State v. Hill
| Decision Date | 28 September 2021 |
| Docket Number | No. 54335-4-II,54335-4-II |
| Parties | STATE of Washington, Respondent, v. Robert Jesse HILL, Appellant. |
| Court | Washington Court of Appeals |
Stephanie Alice Taplin, Newbry Law Office, 623 Dwight St., Port Orchard, WA, 98366-4619, for Appellant.
Andrew Yi, Pierce County Prosecuting Attorney's Off., 930 Tacoma Ave. S. Rm. 946, Tacoma, WA, 98402-2171, Prosecuting Attorney Pierce County, Pierce County Prosecuting Attorney, 930 Tacoma Avenue S. Room 946, Tacoma, WA, 98402, for Respondent.
PART PUBLISHED OPINION
¶ 1 Robert Hill appeals his conviction for malicious mischief in the second degree, felony harassment, and burglary in the first degree. The charges stemmed from an incident where Hill was denied service at Urban Bud dispensary and refused to leave. Subsequently Hill engaged in a physical altercation with the security guard and then purposefully destroyed display cases and merchandise.
¶ 2 Hill argues that his right to a fair trial was tainted by jury misconduct and that the trial court abused its discretion by denying his motion for a mistrial. Hill also argues that the State violated his right to a unanimous verdict by failing to prove both alternative means of committing burglary, that the prosecutor committed misconduct by urging the jury to speculate about evidence outside the record and by misstating the burden of proof, and that cumulative error denied his right to a fair trial. Hill asserts that the trial court abused its discretion by failing to consider his request for an exceptional sentence. In his statement of additional grounds (SAG), he also argues that the State failed to present sufficient evidence of burglary in the first degree, he received ineffective assistance of counsel, and the prosecutor committed misconduct.
¶ 3 In the published portion of this opinion, we conclude that the court did not abuse its discretion in denying Hill's motion for a mistrial because Hill failed to show juror misconduct. In the unpublished portion, we conclude that burglary in the first degree is not an alternative means crime, and the State produced sufficient evidence to support the conviction. Additionally, we conclude that the prosecutor did not commit misconduct, Hill was not prejudiced by cumulative error, and the trial court did not abuse its discretion because it did not categorically refuse to consider mitigating evidence at sentencing. Finally, we conclude that Hill's SAG claims have no merit. Accordingly, we affirm.
¶ 4 On August 31, 2019, Hill walked into Urban Bud dispensary. Hill had consumed several alcoholic drinks that afternoon and evening. Upon entering Urban Bud, Hill stopped just inside the door at a podium that acted as a "security check-in station." 3 Report of Proceedings (RP) at 214. Hill began to write on a clipboard on the podium, erroneously believing it was a sign-in sheet. Alvaro Salaverry, in his position as security guard, was in charge of checking customer identification before allowing them in the store. Salaverry was not at the station when Hill entered, but returned and asked Hill to leave, Hill refused, and eventually attempted to walk past Salaverry into the store. Salaverry grabbed Hill by his back pocket, pulling him backwards, and causing him to fall. They struggled and at one point Salaverry attempted to drag Hill out of the front door. Eventually, Salaverry restrained Hill by kneeling on his back or shoulder.
¶ 5 After hearing shouting from the front of the store, the store manager Christian Muridan walked over and saw Salaverry on the ground struggling to restrain Hill, who was "incoherent [and] screaming." 3 RP at 203. Muridan smelled alcohol when he approached and told Hill that he needed to leave "at least five times in his face," but received no response or acknowledgement that Hill had heard him. 3 RP at 203. Muridan called the police. Another employee, Ashlyn Thomas, also smelled alcohol when she approached and saw Hill "sprawled out on the ground screaming." 4 RP at 346. Thomas heard Hill yell for someone to call the police because someone was hurting him. Muridan told Salaverry to let Hill up to allow him to leave. Hill stood up and ran toward the back of the store and tried to kick open the unmarked door of the employee breakroom.
¶ 6 Salaverry tackled Hill in the breakroom doorway and attempted to restrain him with his arm around Hill's neck. Hill continued to shout and eventually turned his head and bit Salaverry's forearm, causing Salaverry to release him. Hill kicked out at Salaverry, grazing his nose. Hill got up off the floor, picked up the jug and base of a water dispenser from inside the breakroom and threw it into the middle of the store. He then began kicking nearby display cases containing glass paraphernalia, damaging the display's glass, doors, and contents.
¶ 7 Urban Bud had significant security measures including a security camera system that captured the incident from multiple angles.
¶ 8 The police eventually arrived and placed Hill under arrest. The State charged Hill by amended information with assault in the second degree, malicious mischief in the second degree, felony harassment, and burglary in the first degree. The matter proceeded to a jury trial.
¶ 9 After the close of evidence, the jury began deliberating in the afternoon and continued into a second day. At 10:03 AM, the jury submitted a questions to the court.1 At 10:42, the jury informed the judicial assistant (JA) that it was deadlocked on one of the counts. At 10:51, juror 2 informed the JA that they wanted to leave, and when the jury was excused for a break 20 minutes later, juror 2 further informed the JA that they were "getting threats." 6 RP at 534.
¶ 10 After consulting with the parties about juror 2's complaints, the judge polled the jury on whether it could reach a verdict on the remaining count and the jury unanimously agreed that it could not. Hill and the State agreed that the jury was deadlocked and agreed to voir dire juror 2 to determine whether they could continue to deliberate. The court then engaged in the following colloquy with juror 2:
¶ 11 Hill's counsel also questioned the juror and confirmed what juror X said, and that juror 2 had felt threatened by it.
¶ 12 The court opined that it did not believe it needed to dismiss or replace juror 2 because they indicated that they could continue, and the presiding juror indicated that the jury had been able to reach a verdict on three of the counts. The State agreed. Defense counsel moved for a mistrial, arguing, 6 RP at 545. The court opined that it was not "that unusual for deliberations to get heated and people to say untoward things." 6 RP at 546. The court then denied the motion for a mistrial.
¶ 13 The jury found Hill guilty of malicious mischief in the second degree, felony harassment, and burglary in the first degree, but did not reach a verdict on assault in the second degree. The court polled the jury and confirmed the verdict. Hill appeals.
I. JUROR MISCONDUCT
¶ 14 Hill argues that juror X committed misconduct that violated his right to a fair trial by an impartial jury when they threatened another juror. He also argues that the trial court erred by failing to grant a mistrial or ensuring that he was not prejudiced by interviewing other jurors. Hill contends that because the error was structural, it was not harmless.
¶ 15 The State argues that we should not consider the alleged misconduct because it inhered to the verdict, and therefore, the court did not abuse its discretion in denying the motion for a mistrial. The State also argues that Hill fails to prove that the juror's comment was misconduct, rather than just a heated discussion. We agree that Hill failed to prove juror misconduct.
¶ 16 Central to the jury system is the secrecy of jury deliberations. Long v. Brusco Tug & Barge, Inc. , 185 Wash.2d 127, 131, 368 P.3d 478 (2016). Courts will not consider allegations of jury misconduct that inhere in the verdict. In re Pers. Restraint of Lui , 188 Wash.2d 525, 568, 397 P.3d 90 (2017). " ‘[F]acts linked to the juror's motive, intent, or belief, or describ[ing] their effect upon the jury’ or facts that cannot be rebutted by other testimony without probing any juror's mental processes" are matters that inhere to the verdict. Id . (internal quotation marks omitted) (quoting Long , 185 Wash.2d at 131, 368 P.3d 478 ). " ‘Only if a court concludes that juror declarations allege actual facts...
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...138. The party alleging juror misconduct has the burden of demonstrating misconduct occurred. State v. Hill, 19 Wn.App. 2d 333, 341, 495 P.3d 282 (2021), denied, 199 Wn.2d 1011 (2022). Jurors are permitted to rely on their personal life experience to evaluate the evidence presented at trial......