State v. Lamar
| Decision Date | 12 June 2014 |
| Docket Number | No. 89060–9.,89060–9. |
| Citation | 327 P.3d 46,180 Wash.2d 576 |
| Parties | STATE of Washington, Petitioner, v. Lonnie Curtis LAMAR, Respondent. |
| Court | Washington Supreme Court |
OPINION TEXT STARTS HERE
Seth Aaron Fine, Attorney at Law, Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, Everett, WA, for Petitioner.
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Respondent.
¶ 1 After an alternate was substituted for an indisposed juror, the trial court told the reconstituted jury that the remaining original jurors should bring the alternate “up to speed” as to what had already occurred and deliberate from there. The defendant claimed error for the first time on appeal because the jury was not instructed to begin deliberations anew. The Court of Appeals concluded the claimed error was a violation of CrR 6.5 that can be raised for the first time on appeal and reversed because the rights to jury impartiality and unanimity were violated. The State argues that the error was only a rule violation that does not constitute manifest constitutional error that may be raised for the first time under RAP 2.5(a)(3).
¶ 2 We affirm the Court of Appeals, although under a different analysis. It is unnecessary to address CrR 6.5 because the trial court's affirmative instruction to the reconstituted jury violated the right to a unanimous jury verdict regardless of any violation of CrR 6.5.
¶ 3 After the State rested in Lamar's trial on one count of rape of a child and one count of child molestation, the trial court gave jury instructions, including the following instruction on the jurors' duty to deliberate together in an effort to reach a unanimous verdict:
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and to change your opinion based upon further review of the evidence and these instructions. You should not, however, surrender your honest belief about the value or significance of evidence solely because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of reaching a verdict.
Clerk's Papers at 50 (Jury Instruction 2).
¶ 4 The jury deliberated for about 45 minutes to an hour on Friday afternoon. The next Monday morning, one of the jurors notified the court he was ill and could not continue. At a hearing to address this problem, counsel for both parties agreed to replace the juror with the alternate juror.1
¶ 5 The court said it would tell the other jurors that they should review their Friday deliberations with the alternate. There were no objections. When the jury was brought into the courtroom, the court told the jury that an alternate would replace the ill juror. The court then instructed the reconstituted jury:
What I will advise you to do is this: When you go back to the jury room and begin your deliberations, you should spend some time reviewing, recapping with [the alternate] any discussion that you may have already had Friday in terms of the case so that he's first brought up to speed in terms of whatever the deliberative process was.
Then once that's been done, resume your deliberations without any other hitches or anything else.
....
So with that, the court will be in recess and you can begin your deliberations.
3 Verbatim Report of Proceedings (VRP) at 430–31. The court did not reinstruct the jurors on their duty to deliberate together in an effort to reach unanimity after considering the evidence impartially with the other jurors, nor did the court instruct the jury to disregard prior deliberations and begin anew, Neither party objected to the instructions the court gave or to the failure to give any further instruction.
¶ 6 About four hours later the jury returned with its verdicts, acquitting Lamar of rape of a child and convicting him of child molestation. The court polled the jury. Each juror answered “yes” when asked if the verdicts were “how you voted on both of these counts.” 3 VRP at 432–33.
¶ 7 Lamar appealed, arguing that the trial court violated his constitutional right to an impartial jury by failing to instruct the reconstituted jury to disregard any prior deliberations and begin deliberating anew. He argued his conviction should be reversed. The Court of Appeals observed in a footnote that the claimed error was manifest error affecting a constitutional right that could be raised for the first time on appeal. The court held that the trial court's failure to instruct the jury to disregard prior deliberations and begin deliberations anew violated Lamar's constitutional rights to an impartial jury and a unanimous jury verdict. The court reversed his conviction and remanded for a new trial. The State then sought discretionary review of this decision.
¶ 8 We are asked to determine whether the Court of Appeals erred by addressing the claimed constitutional violation when no objection had been made to the instructions given the reconstitued jury. The State concedes that pursuant to CrR 6.5 the trial court erred when it failed to instruct the jury it must begin deliberations anew after the alternate was seated on the jury.2 The State argues, however, that this was only a rule violation that does not rise to the level of manifest error affecting a constitutional right within the meaning of RAP 2.5(a)(3). Accordingly, the State argues, the claimed error cannot be raised for the first time on appeal.
¶ 9 We agree that CrR 6.5 was violated, as the State concedes. However, regardless of this rule violation, the trial court violated Mr. Lamar's constitutional right to a unanimous verdict by an impartial jury when the trial court instructed the jurors to bring the alternate “up to speed” on the deliberations that had already occurred and go on from there. This instruction affirmatively told the reconstituted jury not to deliberate together as is constitutionally required.
¶ 10 Under RAP 2.5(a)(3), an “appellate court may refuse to review any claim of error which was not raised in the trial court,” but there are exceptions to this general rule. One exception is that “a party may raise ... manifest error affecting a constitutional right” for the first time on appellate review. Id. This exception recognizes that “[c]onstitutional errors are treated specially because they often result in serious injustice to the accused.” State v. Scott, 110 Wash.2d 682, 686, 757 P.2d 492 (1988). However, the exception is not intended as a method of securing a new trial whenever there is a constitutional issue that was not raised at trial. State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995).
¶ 11 Rather, a defendant must make a showing that satisfies requirements under RAP 2.5(a)(3). For a claim of error to qualify as a claim of manifest error affecting a constitutional right, the defendant must identify the constitutional error and show that it actually affected his or her rights at trial. The defendant must make a plausible showing that the error resulted in actual prejudice, which means that the claimed error had practical and identifiable consequences in the trial. State v. Davis, 175 Wash.2d 287, 344, 290 P.3d 43 (2012); State v. Gordon, 172 Wash.2d 671, 676, 260 P.3d 884 (2011); State v. O'Hara, 167 Wash.2d 91, 99, 217 P.3d 756 (2009). “[T]o determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.” O'Hara, 167 Wash.2d at 100, 217 P.3d 756. “If the trial court could not have foreseen the potential error or the record on appeal does not contain sufficient facts to review the claim, the alleged error is not manifest.” Davis, 175 Wash.2d at 344, 290 P.3d 43.
¶ 12 The requirements under RAP 2.5(a)(3) should not be confused with the requirements for establishing an actual violation of a constitutional right or for establishing lack of prejudice under a harmless error analysis if a violation of a constitutional right has occurred. The purpose of the rule is different; RAP 2.5(a)(3) serves a gatekeeping function that will bar review of claimed constitutional errors to which no exception was made unless the record shows that there is a fairly strong likelihood that serious constitutional error occurred.
State constitutional right to a unanimous jury verdict
¶ 13 Our state constitution requires that in a criminal prosecution an impartial jury render a unanimous verdict. CONST. art. I, §§ 21, 22; State v. Ortega–Martinez, 124 Wash.2d 702, 707, 881 P.2d 231 (1994); State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980).
¶ 14 Jury unanimity means that jurors should reach “consensus ... through rational, persuasive argument” among themselves. Saul M. Kassin, The American Jury: Handicapped in the Pursuit of Justice, 51 Ohio St. L.J. 687, 703 (1990). Neither the use of coercion nor concurrence by compromise constitutes proper deliberation. Thus, consensus “should not be achieved through heavy-handed social pressure,” where jurors who disagree with the majority are “beaten, bullied, or harangued into surrendering their convictions for the purpose of returning a verdict.” Id.
¶ 15 Unanimity should not be achieved by mere acquiescence of jurors holding a minority view to the majority view:
“[T]welve jurors must concur before a verdict can be reached.... In determining the verdict, it is the duty of the jurors to consider carefully the evidence, and the views and arguments of their fellow jurors. The law contemplates that jurors shall, by their discussion, harmonize their views, if possible, but not that they shall compromise with their consciences and yield to the majority for...
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