State v. Lamar

327 P.3d 46, 180 Wash. 2d 576
Washington Supreme Court·Decided June 12, 2014·No. No. 89060-9·Published·Cited by 84 cases

Opinion

Madsen, C. J.

¶1 After an alternate was substituted for an indisposed juror, the trial court told the reconstituted jury that the remaining original jurors should bring the alternate “up to speed” as to what had already occurred and deliberate from there. The defendant claimed error for the first time on appeal because the jury was not instructed to begin deliberations anew. The Court of Appeals concluded the claimed error was a violation of CrR 6.5 that can be raised for the first time on appeal and reversed because the rights to jury impartiality and unanimity were violated. The State argues that the error was only a rule violation that does not constitute manifest constitutional error that may be raised for the first time under RAP 2.5(a)(3).

¶2 We affirm the Court of Appeals, although under a different analysis. It is unnecessary to address CrR 6.5 because the trial court’s affirmative instruction to the reconstituted jury violated the right to a unanimous jury verdict regardless of any violation of CrR 6.5.

FACTS

¶3 After the State rested in Lamar’s trial on one count of rape of a child and one count of child molestation, the trial [580] court gave jury instructions, including the following instruction on the jurors’ duty to deliberate together in an effort to reach a unanimous verdict:

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and to change your opinion based upon further review of the evidence and these instructions. You should not, however, surrender your honest belief about the value or significance of evidence solely because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of reaching a verdict.

Clerk’s Papers at 50 (Jury Instruction 2).

¶4 The jury deliberated for about 45 minutes to an hour on Friday afternoon. The next Monday morning, one of the jurors notified the court he was ill and could not continue. At a hearing to address this problem, counsel for both parties agreed to replace the juror with the alternate juror.1

¶5 The court said it would tell the other jurors that they should review their Friday deliberations with the alternate. There were no objections. When the jury was brought into the courtroom, the court told the jury that an alternate would replace the ill juror. The court then instructed the reconstituted jury:

What I will advise you to do is this: When you go back to the jury room and begin your deliberations, you should spend some time reviewing, recapping with [the alternate] any discussion that you may have already had Friday in terms of the case so that he’s first brought up to speed in terms of whatever the deliberative process was.
[581] Then once that’s been done, resume your deliberations without any other hitches or anything else.
So with that, the court will be in recess and you can begin your deliberations.

3 Verbatim Report of Proceedings (VRP) at 430-31. The court did not reinstruct the jurors on their duty to deliberate together in an effort to reach unanimity after considering the evidence impartially with the other jurors, nor did the court instruct the jury to disregard prior deliberations and begin anew. Neither party objected to the instructions the court gave or to the failure to give any further instruction.

¶6 About four hours later the jury returned with its verdicts, acquitting Lamar of rape of a child and convicting him of child molestation. The court polled the jury. Each juror answered yes when asked if the verdicts were “how you voted on both of these counts.” 3 VRP at 432-33.

¶7 Lamar appealed, arguing that the trial court violated his constitutional right to an impartial jury by failing to instruct the reconstituted jury to disregard any prior deliberations and begin deliberating anew. He argued his conviction should be reversed. The Court of Appeals observed in a footnote that the claimed error was manifest error affecting a constitutional right that could be raised for the first time on appeal. The court held that the trial court’s failure to instruct the jury to disregard prior deliberations and begin deliberations anew violated Lamar’s constitutional rights to an impartial jury and a unanimous jury verdict. The court reversed his conviction and remanded for a new trial. The State then sought discretionary review of this decision.

DISCUSSION

¶8 We are asked to determine whether the Court of Appeals erred by addressing the claimed constitutional [582] violation when no objection had been made to the instructions given the reconstituted jury. The State concedes that pursuant to CrR 6.5 the trial court erred when it failed to instruct the jury it must begin deliberations anew after the alternate was seated on the jury.2 The State argues, however, that this was only a rule violation that does not rise to the level of manifest error affecting a constitutional right within the meaning of RAP 2.5(a)(3). Accordingly, the State argues, the claimed error cannot be raised for the first time on appeal.

¶9 We agree that CrR 6.5 was violated, as the State concedes. However, regardless of this rule violation, the trial court violated Mr. Lamar’s constitutional right to a unanimous verdict by an impartial jury when the trial court instructed the jurors to bring the alternate “up to speed” on the deliberations that had already occurred and go on from there. This instruction affirmatively told the reconstituted jury not to deliberate together as is constitutionally required.

RAP 2.5(a)(3)

¶10 Under RAP 2.5(a)(3), an “appellate court may refuse to review any claim of error which was not raised in the trial court,” but there are exceptions to this general rule. One exception is that “a party may raise ... manifest error affecting a constitutional right” for the first time on appellate review. Id. This exception recognizes that “[constitutional errors are treated specially because they often result in serious injustice to the accused.” State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). However, the exception is not intended as a method of securing a new trial whenever there is a constitutional issue that was not raised at trial. State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).

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State v. Lamar, 327 P.3d 46, 180 Wash. 2d 576 (Wash. 2014).

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