[982]*982Sweeney, J.
The trial court granted Michael Marks’ motion for a new trial following his conviction for first degree theft. The court justified this discretionary ruling on two grounds. First, after talking to the jury informally following the trial, it concluded the jury was confused over whether a missing witness instruction applied to an absent State witness or an absent defense witness. The court had given Mr. Marks’ proposed missing witness instruction. Second, a witness called by the State did not appear as scheduled. The State then sought a day-long continuance to find the witness. Mr. Marks objected.
The dispositive question here is whether the trial judge abused his discretion by granting the new trial. Because the jury’s consideration of the missing witness instruction inheres in its verdict, and because Mr. Marks objected to the State’s efforts to locate the missing witness, we conclude that the trial judge abused his discretion. We therefore reverse the order granting a new trial and reinstate the conviction for first degree theft.
FACTS
Dick Reed paid $5,300 to Mr. Marks for a GMC Jimmy at Sprague Avenue Auto Works. Mr. Marks used the alias “Chuck Greenwood.” Victoria Steve (who used the alias Samantha Perry) was Mr. Marks’ girl friend. Mr. Marks put the title in Ms. Steve’s assumed name. Mr. Reed objected. Mr. Marks told him a new document would be completed and mailed to him. The title never found its way to Mr. Reed. Mr. Marks also refused to give Mr. Reed a receipt. He told Mr. Reed to come back later when the manager was available. Mr. Reed returned several times; he was told the manager was not available.
Later Ms. Steve went to Mr. Reed’s house to borrow the GMC for an emergency. She did not return the vehicle. Mr. [983]*983Reed once saw the GMC on the road, tried to pursue, but stopped when the chase became dangerous. He never saw the car again. Ms. Steve sold it to a dealer in western Washington. She pleaded guilty to third degree theft. The State named her as a witness for Mr. Marks’ trial.
The State called Ms. Steve and made arrangements for her to appear. It had provided her with an airplane ticket to Spokane. She did not appear. The State requested a recess until the next day to locate Ms. Steve; she lived in Tacoma. Mr. Marks objected. The court denied the State’s request and gave the State two hours to locate Ms. Steve. Ms. Steve did not appear. The court also denied the State’s request to introduce Ms. Steve’s guilty plea statement. The statement implicated Mr. Marks.
During opening statements, both the prosecutor and Mr. Marks’ lawyer discussed Ms. Steve’s expected testimony. Mr. Mark’s attorney also told the jury Tommy Marks would testify on behalf of Michael Marks. Tommy Marks did not appear.
Mr. Marks proposed a missing witness instruction on the failure of Ms. Steve to testify. The State objected. But it argued that if the instruction were given it should apply to Tommy Marks’ failure to appear. The court gave a missing witness instruction.
The jury found Mr. Marks guilty.
After the conviction, the court conducted an “exit interview” during which the jurors asked about both Ms. Steve and Tommy Marks. The court inferred from the jury’s questions that it must have applied the missing witness instruction to both witnesses. The court granted Mr. Marks’ motion for a new trial. The State appeals.
DISCUSSION
Abuse of Discretion Standard. Discretion is abused if the discretionary decision is not based on tenable grounds or tenable reasons. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). But simply reciting that standard [984]*984sheds no light on the level of scrutiny appellate courts focus on trial court decisions.
The trial judge acting in discretion is granted a limited right to be wrong, by appellate court standards, without being reversed. There are wide variations in the degree of “wrongness” which will be tolerated.
Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 176 (1979). The deference given by a reviewing court to a trial court’s discretionary decision is related to the nature and consequences that attend the particular discretionary decision. Continuances, the scope of cross-examination, timing of witnesses, or order of instructions usually have little effect on the outcome of a trial and therefore are usually given great discretion. State v. Scott, 72 Wn. App. 207, 223, 866 P.2d 1258 (1993) (Forrest, J., dissenting), aff’d sub nom. State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). We will also defer to a trial judge’s discretion on those elements of the trial that cannot be made part of the record. Barth v. Rock, 36 Wn. App. 400, 403, 674 P.2d 1265 (quoting Olpinski v. Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968)), review denied, 101 Wn.2d 1014 (1984).
At issue here is the grant of a new trial. A frequently cited principle of Washington law is that a much stronger showing of abuse of discretion is needed to set aside an order granting a new trial, than to set aside an order denying a new trial. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997); Walgraf v. Wilkeson Coal & Coke Co., 65 Wash. 464, 467, 118 P. 343 (1911); State v. Dawkins, 71 Wn. App. 902, 907, 863 P.2d 124 (1993). However, logic and a cursory statistical review of actual decisions suggest otherwise.
First, decisions granting or denying a motion for a new trial usually rest on questions of law and the application of a rule of law, rather than the trial judge’s assessment of the evidence or the impact of that evidence on the jury. The latter functions are constitutionally reserved for the jury. The trial judge is not a “13th juror.” State v. Williams, 96 [985]*985Wn.2d 215, 221-22, 634 P.2d 868 (1981). Second, a cursory review of appellate decisions between 1974 and 1996 shows that 14 trial court orders granting a new trial were appealed. Six, or 42.9 percent, were reversed. During the same period, 49 denials of a new trial were reviewed, with only 14, or 28.6 percent being reversed.
It may be time to stop reciting the accepted standard of review for orders granting or denying motions for a new trial and look instead at the underlying reasons given for this discretionary decision. A fine balance must be struck between jury, trial court, and appellate court to prevent one from usurping the legitimate function of the others. Williams, 96 Wn.2d at 222. The announced standard of review for motions for a new trial does not further this end.
Here, the court gave as its reasons for granting a new trial CrR 7.6(a)(5) (irregularity in the proceedings) and CrR 7.6(a)(8) (failure of substantial justice). The language of CrR 7.6(a) creates a framework for both the exercise of discretion and, by doing so, for appellate review.
Free access — add to your briefcase to read the full text and ask questions with AI
[982]*982Sweeney, J.
The trial court granted Michael Marks’ motion for a new trial following his conviction for first degree theft. The court justified this discretionary ruling on two grounds. First, after talking to the jury informally following the trial, it concluded the jury was confused over whether a missing witness instruction applied to an absent State witness or an absent defense witness. The court had given Mr. Marks’ proposed missing witness instruction. Second, a witness called by the State did not appear as scheduled. The State then sought a day-long continuance to find the witness. Mr. Marks objected.
The dispositive question here is whether the trial judge abused his discretion by granting the new trial. Because the jury’s consideration of the missing witness instruction inheres in its verdict, and because Mr. Marks objected to the State’s efforts to locate the missing witness, we conclude that the trial judge abused his discretion. We therefore reverse the order granting a new trial and reinstate the conviction for first degree theft.
FACTS
Dick Reed paid $5,300 to Mr. Marks for a GMC Jimmy at Sprague Avenue Auto Works. Mr. Marks used the alias “Chuck Greenwood.” Victoria Steve (who used the alias Samantha Perry) was Mr. Marks’ girl friend. Mr. Marks put the title in Ms. Steve’s assumed name. Mr. Reed objected. Mr. Marks told him a new document would be completed and mailed to him. The title never found its way to Mr. Reed. Mr. Marks also refused to give Mr. Reed a receipt. He told Mr. Reed to come back later when the manager was available. Mr. Reed returned several times; he was told the manager was not available.
Later Ms. Steve went to Mr. Reed’s house to borrow the GMC for an emergency. She did not return the vehicle. Mr. [983]*983Reed once saw the GMC on the road, tried to pursue, but stopped when the chase became dangerous. He never saw the car again. Ms. Steve sold it to a dealer in western Washington. She pleaded guilty to third degree theft. The State named her as a witness for Mr. Marks’ trial.
The State called Ms. Steve and made arrangements for her to appear. It had provided her with an airplane ticket to Spokane. She did not appear. The State requested a recess until the next day to locate Ms. Steve; she lived in Tacoma. Mr. Marks objected. The court denied the State’s request and gave the State two hours to locate Ms. Steve. Ms. Steve did not appear. The court also denied the State’s request to introduce Ms. Steve’s guilty plea statement. The statement implicated Mr. Marks.
During opening statements, both the prosecutor and Mr. Marks’ lawyer discussed Ms. Steve’s expected testimony. Mr. Mark’s attorney also told the jury Tommy Marks would testify on behalf of Michael Marks. Tommy Marks did not appear.
Mr. Marks proposed a missing witness instruction on the failure of Ms. Steve to testify. The State objected. But it argued that if the instruction were given it should apply to Tommy Marks’ failure to appear. The court gave a missing witness instruction.
The jury found Mr. Marks guilty.
After the conviction, the court conducted an “exit interview” during which the jurors asked about both Ms. Steve and Tommy Marks. The court inferred from the jury’s questions that it must have applied the missing witness instruction to both witnesses. The court granted Mr. Marks’ motion for a new trial. The State appeals.
DISCUSSION
Abuse of Discretion Standard. Discretion is abused if the discretionary decision is not based on tenable grounds or tenable reasons. State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). But simply reciting that standard [984]*984sheds no light on the level of scrutiny appellate courts focus on trial court decisions.
The trial judge acting in discretion is granted a limited right to be wrong, by appellate court standards, without being reversed. There are wide variations in the degree of “wrongness” which will be tolerated.
Maurice Rosenberg, Appellate Review of Trial Court Discretion, 79 F.R.D. 173, 176 (1979). The deference given by a reviewing court to a trial court’s discretionary decision is related to the nature and consequences that attend the particular discretionary decision. Continuances, the scope of cross-examination, timing of witnesses, or order of instructions usually have little effect on the outcome of a trial and therefore are usually given great discretion. State v. Scott, 72 Wn. App. 207, 223, 866 P.2d 1258 (1993) (Forrest, J., dissenting), aff’d sub nom. State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). We will also defer to a trial judge’s discretion on those elements of the trial that cannot be made part of the record. Barth v. Rock, 36 Wn. App. 400, 403, 674 P.2d 1265 (quoting Olpinski v. Clement, 73 Wn.2d 944, 951, 442 P.2d 260 (1968)), review denied, 101 Wn.2d 1014 (1984).
At issue here is the grant of a new trial. A frequently cited principle of Washington law is that a much stronger showing of abuse of discretion is needed to set aside an order granting a new trial, than to set aside an order denying a new trial. Palmer v. Jensen, 132 Wn.2d 193, 197, 937 P.2d 597 (1997); Walgraf v. Wilkeson Coal & Coke Co., 65 Wash. 464, 467, 118 P. 343 (1911); State v. Dawkins, 71 Wn. App. 902, 907, 863 P.2d 124 (1993). However, logic and a cursory statistical review of actual decisions suggest otherwise.
First, decisions granting or denying a motion for a new trial usually rest on questions of law and the application of a rule of law, rather than the trial judge’s assessment of the evidence or the impact of that evidence on the jury. The latter functions are constitutionally reserved for the jury. The trial judge is not a “13th juror.” State v. Williams, 96 [985]*985Wn.2d 215, 221-22, 634 P.2d 868 (1981). Second, a cursory review of appellate decisions between 1974 and 1996 shows that 14 trial court orders granting a new trial were appealed. Six, or 42.9 percent, were reversed. During the same period, 49 denials of a new trial were reviewed, with only 14, or 28.6 percent being reversed.
It may be time to stop reciting the accepted standard of review for orders granting or denying motions for a new trial and look instead at the underlying reasons given for this discretionary decision. A fine balance must be struck between jury, trial court, and appellate court to prevent one from usurping the legitimate function of the others. Williams, 96 Wn.2d at 222. The announced standard of review for motions for a new trial does not further this end.
Here, the court gave as its reasons for granting a new trial CrR 7.6(a)(5) (irregularity in the proceedings) and CrR 7.6(a)(8) (failure of substantial justice). The language of CrR 7.6(a) creates a framework for both the exercise of discretion and, by doing so, for appellate review. If none of the grounds listed in CrR 7.6(a) are present, the court abused its discretion in granting a new trial. If the defendant’s substantial rights have been materially affected by one of the stated reasons, the decision of the trial court should be affirmed. Williams, 96 Wn.2d at 222. Let us turn then to the facts of this case.
Jury Misapplication of the Missing Witness Instruction. The State argues that the court erred in concluding that the jury misapplied the missing witness instruction. Its assignment of error raises two questions. (1) Was the jury misled? (2) Whether or not it was misled, did the court improperly inquire into matters that inhere in the jury’s verdict?
(1) Here, after the trial, on questioning from the judge, the jurors expressed curiosity about the absence of both Tommy Marks and Ms. Steve. The court inferred from these comments that the jury had applied the missing witness instruction to both missing witnesses. No juror made [986]*986any such statement to this effect, let alone swear in an affidavit that he or she misunderstood or misapplied the court’s instruction. Moreover, Mr. Marks proposed the missing witness instruction that the court gave. See State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979) (defendant may not complain on appeal about an instruction the he requested).
(2) When a jury has been considerably misled about a material question of law, prejudice will be presumed. State v. Thompson, 68 Wn.2d 536, 541, 413 P.2d 951 (1966); State v. Brown, 29 Wn. App. 11, 627 P.2d 132 (1981). Mr. Marks relies heavily on Barth v. Rock, which interpreted and applied CR 59(a)(9). Barth, 36 Wn. App. 400. The court concluded that the jury had been misled when it was not informed an expert witness’s testimony was clearly erroneous. Id. at 404-05. The court further found the jury had been erroneously instructed as to the law. Id. at 405.
But here, whether the jury was misled is a question of fact, which can be determined only by recourse to jury comments. The instruction given was correct. How the jury applied that instruction can be discovered only by probing behind the verdict, and into the jurors’ mental processes. This is forbidden. Whether this jury applied the instruction to witnesses other than Ms. Steve cannot be known without probing these mental processes. Those mental processes inhere in the verdict and are therefore inaccessible to subsequent inquiry. Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747, 768-69, 818 P.2d 1337 (1991).
Juror affidavits about the thought processes leading to the verdict may not be considered to set aside the verdict. Jurors may provide only factual information regarding actual conduct alleged to be misconduct, not about how such conduct affected their deliberations. Gardner v. Malone, 60 Wn.2d 836, 840, 376 P.2d 651, 379 P.2d 918 (1962). Matters that inhere in the verdict are beyond inquiry. Id.
We conclude then that the court’s discretionary decision granting a new trial in this case is not based on tenable grounds or for tenable reasons and must be reversed. [987]*987State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997), cert. denied, 118 S. Ct. 1193 (1998).
Invited Error as a Basis for a New Trial. No party should be allowed to complain of error that he/she induced the trial court to commit. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (quoting Boyer, 91 Wn.2d at 345); State v. McNeil, 161 Wash. 221, 223, 296 P. 555 (1931). Also, a defendant is not denied due process of law by an omission that results from his own acts. State v. Lewis, 15 Wn. App. 172, 177, 548 P.2d 587, review denied, 87 Wn.2d 1005 (1976).
On the defense side, due diligence is not exercised when a defendant refuses to request a continuance to locate a needed witness. State v. Jackman, 113 Wn.2d 772, 781, 783 P.2d 580 (1989). Having made no request for a chance to find a witness, the defendant should not be allowed to argue that the trial court erred in denying him relief he did not ask for. Id. at 782.
Here, Mr. Marks did not fist Ms. Steve as a witness. He made no effort to compel her testimony. And when the State asked for time to secure her presence, he opposed its efforts. This might well have been a tactical decision by Mr. Marks. We do not know. If it was, it was a solid one at that. After all, the' State had Ms. Steve’s confession, which implicated Mr. Marks. The court refused to admit that statement. Mr. Marks was therefore left without the burden of her confession, and with an instruction from the judge telling the jury that it could infer that her testimony would have been unfavorable to the State.
In any event, Mr. Marks helped to create the very situation he now complains of and we conclude he should not be permitted to benefit from it. Jackman, 113 Wn.2d at 782.
We reverse the order of the trial court granting Mr. Marks a new trial and reinstate the conviction for first degree theft.
Kurtz, A.C.J., concurs.