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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Petitioner, ) No. 100777-9 ) v. ) En Banc ) ATERE KEVEL NORMAN, ) ) Filed: February 2, 2023 Respondent. ) )
OWENS, J.—During deliberations at Atere Norman’s trial, juror 9 became
overwhelmed and punched himself in the face. After several jurors expressed
concern, the trial court questioned juror 9 and two other jurors before dismissing juror
9 for cause. The reconstituted jury found Norman guilty of one of two counts. The
Court of Appeals reversed Norman’s conviction, holding juror 9’s dismissal was
improper under the heightened evidentiary standard set forth in State v. Elmore, 155
Wn.2d 758, 123 P.3d 72 (2005). But the Elmore standard applies only where a juror
is accused of nullification, refusing to follow the law, or refusing to deliberate. As
there was no such accusation here, and the trial court found juror 9’s conduct likely For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
affected the jury’s process of deliberating freely, it did not abuse its discretion in
dismissing juror 9. We therefore reverse the Court of Appeals and affirm Norman’s
conviction.
FACTS
Norman was tried before a jury on first degree burglary and second degree
assault. The jury began deliberating at lunchtime. After only a few hours of
deliberation, the jury pounded on the door and told court staff they were breaking for
the evening. Over half of the jurors left the room before the court clerk arrived. The
remaining jurors asked the clerk, “[W]hat do we do if we have a problem with one of
our jurors?” 7 Verbatim Rep. of Proc. (VRP) at 552. The clerk told them to have the
presiding juror speak with her privately the next morning.
Later that day, two other jurors contacted the clerk. Juror 11 “called to advise
there was an incident in the jury room,” and juror 2 left a message explaining that
“juror Number 9 became overwhelmed and frustrated and started punching himself in
the face and said that he has a problem with inflicting self-harm.” Id. at 553. Juror 2
said, “[I]t was very scary and she didn’t want to be sitting next to [juror 9] or really in
the room with him.” Id.
The next morning, the presiding juror told the clerk that “Juror Number 9 was
accused of not being open-minded, then began—then he punched himself in the face
twice and made several of the other jurors uncomfortable and . . . Juror Number 9
stated he has a problem with inflicting self-harm.” Id. at 553-54.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
The court and counsel discussed these events outside of the presence of the
jury. The prosecutor moved to excuse juror 9 for cause. Id. at 554. Concluding there
were safety concerns, the trial court decided to voir dire several of the jurors,
including juror 9. The court instructed each of them not to talk about the case or any
factual discussions among the jurors. Id. at 555, 559, 562.
The court asked juror 9 “to tell us about anything unusual relating to your
actions yesterday and your ability to perform your duties.” Id. at 554-55. Juror 9
responded:
So yesterday, discussions became very heated, and . . . there were a number of people who had disagreements with me. This caused raising of voices, and I became . . . somewhat overwhelmed. I felt somewhat like—a little bit attacked, and I reacted with an emotional outburst of punching myself in the face. That has happened in the past when I get into high-stress situations. I have self-harmed in the past, but it hasn’t happened in a number of years. That being said, I still consider myself of sound mind and ability to continue going forward with this case.
Id. at 555.
The court asked whether juror 9 had ever turned that emotion on others to
which he responded, “Outside of, like, junior high school brawls, no.” Id. When the
court asked whether juror 9 believed anyone would feel unsafe given his physical
reaction, he said no, he had never been violent with another person. Id. at 556.
Juror 9 said he did not think the self-harm would happen again:
I’ve tried to basically ready myself and steady myself. . . . [N]ow that I know that—how stressful the situation can get, I’m more prepared to handle and deal with it, and if I feel like it is getting to that point again, I
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
will simply ask the jury for a break . . . and cool down so it doesn’t occur again.
Id.
After the interview, the prosecutor again moved to excuse juror 9 for cause,
arguing, “He acknowledged that he was . . . punching himself in the face, which
obviously is going to cause fear and concern amongst other jurors who are basically
locked in a small room with him. And I have great concern about the sanctity of the
process of deliberations under these circumstances.” Id. at 557. The defense
disagreed, noting that juries often “get heated.” Id. at 557-58.
The court then interviewed juror 2, who had left the message with the clerk.
juror 2 was “fine to continue,” but she did not “want the incident that happened
yesterday to limit what people feel comfortable saying.” Id. at 559. Juror 2
explained, “[I]t made me feel uncomfortable because I don’t like seeing someone
respond that way . . . I just don’t want a repeat of what happened yesterday to occur
again.” Id.
When asked whether juror 9’s conduct “might cause jurors not to speak their
opinions,” juror 2 said yes, “because nobody wants to see him do that again, and I
think everybody is a little on edge.” Id. at 560. Juror 2 said this would not hinder her
ability to speak her mind, and she did not “think anybody is having any issue,” but the
jurors “just don’t want to see him punch himself in the face again” and they were
“more concerned with his behavior versus the nature of our conversations.” Id. at
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
560-61. She explained that upon arrival that morning, the jurors had “just kind of
scan[ned] around” and were “not really sure what today is going to hold . . . in terms
of [juror 9]’s behavior.” Id. at 561.
The court moved on to question the presiding juror, juror 8. The following
exchange took place:
THE COURT: . . . [O]ur question to you is whether or not you believe the jury will be able to fully and fairly discuss these matters based on [juror 9’s] incident and whether or not you have any concerns for his, your, or anyone else’s safety and health.
JUROR NO. 8: There was some disagreement. I don’t think that there is any physical threat, but there was some . . . self physical punching of the face by Juror Number 9, and he stated that he had problems with self-harm growing up. Now, because of the disagreements, I’m not sure that that won’t continue. I’m not sure that there will be a resolution. He was pretty adamant about his beliefs, so I don’t know that we’ll be able to come to an agreement. In fact, I don’t think we will.
THE COURT: Well, I don’t want to hear about that. Sorry.
JUROR NO. 8: Okay. Okay.
THE COURT: What I want to know is whether there will be a full and fair discussion and without intimidation from anybody feeling—
JUROR NO. 8: No.
THE COURT: No.
JUROR NO. 8: I don’t think there will be.
Id. at 562-63.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
Counsel asked juror 8 to clarify whether he thought the jurors could openly
discuss their views on the case. Juror 8 said yes and explained that he misunderstood
the earlier question. He said juror 9 allowed others to have their opinions, “but
oftentimes, he’s interrupted during those opinions.” Id. at 564. According to juror 8,
juror 9 was “in control of himself” for “80 percent of the day,” but in the remaining
time he “punch[ed] himself in the face a couple times and grab[bed] his hair” in
reaction to contentious discussions. Id. at 564-65. Juror 8 did not know if these
reactions would continue, but he was willing to keep deliberating. Id. at 565-66.
The court did not interview anyone else. The prosecutor again moved to
dismiss juror 9 for cause, arguing, “[H]e clearly was not in control of himself during
20 percent of the proceedings yesterday.” Id. at 566. The defense objected, noting
that “everyone is willing to move forward” and that juror 9 said he would try to keep
himself in check. Id. at 567.
The court ultimately ruled:
I’m going to dismiss Juror Number 9. Twenty percent of the day, he was not in control of himself, and he apparently has a long history of self- harm when he’s overwhelmed, highly stressed, and not in control of himself. And I don’t doubt that he’ll make his best efforts, but being out of control and punching yourself in the face has to be intimidating on the process of discussing your views openly and freely. . . .
[Juror 2] . . . said that she—you know, felt bad that he was hitting himself in the face and didn’t want him to do that, and I think that shows an inhibition at some level. . . . We’ll call Juror 13 [(the alternate)].
Id. at 568 (emphasis added).
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
The jury began deliberating anew with the alternate juror. Norman was
acquitted of burglary in the first degree and convicted of assault in the second degree.
Id. at 573-76; Clerk’s Papers (CP) at 205-06.
Norman appealed, arguing the trial court’s dismissal of juror 9 violated his due
process right to a fair and impartial jury. Applying the heightened Elmore standard,
Division One of the Court of Appeals agreed and remanded for a new trial. State v.
Norman, No. 83330-8-I, slip op. at 19 (Wash. Ct. App. Feb. 28, 2022) (unpublished)
(citing State v. Berniard, 182 Wn. App. 106, 124, 327 P.3d 1290 (2014) (citing
Elmore, 155 Wn.2d at 781)), https://www.courts.wa.gov/opinions/pdf/833308.pdf. It
held that juror 9 was dismissed on grounds not supported by the record and that the
heightened standard applied because there was a reasonable possibility that juror 9
had questioned the sufficiency of the State’s evidence. Id. at 18-20.
The State petitioned for review, arguing the Court of Appeals’ decision
conflicts with Elmore, 155 Wn.2d 758. We granted review. State v. Norman, 199
Wn.2d 1021 (2022).
ISSUE
Did the trial court abuse its discretion in dismissing juror 9?
ANALYSIS
To resolve this case, we must first decide what evidentiary standard applies to a
trial court’s dismissal of a juror who engages in self-harm during deliberations. This
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
is a legal question that we review de novo. See Dep’t of Lab. & Indus. v. Rowley, 185
Wn.2d 186, 200-02, 378 P.3d 139 (2016).
Trial judges have a “‘continuous obligation’” to excuse a juror who “has
manifested unfitness . . . by reason of bias, prejudice, indifference, inattention or any
physical or mental defect or by reason of conduct or practices incompatible with
proper and efficient jury service.” Elmore, 155 Wn.2d at 773; RCW 2.36.110. This
obligation implicates a defendant’s right to trial by an impartial jury, U.S. CONST.
amend. VI; WASH. CONST. art. I, § 22, and their right to a unanimous jury verdict,
State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994); Ramos v.
Louisiana, 590 U.S. ___, 140 S. Ct. 1390, 1396-97, 206 L. Ed. 2d 583 (2020).
Special considerations apply where a juror is accused of nullification, defined
as “a juror’s ‘knowing and deliberate rejection of the evidence or refusal to apply the
law . . . because the result dictated by law is contrary to the [juror’s] sense of justice,
morality, or fairness.’” Elmore, 155 Wn.2d at 761 n.1 (alterations in original)
(quoting BLACK’S LAW DICTIONARY 875 (8th ed. 2004)). Investigating those
allegations necessarily requires some probing into the jury’s deliberations, which risks
violating the secrecy of deliberations and influencing the jury’s verdict. Id. at 770-71;
State v. Depaz, 165 Wn.2d 842, 855, 204 P.3d 217 (2009). Opening the deliberations
to scrutiny can also chill debate and jeopardize the integrity of the process. Elmore,
155 Wn.2d at 771-72; Depaz, 165 Wn.2d at 855.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
To balance these competing interests, this court has applied a heightened
evidentiary standard in some cases. We have concluded that “where a deliberating
juror is accused of refusing to follow the law, that juror cannot be dismissed when
there is any reasonable possibility that his or her views stem from an evaluation of the
sufficiency of the evidence.” Elmore, 155 Wn.2d at 778. The heightened standard
applies “only in the rare case where a juror is accused of engaging in nullification,
refusing to deliberate, or refusing to follow the law.” Id.; see also Depaz, 165 Wn.2d
at 855.
This heightened standard does not apply here. Juror 9 was not accused of
nullification, refusing to deliberate, or refusing to follow the law. Nevertheless, the
Court of Appeals applied the heightened standard, reasoning that “the trial court was
aware that there was a reasonable possibility that the stress arose from the juror’s
views on the merits of the case” without addressing the initial inquiry. Norman,
No. 83330-8-I, slip op. at 19.
In applying the heightened standard, the Court of Appeals relied on Berniard,
182 Wn. App. 106, and State v. Johnson, 125 Wn. App. 443, 105 P.3d 85 (2005).
Norman, No. 83330-8-I, slip op. at 12-15. Its reliance on these cases is misplaced. In
Berniard, the court dismissed a deliberating juror without properly investigating her
distress, which likely stemmed from her known position as a holdout juror. 182 Wn.
App. at 115, 123. Here, the court dismissed juror 9 after investigating his conduct,
which he admitted was triggered by high-stress situations. There is no evidence of
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
juror 9’s views on the merits, nor is there evidence that his distress stemmed from
anything other than interactions inherent to the deliberative process. See State v.
Lamar, 180 Wn.2d 576, 583-85, 327 P.3d 46 (2014) (noting that arguments among
jurors are an important aspect of the jury system). Berniard does not support the
application of the heightened standard here.
In Johnson, a deliberating juror had been crying and occasionally ceased
communicating with others. 125 Wn. App. at 451-52. The foreperson testified that
the juror was “emotionally distraught” and that her condition was worsening. Id. at
458. The juror explained that she was upset because she took a different view of the
jury instructions and other issues in the case. Id. at 451. Although the juror never
said she was unable to continue deliberating, the trial court dismissed the juror based
on the foreperson’s testimony, finding her behavior incompatible with proper and
efficient jury service. Id. at 451-52. The Court of Appeals reversed, holding that the
juror disagreed with others in part due to her views on the merits, and the trial court
improperly intruded into deliberations to make a credibility determination. Id. at 458.
Johnson is not helpful here; the trial court did not know juror 9’s views on the merits
or otherwise find him less credible than others; it focused on whether the undisputed
facts of his conduct warranted dismissal. See 7 VRP at 562-63, 568.
This court addressed whether the heightened standard applies to other types of
juror misconduct in Depaz, 165 Wn.2d at 846, where a holdout juror discussed the
case over the phone with her husband. The trial court excused the juror for lack of
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
candor and because of third-party influence. Id. at 850-51. Depaz challenged that
decision, arguing the heightened standard applied. Id. at 853-54. We disagreed,
noting we “expressly reserved the ‘reasonable possibility’ standard for cases involving
accusations of nullification and refusing to deliberate or follow the law.” Id. at 855
(citing Elmore, 155 Wn.2d at 774). In all other cases, the trial court has discretion to
dismiss a juror who it finds manifests unfitness. Id. at 856.
We reiterate that the heightened standard applies only in the rare case where a
juror is accused of nullification or refusing to deliberate. There is no evidence that
juror 9 rejected the evidence or refused to apply the law. Nor is there evidence juror 9
refused to deliberate; to the contrary, he explained that he felt “somewhat
overwhelmed” and a “little bit attacked” during deliberations. 7 VRP at 555. He
could not have felt this way if he was not deliberating. Juror 9 attributed his self-harm
to stressful situations, and the trial court’s inquiries into the impetus for dismissal did
not implicate the “‘quality and coherence of [juror 9’s] views on the merits.’”
Elmore, 155 Wn.2d at 770 (quoting United States v. Symington, 195 F.3d 1080,
1087-88 n.6 (9th Cir. 1999)). We hold that under Elmore and Depaz, the heightened
standard does not apply.
Once we determine the applicable evidentiary standard, we review the trial
court’s decision to excuse a juror for abuse of discretion. Id. at 777-78 (citing United
States v. Abbell, 271 F.3d 1286, 1302-03 (11th Cir. 2001)). A trial court abuses its
discretion if its decision is manifestly unreasonable, unsupported by the record, or
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
made by applying the wrong legal standard. State v. Curry, 191 Wn.2d 475, 483-84,
423 P.3d 179 (2018) (citing State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714
(2010)).
In cases of juror misconduct, trial courts are accorded considerable deference
because they are “‘uniquely situated to make the credibility determinations that must
be made . . . where a juror’s motivations and intentions are at issue.’” Elmore, 155
Wn.2d at 778 (quoting Abbell, 271 F.3d at 1303). Trial courts can “gain a balanced
picture of the situation” by questioning some or all of the jurors. Id. at 774. Here, the
trial court did just that, focusing on juror 9’s behavior and its effect on deliberations.
The court dismissed juror 9, noting he was “not in control of himself” and his self-
harm had to be “intimidating on the process of discussing your views openly and
freely.” 7 VRP at 568.
The State argues juror 9’s actions rendered him unfit, highlighting that the jury
was instructed to not let emotions overcome rational thought processes. Br. of Pet’r at
22-23. An otherwise competent juror is unfit if the judge finds they exhibit, among
other things, “conduct or practices incompatible with proper and efficient jury
service.” RCW 2.36.110. The trial court did not explicitly find juror 9 unfit, but the
record amply supports such a finding. Juror 9’s emotions clearly overcame his
rational thought processes and affected the jury’s ability to discuss and deliberate.
See CP at 181, 202. Moreover, his behavior impaired the presiding juror’s ability to
ensure that the jury discussed the issues “in an orderly and reasonable manner.” CP at
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
151. Juror 9’s conduct was “incompatible with proper and efficient jury service” and
he was therefore unfit pursuant to RCW 2.36.110.
Moreover, the trial court’s finding that juror 9’s conduct had to be
“intimidating on the process of discussing” views openly and freely implicates
Norman’s constitutional right to a unanimous verdict. 7 VRP at 568.
Unanimity means the jury reaches a consensus after “after each juror examines
the evidence and the parties’ arguments about what the evidence means, in light of the
jury instructions, and all of the jurors exchange their individual perceptions,
experiences, and assessments.” Lamar, 180 Wn.2d at 585. Jurors reach unanimity by
comparing views and arguing amongst themselves, id. at 584, and must feel free to
dissect the credibility and motivations of others, United States v. Thomas, 116 F.3d
606, 619 (2d Cir. 1997).
The trial court noted that juror 2 expressed “inhibition at some level.” 7 VRP
at 568. Juror 2 initially said she did not want to be in the same room as juror 9, then
later indicated she was “fine” to deliberate but did not want juror 9’s conduct “to limit
what people feel comfortable saying.” Id. at 559. Juror 2 thought that juror 9’s self-
harm might cause others not to speak their opinions, that the jury was “more
concerned with his behavior versus the nature of our conversations,” and that
everyone was “on edge.” Id. at 560-61.
The record shows that juror 9’s conduct impaired the full and fair discussions
necessary to reach a verdict. If jurors were concerned their opinions could prompt
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
juror 9 to harm himself, they may have censored themselves. If jurors did not feel
free to dissect the credibility and motivations of the witnesses and each other, their
ability to reach a unanimous verdict would be compromised. The trial court acted
within its discretion to remove a juror whose behavior may have impaired Norman’s
constitutional right to a unanimous verdict.
CONCLUSION
We hold that the trial court did not abuse its discretion in removing juror 9,
where his conduct could have impacted the jury’s ability to reach a unanimous
verdict. The heightened evidentiary standard does not apply to juror 9’s dismissal
because he was not accused of nullification, refusing to deliberate, or refusing to
follow the law. We reverse the Court of Appeals, affirm Norman’s conviction, and
remand for any further proceedings necessary to carry out this decision.
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9
WE CONCUR:
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9 (Gordon McCloud, J., concurring)
No. 100777-9
GORDON McCLOUD, J. (concurring)—I agree with the majority’s
conclusion, and I agree that its analysis accurately describes the language of our
cases, especially our language in State v. Elmore, 155 Wn.2d 758, 123 P.2d 72
(2005).
But some of Elmore’s language is potentially contradictory. On the one
hand, Elmore stated that a trial court can never dismiss a deliberating juror when
there is any “reasonable possibility” that the trial court ordered dismissal because
of the juror’s views about the quality or sufficiency of the evidence. Id. at 772,
778. On the other hand, Elmore stated that this “reasonable possibility” standard
applies “only in the rare case where a juror is accused of engaging in nullification,
refusing to deliberate, or refusing to follow the law.” Id. at 778 (emphasis added).
I write separately because I would acknowledge the tension between those
two statements. But I would resolve it as follows. Our decision in Elmore specified
that the heightened, “reasonable possibility” evidentiary standard must apply to
1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9 (Gordon McCloud, J., concurring)
certain types of cases, specifically cases with accusations of juror nullification,
because that’s what Elmore was all about—a few jurors accused another juror of
nullification, and the trial court, after limited inquiry, then dismissed the
challenged juror because of that accusation. Id. at 764-66. Given those facts, our
decision in Elmore necessarily focused on the juror nullification situation. We held
that as a matter of law, juror nullification accusations do involve disputes over the
quality and sufficiency of the evidence, so the heightened, “reasonable possibility”
evidentiary standard must apply to those situations: “accusations that a juror
intends to engage in nullification ‘go to the quality and coherence of the juror’s
views on the merits.’” Id. at 770 (quoting United States v. Symington, 195 F.3d
1080, 1087 n.6 (9th Cir. 1999)). 1
But juror nullification is not the only situation that implicates “the quality
and coherence of the juror’s views on the merits.” Common sense tells us that there
1 The Elmore court also relied on Symington for its apparent limitation of the “reasonable possibility” standard. 155 Wn.2d at 770. But Symington did not limit the “reasonable possibility” standard to jury nullification and refusal to deliberate cases. Instead, Symington applied this standard to cases where “the allegations go to the quality and coherence of the juror’s views on the merits.” 195 F.3d at 1087 n.6. And then the Symington court applied that standard in a nonnullification case. It ruled that the trial court erred in dismissing a juror accused of inability to comprehend case information, inability to remember previously discussed topics, and refusal to discuss her views with the other jurors because those accusations were based largely on other jurors’ frustrations with that juror’s opinion on the case itself. Id. at 1083, 1088.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9 (Gordon McCloud, J., concurring)
are all sorts of cases with accusations of juror misconduct that might bear on the
quality and coherence of the juror’s view on the merits. Norman argues that his
case is one of them.
I would resolve this tension by applying the Elmore heightened, “reasonable
possibility” standard to all challenges to deliberating juror dismissals—because a
trial court can never dismiss a juror because of that juror’s views about the
sufficiency of the evidence.
Applying that heightened standard in Elmore, this court reviewed a record
showing that the challenged juror had strong views on the quality and sufficiency
of the evidence in the case, no matter what language he used to express those
views during deliberations. This court therefore ruled that there was a reasonable
possibility that the trial court dismissed juror 8 because of his views on the quality
and sufficiency of the evidence. We affirmed the appellate court’s decision to
reverse and remand for a new trial.
Applying that heightened standard to this case compels a very different
conclusion. The record shows that the trial court dismissed deliberating juror 9
because he engaged in physical violence. See Clerk’s Papers at 568 (trial court
ruling to dismiss juror 9 because he was “out of control” and punched himself in
the face); majority at 13 (“The record shows that juror 9’s conduct impaired the
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9 (Gordon McCloud, J., concurring)
full and fair discussions necessary to reach a verdict.”). It is irrelevant to me
whether discussions about evidence triggered that physical violence. In fact, it is
irrelevant to me what caused that violence—unless, of course, it was self-defense,
defense of another, or something like that. Because the trigger for his unacceptable
physical violence is largely irrelevant, there is no reasonable possibility that the
trial court dismissed him because of his views about the sufficiency of the
evidence.
This result is consistent with the result in State v. Depaz, 165 Wn.2d 842,
855, 204 P.3d 217 (2009), though not with all of its language. In Depaz, decided
four years after Elmore, this court reaffirmed Elmore’s language about limiting the
reasonable possibility standard to nullification and similar cases. We stated, “This
court expressly reserved the ‘reasonable possibility’ standard for cases involving
accusations of nullification and refusing to deliberate or follow the law. . . . As this
case does not involve accusations that would necessarily require investigation into
the jury’s deliberations, we reject Depaz’s argument in favor of applying the
‘reasonable possibility’ standard and review the trial court’s decision under RCW
2.36.110.” Depaz, 165 Wn.2d at 855 (footnote omitted). But even though we said
that, what we actually did was affirm the juror’s dismissal because the juror had
consulted with her husband, a third party, not because of the underlying supposed
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9 (Gordon McCloud, J., concurring)
trigger that prompted her to violate the secrecy of the deliberations. In other words,
we silently answered the real Elmore question first: we concluded there was no
reasonable possibility that she was dismissed because of her views on the case; she
was dismissed because she breached the secrecy of the deliberations.
I think that courts should always answer the Elmore question—is there any
reasonable possibility that the trial court dismissed the juror because of the juror’s
views of the quality or sufficiency of the evidence—explicitly, and they should
answer it first. If the answer is yes, then the trial court cannot dismiss the juror for
that reason. If the answer is no, then the trial court must proceed to exercise its
discretion under RCW 2.36.110, concerning juror removal due to unfitness to
serve. It seems like the more straightforward and simple way to proceed.
There is tension between Elmore’s statement that a trial court can never
dismiss a deliberating juror when there is any “reasonable possibility” that the trial
court ordered dismissal because of the juror’s views about the quality or
sufficiency of the evidence, and its statement that this “reasonable possibility”
standard applies “only in the rare case . . . of . . . nullification, refusing to
deliberate, or refusing to follow the law.” 155 Wn.2d at 772, 778. I would resolve
that tension differently than the majority does. Instead of creating two classes of
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Norman, No. 100777-9 (Gordon McCloud, J., concurring)
juror dismissal cases with different evidentiary standards, I would apply the
reasonable possibility standard to all juror dismissal challenges. In other words, I
would ask the Elmore question—is there “any reasonable possibility” that the
reason for dismissal is “the juror’s views of the sufficiency of the evidence”—in
every case, first. Id. at 781.
In this case, the physical violence caused the dismissal, not whatever
triggered that violence. As a result, there is no reasonable possibility that juror 9
was dismissed because of his views on the sufficiency of the evidence.
In this case, and in most cases, we also have to ask the next question: Did
the trial court nevertheless abuse its discretion in dismissing juror 9 for any other
reason? Elmore, 155 Wn.2d at 777-78. I agree with the majority that the trial court
did not abuse its discretion—juror 9 was unfit because his actions were
“incompatible with proper and efficient jury service.” RCW 2.36.110; majority at
12-13.
I therefore respectfully concur.