State v. Jorden
| Decision Date | 03 November 2000 |
| Docket Number | No. 21865-8-II.,21865-8-II. |
| Citation | 11 P.3d 866,103 Wash.App. 221 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Andre JORDEN, Appellant. |
Jeanette Marie Dalton (Court Appointed), Kingston, for Appellant.
Pamela Beth Loginsky, Wash. Assoc. of Pros. Attys., Randall Avery Sutton, Deputy Pros. Atty., Olympia, for Respondent.
PART PUBLISHED OPINION
Andre Jorden appeals his convictions as an accomplice of first degree premeditated murder and two counts of first degree robbery. RCW 9A.08.020, 9A.32.030(1)(a), 9A.56.200(1). Each conviction carried a firearm enhancement. RCW 9.94A.125, 9.94A.310(3)(a) and (e). Jorden argues that the trial court erred by: (1) imposing consecutive firearm enhancements contrary to In re the Post Sentencing Review of Charles, 135 Wash.2d 239, 254, 955 P.2d 798 (1998); (2) refusing to give a lesser included offense instruction on manslaughter; (3) dismissing a sleeping juror without conducting a hearing or entering findings; (4) denying his motion to dismiss for delay in his preliminary appearance; and (5) admitting a photograph of the murder victim while alive, which also contained other family members. The State concedes the sentencing error. We remand for resentencing; otherwise, we affirm.
Andre Jorden and Raymond Richards robbed a Bremerton Safeway store twice in September 1996. On September 4, Jorden and Richards borrowed Katrina Barthel's car and drove to the Safeway. There, Jorden waited in the car while Richards went inside, took a pack of cigarettes to the cashier, pulled a gun from his waistband, and said "give me all the fucking money." Richards then took the money and walked out of the store. Jorden and Richards returned to Barthel's where they appeared to be on an "adrenaline rush" and were laughing. Jorden, Richards, and Barthel divided the money.
Late the next evening, Jorden and Richards again drove Barthel's car to Safeway. Jorden waited in the car while Richards went inside. Richards had the cashier ring up a pack of cigarettes, then he pulled up his shirt to reveal a gun and said "I want all your money and I want all the money underneath the till." Returning to Barthel's, the three split the money.
A few days later, Richards and Jorden were driving around with Kemonia McClarron. Richards, who was driving, confided to Jorden that he was going to "beat the shit out of" McClarron because McClarron had pistol-whipped Richards' brother and raped his sister. Richards asked Jorden if he would provide "backup" for the assault; Jorden said he would.
Richards drove to an alley, told the passengers he had a gun in his waistband, and told them he planned to rob a drug dealer. The three men got out of the car. As they walked down the alley, Richards pulled out the gun and shot McClarron four times. Jorden and Richards, laughing, ran back to the car. McClarron died from the gunshot wounds.
Jorden was charged with first degree premeditated murder or, in the alternative, intentional second degree murder or second degree felony murder, and two counts of first degree robbery. He was convicted of first degree premeditated murder and two counts of first degree robbery.
I. Dismissal of Juror
On the first day of trial, after the sixth witness, the State moved to disqualify a juror, contending that she was sleeping during trial.1 Jorden objected and the trial court denied the motion. The judge, however, instructed the bailiff to watch the juror and take notes. The next day, the State renewed its motion and Jorden again objected. The State informed the court that the bailiff had twice given the juror water in an attempt to wake her up. The court noted that the juror was not "as attentive as the other jurors" but did not excuse her. On the third day of trial, the court moved the juror from the back row to the front row of the jury box. The court instructed the bailiff to tell the juror that the judge was moving her so that she could better see and hear the witnesses.
On the sixth day of trial, the court learned that the juror's mother was in the hospital, possibly in need of life support. During questioning outside the presence of other jurors, the juror said that her mother's health did not prevent her from serving as a juror.2 Later that day, after the State rested, the court addressed the State's motion to excuse the juror. The court found that RCW 2.36.110,3 not RCW 4.44.240,4 governed the issue and allowed the parties to argue and to present witnesses. The State called the bailiff, who testified that the juror was inattentive only on the first day. The State also called the detective who had been seated at counsel table. He testified that the juror appeared to be sleeping in the afternoon of the first day of trial. On other days, the detective saw the juror sitting with her head down at least once or twice a day. Although the defense did not call any witnesses, Jorden requested a hearing with the juror to determine if she had been inattentive. The court decided not to question the juror. Instead the judge stated his observations of the juror during the testimony of various witnesses: she was yawning, dozing, and sitting with her eyes closed. Concluding that she was "the most inattentive juror I've seen in six and a half years of doing trials," the court excused her.
Jorden argues that the court should have questioned the juror to determine if misconduct had occurred. Further, according to Jorden, the court should have made findings as to whether such misconduct, if any, prejudiced him. According to Jorden, the court erred by excusing the juror without establishing that she had missed important testimony5 or that her conduct prejudiced either party. Jorden maintains that the juror was the only African American juror and, thus, differences in her demeanor could have been ethnic in origin.6
We review a trial court's decision to excuse a juror for abuse of discretion. State v. Hughes, 106 Wash.2d 176, 204, 721 P.2d 902 (1986)7; State v. Ashcraft, 71 Wash.App. 444, 461, 859 P.2d 60 (1993). Under RCW 2.36.110, the judge has a duty "to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of ... inattention... or by reason of conduct or practices incompatible with proper and efficient jury service." (Emphasis added.) CrR 6.5 enables the court to seat alternate jurors when the jury is selected. Further, CrR 6.5 states that: "[i]f at any time before submission of the case to the jury a juror is found unable to perform the duties the court shall order the juror discharged." (Emphasis added.) RCW 2.36.110 and CrR 6.5 place a continuous obligation on the trial court to excuse any juror who is unfit and unable to perform the duties of a juror.
But CrR 6.5 does not explicitly require a hearing even after the case has been given to the jury. Ashcraft, 71 Wash.App. at 462, 859 P.2d 60. While this court has stated that "CrR 6.5 contemplates a formal proceeding, which may include brief voir dire" before substituting a juror, this statement applies where the case has already gone to the jury and the alternates have been temporarily excused. State v. Johnson, 90 Wash.App. 54, 72, 950 P.2d 981 (1998); see also Ashcraft, 71 Wash.App. at 462, 859 P.2d 60. The purpose of a "formal proceeding" is twofold. First, it verifies that the juror is unable to serve. Johnson, 90 Wash.App. at 73, 950 P.2d 981. Second, it demonstrates that the alternate has remained impartial after being temporarily dismissed. Ashcraft, 71 Wash.App. at 462, 859 P.2d 60. Here, the trial court heard argument from both parties and allowed both sides to call witnesses. The judge then read his notes about the juror's conduct. The trial court's purpose in not allowing further questioning of the juror was reasonable; it feared that questioning the juror would prejudice her against the State. And no inquiry into the alternate's impartiality was necessary because the case had not yet gone to the jury; hence, the alternates had not been identified or temporarily dismissed.
Citing United States v. Barrett, 703 F.2d 1076 (9th Cir.1983), Jorden argues that the trial court erred in taking judicial notice of a disputed fact, whether the juror was sleeping. Barrett, however, is distinguishable. In Barrett, after the jury was instructed but before it began deliberating, a juror asked to be removed because he had been sleeping during trial. The judge erroneously thought he did not have the authority to dismiss a juror without the parties' stipulation. The juror thus remained on the panel and a guilty verdict was returned. Barrett then moved to interview the juror, which the trial court denied, stating "there was no juror asleep during this trial." Barrett, 703 F.2d at 1082. The Ninth Circuit Court of Appeals held that "under the particular circumstances of this case, the trial judge could [not] properly take judicial notice of the fact that `there was no juror asleep during this trial' without making further inquiry into the matter." Barrett, 703 F.2d at 1083.
But in Barrett, the juror told the court that he had been sleeping and the judge stated his knowledge of the incident only after the verdict was returned. Most importantly, the allegation, if true, prejudiced Barrett's right to a fair trial; he was convicted by a jury that included one member who had not heard all the evidence. Here, the judge made his observations of the juror part of the record and removed her before deliberations began. Further, when given the opportunity to call witnesses, the defense declined to do so. Thus, based on the hearing, there was no dispute that the juror was sleeping. The trial judge simply supplemented the record made by the bailiff and the detective with his own observations of the juror's behavior. Finally, there is no reason to believe that the resulting jury was unfair. Both parties accepted the original jury ...
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