State v. Forsyth, 1058--111

• Citation: 533 P.2d 847,13 Wn.App. 133
• Decision Date: 07 April 1975
• Docket Number: No. 1058--111,1058--111
• Parties: STATE of Washington, Respondent, v. Ronald G. FORSYTH, Appellant.
• Court: Washington Court of Appeals

Page 133

13 Wn.App. 133

533 P.2d 847

STATE of Washington, Respondent, v. Ronald G. FORSYTH, Appellant.

No. 1058--111.

Court of Appeals of Washington, Division 3.

April 7, 1975.

Wesley G. Hohlbein, Seattle, for appellant.

Donald C. Brockett, Pros. Atty., Fred J. Caruso, Deputy Pros. Atty., Spokane, for respondent.

GREEN, Judge.

Defendant appeals from a conviction of carnal knowledge with a 14-year-old girl.

Error is assigned to the trial court's denial of a motion for new trial, based upon (1) the bailiff's communication with a juror; (2) misconduct of a juror due to illness; and (3) the failure to exclude the in-court identification of defendant by the complaining witness.

Trial commenced on October 2, 1973. The jury was not sequestered. On Friday, October 5, a juror began feeling ill. On Monday, October 8, a court holiday, this juror was hospitalized. On Tuesday, October 9, the court, learning of the juror's hospitalization, continued the trial and instructed its bailiff to communicate with the juror to determine her state of recovery and the date she could return for resumption of the trial. This juror relates the communication in her affidavit:

When the bailiff called me he asked me how long I was going to be hospitalized and I advised him that my length of stay had not as yet been determined. On the following day the bailiff called again and I advised him after some discussion that my Doctor's preference was that I not return to court before Monday, October 15 at the earliest. He told me that he would talk to judge Smith about these circumstances and would call me back. Later that day the bailiff called again and he suggested that he might have something that would change my doctor's mind. He said that we could have a regular court day on Friday with plenty of rest periods for me and that the case would be completed on Monday. He said that if the case takes too long it would have to be retried, and that it wouldn't be good for this girl (complaining witness) to have to go through this again. At that point I asked the bailiff how long a period of time would have to elapse before the court would declare a mistrial. I felt that I never did get an answer to that question and was confused as to the status of things. I told the bailiff to call me back on the following day and that I would try to get an answer from my Doctor about returning to jury duty on Friday. On Thursday, October 11, 1973, the bailiff called me again at the hospital and I told him that my Physician had ordered me not to return to jury duty until at least Monday. . . .

I was discharged from the hospital on Friday and was directed by my Doctor to get lots of rest and continue my medication. When I asked him about returning to jury duty on Monday he reluctantly agreed to allow me to do so.

When trial resumed on Monday, October 15, the court greeted the jurors and inquired of the previously ill juror, 'Are you feeling pretty good this morning?' The furor answered, 'Yes' and the court directed counsel to proceed. At 2:30 p.m. that day, the jurors were excused until 9:30 a.m. the following day, the court stating:

It had been my hope to finish the case today, Ladies and Gentlemen, but we have a couple of witness problems and things that require time. I think that we will go over until tomorrow morning. We also have the problem of getting the instructions ready, which will take a half an hour or an hour, and the attorneys will want a couple of hours of argument, and I am afraid the case would get to you about six o'clock, and I know that Mrs. Cesaratto is just out of the hospital, and I don't want to have any problem with her health. I think the best thing would be to continue this case until tomorrow morning, and we should be able to complete it by noon, and you can have most of the afternoon to deliberate on the matter. We will adjourn, and I will see the attorneys regarding the instructions.

Trial resumed the next morning and at 12:25 p.m. that afternoon, the jury retired and after 3 hours of deliberation returned a verdict of guilty.

First, defendant contends that the following remark by the bailiff to the juror was a comment on the evidence (I)f the case takes too long it would have to be retried, and that it wouldn't be good for this girl (complaining witness) to have to go through this again.

This contention is premised on the argument that the statement was an indication that the court believed the complaining witness was credible and deserved sympathy. We disagree.

Article 4, § 16 of the Washington Constitution prohibits a judge from commenting upon the evidence. It has been said that a bailiff is in a sense the 'alter ego' of the judge and as a consequence the bailiff's remarks may fall within the constitutional prohibition and in proper circumstances justify the granting of a new trial. O'Brien v. Seattle, 52 Wash.2d 543, 548, 327 P.2d 433 (1958). The purpose of this constitutional prohibition is to prevent a judge, or as in this case, his 'alter ego'--bailiff, from conveying the court's opinion as to the evidence or the credibility of a witness. In State v. Jacobsen, 78 Wash.2d 491, 495, 477 P.2d 1, 4 (1970), the court further observed:

In keeping with this purpose, we have consistently held that this constitutional prohibition forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial. . . .

In determining whether words or actions amount to a comment on the evidence, we look to the facts and circumstances of the case. It is, of course, possible that the personal opinion of a trial judge may be conveyed both directly and by implication.

(Citations omitted.)

We do not agree with defendant's contention that the bailiff's remark inferred that the trial judge considered the complaining witness credible. The remark, while perhaps better left unsaid, was merely a statement of an obvious fact. As the trial judge in his memorandum opinion observed:

(T)here was no legitimate controversy over the fact that she had been sexually molested and that the experience was deeply disturbing.

It seems clear that the bailiff's remark, by any reasonable construction, does not convey the court's belief as to the credibility of the complaining witness; it merely conveys the obvious fact that it would not be good for this young girl to be put through the distasteful task of redescribing the events surrounding her molestation. Moreover, the affidavit of this juror does not indicate in any way that she so construed the bailiff's communication.

Likewise, defendant's contention that the sympathy of this juror was aroused in favor of the complaining witness does not stand analysis. The evidence is uncontroverted that the 14-year-old complaining witness was sexually molested. Consequently, counsel for both sides displayed an understanding concern in deference to her age and the nature of the crime. At most, the bailiff's statement conveyed a similar concern.

We do not find that the bailiff's communication amounts to a comment on the evidence, nor are we able to find any evidence in this record that the defendant was prejudiced thereby. State v. Smith, 43 Wash.2d 307, 261 P.2d 109 (1953); State v. Rose, 43 Wash.2d 553, 262 P.2d 194 (1953); State v. Whalon, 1 Wash.App. 785, 464 P.2d 730 (1970); Snyder v. Sotta, 3 Wash.App. 190, 473 P.2d 213 (1970); RCW 10.67.010.

Secondly, defendant contends his motion for new trial should have been granted by reason of the juror's misconduct in continuing as a juror when her illness rendered her incapable of fulfilling her functions as a juror. We disagree.

The record is clear that when the juror returned for trial on the morning of October 15, she advised the court in response to its inquiry that she was feeling pretty good. The jury was excused at 2:30 p.m. that day and the trial was resumed at 9:30 a.m. the following morning and the verdict was returned during the late afternoon that day. At no time did she advise the court that her health in any way interfered with her performance as a juror....