State v. Mims

• Decision Date: 26 June 1973
• Docket Number: No. 623--III,623--III
• Citation: 511 P.2d 1383,9 Wn.App. 213
• Parties: STATE of Washington, Respondent, v. Caswell MIMS, Appellant.
• Court: Washington Court of Appeals

Page 213

9 Wn.App. 213

511 P.2d 1383

STATE of Washington, Respondent, v. Caswell MIMS, Appellant.

No. 623--III.

Court of Appeals of Washington, Division 3.

June 26, 1973.

David K. Crossland, Ivy, Elofson, Vincent & Hurst, Yakima, for appellant.

Robert N. Hackett, Jr., Deputy Pros. Atty., Yakima, for respondent.

MUNSON, Judge.

Defendant was charged with armed robbery and appeals from a judgment upon the jury's verdict of guilty as charged.

The defendant sets forth three assignments of error, none of which requires a recitation of the facts relied upon to support the robbery charge. He asserts: (a) the trial court erred in failing to poll each juror, individually, regarding a newspaper story appearing in the morning newspaper the second day of trial; (b) it was necessary to allege defendant was armed with a deadly weapon at the time the offense was committed pursuant to RCW 9.95.015; and (c) he was denied due process when subpoenaed defense witnesses failed to appear at trial.

The trial commenced on March 29, 1972. The jury was permitted to separate during recesses, after being admonished to read no news accounts concerning the trial. On March 30, 1972, the morning edition of the Yakima Herald-Republic, on its third page, carried a story captioned, 'INNOCENT NOT TRIED, CLAIMS PROSECUTOR.' The article stated in essence that a deputy prosecuting attorney, speaking at a criminal justice workshop, had said that innocent men do not proceed all the way to trial in Yakima County; they are screened out before the proceedings ever reach that stage. On the same page below this article appeared a news item concerning appellant's jury trial. That morning, defendant moved for a mistrial. In the alternative, he asked the court to poll each juror to ascertain whether any juror had read the article and, if so, whether anyone had been influenced by it. Later that day the court asked the jury as a whole:

There's an affair of some kind going on around here that the newspaper has referred to as a criminal justice workshop. Now, I want to inquire if there's any member of this jury that has read anything in the morning's local newspaper about the criminal justice workshop being conducted in Yakima County?

No member of the jury made a reply or response of any kind to the inquiry. The trial court concluded that no member of the jury had read the article and as a result thereof, denied defendant's motions.

As authority for the contention that each juror should have been individually polled, defendant cites State v. Clay, 7 Wash.App. 631, 501 P.2d 603 (1972), and the approved draft of the ABA Standards Relating to Fair Trial and Free Press § 3.5(f) (1968). ¹

The approved draft of the ABA Standards Relating to Fair Trial and Free Press, Commentary on Specific Recommendations, 145--147 (1968), on this issue is enlightening. It implies that actual practice in questioning of jurors with regard to exposure to prejudicial publicity varies widely: (a) en masse; or (b) individually, but in the presence of other members of the panel; or (c) individually and out of the presence of the other jurors. The committee's belief that the latter method is more likely to elicit candid responses is strongly buttressed by the field research. See also approved draft of the ABA Standards Relating to Fair Trial and Free Press, Commentary on Approved Draft, 26--27 (1968).

In State v. Clay, Supra, the jury was not sequestered during the trial and was allowed to recess over the weekend. An article appeared in a local newspaper discussing arguments held in the absence of the jury concerning the defendant's ownership of handguns found in the house where he was arrested. The trial court had excluded this testimony. The same material was further broadcast over the local radio station, specifically reiterating the material which had been excluded. The court, in response to the defendant's request for a poll of each member of the jury, stated that it had admonished the jury at the beginning of the trial not to read anything about the case, discuss it, or listen to any radio accounts on its progress and had done so again from time to time during the trial. The jury was apparently not asked, even en masse, whether they had seen or heard any of the events to which the defendant objected. Based upon these facts, the court concluded that the jurors should have been individually polled.

In the instant case the court did make an inquiry of the jury as a whole concerning the newspaper articles. Receiving no response, the court concluded that no juror had read the article. We agree with defendant that the best, and most thorough, means of determining whether any juror had read the article would have been to poll each juror out of the presence of the other members of the jury. However as is recognized by the commentary to the ABA Standards, that is not the only method by which the inquiry could be made. Here, an experienced trial judge asked the jurors if they had read the article and he received no response. There is no showing by the defendant, from interviews with any juror subsequent to the trial, nor on a motion for new trial, that any of them had read the newspaper account upon which error is assigned. Having reviewed the entire record, we do not find that the trial court's handling of this particular matter was error. Cf. State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972); State v. Bigley, 202 N.W.2d 56 (Iowa, 1972).

Defendant next assigns error to the submission of the issue of a deadly weapon to the jury by special interrogatory pursuant to RCW 9.95.015, ² when no allegation was contained in the information filed by the prosecutor.

The information in the instant case did not allege in the charging portion that the defendant committed the crime of robbery while armed, although the information did denominate the charge as 'armed robbery.' Yet, by special interrogatory, the jury was asked to decide whether defendant was armed with a deadly weapon during the course of the robbery; they answered the question affirmatively. The query is whether the denomination of the offense as 'armed robbery,' outside the charging portion of the information, was sufficient to meet the RCW 9.95.015 requirement of an 'allegation' that defendant committed the charged crime while armed with a deadly weapon, and was sufficient to put the defendant upon notice that he was subjecting himself to a possible mandatory minimum sentence of at least 5 years? We answer in the negative.

In State v. Frazier, 81 Wash.2d 628, 503 P.2d 1073 (1972) the court examined RCW 9.41.025, ³ which requires a trial court to impose a mandatory minimum sentence, not subject to suspension or deferral, if defendant is found to have been armed with a firearm during the commission of a felony. The statute does not specifically require an allegation to that effect in the information. The court nevertheless held that a defendant is entitled to notice by allegation in the information: 'that, if convicted, and if the jury finds the facts causing the aggravation are correct, she will have no possibility of probation.' 81 Wash.2d at 634, 503 P.2d at 1077.

Pursuant to RCW 9.41.025, as interpreted in Frazier, a trial court is precluded from exercising its 'independent judgment' in determining whether to defer or suspend sentence and is required to incarcerate the defendant upon a factual determination made adverse to him. RCW 9.95.040 ⁴ removes from the board of prison terms and paroles its discretion in fixing minimum terms in specific instances and requires mandatory minimum terms where deadly weapon use was found by the jury.

If, under RCW 9.41.025, due process of law requires notice in the information of a potentially greater penalty, where the statute itself requires no such allegation, a similar notice must be required under RCW 9.95.015, which specifically requires such an allegation. ⁵ A defendant is as much entitled to notice that, upon conviction and incarceration, the board of prison terms and paroles in determining his minimum sentence is bound to follow certain fixed...