State Of Washington v. Kristopher Michael Martin ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78114-6-1
Respondent, DIVISION ONE
V. UNPUBLISHED OPINION
KRISTOPHER MICHAEL MARTIN,
Appellant. FILED: July 22, 2019
CHUN, J. — The State charged Kristopher Martin with three counts of child
molestation. The matter proceeded through trial. During the second day of
deliberations, in the absence of the parties, the jury told the court it was
deadlocked on one of the counts. Without informing either party of the jury's
communication, the court told the jury to "try again." This ex parte, off-the-record
communication violated Martin's constitutional right to appear and defend in
person and by counsel. The State cannot demonstrate harmlessness beyond a
reasonable doubt. Additionally, the record does not indicate on which count the
jury deadlocked. We reverse.
BACKGROUND
In April 2013, Martin began living with his then-girlfriend, Jessica Reid,
and her three children. In January 2014, Reid's nine-year-old daughter, C.A.R.,
told her that she and Martin had showered and taken a bath together. Later,
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C.A.R. told Reid that Martin had touched her inappropriately during the shower
and bath.
On January 29, 2014, the State charged Martin with three counts of child
molestation in the first degree. The matter proceeded to trial and then jury
deliberations. On November 3, 2017, the trial court called the parties back to the
courtroom for the jury's verdict. Prior to summoning the jury, the trial court
notified the parties that it had communicated with the jury:
We've received word from the jury that they have a verdict so I'm
going to summon the jury in just a moment. I do want to tell both
counsel that a little more than three hours ago shortly before 11:00
this morning the jury sent word to me through the bailiff, Ms. Martin,
and the word was they thought they had reached a verdict on two
counts and they were hung on the third count or believed that they
were.
I didn't talk to the jury directly but I sent Ms. Martin back with
a message. The message was that they should try again. We then
didn't hear from them for three hours and obviously they were
deliberating, we could hear the voices from behind the door. But I
didn't summon the parties because I simply sent the jury back to
continue on the count on which they had not yet been able to reach
a verdict.
Now the message is they have reached a verdict on all three
counts so we're ready to hear that verdict.1
Martin did not make any objections. The jury convicted Martin on all three counts.
Martin appeals.
ANALYSIS
Martin argues the trial court's ex parte communication with the jury
warrants reversal because it violated his constitutional right to appear and defend
in person and by counsel. The State argues (1) Martin cannot raise this issue for
1 This quoted passage constitutes the only record reflecting the communications at issue.
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the first time on appeal, and (2) if he can raise the issue, the communication was
harmless beyond a reasonable doubt. We disagree with both of the State's
arguments.
A. Manifest Constitutional Error
The State contends that Martin's failure to object below precludes
appellate review. While we may refuse to review an error raised for the first time
on appeal, an exception exists for manifest errors affecting a constitutional right.
RAP 2.5(a)(3). To obtain review under the manifest constitutional error
exception, the defendant must(1) identify the constitutional error, and (2) make a
plausible showing that it actually affected their trial rights. State v. Lamar, 180
Wn.2d 576, 583, 327 P.3d 46 (2014).
Because the State argues that Martin does not satisfy either requirement,
we address each in turn.
1. Constitutional Error
Martin asserts the trial court's ex parte communication violated his
constitutional right to appear and defend in person and by counsel. While the
State concedes that the trial court violated CrR 6.15(02 by responding to the
2 CrR 6.15(f) provides:
(1)The jury shall be instructed that any question it wishes to ask the court about
the instructions or evidence should be signed, dated and submitted in writing to
the bailiff. The court shall notify the parties of the contents of the questions and
provide them an opportunity to comment upon an appropriate response. Written
questions from the jury, the court's response and any objections thereto shall be
made a part of the record. The court shall respond to all questions from a
deliberating jury in open court or in writing. In its discretion, the court may grant a
jury's request to rehear or replay evidence, but should do so in a way that is least
likely to be seen as a comment on the evidence, in a way that is not unfairly
prejudicial and in a way that minimizes the possibility that jurors will give undue
weight to such evidence. Any additional instruction upon any point of law shall be
given in writing.
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deliberating jury without first notifying the parties, it claims Martin cannot
demonstrate manifest constitutional error because "a violation of CrR 6.15(f)
does not always implicate a defendant's constitutional right." The State argues
the ex parte communication here did not implicate Martin's constitutional right
because the jury did not state that it "was hopelessly deadlocked," but rather that
"they 'may' be hung."
Neither case law nor the record, however, supports the State's contention.
The Washington Supreme Court has recognized that a court should not respond
to a communication from the jury in the defendant's absence. State v. Rice, 110
Wn.2d 577, 613, 757 P.2d 889 (1988). The Court has also held that a trial
court's ex parte communication with a juror constitutes an error "of constitutional
dimensions, violating the defendant's right to appear and defend [themselves] in
person and by counsel." Rice, 110 Wn.2d at 613. Additionally, as there is no
verbatim record of the jury's communication, the record does not confirm that the
jury told the court only that it may be "hung." Accordingly, Martin has adequately
identified a constitutional error.
2. Actually Affecting Rights
The State additionally asserts Martin cannot demonstrate that the ex parte
communication prejudiced him. Martin contends that he lost the opportunity to
(2)After jury deliberations have begun,the court shall not instruct the jury in such
a way as to suggest the need for agreement, the consequences of no agreement,
or the length of time a jury will be required to deliberate.
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comment on an appropriate response and to move for a mistrial at that point in
the proceedings. We agree with Martin.
For this court to review an issue as a manifest constitutional error, "[t]he
defendant must make a plausible showing that the error resulted in actual
prejudice, which means that the claimed error had practical and identifiable
consequences in the trial." Lamar, 180 Wn.2d at 583. "If the trial court could not
have foreseen the potential error or the record on appeal does not contain
sufficient facts to review the claim, the alleged error is not manifest." Lamar, 180
Wn.2d at 583 (quoting State v. Davis, 175 Wn.2d 287, 344, 290 P.3d 43(2012)).
Here, the trial court could have foreseen the potential error because "[it is
settled in this state that there should be no communication between the court and
the jury in the absence of the defendant." State v. Caliquri, 99 Wn.2d 501, 508,
664 P.2d 466 (1983). Furthermore, the potential error had practical and
identifiable consequences. Martin did not have an opportunity to comment on an
appropriate response to the jury's communication or move for a mistrial.
The State claims Martin cannot show prejudice because the court would
have denied his motion for a mistrial. But we cannot discern from the record
exactly what the jury communicated to the court and vice-versa, and we cannot
speculate as to how the trial court would have ruled. Additionally, Martin does
not need to show the trial court would have granted his motion, but rather only a
plausible showing of prejudice. Martin has made a plausible showing that the
error prejudiced him at trial.
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Because Martin meets both prongs of the manifest constitutional error
analysis, we review his claim regarding the court's communication with the jury.
B. Right to Appear and Defend in Person and by Counsel
As discussed above, the trial court's ex parte communication with the jury
violated Martin's right to appear and defend in person and by counsel. The State
argues that the error does not warrant reversal because it was harmless beyond
a reasonable doubt. We disagree.
While a court may constitutionally err by improperly communicating with
the jury, "the communication may be so inconsequential as to constitute
harmless error." State v. Bourdeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997).
The State bears the burden of proving harmlessness beyond a reasonable doubt.
Caliduri, 99 Wn.2d at 509.
The State has not satisfied its burden in this case. Because the ex parte
communication occurred off the record, the court's announcement to the parties
set forth in the passage above constitutes the only record reflecting the
communication. Though the State argues the error was harmless because the
court's communication to the jury was "'negative in nature and conveyed no
affirmative information' to the jury," without a verbatim record of the exchange,
we cannot be convinced of this beyond a reasonable doubt. See State v.
Stanley, 120 Wn. App. 312, 318, 85 P.3d 395(2004)(providing that because the
record does not contain jury deliberations, the State could not meet its burden to
show that the failure to provide a required jury instruction was harmless beyond a
reasonable doubt). Martin also correctly points out that he did not have an
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opportunity to comment on the appropriate response to the jury or move for a
mistrial. Furthermore, because the court's statement does not indicate the count
on which the jury was "hung," we must reverse on all three counts.3
Reversed.
WE CONCUR:
3 Because we reverse Martin's conviction on this ground, we do not address the merits of
his other arguments regarding prosecutorial misconduct and the community custody conditions
imposed in his Judgment and Sentence.
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