State v. Jackman

• Decision Date: 14 December 1989
• Docket Number: No. 55836-1,55836-1
• Citation: 113 Wn.2d 772,783 P.2d 580
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Wilfred Pope JACKMAN, Petitioner.

Page 772

113 Wn.2d 772

783 P.2d 580

The STATE of Washington, Respondent, v. Wilfred Pope JACKMAN, Petitioner.

No. 55836-1.

Supreme Court of Washington En Banc.

Dec. 14, 1989.

Appelwick, Trickey, Sluiter & Spicer, Michael J. Trickey, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Donna L. Wise, Sr. Deputy, Seattle, for respondent.

DURHAM, Justice.

After a jury convicted Wilfred Pope Jackman of first degree robbery, the trial court ordered a new trial, citing jury misconduct, newly discovered evidence and a misstatement of fact by the prosecutor during closing argument. The Court of Appeals, in an unpublished opinion, reversed the order granting a new trial and reinstated the guilty verdict. State v. Jackman, noted at 53 Wash.App. 1002 (1988). We granted Jackman's petition for review, 112 Wash.2d 1009 (1989), and now affirm the Court of Appeals.

I

On August 29, 1985 at about 2 p.m., a man with a knife robbed the cashier at Roy's Grocery in West Seattle. After collecting between $50 and $100 from the store's register, the man fled on foot down the street. He was chased by two local residents responding to the cashier's screams, but escaped in an orange Oldsmobile in the company of two other men.

One of the residents who had chased the robber provided police with a description of the car and its license number. Having determined Jackman to be the owner of the car, police prepared a photo montage that included his photograph. ¹ Three robbery witnesses identified Jackman as the robber from the montage. A fourth pointed to another photo in the montage as being that of the robber. Jackman was then charged with the robbery.

Jackman's trial was held in late July 1986. The State presented testimony of five witnesses who had seen the robber in or around the grocery, and who, with varying degrees of certainty, identified Jackman as the robber. Jackman put on one eyewitness who testified that the robber was a man named George D Jackman himself also testified, as follows: On the day of the robbery, he drank and played pool at a bar from about 10:30 a.m. until around 3 p.m. Early in the day, he loaned his car to a man named Mike, whose last name sounds like, and whose nickname is, "Pineapple". Jackman left the bar at around 3 o'clock in the company of James Beckwith. The pair walked to the home of Frank Davis, and later set out in Davis's car to see if Pineapple had returned Jackman's car. Jackman fell asleep in the back seat of Davis's car and as the result of an accident, did not awaken until several days later.

One of Jackman's intended witnesses, LuAnne Tracy, did not appear for trial. Tracy, who was down the block from the grocery at the time of the robbery, informed the police officer conducting the initial investigation that George D. had committed the robbery. In a post trial deposition, Tracy claimed she told the officer that she had seen George D. run by and "take off" in an orange car. However, the officer understood Tracy to say that she had not seen the robber, but had identified George D. from other witnesses' descriptions. On this understanding, and after a review of Department of Licensing records revealed that George D.'s description did not match eyewitness descriptions of the robber, the police eliminated George D. as a possible suspect, and did not include his photograph among those shown to eyewitnesses for identification.

Closing arguments focused on the witnesses' identifications of the robber. The prosecutor noted that the jury "heard five people, five independent witnesses, come in and tell you that [Jackman] was the man that robbed that store." After recounting their testimony, she remarked:

Now, that's quite a bit of evidence. But not only that, the other two men who were in the car with the Defendant matched the description that the Defendant gave us of the two men that he was with on that day.

Jackman's attorney refuted this rendition of the evidence, noting that Jackman was with James Beckwith, a black man, on the day of the robbery, but that an eyewitness had seen the robber flee in the company of two white men. In rebuttal, the prosecutor stood by her account:

The way that I remember the testimony was that [the witness] said the driver was a white man with short hair and the passenger in the car was a black man and that's the reason that the similarity to what the Defendant said about who he was with that day struck me because that was a description that matched the people that he was with that night.

Neither of these recollections was in fact correct. The eyewitness had testified that there was "a male in the back rear and there was a white male in the front seat" of the car in which the robber fled. Thus, the evidence presented at trial did not support the prosecutor's claim that the robber was accompanied by a black man and a white man, or Jackman's counsel's claim that the robber fled with two white men.

Following closing arguments, the jury retired for lunch and deliberations at 12:08 p.m. A verdict of guilty was returned at 2:50 p.m. Jackman's attorney then moved for an arrest of the judgment and/or a new trial. On January 5, 1987, after a hearing, the trial court granted Jackman's motion for a new trial, stating essentially three reasons for its decision: 1) The jury had "considered a matter outside of the law and evidence in this case in order to improperly hasten their verdict." The trial court held that this constituted jury misconduct under CrR 7.6(a)(2). 2) Testimony by LuAnne Tracy, who was unavailable during the trial, "if provided to the jury at a second trial appears to have a high probability of changing the result of the trial in this case." Tracy's testimony, the court held, falls within the category of newly discovered evidence described in CrR 7.6(a)(3). 3) Accumulated errors, including the two errors described above and also "the misstatement in closing argument of a significant item of testimony" resulted in substantial justice not being done, justifying a new trial pursuant to CrR 7.6(a)(8).

The Court of Appeals found that none of these grounds were sufficient to justify the grant of a new trial. We agree.

II

A trial court's decision granting a new trial will not be disturbed on appeal unless it is predicated on erroneous interpretations of the law or constitutes an abuse of discretion. E.g., Johnson v. Howard, 5 Wash.2d 433, 436, 275 P.2d 736 (1954); State v. Williams, 96 Wash.2d 215, 221-22, 634 P.2d 868 (1981). With these basic standards in mind, we consider each of the grounds upon which the trial court in this case decided that a new trial was necessary.

Jury Misconduct

In concluding that jury misconduct had occurred, the trial court relied on affidavits from a juror, Susan Palmer, and the trial court bailiff, Cheryll Russell, indicating that the jury might have hastened its verdict because the jury foreman was overdue for a vacation. Palmer stated that "members of the jury knew that Mr. Edward Lockner was overdue for his vacation when we elected him to be the foreman of the jury". Russell said she heard from a woman juror "that the jury elected Mr. Edward Lockner foreman of the jury because they knew that he had been scheduled to go on vacation the weekend before and they felt he would not waste time in guiding their deliberations (or words to that effect)". As additional support for its finding of jury misconduct, the court noted "the complexity of issues in this case and the relatively short deliberation time".

Reliance on the two affidavits was legal error, as neither one provides an appropriate basis for establishing jury misconduct. The affidavit of Russell, the trial court bailiff, is inadmissible hearsay. See, e.g., Cox v. Charles Wright Academy, Inc., 70 Wash.2d 173, 177, 422 P.2d 515 (1967); Maryland Cas. Co. v. Seattle Elec. Co., 75 Wash. 430, 436-38, 134 P. 1097 (1913). The juror Palmer's affidavit is also inadmissible to prove misconduct because it asserts matters inhering in the verdict.

The mental processes by which individual jurors reached their respective conclusions, their motives in arriving at their verdicts, the effect the evidence may have had upon the jurors or the weight particular jurors may have given to particular evidence, or the jurors' intentions and beliefs, are all factors inhering in the jury's processes in arriving at its verdict, and, therefore, inhere in the verdict itself, and averments concerning them are inadmissible to impeach the verdict.

Cox v. Charles Wright Academy, Inc., supra 70 Wash.2d at 179-80, 422 P.2d 515; see also Gardner v. Malone, 60 Wash.2d 836, 842, 376 P.2d 651 (1962) (allegation that jurors "had omitted to consider important evidence or issues ... or had by any other motive or belief been led to their decision " is insufficient to support a motion for a new trial) (quoting 8 Wigmore, Evidence § 2349, at 681 (McNaughton Rev.1961)).

The second ground upon which the trial court based its finding of misconduct--that the jury reached its verdict quickly--similarly does not justify the grant of a new trial. Our decisions are clear that misconduct cannot be inferred merely because deliberations were of short duration. In Johnson v. Howard, supra, for example, we reversed a new trial order rendered on the basis that substantial justice was not done when jury deliberations following a 4-day trial of an automobile accident action lasted only 2 hours and 19 minutes.

The length of time devoted to jury deliberations is not a reliable guide to the measure of justice which has been achieved. In our opinion, the fact that the jury here returned a speedy verdict does not support the court's conclusion that substantial justice has not been done.

Johnson, 45 Wash.2d at 446-47, 275 P.2d 736. Johnson 's reasoning was deemed controlling in another automobile accident case in which the jury had deliberated only 13 or 14 minutes, with special note taken that by statute " 'the jury...