State v. McNeal

• Decision Date: 03 January 2002
• Docket Number: No. 68989-0.,68989-0.
• Citation: 37 P.3d 280,145 Wn.2d 352,145 Wash.2d 352
• Parties: STATE of Washington, Respondent, v. John K. McNEAL, Petitioner.
• Court: Washington Supreme Court

37 P.3d 280

145 Wn.2d 352

145 Wash.2d 352

STATE of Washington, Respondent, v. John K. McNEAL, Petitioner.

No. 68989-0.

Supreme Court of Washington, En Banc.

January 3, 2002.

Jeffrey Erwin Ellis, Attorney at Law, Austin, Amicus Curiae on Behalf of Washington Association of Criminal Defense Attorney.

John Kevin McNeal, Aberdeen, Thomas Edward Doyle, Attorney at Law, Hansville, Patricia Anne Pethick, Attorney at Law, Tacoma, Counsel for Petitioner.

Jeremy Randolph, Lewis County Prosecutor, J. Andrew Toynbee, Deputy, Chehalis, Counsel for Respondent.

ALEXANDER, C.J.

The principal issues presented by this appeal are whether John McNeal's failure to object at trial to what he now claims are inconsistent jury verdicts constituted a waiver of his right to raise that objection on appeal and, if so, whether his trial counsel's failure to raise the objection on McNeal's behalf amounted to ineffective assistance of counsel. Because we conclude that the jury was presented with sufficient evidence to support both verdicts, we answer each of these questions in the negative. Accordingly, we affirm the Court of Appeals.

I. FACTS

On July 5, 1996, McNeal drove his car across the centerline of Bunker Creek Road in Lewis County causing the car to strike another motor vehicle head-on. Although McNeal suffered a relatively minor injury, a broken arm, the driver of the other vehicle sustained serious injuries and a passenger in that car was killed. Shortly thereafter, a police officer who had arrived at the scene of the accident discovered a "fanny pack" in McNeal's car which contained four baggies of methamphetamine, a used syringe, and a razor blade. The police officer also found $4,250 in cash in McNeal's pants pocket.

McNeal was charged with vehicular homicide, vehicular assault, and possession of methamphetamine with the intent to deliver. The information charging vehicular assault contained the allegation that McNeal had operated his car while "under the influence of a drug." Clerk's Papers (CP) at 85. At trial, the jury was presented with evidence consistent with that allegation. Significantly, evidence of a test of McNeal's blood was admitted and it revealed that he had a concentration of .31 milligrams of methamphetamine per liter of his blood.

A jury found McNeal guilty of all three charges. Because the jury was instructed that one is guilty of vehicular assault if he operates a motor vehicle while "under the influence of drugs" and "cause[s] serious bodily injury to another," but was not instructed that operation of a vehicle in a reckless manner or while under the influence of alcohol were predicates for the vehicular assault charge, the vehicular assault verdict implied that McNeal was operating his motor vehicle while "under the influence of drugs" at the time he committed the offense.¹ CP at 32. On the other hand, in finding McNeal guilty of vehicular homicide the jury made special findings that McNeal operated the motor vehicle "with disregard for the safety of others" and that he was not "operating the motor vehicle [ ] while under the influence of drugs." CP at 51.

Although McNeal did not raise any objection at trial to the jury verdicts, he asserted at the Court of Appeals that the vehicular assault verdict was inconsistent with the vehicular homicide verdict in that the former implied that he was under the influence of a drug while the latter indicated that he was not. This apparent inconsistency, he argued, rendered the vehicular assault verdict void. The Court of Appeals disagreed with McNeal and affirmed the trial court. We granted review on the limited issues of whether McNeal waived his right to challenge the vehicular assault verdict by failing to raise the alleged inconsistency of the verdicts at trial and, if so, whether his trial counsel's failure to raise that objection on his behalf amounted to ineffective assistance of counsel.

II. ANALYSIS

A. Waiver

McNeal contends here, as he did at the Court of Appeals, that the vehicular assault verdict is irreconcilably inconsistent with the vehicular homicide verdict and, as a consequence, is void. He asserts in that regard that the special finding on the vehicular homicide verdict to the effect that he was not operating his vehicle while under the influence of an intoxicating drug is entirely inconsistent with the vehicular assault verdict that implied that he was under the influence of an intoxicating drug.

Although McNeal concedes that he did not object to either jury verdict at trial, he claims that the alleged inconsistency is a manifest error affecting a constitutional right that may be raised for the first time on appeal. RAP 2.5(a); State v. Scott, 110 Wash.2d 682, 686, 757 P.2d 492 (1988). The State, citing State v. Barnes, 85 Wash.App. 638, 668, 932 P.2d 669,review denied, 133 Wash.2d 1021, 948 P.2d 389 (1997), responds that McNeal waived his right to challenge what he now contends are inconsistent verdicts by failing to object to the alleged inconsistency prior to the time the jury was discharged. While we agree with McNeal that a claim of manifest error affecting a constitutional right may be raised for the first time on appeal, an appellant does not establish manifest error merely by showing that jury verdicts appear to be inconsistent. We reach this conclusion because the appellant has the burden to demonstrate that the alleged error actually affected his or her rights. "[I]t is this showing of actual prejudice that makes the error `manifest', allowing appellate review." State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) (emphasis added) (citing Scott, 110 Wash.2d at 688,757 P.2d 492).

McNeal attempts to show manifest error by asserting that the special finding which supported the vehicular homicide verdict—that he was not operating his vehicle while under the influence of drugs—controls the general verdict that McNeal was operating his vehicle "under the influence of drugs." That inconsistency between the verdicts, he contends, is prejudicial in that the vehicular assault conviction is void. Thus, he suggests a manifest error is presented.

Our decision in State v. Ng, 110 Wash.2d 32, 750 P.2d 632 (1988), guides us when we are called upon to determine whether an apparent inconsistency between jury verdicts renders a challenged conviction void.² One of the defendants, in that case, Wai-Chiu "Tony" Ng, was charged with 13 counts of first degree felony murder. The "to convict" jury instruction relating to each charge of felony murder required a finding by the jury that Ng participated in a robbery and caused a particular victim's death. Despite the fact that Ng had not disputed the State's allegation that the killings had occurred, the jury rendered a verdict that he was not guilty on all of the counts of felony murder. It did, however, render a verdict that he was guilty of 13 counts of the lesser included offense of first degree robbery. In rejecting Ng's challenge to the robbery verdicts, we indicated that although the verdicts were "inconsistent," the convictions should be upheld "[w]here the jury's verdict is supported by sufficient evidence from which it could rationally find the defendant guilty beyond a reasonable doubt." Ng, 110 Wash.2d at 48, 750 P.2d 632 (citing United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984)). We indicated that we reached this conclusion in order to protect "considerations of jury lenity" and to avoid the "problems inherent in second-guessing the jury's reasoning." Ng, 110 Wash.2d at 48, 750 P.2d 632. Because we determined that the challenged jury verdicts were supported by sufficient evidence from which a rational trier of fact could find Ng's guilt beyond a reasonable doubt, we held that the apparent inconsistency between the verdicts was not "reversible error." Ng, 110 Wash.2d at 48, 750 P.2d 632.

McNeal argues that Ng is inapplicable, pointing out that in that case we were confronted with general verdicts, some finding the defendant guilty and an equal number finding the defendant not guilty. Here, he notes the inconsistency is between a general verdict of guilty on one charge and a special finding supporting a guilty verdict on another charge. The Ng rule, he posits, is, therefore, inapplicable and his objection to the verdicts was not waived. McNeal does not, however, provide any authority or convincing argument to support the distinction he draws. After considering the argument, we are persuaded that it is as problematic for courts to second-guess a jury's reasoning where the inconsistency is between a special finding and a general verdict as it is when the inconsistency is between two general verdicts. Indeed, the Court of Appeals has upheld jury verdicts despite an inconsistency between a general verdict and a special finding where there was "abundant evidence" to support each verdict. State v. Peerson, 62 Wash.App. 755, 766, 816 P.2d 43 (1991),review denied, 118 Wash.2d 1012, 824 P.2d 491 (1992). In sum, we are persuaded that the rule we established in Ng is applicable here.³ Accordingly, we limit our review to the question of whether there is sufficient evidence in the record to support the jury's finding of guilt.

In determining whether evidence supports a jury verdict, we are required to view the evidence in a light most favorable to the State. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wash.2d at 201, 829 P.2d 1068. Here, McNeal challenges only the sufficiency of the evidence supporting the vehicular assault verdict. A review of the record reveals that the jury was presented with significant evidence to support its determination that McNeal operated his motor vehicle while under the influence of drugs. As noted, there was evidence that McNeal's blood contained a concentration of .31...