State v. Brown

983 P.2d 608, 139 Wash. 2d 20, 1999 Wash. LEXIS 630
Washington Supreme Court·Decided September 9, 1999·No. No. 67024-2·Published·Cited by 96 cases

Opinions

Ireland, J.

This case involves a determination of (1) whether the trial judge abused his discretion in concluding the jurors did not engage in misconduct by using a trial ex[22] hibit to reenact the crime charged, and (2) whether a sentencing court can impose an exceptional sentence downward below the time specified under RCW 9.94A-.310(4) for a deadly weapon enhancement. We conclude the trial judge did not abuse his discretion by refusing to grant a new trial when the jurors used a trial exhibit to reenact the crime charged. We further conclude that the “Hard Time for Armed Crime” initiative, codified in RCW 9.94A-.310(4), deprives a sentencing court of discretion to impose an exceptional sentence downward below the time specified for a mandatory deadly weapon enhancement. We remand to the superior court for resentencing consistent with this decision.

FACTS

On March 27, 1996, the Defendant, Natalie Brown, went to Titan Cox’s home, believing Cox had sent an angry message to her friend’s pager. Among a group of people gathered at Cox’s home for a barbecue, Brown confronted Cox and asked if they were still friends. Cox apparently walked away, lit a cigarette and, when Brown pursued him, blew cigarette smoke in her face. Brown claimed she became confused and feared for her safety because Cox was “a big guy,” who “always carried [knives].” Brown testified Cox “had that annoyed look, and then I saw him roll his shoulder back like he was about to throw a punch.” Report of Proceedings (RP) at 414. Brown said that as Cox punched her in the shoulder, she reached into her coat pocket, quickly grasped and opened a folding knife, and then cut Cox across the nose in self-defense. Cox denied hitting Brown or being aggressive. He testified that Brown suddenly grabbed him without provocation and cut his face, which has resulted in permanent scarring.

At trial, Cox used his coat to demonstrate how Brown attacked him. During cross-examination, Brown’s attorney and Cox reenacted the assault. When Brown took the witness stand, she also demonstrated how the assault had occurred. While the coat Brown wore on the night of the [23] incident was not offered into evidence, Cox testified his coat was the same type of trench coat worn by Brown. Brown’s testimony also described her trench coat as “matching.” 2 RP at 400.

On November 19, 1996, the jury convicted Brown of second degree assault with a deadly weapon. Before sentencing, Brown moved for a new trial. Basing her motion on a juror’s affidavit, Brown argued the jurors conducted an improper experiment by wearing Cox’s coat, a trial exhibit, to test the difficulty of pulling Brown’s knife out of the coat pocket and opening it as Brown had testified.1 The trial court reviewed the parties’ written submissions and denied Brown’s motion. It reasoned that no new extrinsic evidence was introduced during the jury’s deliberations.

The presumptive standard sentence range for Brown’s assault conviction was three to nine months. The sentencing court added a 12-month deadly weapon enhancement pursuant to RCW 9.94A.310(4)(b), to arrive at a total standard range of 15 to 21 months. The sentencing court, granting the jury’s unanimous request for leniency, imposed an exceptional sentence downward of seven months.

The State appeals the trial court’s imposition of an exceptional sentence below the applicable 12-month deadly weapons enhancement. In her response, Brown cross-appeals the trial court’s denial of her motion for a new trial based on jury misconduct.

ANALYSIS

A. Jury Misconduct

A trial court’s refusal to grant a new trial is reviewed for abuse of discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994).

The State argues Brown failed to make a sufficient rec[24] ord to review this issue on appeal because the juror’s affidavit was never submitted to the trial court. It also argues the jury’s reenactment was proper because no new evidence was created or introduced. While the juror’s affidavit is missing from the record, it appears the defense produced it for the trial court. This is evidenced by the State’s silence when defense counsel said to the trial judge, “The affidavit for Mr. Newell was presented to the court. I trust the court’s received that.” RP at Defense Mot. and Sentencing, 2 RP at 2. In order to consider the merits of her argument, Brown’s version of the events are accepted.

A new trial may be warranted when a jury considers information other than the evidence admitted at trial. See Balisok, 123 Wn.2d at 118. While a jury may use exhibits admitted in evidence to critically examine a defendant’s version of the events under a claim of self-defense, it may not rely on novel or extrinsic evidence, which is not subject to objection, cross-examination, explanation, or rebuttal. Id. at 118-19.

In this case, the coat and knife used by the jury to reenact Brown’s story were admitted as trial exhibits. Although the coat belonged to Cox, the evidence established Brown wore a similar coat. At trial, Brown’s attorney and Cox reenacted the assault by using Cox’s coat to demonstrate how Brown assaulted him. When Brown took the witness stand, she also used Cox’s coat to demonstrate the assault.

Brown has failed to establish misconduct. She concedes that if her coat had been introduced into evidence, the jury could have used it to conduct the experiment. Although Cox’s coat may have been larger than Brown’s, jurors are presumed to use their common sense and reasoning powers to compensate for this variable. See Balisok, 123 Wn.2d at 119 (jury’s simulation of self-defense claim was not misconduct merely because the juror simulating the defendant’s actions did not match the defendant’s proportions). The jurors’ reenactment was simply a critical examination of Brown’s self-defense theory with evidence already admitted at trial. The trial judge did not abuse his discretion by [25] denying Brown’s motion for a new trial. Accordingly, Brown’s conviction is affirmed.

B. The Exceptional Sentence Below the Mandatory Deadly Weapon Enhancement

“Interpretation of a statute is a question of law reviewed by an appellate court de novo.” In re Post Sentencing Review of Charles, 135 Wn.2d 239, 245, 955 P.2d 798 (1998).

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State v. Brown, 983 P.2d 608, 139 Wash. 2d 20, 1999 Wash. LEXIS 630 (Wash. 1999).

983 P.2d 608 (State v. Brown) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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