State v. Stegall
| Decision Date | 29 September 1994 |
| Docket Number | No. 60614-5,60614-5 |
| Citation | 124 Wn.2d 719,881 P.2d 979 |
| Parties | The STATE of Washington, Respondent, v. James William STEGALL, Defendant, Carl David Hansen, Petitioner. In the Matter of the Personal Restraint Petition of Carl David HANSEN, Petitioner. |
| Court | Washington Supreme Court |
Carney, Badley, Smith & Spellman, James E. Lobsenz, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Peter Goldman, Deputy, Seattle, for respondent.
A 10-member jury convicted Carl David Hansen of two counts involving the possession of cocaine. The Court of Appeals affirmed the convictions. 69 Wash.App. 750, 850 P.2d 571. Hansen obtained review in this court, limited to the issue of whether Hansen validly waived his right to be tried by 12 jurors.
A police informant met with Defendants Carl David Hansen and James William Stegall and proposed selling them 1 kilogram of cocaine. All three individuals discussed terms of the proposed sale. Stegall subsequently purchased the cocaine from the informant. The police arrested Stegall on the spot and shortly thereafter arrested Hansen in a nearby parking lot. The police arresting Hansen found cocaine in Hansen's car.
Hansen was charged by amended information with two counts of possessing cocaine with intent to manufacture or deliver. The first count charged Hansen as an accomplice in Stegall's purchase of cocaine; the second count related separately to the cocaine found in Hansen's car.
Hansen was tried separately from Stegall. During a pretrial hearing the trial judge suggested to the attorneys that they might want to select a 13th juror as an alternate. The defense attorney, in the presence of the Defendant, indicated that this would not be necessary:
[W]e will waive the problem on losing the one [juror]. I don't think it is necessary to have thirteen. If we start with twelve and we have one that is sick and can not participate. We will waive that problem and go with eleven.
Verbatim Report of Proceedings (Mar. 22, 1991), at 9-10.
Three days later jury selection began. At some point during the afternoon session, counsel had a mishap with the zipper of his trousers. The following portion of the record illuminates the role that counsel's broken zipper played in the waiver of Hansen's right to a 12-person jury.
(Whereupon, a jury was impanelled.)
Verbatim Report of Proceedings (Mar. 25, 1991), at 2-3.
When the prosecutor objected to any delay in the trial, the trial judge decided to proceed with questioning a juror who had requested removal from the case. Defense counsel then indicated he was willing to proceed with 11 jurors, or even with 10 if need be:
[DEFENSE COUNSEL]: Your Honor, my client would have no objection of doing it with an eleven-person jury. If you would dismiss him, I don't want to go through the whole mess of another juror. I do feel uncomfortable if the juror himself or herself expressed the idea they would not like to be on specifically a four-day case.
So we would have no objection to proceeding at this point with a[n] eleven-person jury with the same provision; if another one gets sick, we'll go with ten, if that's all right with counsel.
Verbatim Report of Proceedings (Mar. 25, 1991), at 3-4.
The trial court and counsel then proceeded to examine the juror in question. The trial judge excused the juror. The following colloquy immediately ensued:
Verbatim Report of Proceedings (Mar. 25, 1991), at 9.
The next day one of the remaining jurors called in sick. The trial judge noted this reduced the number of jurors to 10 and asked defense counsel if he still wanted to proceed. Defense counsel responded, "I am all right with ten". Verbatim Report of Proceedings (Mar. 26, 1991), at 5. After some unrelated colloquy with counsel, each party gave an opening statement and the testimony began.
The jury convicted Hansen on count 1 as charged. On count 2 the jury convicted Hansen of a lesser included offense, simple possession of cocaine. Hansen was sentenced to 34 months' imprisonment.
Hansen appealed his conviction to the Court of Appeals. He argued, among other issues, that his attorney's stipulations to proceed with fewer than 12 jurors did not constitute a knowing, intelligent, and voluntary waiver of his right to a 12-person jury. Hansen also filed a separate personal restraint petition to supplement the trial record with Hansen's own declaration as to the 12-juror waiver. In that declaration, Hansen stated: (1) his trial attorney never consulted with him before making these stipulations; (2) his trial attorney never informed him of the significance of having 12 jurors hear his case, especially as it relates to the requirement that jury verdicts be unanimous; and (3) if he had received this information, he would not have consented to proceedings with 10 or 11 jurors.
The Court of Appeals affirmed Hansen's conviction in State v. Stegall, 69 Wash.App. 750, 850 P.2d 571 (1993). The Court of Appeals held that defense counsel's stipulations, made in Hansen's presence, constituted a valid waiver of his right to be tried by a full jury.
Hansen filed a Petition for Review in this court on two issues: the omission of an entrapment instruction and the waiver of the 12-member jury. This court granted review only as to the jury issue.
A criminal defendant in superior court has a right to be tried by 12 jurors. Const. art. 1, § 21; CrR 6.1(b); State v. Lane, 40 Wash.2d 734, 736-37, 246 P.2d 474 (1952). This right, however, may be waived by the defendant in noncapital cases, so that a trial may be held with as few as six jurors. See CrR 6.1(b); Lane, 246 P.2d at 736-37.
The state constitution further provides that:
The right of trial by jury shall remain inviolate, but the legislature may provide for a jury of any number less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of the jury in civil cases where the consent of the parties interested is given thereto.
Two Washington cases have addressed a defendant's right to have 12 jurors in a felony trial under Const. art. 1, § 21 and waiver of this right. The first, State v. Ellis, 22 Wash. 129, 60 P. 136 (1900), involved a criminal trial where defendants, defense counsel, and prosecution signed a written statement waiving a 12-person jury and agreeing to proceed with 11 jurors. On appeal, this court held that article 1, section 21 of the state constitution contains within it the right not only to have a jury trial, but also the right for the jury to have 12 members. Ellis, 60 P. at 132. The court held further that a criminal trial held with fewer than 12 jurors, absent some specific legislative authorization, would be invalid as the tribunal lacked jurisdiction. Ellis, 60 P. at 133-34. Under this early ruling, then, a felony trial could not be held with 11 or fewer jurors, regardless of the defendant's wishes.
In Lane, this court affirmed Ellis' holding that Const. art. 1, § 21 guaranteed to a felony defendant the right to be tried by 12 jurors. 1 The court went on to hold, however, that this right could be waived by the defendant, stating that "[t]he obligation of the state is to assure a trial by a jury of twelve in a criminal case, and not to insist that an accused, against his expressed desire, submit his cause to such a jury ...". Lane, 40 Wash.2d at 737, 246 P.2d 474. The court concluded that the trial court would still retain jurisdiction even if fewer than 12 jurors decided the case (thereby overruling Ellis in part on this point). Lane, 40 Wash.2d at 738, 246 P.2d 474.
The issue presented in this case is whether a valid waiver of the right to a jury of 12 requires a personal expression of waiver by the defendant. Petitioner Hansen argues that a waiver of this constitutional right should not be found unless the record shows the defendant has personally agreed to such waiver after being specifically informed both of the right to 12 jurors and the consequences of such a waiver. We agree with Hansen that a waiver of this right is valid only when the record reflects some personal expression of waiver by the defendant. However, we reject the assertion that an explanation of the consequences of this waiver must likewise appear in the record.
In general, constitutional rights may only be waived by knowing, intelligent, and voluntary acts. See, e.g. Bellevue v. Acrey, 103 Wash.2d 203, 208-09, 691 P.2d 957 (1984); In re James, 96 Wash.2d 847, 851, 640 P.2d 18 (1982) (). This court has held, with respect to a 12-person jury, that the right can be waived as long as the defendant "acts intelligently,...
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