State Of Washington v. Kevin Patrick Sullivan , 415 P.3d 1261 ( 2018 )

FILED
COURT OF APPEALS OW I
STATE OF WASHINGTON
2018 APR 30 AM 10; 17
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 76358-0-1
Respondent,
DIVISION ONE
V.
KEVIN PATRICK SULLIVAN, PUBLISHED OPINION
Appellant. FILED: April 30, 2018
MANN,A.C.J. — Kevin Sullivan appeals his conviction for one count of burglary in
the second degree. Sullivan argues that he was deprived of his constitutional right to a
unanimous jury verdict because the trial court failed, sua sponte, to instruct the jury that
all deliberations must always involve all jurors. We affirm Sullivan's conviction. We
remand, however, for the trial court to correct two scrivener's errors in Sullivan's
sentence.
FACTS
The State charged Sullivan with one count of burglary in the second degree. The
State alleged that on October 23, 2016, Sullivan and codefendant Aaron Fox unlawfully
entered an unoccupied home in Reriton with intent to commit a crime.
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A trial was held on January 4 through 10, 2017. The State proposed a set of the
standard jury instructions, including Washington Pattern Jury Instruction (WPIC) 1.041
which states:
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 reexamine 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 sole y because of the opinions of your fellow
jurors. Nor should you change your mind just for the purpose of reaching
a verdict.
Instruction 14 further informed the jury how to initiate and carry out the deliberative
process, and explained that each jui•or has the right to be heard. Sullivan did not object
to these two instructions, or propose any additional instructions.
After deliberating less than to hours, the jury found Sullivan guilty as charged.
A poll of the jury confirmed that their verdict was unanimous. Sullivan appeals.
1 ANALYSIS
Unanimity Instruction
The primary issue in this case is whether the trial court erred by failing to instruct
the jury that they must complete all deliberations when all twelve jurors are in the jury
room. Sullivan argues that without such an instruction, "there is no basis to assume the
verdicts rendered were the result of the common experience of all of the jurors."
Because Sullivan did not request such an instruction below, nor object to the trial
court's instructions given, RAP 2.5(a) precludes him from raising this issue for the first
111 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 1.04 (4th ed.
2016)(WPIC).
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time on appeal unless he can show that failure to provide the additional instruction is a
"manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. O'Hara, 167
Wash. 2d 91, 98, 217 P.3d 756 (2009). For an error to be manifest, there must be
evidence of "actually prejudice" having "practical and identifiable consequences [at]
trial." O'Hara, 167 Wash. 2d at 98-99. "If the facts necessary to adjudicate the claimed
error are not in the record on appeal, no actual prejudice is shown and the error is not
manifest." State v. McFarland, 1271A/n.2d 322, 333, 899 P.2d 1251 (1995), as
amended (Sept. 13, 1995).
Sullivan relies primarily on State v. Lamar, 180 Wash. 2d 576, 327 P.3d 46 (2014).
In Lamar, the trial court provided the, pattern jury instruction, WPIC 1.04, on the first day
of jury deliberations. Lamar, 180 Wash. 2d at 580. On the second day of deliberations,
however, a juror fell ill and the trial C,ourt substituted an alternate juror. Instead of
instructing the jury to begin deliberations anew, the trial court instructed the remaining
jurors to spend some time "reviewing" and "recapping" the past deliberations to bring
the alternate juror "up to speed" and then to resume deliberations. Lamar, 180 Wash. 2d
at 580-81.
While our Supreme Court fouind that the original instruction, patterned after WPIC
1.04, was constitutional, it held that the second instruction was "manifest constitutional
error" because the instruction "affirmatively told the reconstituted jury not to deliberate
together as is constitutionally required." Lamar, 180 Wash. 2d at 582. The court then
determined the error was prejudicial because the jury is presumed to follow the trial
courts instructions, "absent evidence to the contrary." Lamar, 180 Wash. 2d at 586.
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In this case, the trial court instructed the jurors with the identical instruction
approved by the court in Lamar. Lamar, 180 Wash. 2d at 585. This instruction informed
the jurors that they had the duty to discuss the case with each other and to deliberate
together in an effort to reach a unanimous verdict. Juries are presumed to follow their
instructions absent evidence to the Contrary. State v. Dye, 178 Wash. 2d 541, 556, 309
P.3d 1192(2013). Here, the post-verdict poll in which the jurors confirmed they reached
a unanimous verdict supports that presumption. "Polling a jury, when properly carried
out, is generally evidence of jury unanimity" unless "the record affirmatively shows a
reason to seriously doubt that the right has been safeguarded." Lamar, 180 Wash. 2d at
587-88.
Sullivan offers no evidence that the jury failed to deliberate as a whole. Instead,
Sullivan's argument relies entirely on speculation, arguing "it is safe to assume one or
more jurors left the jury room.. . , if,for no other reason than to use a bathroom" during
the two hours of deliberations. "[S]rieculation that a juror may have left the jury room
during deliberations... is insufficient to warrant review under RAP 2.5(a)(3)." State v.
St. Peter, 1 Wash. App. 2d 961, 963, 408 P.3d 361 (2018).2
2 Sullivan'sargument has been repeatedly rejected in unpublished opinions prior to Division
Three's opinion in St. Peter. See e.q., State v. Ahlquist, No. 76734-8-1(Wash. Ct. App. July 24, 2017)
(unpublished), http://www.courts.wa.aov/opinions/pdf/767348.pdf, review denied, 189 Wash. 2d 1034, 407
P.3d 1145(2018); State v. Tucker, No. 33714-6-111 (Wash. Ct. App. Oct. 25, 2016)(unpublished),
http://www.courts.wa.qov/opinions/pdf/337146 unp.pdf, review denied, 187 Wash. 2d 1022, 390 P.3d 343
(2017); State v. Walsh, No. 34396-1-111 (Wash. Ct. App. July 18, 2017)(unpublished),
http://www.courts.wa.gov/opinions/pdf/343961 unp.pdf; State v. Burrill, No. 34079-1-111, slip op. at[3]
(Wash. Ct. App. Jan. 4, 2018)(unpublished), http://www.courts.wa.qov/opinions/pdf/340791 unp.pdf. We
see no reason not to follow these previous decisions.
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We hold that without evidence to demonstrate that the jury did not deliberate as a
whole, the asserted error is not "manifest" and we decline to address Sullivan's
argument on the merits. See RAP 2i.5(a)(3).
Scrivener's Errors
The State concedes that Sullivan's judgment and sentence has two scrivener's
errors that require correction. The jUdgment and sentence misstates the date on which
he was found guilty, January 11, 2017 instead of January 10, 2017. It also incorrectly
states the statutory maximum punishment as five years, instead of ten years for a class
B felony. RCW 9A.52.030(2); RCW 9A.20.021(b). The remedy for clerical or
scrivener's errors in judgment and sentence forms is remand to the trial court for
correction. CrR 7.8(a); see RAP 7.2(e).
We affirm Sullivan's conviction, but remand for the trial court to correct the
scrivener's errors.
10401,
WE CONCUR:
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