State v. Depaz

CourtUnited States State Supreme Court of Washington
Citation204 P.3d 217
Decision Date02 April 2009
Docket NumberNo. 80574-1.,80574-1.
PartiesSTATE of Washington, Respondent, v. Vasquez Jose DEPAZ, Petitioner.
204 P.3d 217
STATE of Washington, Respondent,
Vasquez Jose DEPAZ, Petitioner.
No. 80574-1.
Supreme Court of Washington, En Banc.
Argued September 16, 2008.
Decided April 2, 2009.

[204 P.3d 218]

Eric Broman, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

King County Prosecutor's Office, Andrea Ruth Vitalich, Seattle, WA, for Respondent.


¶ 1 Vasquez Depaz challenges his conviction for child rape on the grounds that the trial court abused its discretion when it dismissed a known holdout juror. Depaz urges this court to extend its decision in State v. Elmore, 155 Wash.2d 758, 123 P.3d 72 (2005), to limit the trial court's discretion under RCW 2.36.110 in deciding whether to remove a holdout juror. We reject Depaz's request to extend Elmore because the concerns present in a case involving juror nullification are not present in a case involving the removal of a juror for communicating with a third party. We also decline the State's invitation to establish an automatic dismissal rule without a showing of prejudice under RCW 2.36.110. However, we hold that the trial court abused its discretion in deciding to excuse the holdout juror under RCW 2.36.110.


¶ 2 The State charged Depaz with four counts of first degree rape of a child. The charges generally related to an alleged sexual relationship between Depaz and an 11-year-old girl.

¶ 3 After a trial, the court submitted the case to the jury for deliberation on Thursday, July 14, 2005. Just before lunch the following day, the presiding juror informed the court that the jury had reached deadlock on all four counts and that several jurors would not change their positions. The court instructed the jury to continue its deliberations.

¶ 4 After a lunch recess, the presiding juror sent another message to the court regarding potential misconduct by juror 3. Over objection by the defense, the court questioned the presiding juror, the juror who overheard the conversation (juror 14), and the juror who made the phone call (juror 3).

¶ 5 During questioning by the court, juror 14 explained that juror 3 said she needed to make a call because her grandchild was having

204 P.3d 219

surgery that day. Juror 14 overheard juror 3 talk about the surgery and then "she said, well, we're at lunch; the Judge says we have to keep deliberating; all the evidence is circumstantial; the badgering has started; and I will." Verbatim Report of Proceedings (VRP) (July 15, 2005) at 16. Juror 14 reported this conversation to the other jurors and stated that juror 3 agreed in essence with juror 14's account of the conversation.

¶ 6 Next, the court questioned juror 3, who explained the nature of the telephone call to her husband:

I asked him about a grandson who's undergoing some very serious surgery today, how that was going, and then he—because I had indicated earlier in the day that I didn't know whether we would be through today or not, I had also indicated to him earlier in the day that I thought I was in the minority in my opinion, and let it go at that, and so he asked me that question how things were going and did I—and would I argue persuasively to convince others of my view, and that's kind of where it was.

Id. at 21-22. Juror 3's response invoked the following exchange:

THE COURT: Okay. During the conversation, did you tell him that, in your opinion, the case rested on circumstantial evidence?

JUROR 3: I may have used that word. The other person thought I did so I may have used that word.

THE COURT: Why did you tell him about that?

JUROR 3: Because we were at a point where it was 11 to 1 and I was beginning to feel that I was being badgered by the others.

THE COURT: But what does that have to do with circumstantial evidence or not?

JUROR 3: Probably nothing.

THE COURT: Did you have any substantive discussion about the case at all? In other words, did he know what type of case it was?

JUROR 3: No.


THE COURT: Did you tell him about being in the minority?

JUROR 3: I did that this morning. When I was leaving the house, he asked me, well, when are you going to be back. We're both very worried about the grandson.

Id. at 22-23.

¶ 7 The State then further questioned juror 3 about the conversation:

MR. HUNG: ... There's been some testimony that in response to something that your husband said to you, you said, I will. Do you remember that part of the conversation at all?

JUROR 3: It was, well, let me know when you're through, and I will. I believe that's the way it ended.

MR. HUNG: Oh, I see. So, at any point, did your husband try and support you in maintaining your position as the minority or anything like that? Did he say anything or offer any advice?


JUROR 3: No. Nothing other than saying, well, if you feel strongly in that way, you know, in your view, if you feel strongly in that, stick to your guns.

Id. at 24.

¶ 8 Denying the State's motion to discharge juror 3, the trial court concluded that juror 3 did not engage in the type of misconduct that would disqualify her from further serving on the jury and that the disclosure of her conversation did not taint the other jurors to require a mistrial. The court "conclude[d] that [her conversation] does not rise to the level of misconduct based on the information provided by the three jurors that we interviewed that would require disqualification of Juror 3 at this time based on the information that we have." Id. at 30. The court instructed the jury to continue its deliberations.

¶ 9 Later that day, the jury sent another note to the court, indicating that "[n]one of us has changed our opinion since this morning (enough to get any closer to a verdict)." Clerk's Papers at 42. The note went on to explain that several jurors had medical and other commitments for the following week. After reading the note, the court called the

204 P.3d 220

jury out and asked the presiding juror if there was any reasonable probability of the jury reaching a unanimous verdict within a reasonable time. The presiding juror answered "No." VRP (July 15, 2005) at 38.

¶ 10 Despite a recognition that "there's nothing different now than there was an hour ago in terms of why I would excuse her," the court reconsidered the State's motion to excuse juror 3. Id. at 42. While the court expressed concern that juror 3 did not give an adequate explanation as to why she had commented to her husband about the circumstantial evidence of the case, it again determined that there was no clear showing of misconduct: "And it's just that if the misconduct jumped out and I could say this is clear misconduct, and it has nothing to do with this being a hold-out juror, then I would do it." Id. at 39. Furthermore, the court determined that even if juror 3's statements about the case constituted misconduct, any such statement would not show that she had been prejudiced herself.

¶ 11 The court went on to consider the statement made by the husband and determined that the fact he told her to stick to her guns would not have affected juror 3's opinion of the case. The court explained, "[H]e didn't give her an opinion, he was basically saying if that's what you believe, stick with what you believe, which is a form of moral support. He's not telling her ... don't change your mind." Id. at 43. Rejecting the State's argument that the husband's statement essentially told juror 3 that her opinion of the case was correct, the court indicated that the State was "inferring a little bit more into that conversation than she told us. I mean, that may be the inference, but he's basically saying stick with it." Id. at 49. "The conversation d[idn]'t change anything" because the court knew the jury was hung before the conversation. Id. at 47.

¶ 12 The court expressed concern over the fact that it knew juror 3 was the holdout juror. Indeed, the court conceded that "if she hadn't told us that she was a holdout juror, I just don't see where the—I mean, I don't think that we would have concluded that there was prejudice to either side based on this conversation." Id. at 46. Knowing juror 3 was the holdout, the court recognized the implication of the decision it faced: "[I]f I don't excuse Number 3, I'm persuaded we're going to have a mistrial anyway, we're going to have a mistrial on Monday. So that's the decision." Id. at 49.

¶ 13 Despite having failed to determine any reasons why juror 3 should be excused, the court left open the possibility that it still might excuse juror 3. The court decided that it would hold the jury over the weekend and then it would determine if the alternate jurors were available to replace juror 6 and possibly juror 3. The court recognized that the availability of the second alternate "should influence things but it may effect—it may result in a mistrial if I do decide we need to replace [juror] 3 and [the second alternate] is not available." Id. at 54.

¶ 14 On Monday morning, the court conducted a short voir dire of the alternate jurors. The court explained that "[a]fter my voir dire of each juror, I will render a decision with respect to replacing juror 3." VRP (July 18, 2005) at 2. The court determined both alternates to be qualified and replaced juror 6 with the first alternate.

¶ 15 Next, the court revealed that it had also decided to excuse juror 3 after reconsidering the testimony and conducting its own legal research. The court first expressed that it had reservations about juror 3's candor with the court. Specifically, the court recalled that she did not volunteer to the court that she made a statement to her husband regarding the circumstantial evidence, and that she only admitted such a statement after the court inquired about it. Furthermore, the court accused juror 3 of denying that she had any discussion about the case beyond the comment about circumstantial evidence.

¶ 16 In addition, the court determined that juror 3 had failed to follow the jury instructions and to avoid outside influences during...

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