State v. Crowell
| Decision Date | 10 May 1979 |
| Docket Number | No. 45746,45746 |
| Citation | 92 Wn.2d 143,594 P.2d 905 |
| Parties | STATE of Washington, Respondent, v. David CROWELL, Petitioner. |
| Court | Washington Supreme Court |
Schillberg & Sorlien, Jerry L. Sorlien, Moses Lake, for petitioner.
Paul A. Klasen, Jr., Pros. Atty., Ken L. Jorgensen, Deputy Pros. Atty., Ephrata, for respondent.
David Crowell was convicted by a jury of the grand larceny of 33 head of cattle. The Court of Appeals affirmed the conviction in an unpublished opinion. We granted Crowell's petition for review in 91 Wash.2d 1009 (1978) on the issues whether the superior court acted without subject matter jurisdiction and whether post-trial statements by the bailiff influenced the jury's deliberations. We now reverse and remand for a new trial.
Charges against petitioner were filed first in justice court. However, prior to the justice court preliminary hearing, the prosecution filed an information in superior court and dismissed the justice court complaint. Petitioner argues that, notwithstanding the superior court information, the justice court retained exclusive jurisdiction until after it conducted a preliminary hearing. Therefore, says petitioner, the superior court acted without subject matter jurisdiction. We disagree.
The Court of Appeals properly ruled that our decision in State v. Jefferson, 79 Wash.2d 345, 485 P.2d 77 (1971), disposes of petitioner's claim. Jefferson, at 348, 485 P.2d 77, 79, reaffirmed our ruling in State v. Ollison, 68 Wash.2d 65, 411 P.2d 419 (1966), that a prosecutor has the right "to file an information in superior court after a defendant's appearance in justice court but prior to the time set for a preliminary hearing in such court, even though the result is to bypass the preliminary hearing and supersede the justice court criminal complaint." Accord, State v. Borsey, 6 Wash.App. 482, 484, 494 P.2d 225 (1972). Jefferson was cited with approval in Shadwick v. Tampa, 407 U.S. 345, 353 n.12, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). Jefferson 's holding is directly on point and petitioner's claim that the superior court lacked subject matter jurisdiction is without merit.
Petitioner next argues that the bailiff's unauthorized statements to the jury require a new trial. We agree.
After his conviction, petitioner moved for a new trial by providing the trial court with a juror's affidavit which attested to the following facts: The jury received the case shortly after noon on the final day of trial. It deliberated throughout the afternoon and adjourned for dinner at 6:30 p. m. During dinner, in response to a question about arranging for "suitcases", the bailiff informed the jury that evening lodging was unavailable for them and that they would be required to deliberate until they reached a verdict. A guilty verdict was reached about 11 p. m.
The trial court conducted a hearing on the new trial motion at which it and the parties questioned the juror. The juror again told of the bailiff's statements and added that the bailiff also said that the judge had indicated he would consider the jury "hung" if it did not reach a verdict by 10 p. m.
The trial court denied petitioner's new trial motion by ruling in a written memorandum opinion that the bailiff's statements did not prejudice petitioner. The Court of Appeals agreed with the trial court that the new trial motion should be denied.
We first consider the scope of our review. An appellate court will not reverse an order granting or denying a new trial motion, except when the trial court has abused its discretion. Detrick v. Garretson Packing Co., 73 Wash.2d 804, 812, 440 P.2d 834 (1968). However, this principle is subject to the limitation (not applicable here) that, when such an order is predicated upon rulings as to the law, no element of discretion is involved. Worthington v. Caldwell, 65 Wash.2d 269, 278, 396 P.2d 797 (1964). A much stronger showing of an abuse of discretion ordinarily will be required to set aside an order granting a new trial than one, like the one here, denying it. Worthington v. Caldwell, supra ; O'Brien v. Seattle, 52 Wash.2d 543, 545, 327 P.2d 433 (1958).
In ruling on a new trial motion, the trial court can consider only a juror's testimony, either oral or by affidavit, which shows facts about the bailiff's misconduct; it cannot consider testimony about things which inhere in the verdict. See State v. McKenzie, 56 Wash.2d 897, 900, 355 P.2d 834 (1960). The juror's testimony cannot be considered if "the facts alleged are linked to the juror's motive, intent, or belief, or describe their effect upon him." It can be considered if "that to which the juror testifies can be rebutted by other testimony without probing a juror's mental processes." Gardner v. Malone, 60 Wash.2d 836, 841, 376 P.2d 651, 654 (1962).
The trial court here improperly considered testimony inhering in the verdict when it denied petitioner's new trial motion. At the hearing on the motion, the court repeatedly inquired of the juror whether the bailiff's statements communicated "the impression that it was impossible to have a hung jury." The trial court then denied petitioner's motion by ruling that "although (the jurors) did know that they would not be given lodging for the night, they were well aware that if they failed to agree that a mistrial would result." The Court of Appeals affirmed the motion's denial by noting that the juror, on examination by the trial court, had "stated that she knew that the jury had three possibilities: it could find a verdict of guilty, acquittal, or deadlock."
In considering this testimony about the jury's "awareness" of alternative verdicts, the trial court probed the juror's mental processes to discover the effect on the jury of the bailiff's statements. As we said in O'Brien v. Seattle, supra, 52 Wash.2d at 547, 327 P.2d at 435:
The jurors should not have been questioned as to whether they were influenced by the conversation with the bailiff, and their opinions on that subject cannot be considered by the court in determining whether the alleged conduct was prejudicial.
The trial court, therefore, improperly considered testimony inhering in the verdict about whether the jurors were, or were not influenced by the bailiff's remarks.
In ruling on petitioner's motion, the trial court simply should have "attempt(ed) to discover What was said (by the bailiff) and examine the remarks for their possible prejudicial impact." State v. Christensen, 17 Wash.App. 922, 926, 567 P.2d 654, 656 (1977). Such a review is anticipated by RCW 4.44.300, which...
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