case, to address a juror's question.

Finally, we find persuasive support from other jurisdictions for our determination that a trial court does not necessarily abuse its discretion by allowing the prosecution to reopen its case after the defense has rested. People v. Garvey, 99 Cal.App.3d 320, 160 Cal.Rptr. 73, 74-5 (Cal.Ct.App.1979); State v. Zayas, 195 Conn. 611 490 A.2d 68, 71 (Conn.1985); State v. Patnovic, 129 A.2d 780 (Del.Super.Ct.1957) (citing Commonwealth v. Cohan, 307 Mass. 179, 29 N.E.2d 693 (Mass.1940)); Kimmons v. State, 178 So.2d 608 (Fla.Dist.Ct.App.1965), cert. denied, 387 U.S. 934, 87 S.Ct. 2057, 18 L.Ed.2d 996 (1967), overruled on other grounds, 351 So.2d 26, 28 (1977); Fabro v. State, 165 Ga.App. 445, 299 S.E.2d 114 (Ga.Ct.App.1983); People v. Whitfield, 214 Ill.App.3d 446, 158 Ill.Dec. 82, 88-90, 573 N.E.2d 1267, 1273-75 (Ill.Ct.App. 1 Dist.1991); Lee v. State, 439 N.E.2d 603 (Sup.Ct.Ind.1982); State v. Bonanno, 373 So.2d 1284 (La.1979); Huffington v. State, 295 Md. 1, 452 A.2d 1211 (Md.1982), cert. denied, 478 U.S. 1023, 106 S.Ct. 3315, 92 L.Ed.2d 745 (1986); Perkins v. State, 229 Miss. 299, 90 So.2d 650, 652 (Miss.1956); State v. Menke, 25 N.J. 66, 135 A.2d 180 (N.J.1957) (citing State v. McGuire, 327 Mo. 1176, 39 S.W.2d 523 (Mo.1931)); State v. Hernandez, 36 N.M. 35, 7 P.2d 930 (Sup.Ct.1931); State v. Currie, 293 N.C. 523, 238 S.E.2d 477, 479-80 (N.C.1977); State v. Chavis, 24 N.C.App. 148, 210 S.E.2d 555, 585 (N.C.Ct.App.1974), cert. denied, 423 U.S. 1080, 96 S.Ct. 868, 47 L.Ed.2d 91 (1976) (citing 2 Strong, N.C. Index 2d, Criminal Law, Sec. 97); State v. Otto, 245 N.W.2d 885 (N.D.1976); Commonwealth v. Irving, 485 Pa. 596, 403 A.2d 549 (Pa.1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980); Commonwealth v. Tabas, 308 Pa.Super. 43, 454 A.2d 12 (Pa.Super.Ct.1982); State v. Benevides, 420 A.2d 65 (R.I.1980); Boyd v. State, 774 S.W.2d 37 (Tex.App.--Beaumont 1989) (citing Tex.Code Crim.Proc.Ann. art. 36-02 (Vernon 1981)); Brinson v. State, 570 S.W.2d 937 (Tex.Crim.App.1978); see also Flynn v. State, 488 N.E.2d 735 (Ind.Ct.App.1986) (abuse of discretion to refuse to allow defendant to reopen its case when state failed to establish it would have been unduly prejudiced by the defense reopening); State v. Joseph, 434 So.2d 1057, 1061 n. 3 (La.1983) (in dicta, court stated it has discretion to allow state to reopen its case in criminal matter prior to closing arguments); State v. Thomas, 133 N.H. 360, 577 A.2d 89 (N.H.1990) (party seeking to reopen case may show "good cause" any time prior to submission to the jury).

The determination of whether the trial court's decision to allow the State to reopen constitutes an abuse of discretion depends to some extent on the potential for unfairness to the complaining party. Once again, we find cases from other jurisdictions instructive on whether the defendant was unfairly disadvantaged by the trial court's determination. The Supreme Court of New Jersey noted that the fact that the additional evidence was harmful or prejudicial to the defendant would not itself justify the conclusion that the court abused its discretion. State v. Menke, 25 N.J. 66, 135 A.2d 180, 183 (1957). Rather, the Menke court noted relevant factors which include: whether defendant had excused witness who would have been used to rebut new evidence offered, whether the State deliberately withheld the...