State Of Washington v. Lavelle Johnson ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69022-1-1
Respondent,
DIVISION ONE
v.
LAVELLE KENNETH JOHNSON, UNPUBLISHED OPINION
Appellant. FILED: November 18, 2013
Becker, J. - Lavelle Johnson appeals the judgment and sentence
imposed following his convictions for attempting to elude a pursuing police
vehicle and first degree driving with a suspended license. Johnson argues: (1)
the trial court erred in denying his motion for a new trial when a juror used the
Internet to access information about Johnson's past criminal history and (2) the
information and special verdict instructions regarding the sentencing
enhancement of endangering the public pursuant to RCW 9.94A.834 were
ro
defective. Because there is a reasonable possibility that the extrinsic informaUong^
acquired by the juror influenced the verdict, we reverse and remand for a new! - °
s
-n,1;-
CO '^~o\
trial. ^ ser^
FACTS - ;-
Shortly after midnight on October 20, 2010, Detective Edward Chan and
Officer Jason Diamond of the Seattle Police Department were conducting
surveillance on Lavelle Johnson outside a sports bar in south King County. From
a distance of approximately 100 yards, Detective Chan saw Johnson leave the
No. 69022-1-1/2
bar and get into the driver's seat of a black Mercedes. Another man got into the
passenger seat of the car. Detective Chan and Officer Diamond testified that
they were able to identify Johnson as the driver from previous contacts and from
photographs. Detective Chan was also using a telescopic lens to enhance his
observation of Johnson.
The Mercedes left the parking lot and began driving the wrong way on
Martin Luther King Jr. Way South. Detective Chan discreetly followed the
Mercedes in an unmarked car. At one point, the Mercedes executed a U-turn in
a residential area and passed Detective Chan at approximately 25 miles per
hour. Both Detective Chan and Officer Diamond testified that they could see
through the driver's side window and they observed that Johnson was driving.
Detective Chan radioed other officers to conduct a traffic stop of the Mercedes.
Officer Aaron Sausman and Detective Benjamin Hughey pulled behind the
Mercedes in a patrol car and signaled the Mercedes to stop by activating their
lights and siren. The Mercedes did not stop but instead ran a stop sign and
accelerated to a high rate of speed. The Mercedes ran another red light and
eventually entered 1-5 going southbound. Once on 1-5, the driver turned offthe
Mercedes' headlights and proceeded to weave in and out of traffic, accelerating
up to 130 miles per hour. The driver eventually left I-5, pulled into an apartment
complex parking lot, and jumped out of the Mercedes, which continued to roll and
-2-
No. 69022-1-1/3
struck a parked car. The Mercedes' occupants fled on foot. A K-9 unit picked up
a scent from the driver's seat and tracked it to Johnson, who was arrested.
The State charged Johnson with attempting to elude a pursuing police
vehicle and first degree driving with a suspended license. The State later
amended the information to include a sentencing enhancement for endangering
the public pursuant to RCW 9.94A.834. The charging language for the
enhancement read as follows:
And I, Daniel T. Satterberg, Prosecuting Attorney for King
County in the name and by the authority of the State of Washington
further do allege that during the commission of that crime, one or
more persons other than the defendant or the pursuing law
enforcement officer were threatened with physical injury or harm by
the actions of the defendant, which is a special allegation of
endangerment by eluding under the authority of Chapter 219, Laws
of 2008.
At trial, Johnson admitted the Mercedes was driven in a manner that was
"crazy, reckless and erratic" and that put other motorists on the road at risk of
injury. Johnson also admitted that his license was suspended and that he had
been convicted of prior crimes of dishonesty, including taking a motor vehicle
without permission in 2004 and second degree theft and witness tampering in
2007. Johnson's defense to the charges was that his friend was driving the
Mercedes and he was the passenger. He argued that both he and his friend
were African-American males who were dressed identically and that the officers
could not have distinguished between the two men in the dark. He also
-3-
No. 69022-1-1/4
contended that the K-9 unit naturally picked up his scent because the Mercedes
was his girl friend's car and he frequently rode in it.
At the conclusion of the evidence, the trial court instructed the jury
regarding the sentencing enhancement as follows:
This special verdict is to be answered only if the jury finds the
defendant guilty of Attempting to Elude a Pursuing Police Vehicle
as charged in Count I.
We, the jury, return a special verdict by answering as
follows:
QUESTION: Was any person, other than Lavelle Johnson or a
pursuing law enforcement officer, threatened with physical injury or
harm by the actions of Lavelle Johnson during his commission of
the crime of attempting to elude a police vehicle?
ANSWER: (Write "yes" or "no")
The jurywas also instructed that they were not allowed to consider evidence that
had not been admitted in reaching their verdict and were to use evidence of prior
criminal convictions only for the purposes of assessing the defendant's credibility.
After deliberating over the course of two days, the jury convicted Johnson
of both counts as charged. In addition, the jury answered "yes" on the special
verdict form for the sentencing enhancement.
After the trial, the deputy prosecutor spoke with some of the jurors. Juror
12 admitted that he had conducted an Internet search of the name Lavelle
Johnson at the end of the first day of deliberations. The deputy prosecutor
-4-
No. 69022-1-1/5
appropriately brought this information to the attention of the parties. In an
affidavit, juror 12 stated as follows:
1. On December 22, 2011, following the jury's first day of
deliberations, I conducted an internet search for the defendant's
name - Lavelle Johnson.
2. I found a news article about a person named Lavelle Johnson
having a sexual relationship with a corrections officer at a
juvenile facility.
3. I was not sure ifthis person was the same Lavelle Johnson as
the defendant.
4. I believe I read the beginning of the article, but did not read the
entire article.
5. The information I discovered on the internet did not change my
feelings about the case or affect my decision about the verdict.
During deliberations on the first day, I had already expressed
my feelings about the case.
6. I did not tell the other jurors about my internet search until I was
discussing the case in the hallway of the courthouse with [the
deputy prosecutor] after the verdict was read.
Johnson filed a motion for a new trial, citing juror misconduct. The trial
court denied the motion, making the following findings of fact and conclusions of
law:
1. FINDINGS OF FACT:
a. During trial, the Defendant testified and three criminal
convictions were admitted at trial for impeachment purposes:
Theft in the Second Degree from 2007; Taking a Vehicle
without Permission in the Second Degree from 2004; and
Attempted Tampering with a Witness from 2007.
b. The jury was instructed that the Defendant's convictions
were to be used for the sole purpose of assessing what
weight or credibility to give to the Defendant's testimony.
c. The Court admonished the jurors to not do any outside
research during the trial or deliberations.
-5-
No. 69022-1-1/6
d. Juror 12 conducted an internet search of the Defendant's
name, which was juror misconduct.
e. Juror 12 detailed in his affidavit that he conducted an
internet search for Lavelle Johnson after the first day of
deliberations on December 22, 2011, and he found a news
article about a person named Lavelle Johnson having a
sexual relationship with a corrections officer at a juvenile
facility; that he was not sure if this person was the same
Lavelle Johnson as the defendant; that he believed he read
the beginning of the article, but did not read the entire article;
that the information he discovered did not change his
feelings about the case or affect his decision about the
verdict; that he had expressed his feelings about the case to
his fellow jurors during the first day of deliberations; and that
he did not tell the other jurors about the internet search until
he was discussing the case in the hallway after the jury's
verdict was read in court.
f. Juror 12 is credible. There are no other affidavits of jurors
and no evidence has been presented that puts Juror 12's
affidavit in doubt.
g. The information found by Juror 12 was in the mind of one
juror who did not share it with the other jurors and it was not
a part of jury deliberations.
2. CONCLUSIONS OF LAW:
The Defendant's motion for a new trial based on juror
misconduct is denied for the following reasons:
a. A juror discovering information about a conviction that would
have been inadmissible at trial is juror misconduct.
b. While juror misconduct did occur, it does not automatically
warrant a new trial.
c. The trial court conducts a fact-finding hearing since it has a
better opportunity to consider and weigh whether juror
misconduct warrants a new trial because the trial court can
look at the facts and circumstances of the case and the trial
over which it presided.
d. Information about a potential juvenile criminal conviction, in
light of the three adult felonies admitted at trial, made no
difference in the way the jury deliberated, especially since it
-6-
No. 69022-1-1/7
was known by only one juror and not shared with the rest of
the jury.
e. The juror misconduct in this case did not prejudice the
Defendant's right to a fair trial, and is not grounds for a new
trial.
The court also incorporated its oral findings and conclusions into the order.
Johnson appeals his judgment and sentence as well as the order denying a new
trial.
DECISION
Johnson argues that the trial court erred in denying his motion for a new
trial based on juror 12's misconduct. The decision to grant or deny a motion for a
new trial is reviewed for abuse of discretion. State v. Marks, 71 Wash. 2d 295, 302,
427 P.2d 1008 (1967). A trial court abuses its discretion when its decision is
manifestly unreasonable or based on untenable grounds or reasons. State v.
Maaers, 164Wn.2d 174, 189 P.3d 126(2008). The trial court's application of an
incorrect legal analysis or other error of law can constitute an abuse of discretion.
State v.Tobin. 161 Wash. 2d 517, 523, 166 P.3d 1167 (2007).
The consideration of extrinsic evidence by a juror constitutes juror
misconduct that may be grounds for a new trial. State v. Pete. 152 Wash. 2d 546,
98 P.3d 803 (2004). Extrinsic evidence is defined as "'information that is outside
all the evidence admitted at trial, either orally, or by document,'" and it is
improper "because it is not subject to objection, cross examination, explanation
or rebuttal." Pete. 152 Wash. 2d at 552-53 (internal quotations marks omitted),
-7-
No. 69022-1-1/8
quoting State v. Balisok. 123Wn.2d 114, 188, 866 P.2d 631 (1994). Once juror
misconduct is established, prejudice to the defendant is presumed. State v.
Bolinq. 131 Wash. App. 329, 332, 127 P.3d 740. review denied. 158Wn.2d 1011
(2006). To overcome this presumption, the State must satisfy the trial court that
it is unreasonable to believe the misconduct could have affected the verdict.
Bolinq. 131 Wash. App. at 332. A new trial must be granted unless it can be
concluded beyond a reasonable doubt that extrinsic evidence did not contribute
to the verdict. State v. Briqqs. 55 Wash. App. 44, 55-56, 776 P.2d 1347 (1989).
The court must make an objective inquiry, asking whether the evidence could
have affected the jury's decision, not whether the evidence did in fact affect the
decision; the actual effect of the extrinsic evidence on the jurors' decision inheres
in the verdict. Richards v. Overtake Hosp. Med. Ctr.. 59 Wash. App. 266, 273, 796
P.2d 737 (1990). review denied. 116Wn.2d 1014 (1991). The effect of the
extrinsic evidence should be evaluated in light of all the facts and circumstances
of the trial. State v. Tiqano. 63 Wash. App. 336, 342, 818 P.2d 1369 (1991), review
denied. 118Wn.2d 1021 (1992). Any doubt that the misconduct affected the
verdict must be resolved against the verdict. Briqqs. 55 Wash. App. at 55.
It is undisputed that juror 12's Internet search of the name Lavelle
Johnson was misconduct. The critical question is therefore whether the trial
court properly analyzed whether reasonable grounds existed to believe that
Johnson was prejudiced.
-8-
No. 69022-1-1/9
Johnson argues that the trial court erroneously interpreted the law by
making a subjective inquiry into the actual effect of the evidence on the jury
instead of an objective inquiry into whether the evidence could have affected the
jury's determination. A trial court "may consider only such facts asserted in the
affidavits of jurors which relate to the claimed misconduct of the jury and do not
inhere in the verdict itself. ... [Y]he effect the evidence may have had upon the
jurors or the weight particular jurors may have given to particular evidence, or the
jurors' intentions and beliefs, are all factors inhering in the jury's processes in
arriving at its verdict, and .. . inadmissible to impeach the verdict." Cox v.
Charles Wright Acad.. Inc.. 70 Wash. 2d 173, 179-80, 422 P.2d 515 (1967). Here, it
is clear that the trial court did consider some subjective factors. For example, the
trial court made findings that juror 12's statement that his verdict was not affected
by the information was credible. Moreover, the trial court noted that juror 12 did
not share the information with any of the other jurors. However, it is clear that
the trial court's ultimate decision was based on objective factors, including: (1)
the fact that the jury was aware of Johnson's criminal history; (2) that the jury
was instructed not to use evidence of Johnson's criminal history for any other
purpose than to evaluate his credibility; and (3) that the information indicated
Johnson was the victim of the corrections officer rather than a willing participant:
But there were three other offenses that came into evidence.
To the extent that this went to the issue of your client's, Mr.
Johnson's, credibility, they had far more evidence that was
admitted that went to his credibility directly than this would have,
-9-
No. 69022-1-1/10
and the jury was instructed specifically they could consider it on the
issue of his credibility and could do that legitimately. They were
also told that other convictions could not be used for any other
purpose. So to the extent that he was of the opinion that this
indicated there was another conviction, he was instructed you can't
consider for anything other than credibility. This one they shouldn't
consider at all.
This is unusual because it raises an issue of sexual
misconduct in juvenile hall, but to the extent that it raised the issue
of sexual impropriety at a juvenile facility, the defendant would have
been the victim of that impropriety rather than the perpetrator
legally. He was the victim of a jail officer. And you're right, Mr.
Swaby, had you asked to put that into evidence, I would not have
let it in. But to the extent that he was previously a victim of a law
enforcement officer, it logically would not prejudice him. It would
prejudice the law enforcement officer who victimized him.
We hold the trial court applied the appropriate legal standard in assessing
prejudice.
However, Johnson also argues that the State failed to prove beyond a
reasonable doubt that the misconduct had no effect on the verdict. He contends
that the extrinsic evidence was prejudicial because: (1) it alerted juror 12 that
Johnson had been incarcerated as a juvenile, making Johnson appear to "be a
lifelong offender" and (2) it portrayed Johnson as a person of "dubious moral
character" who engaged in a sexual relationship with a corrections officer.
Johnson's only defense was that someone else committed the crimes.
Johnson's credibility was therefore paramount in this case. Here, the information
acquired by juror 12 directly related to Johnson's credibility. First, "'prior
conviction evidence is inherently prejudicial' when the defendant is the witness
because it tends to shift the jury focus 'from the merits of the charge to the
-10-
No. 69022-1-1/11
defendant's general propensity for criminality.'" State v. Hardy. 133 Wash. 2d 701,
710, 946 P.2d 1175 (1997) (internal quotation marks omitted), quoting State v.
Jones. 101 Wash. 2d 113, 120, 677 P.2d 131 (1984). We are cognizant of the fact
that Johnson's credibility had already been impeached by the admission of his
adult crimes of dishonesty. But it is not unreasonable to believe that the
knowledge that a defendant began committing crimes as a juvenile could
influence a juror to believe that the defendant was therefore an incurable
offender who must have committed the crime at issue.
The information was also prejudicial to Johnson because it informed juror
12 that Johnson had previously been involved in a sexual relationship with a
corrections officer. The State correctly notes that it is a crime for a corrections
officer to engage in sexual intercourse with an inmate over whom they have
supervisory power and that Johnson was the victim, not the perpetrator, of the
crime. But the risk is too great that any evidence of sexual impropriety could
have had a negative effect on Johnson's credibility. See, e.g.. State v. Peterson.
35 Wash. App. 481, 485, 667 P.2d 645 (purpose of RCW 9A.44.020, the "rape
shield" statute, was "to remedy the practice of producing evidence of a victim's
past sexual conduct and attempting to show that there was a logical nexus
between chastity and veracity"), review denied. 100Wn.2d 1028(1983): Statev.
Hudlow. 99 Wash. 2d 1, 14, 659 P.2d 514 (1983) (information regarding victim's
-11-
No. 69022-1-1/12
past sexual conduct "may confuse the issues, mislead the jury, or cause the jury
to decide the case on an improper or emotional basis").
The State argues that any prejudice was alleviated by the fact that the jury
was instructed to use information about Johnson's prior convictions only to
determine his credibility. While jurors are presumed to follow the instructions
they are given, "if extrinsic evidence is sufficiently prejudicial, a new trial must be
ordered despite admonitions to the jury." Briqqs. 55 Wash. App. at 60. Where
extrinsic evidence concerns a defendant's prior crimes, "the efficacy of such
instructions is subject to serious doubt." Dickson v. Sullivan. 849 F.2d 403, 408
(9th Cir. 1988). We also must reject the State's argument that the information
was not prejudicial because juror 12 did not communicate itto any of the other
jurors. Even a single juror's improperly influenced vote deprives the defendant of
an unprejudiced, unanimous verdict. Dickson. 849 F.2d at 408.
While the trial court instructed the jurors that they were to decide the case
based only on evidence presented at trial and that they were not to discuss the
case with family or friends, the instructions did not specifically caution jurors
about the use of the Internet. The Internet has become an integral part of our
daily lives, and advances in technology have exponentially increased the risk that
jurors will conduct research and investigate the law and facts on their own. This
case highlights the importance of jurors being thoroughly and repeatedly
admonished not to consult the Internet for information about the case during trial.
-12-
No. 69022-1-1/13
We cannot say with confidence that the information obtained by juror 12
could not have affected the verdict. Because any doubts must be resolved
against the verdict, we hold that Johnson is entitled to a new trial. As such, it is
unnecessary for us to reach Johnson's other claim of error regarding the
information and special verdict language for the endangerment enhancement
under RCW 9.94A.834.
Reversed and remanded.
WE CONCUR:
-13-