State v. Smalls, 49058-9
| Decision Date | 09 June 1983 |
| Docket Number | No. 49058-9,49058-9 |
| Citation | 665 P.2d 384,99 Wn.2d 755 |
| Parties | STATE of Washington, Respondent, v. Harold SMALLS, Petitioner. STATE of Washington, Respondent, v. Thomas Lloyd SIMCOX, Jr., Petitioner. |
| Court | Washington Supreme Court |
Browne, Ressler & Foster, John H. Browne, William Gaffney, Seattle, for petitioner.
Norman K. Maleng, King County Prosecutor, Michael V. Linnabary, Deputy Pros. Atty., Seattle, for respondent.
Defendants in consolidated cases appeal a Court of Appeals' decision affirming their convictions of burglary (Simcox) and murder (Smalls).
The dispositive issue before us is whether a presumption of prejudice to a defendant arises when the trial court, pursuant to CrR 6.7, allows the jury to separate after deliberations have begun. We hold that CrR 6.7 does not authorize separation of the jury after deliberations begin and that RCW 4.44.300 creates a presumption of prejudice to the defendant if the jury is separated during deliberations. Accordingly, we reverse the conviction of Simcox. Smalls, having failed to preserve the issue on which we have decided the case, is not entitled to the benefit of the holding and his conviction is affirmed.
The two cases before us were consolidated by the Court of Appeals because they both appeared to present an issue arising out of separation of the jury during deliberations.
Defendant, Thomas Lloyd Simcox, Jr., was charged with the crime of burglary in the second degree. On June 10, 1981, a jury trial began in King County Superior Court. Defendant and counsel for both sides stipulated to a jury of six persons. Defendant and counsel also signed a stipulated order allowing separation of the jury "during the trial ... inasmuch as good reason exists to believe that such separation will not jeopardize a fair trial".
The trial proceeded throughout the day of June 10, and in the evening the jury was excused after having been admonished not to discuss the case. The jury returned on June 11 to hear further evidence. Deliberations began at 11:45 a.m. At 8:45 p.m., the trial judge called counsel for the State and defendant into court and indicated that he intended to send the jury home. Counsel for the State concurred in his decision; counsel for defendant objected. The trial judge stated he believed he had authority to separate the jury for the evening under CrR 6.7, and made a finding that there was a high probability that the jury was fatigued and that to require them to deliberate past 8:45 p.m. would be detrimental to a fair trial. He also found that good reason existed to believe that separation of the jury, to return for further deliberations at 9 a.m. on June 12, would not jeopardize a fair trial. After again admonishing the jury not to discuss the case among themselves or with others, the court excused the jury, to return at 9 a.m.
The jury returned on June 12, 1981, at approximately 9 a.m. and continued deliberations. At approximately 9:45 a.m., defendant moved for a mistrial based on the jury's having been excused the previous evening. The court denied defendant's motion and found the separation of the jury on June 11, 1981, at approximately 8:45 p.m., was appropriate. At approximately 10 a.m., the jury returned the verdict, finding defendant guilty as charged.
At the time of the scheduled sentencing, August 20, 1981, defendant moved for a new trial, basing the motion on the same argument of improper jury separation. On October 7, 1981, the judge granted defendant's motion for a new trial, declaring that he had not had discretion to act on June 11, 1981, in excusing the jury for the evening, or, if he did have discretion, it had been an abuse of discretion to separate the jury when the defense objected.
The State moved for reconsideration of the decision. That motion was denied on November 25, 1981. The State appealed, arguing that the trial court had discretion under CrR 6.7 to separate the jury at any point before the verdict was rendered. The Court of Appeals agreed. The court also rejected defendant's argument that separation of a deliberating jury over a defendant's objections raises a presumption of prejudice. Because defendant relied upon this presumption rather than any specific proof of prejudice, the Court of Appeals held that the trial court did not abuse its discretion by separating the jury. The order granting Simcox's new trial was therefore reversed, and the jury's verdict reinstated.
Defendant in the second case before us, Harold Smalls, was charged with the second degree murder of Bernard Ballard. Defendant admitted that he shot and killed Ballard after a dispute at a tavern over defendant's desire to dance with a friend of the victim. The issues of fact at the trial were whether defendant intended to kill Ballard and whether he acted in self-defense.
The case went to the jury at about 4 p.m. on November 26, 1980, the day before Thanksgiving. At 10:03 p.m. the jury sent the court a note which read: "We cannot reach a decision!" The trial court informed both counsel that it proposed to tell the jury to "continue deliberation until 11 p.m. when I will excuse you to return Monday, December 1, at 9 a.m. to continue deliberations". Defense counsel objected that a 4-day delay would be too long and the jury should return Friday, November 28, at noon. Over this objection, the trial court excused the jury until Monday morning. The jury reconvened on Monday, December 1, and returned a guilty verdict at 10:49 a.m.
Defendant moved for a new trial on the ground that the trial court erred in separating the jury until December 1. Unlike Simcox, Smalls did not argue that CrR 6.7 is inapplicable once the jury has begun its deliberations. Rather, Smalls' argument was simply that the court failed to comply with CrR 6.7. Although there is no order denying defendant's motion in the Clerk's Papers, the motion was apparently denied. Defendant was sentenced to life imprisonment on December 31, 1980, and filed a notice of appeal the same day.
The Court of Appeals consolidated Smalls' appeal with the State's appeal in State v. Simcox. Relying upon its reasoning in rejecting Simcox' arguments, the Court of Appeals found no abuse of discretion in the separation of Smalls' jury. His conviction was accordingly affirmed.
The issue raised by both appeals requires interpretation of CrR 6.7. This rule provides that the "jury may be allowed to separate if the court finds that good reason exists to believe that such would not jeopardize a fair trial". The question before the court is the extent to which this rule, adopted in 1973, modified prior law relating to the separation of juries. More specifically, the issue is whether the rule removes the presumption of prejudice to a defendant when a jury is allowed to separate after deliberations have begun.
A convenient analytical starting point in considering the law prior to CrR 6.7 is this court's decision in State v. Bennett, 71 Wash. 673, 129 P. 409 (1913). In that case this court held it was error to deny a new trial where one juror had separated from the other jurors for half an hour during an adjournment. The court created a distinction between cases where the order to keep the jury together is based on the discretion of the court and cases where the order to keep the jury together is found in a statute. In the former cases, separation of the jury will not require reversal unless prejudice is shown. In the latter cases, where separation of the jury is prohibited by statute, prejudice is presumed and must be rebutted by the State. 71 Wash. at 676-77, 129 P. 409.
From early in the history of this state, three statutes have addressed the matter of separation of the jury. Two of these provisions appeared in the Laws of 1854 and were reenacted virtually unchanged in the Revised Code of Washington. Laws of 1854 § 114 was reenacted as RCW 10.49.110 and provides:
Juries in criminal cases shall not be allowed to separate, except by consent of the defendant and the prosecuting attorney, but shall be kept together, without meat or drink, unless otherwise ordered by the court, to be furnished at the expense of the county.
Laws of 1854 § 194 was reenacted as RCW 4.44.300:
After hearing the charge, the jury may either decide in the jury box or retire for deliberation. If they retire, they must be kept together in a room provided for them, or some other convenient place under the charge of one or more officers, until they agree upon their verdict, or are discharged by the court. The officer shall, to the best of his ability, keep the jury thus separate from other persons, without drink, except water, and without food, except [as] ordered by the court. He must not suffer any communication to be made to them, nor make any himself, unless by order of the court, except to ask them if they have agreed upon their verdict, and he shall not, before the verdict is rendered, communicate to any person the state of their deliberations or the verdict agreed on.
In 1909 another statute was enacted; it is now RCW 2.36.140.
In no action or proceeding whatever, except felony cases shall the jury sworn to try the issues therein be kept together and in the custody of the officers of the court, save during the actual progress of the trial, until the case shall have been finally submitted to them for their decision. Whenever the jury are kept together in the custody of the officers when the trial is not in progress, they shall be supplied with meals at regular hours, and with comfortable sleeping and toilet accommodations.
RCW 2.36.140 has apparently not been cited by any case since its enactment. The other two statutes, however, have given rise to significant bodies of case law which generally adhere to the analysis suggested in Bennett. Cases decided under RCW 10.49.110 and its predecessors held that separation of the jury during a trial in violation of the statute created a presumption of...
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