State v. Van Elsloo
| Decision Date | 13 September 2018 |
| Docket Number | No. 94325-7,94325-7 |
| Citation | 425 P.3d 807 |
| Parties | STATE of Washington, Respondent, v. Adrian SASSEN VAN ELSLOO, Petitioner. |
| Court | Washington Supreme Court |
Jared Berkeley Steed, Nielsen Broman & Koch PLLC, 1908 E. Madison Street, Seattle, WA 98122-2842, Attorney For Petitioner
Eric John Richey, Hilary A. Thomas, Kimberly Anne Thulin, Whatcom County Prosecutors Office, 311 Grand Avenue, Suite 201, Bellingham, WA 98225-4038, Attorneys For Respondents
¶ 1 Adrian Sassen Van Elsloo appeals the midtrial dismissal of an impaneled juror who was excused because she had a minor connection to an important defense witness. The trial judge in this case erred by dismissing an impaneled juror after multiple days of trial testimony when there was no evidence that the juror was biased. We must now decide the remedy for an erroneous dismissal of an impaneled juror. We hold that the defendant is entitled to a new trial if there is any reasonable possibility that the erroneous dismissal stemmed from the juror’s views on the merits of the case. However, if an impaneled juror’s dismissal does not stem from his or her view of the merits of the case but is nonetheless erroneous, no new trial will be granted if the State establishes that the error was harmless. Here, there is a reasonable possibility that juror 12 was dismissed because of her views of the merits of the case. Sassen Van Elsloo is entitled to a new trial.
¶ 2 Sassen Van Elsloo also appeals the sufficiency of evidence supporting a firearm enhancement. We hold that the State presented sufficient evidence to support the enhancement.1
¶ 3 On September 7, 2012, while monitoring traffic, Bellingham police officer Lewis Leake saw a black Kia Sorrento make an illegal right turn. When Leake tried to stop the Kia, a chase ensued. When Leake overtook the Kia, he found it stopped in the middle of the road with the driver-side door open and the driver gone. A woman, Athena Aardema, was in the passenger seat and ultimately identified the driver as Adrian Sassen Van Elsloo.
¶ 4 The police permitted Aardema to leave the scene. While helping Aardema remove her belongings from the car, Officer Leake saw the handle of a shotgun. The police impounded the Kia and obtained a search warrant.
¶ 5 The search revealed a shotgun in the cargo hold. The search also revealed a digital scale, methamphetamine, 5 morphine
pills, a pipe, a butane torch, 30 alprazolam pills, 67 clonazepam pills, seven small bags of heroin, a bill of sale with Sassen Van Elsloo’s name, four prepaid cell phone cards, seven "burner" cell phones, gold jewelry, a bundle of 20 $1 bills, an iPad, the title for a 1990 Lincoln Town Car, a .38 revolver loaded with four bullets, a .22 pistol loaded with a magazine containing five bullets, six more rounds of ammunition, and a sock holding eight 12 gauge shotgun shells.
¶ 6 Three months later, Leake stopped a 1990 Lincoln Town Car driven by Sassen Van Elsloo. Sassen Van Elsloo was charged with nine felony counts relating to the earlier encounter. The State added firearm enhancements to five of the charges.
¶ 7 At trial, Sassen Van Elsloo’s defense theory was misidentification, supported by an alibi witness named Sharon Burton. Burton testified that Sassen Van Elsloo was at her home on the day of the incident and therefore could not have been driving the Kia on that day.
¶ 8 Following Burton’s testimony and cross-examination, juror 12 informed the bailiff that she recognized Burton from Burton’s work with juror 12’s nephew. Burton worked as an inpatient coordinator and a drug and alcohol counselor for the Lummi Nation. Juror 12 had met Burton when she went to the Lummi Business Council’s "CARE" office, a chemical dependency treatment program for Lummi Nation tribal members, to obtain information that would help juror 12’s nephew receive chemical dependency treatment services. Juror 12 had not recognized Burton’s name on the juror questionnaire, but after seeing her testify, she recalled meeting Burton twice. Juror 12 said that she did not socialize with Burton, and that she would likely not remember Burton if she later saw her on the road.
¶ 9 The trial court allowed the parties to question juror 12 about her experience with Burton. The prosecutor pressed juror 12 about whether she had a "positive feeling" toward Burton:
5 Verbatim Report of Proceedings (VRP) (July 29, 2014) at 856-59. After questioning juror 12, the prosecutor could not point to any evidence of bias: "Now, whether I can absolutely put a finger on that she can't be fair or whether what she says is about, what she says about being fair or not I think that’s kind of beside[ ] the point." 5 VRP (July 29, 2014) at 860.
¶ 10 The prosecutor sought dismissal nonetheless, claiming that Burton was an important witness for the defense and that "if the jurors believe Ms. Burton then it's a big deal" because "that means my case goes nowhere." 5 VRP (July 29, 2014) at 860.
¶ 11 Defense counsel objected to the motion, calling juror 12’s interactions with Burton perfunctory and minimal, noting that juror 12 stated nothing about being unable to be fair, and pointing out that juror 12 was the only tribal member on the jury panel. The court acknowledged that it was a "close case" but dismissed juror 12 because "Ms. Burton is a critical witness and even though there is not a real strong relationship between the juror and the witness I think given the importance of the witness’s role in the case it's appropriate for juror 12 to be excused...." 5 VRP (July 29, 2014) at 861. The jury convicted Sassen Van Elsloo on all counts.
¶ 12 Sassen Van Elsloo appealed on two grounds: that juror 12 was improperly dismissed and that the State presented insufficient evidence to support the firearm enhancements. State v. Sassen Vanelsloo, No. 72553-0-I, slip op. at 3-6, 2017 WL 480712 (Wash. Ct. App. Feb. 6, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/725530.pdf. The Court of Appeals affirmed the trial court on both issues, and Sassen Van Elsloo appealed to this court. We reverse in part and affirm in part.
¶ 13 Sassen Van Elsloo appeals the trial court’s decision to dismiss juror 12 after she informed the court that she recognized one of the defense witnesses. The trial court abused its discretion when it dismissed juror 12.
¶ 14 We review a trial court’s decision to discharge a juror for abuse of discretion. State v. Depaz, 165 Wash.2d 842, 858, 204 P.3d 217 (2009). To determine if an impaneled juror has displayed actual bias warranting dismissal, the trial judge "will act as both an observer and decision maker." State v. Jorden, 103 Wash. App. 221, 229, 11 P.3d 866 (2000). In doing so, the trial judge must weigh the credibility of the challenged juror. Id. " ‘A [trial] judge with some experience in observing witnesses under oath becomes more or less experienced in character analysis, in drawing conclusions from the conduct of witnesses.’ " State v. Noltie, 116 Wash.2d 831, 839, 809 P.2d 190 (1991) (quoting 14 LEWIS H. ORLAND & KARL B. TEGLAND, WASHINGTON PRACTICE : TRIAL PRACTICE CIVIL § 203, at 332 (4th ed. 1986) ). Because a reviewing court " ‘has not had the benefit of this evidence [we] recognize[ ] the advantageous position of the trial court.’ " Id. (quoting 14 ORLAND &...
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