745447MAJ

~

Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 74544-7
Title of Case: State of Washington v. Laris L. Pete
File Date: 10/14/2004
Oral Argument Date: 06/30/2004


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Anthony P Wartnik


JUSTICES
--------
Authored by Gerry L Alexander
Concurring: Faith Ireland
Barbara A. Madsen
Charles W. Johnson
Richard B. Sanders
Tom Chambers
Dissenting: Bobbe J Bridge
Susan Owens
Mary Fairhurst


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Cheryl D Aza
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
Prosecuting Atty King County
King County Prosecutor/appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

Andrea Ruth Vitalich
King County Prosecutor's Office
516 3rd Ave Ste W554
Seattle, WA 98104-2362

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 74544-7
Respondent, )
)
v. ) En Banc
)
LARIS L. PETE, )
)
Petitioner. )
) Filed October 14, 2004

ALEXANDER, C.J.--Laris Pete was convicted of second degree robbery in King
County Superior Court. Following the Court of Appeals' affirmance of his
conviction, we granted review. In his petition, Pete contends that he
should be afforded a new trial because the jury improperly considered
extrinsic evidence that was not admitted at trial. We agree with Pete and
reverse the Court of Appeals.
I
On November 17, 2001, at approximately 1:00 a.m., Seattle Police Officers
Linda Cook and Amy Branham were on routine patrol in West Seattle. While
they were at the corner of Delridge Way and Southwest Orchard, a motorist
drove up to their vehicle and informed them that 'there's two guys beating
up another guy right over there.' Verbatim Report of Proceedings (VRP)
(Mar. 12, 2002) at 99. The informant pointed to a location north of
Delridge Way.
When Officers Cook and Branham arrived at the location designated by the
informant, they saw Gregorio Olivares-Bahena lying on the ground with two
individuals, Laris Pete and Herman Longtimesleeping, standing over him.
The officers observed Longtimesleeping in the act of kicking Olivares-
Bahena in the head. The officers also witnessed what they thought was
Pete's attempt to take a case of beer from Olivares-Bahena's hands. As the
officers parked their vehicle, they observed Pete complete the taking of
the beer from Olivares-Bahena and begin walking away from Olivares-Bahena
together with Longtimesleeping. After the officers commanded Pete and
Longtimesleeping to stop, Pete complied. Longtimesleeping, however, fled
from the scene but was apprehended by Officer Cook after a brief pursuit on
foot. A search of Pete's pants pocket revealed two bottles of beer. A
case of beer was found in a grassy area near where Pete was standing.
The police officers both observed that Olivares-Bahena had injuries to his
face. Olivares-Bahena informed them that he was in the process of going to
his home from a gas station when he was approached by Pete and
Longtimesleeping. He told the officers that he had engaged in a
conversation with the two men and that they eventually asked him if they
could have a beer. Olivares-Bahena said that he responded by giving each
of them a beer. According to Olivares-Bahena, when they asked for more
beer, he declined their request. He said that Longtimesleeping then struck
him in the face. Olivares-Bahena indicated that the blow caused him to
fall to the ground where he was then kicked by Longtimesleeping. He
advised the officers that Longtimesleeping was the one who assaulted him
while Pete attempted to take the case of beer out of his hands. All of the
statements Olivares-Bahena made to the officers at the scene were admitted
at trial as excited utterances pursuant to ER 803(a)(2).
Olivares-Bahena's testimony at trial differed in some respect from the
statements he allegedly gave to the officers at the scene. He testified
that he gave beer to Pete and Longtimesleeping so that the two men would
leave him alone. Olivares-Bahena also testified that Longtimesleeping
asked him for money after he had given Pete and Longtimesleeping the beer.
He indicated that he responded by saying that he had no money. Olivares-
Bahena testified, additionally, that he tried to move his wallet from his
back pocket to his front pocket in order to prevent Longtimesleeping from
taking it from him. In doing so, he fell and hit his head on the ground.
He said that he did not remember if either of the defendants hit him after
that.
While being transported to a police precinct station after his arrest, Pete
told another officer that 'he only took some beer' from Olivares-Bahena and
that Longtimesleeping was the one who actually assaulted Olivares-Bahena.
Clerk's Papers (CP) at 32. Pete also told the officer that Olivares-Bahena
received facial injuries when he fell to the ground after wrestling with
Longtimesleeping. At the precinct station, Pete signed a written
statement, in which he indicated that Olivares-Bahena offered him a beer
and at which time 'the other guy {Longtimesleeping} . . . came up.' Id. at
33. His written statement also contained the assertion that Olivares-
Bahena 'handed' him the rest of the beer and that he then walked away as
instructed by Olivares-Bahena. Id.
Pete and Longtimesleeping were charged together in King County Superior
Court with robbery in the first degree. Before trial, a CrR 3.5 hearing
was held. At the conclusion of this hearing, the trial court determined
that the oral and written statements Pete gave to the police officers were
admissible. Neither statement, however, was offered into evidence at
trial. The jury was instructed on the lesser included crime of robbery in
the second degree.
After deliberating for less than half a day, the jury informed the
trial court that it had reached a verdict. Before the verdict was
rendered, the trial judge told the parties that two documents had been
inadvertently sent to the jury room. One document was the police officer's
written report recounting statements that Pete allegedly made during the
time he was being transported to the precinct station. The other was
Pete's written and signed statement. The trial court noted that as soon as
it learned that unadmitted documents had been furnished to the jury, the
bailiff retrieved the officer's statement and 'grabbed' a second document.
VRP (Mar. 14, 2002) at 68. The latter document was mistakenly retrieved
because it had been admitted into evidence. When this error was realized,
the bailiff returned to the jury room to replace the admitted document and
retrieve the other unadmitted document. The bailiff then instructed the
jurors to disregard the unadmitted documents during their deliberations.1
After the parties were informed of these happenings, they agreed that the
jury's verdict should be received and that the trial court should then poll
the jurors about who saw and/or read the documents that should not have
gone to the jury room.
The jury acquitted Pete and Longtimesleeping of the charge of robbery
in the first degree but found them both guilty of the lesser included
offense of robbery in the second degree. In response to questioning by the
trial court, the jurors acknowledged that the bailiff told them to
disregard the documents that had been inadvertently sent to the jury room.
However, some of the jurors indicated that they had seen and/or read the
unadmitted documents.2
Pete moved for a new trial claiming that he was prejudiced by the
submission to the jury of the documents that had not been admitted into
evidence. The trial court denied the motion concluding that although it
was error for the nonadmitted documents to be submitted to the jury, the
error was harmless because (1) the documents were only in the jury room for
a brief amount of time, (2) the jury was instructed to disregard the
documents, and (3) the statements contained in the police report and Pete's
written statement were exculpatory in nature.
Division One of the Court of Appeals affirmed Pete's conviction,
concluding that there was no reasonable ground to believe that the jury's
exposure to the nonadmitted documents prejudiced Pete and that the other
evidence presented was more than sufficient to convict Pete of second
degree robbery. State v. Pete, No. 50404-5-I, slip op. at 7 (Wash. Ct.
App. June 16, 2003). Pete then filed a motion for discretionary review
with this court. We granted the petition.
II
Pursuant to CrR 7.5(a)(1), a trial court 'may' grant a defendant's motion
for a new trial if it 'affirmatively appears that a substantial right of
the defendant was materially affected' by the jury's receipt of 'any
evidence, paper, document or book not allowed by the court.' A new trial
is warranted in such circumstances only when the defendant ''has been so
prejudiced that nothing short of a new trial can insure that the defendant
will be treated fairly.'' State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d
1120 (1997) (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747
(1994)). A trial court's denial of a motion for a new trial will not be
reversed on appeal unless there is a clear showing of abuse of discretion.
Id. An abuse of discretion occurs when no reasonable judge would have
reached the same conclusion. Id.
Generally, we are reluctant to inquire into how a jury arrives at its
verdict. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994). There
must be a strong, affirmative showing of misconduct in order to overcome
the long-standing policy in favor of 'stable and certain verdicts and the
secret, frank and free discussion of the evidence by the jury.' Id. at
118. It is, however, misconduct for a jury to consider extrinsic evidence
and if it does, that may be a basis for a new trial. Id. at 118. ''Novel
or extrinsic evidence is defined as information that is outside all the
evidence admitted at trial, either orally or by document.'' Id. (quoting
Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737
(1990)). This type of 'evidence is improper because it is not subject to
objection, cross examination, explanation or rebuttal.' Id.
As noted above, the documents that were inadvertently submitted to the jury
were the written and signed statement that Pete gave at the precinct
station and a written report by the officer who transported Pete to the
station. In his written statement, Pete indicated that Olivares-Bahena
gave him some beer after which Longtimesleeping walked up to them. Pete
went on to state that Olivares-Bahena then handed him the rest of the beer
and instructed him to walk away. Pete also said that he did not look back
after walking away and was not aware of what Olivares-Bahena and
Longtimesleeping 'were doing.' CP at 33. In the written report, the
police officer stated that Pete told him that 'he only took some beer, but
that the other guy {Longtimesleeping} was the one who actually beat the
victim {Olivares-Bahena}.' Id. at 32. The officer also said that Pete
told him that Olivares-Bahena received his injuries when he fell onto the
sidewalk while wrestling with Longtimesleeping.
As noted above, the Court of Appeals held that the trial court did not
abuse its discretion in denying Pete's motion for a new trial, concluding
that Pete could not demonstrate any prejudice from the inadvertent
submission of the two documents to the jury. The State asserts that the
Court of Appeals' decision was correct, averring that although the
inadvertent submission of the two documents was erroneous, the error was
harmless. See Suppl. Br. of Resp't at 13. The State asserts that
regardless of the inadvertent submission of the two documents, its case
against Pete was 'very strong' and the conviction should stand. Id. at 12.
In support of its argument, the State points to the fact that: (1) two
police officers caught Pete and Longtimesleeping in the act of robbing
Olivares-Bahena; (2) Olivares-Bahena immediately made statements
corroborating what the two police officers had observed; (3) while Olivares-
Bahena's testimony at trial differed from his statements made at the scene,
Olivares-Bahena never absolved Pete from wrongdoing; rather Olivares-Bahena
testified 'he thought the defendants wanted to rob him'; and (4) the two
documents that were inadvertently submitted to the jury were exculpatory in
nature. Id. at 12. We disagree.
Although two police officers did testify that they saw Pete and
Longtimesleeping in the act of robbing Olivares-Bahena, that evidence was
refuted somewhat by Olivares-Bahena's testimony at trial that he 'gave'
beer to Pete and Longtimesleeping so that they would leave him alone.
Furthermore, the two statements that were improperly sent to the jury room
are not, as the State contends, entirely exculpatory. Although both
statements point to Longtimesleeping as the one who assaulted Olivares-
Bahena, they do not absolve Pete from all wrongdoing. Significantly, the
transporting officer's report indicates that Pete told the officer that 'he
only took some beer.' CP at 32. This statement may be considered
inculpatory because it indicates that Pete participated in taking property
from Olivares-Bahena while Olivares-Bahena was being assaulted by
Longtimesleeping. In addition, when the two unadmitted statements are
viewed together, they are harmful to Pete in the sense that they are
contradictory and could suggest to a jury that Pete is a liar who cannot be
believed.
While it is undisputed that the jury received evidence that it should
not have seen, the critical question that remains is whether the jury's
receipt of this evidence prejudiced Pete. Pete's defense throughout the
trial was a general denial of participation in any wrongdoing. Although
Pete did not testify, he clearly relied on Olivares-Bahena's testimony at
trial that Pete did not speak to him or touch him the night of the
incident, that Olivares-Bahena voluntarily gave the beer to Pete, and that
Olivares-Bahena had problems remembering what actually transpired that
night. The submission of the two documents to the jury seriously
undermined this defense and nothing short of a new trial can correct the
error. 3 We conclude that the introduction of these documents into the
sanctity of the jury room did prejudice Pete and that the trial court,
therefore, abused its discretion in not granting a new trial.4
Lastly, even though the State downplays the trial court error by pointing
out that the evidence was deemed admissible during Pete's CrR 3.5 hearing,
the fact remains that the documents were not offered or admitted at trial.
The jury's receipt of this extrinsic evidence after the close of its
evidence presented a 'no win' situation for Pete because he was not able to
object to or explain the extrinsic evidence. Furthermore, his counsel was
unable to cross-examine either the transport officer or the officer who
took Pete's statement. The fact that the bailiff instructed the jurors to
not consider the extrinsic evidence does not, in our view, mitigate the
harmfulness of the error. Even if the trial court had given the
instruction, which would be the appropriate practice, the same can be said.
III
The Court of Appeals' decision affirming the trial court's denial for a new
trial is reversed and this case is remanded for a new trial.

WE CONCUR:

1The record does not indicate how much time elapsed between the time the
bailiff took the exhibits into the jury room and the time she removed the
two inadmissible exhibits from the room. The record only indicates that
the bailiff retrieved the exhibits 'as soon as she realized' that the
mistake occurred. VRP (Mar. 14, 2002) at 68.
2The record that has been furnished to us does not contain the questions
propounded to the jurors by the trial judge or the answers that they gave
to these questions. However, the following colloquy between
Longtimesleeping's attorney and the trial court indicates that at least two
or three jurors viewed the extrinsic evidence:
'MR. FLORA: Well, your Honor, I don't know if the record is clear that in
response to your question {regarding the extrinsic evidence} to the jurors,
it looked like virtually all of them nodded their heads yes to the effect--
'THE COURT: I don't know {if} all of them did but some did. More than
one. There were at least two or three that I recognized as reacting that
way.' VRP (Mar. 14, 2002) at 71.
3The dissent asserts that 'the majority's argument raises only a
possibility that Pete was prejudiced by the evidence improperly furnished
to the jury.' Dissent at 2. We disagree. The dissent discounts the fact
that Pete did not testify at trial. The jury's consideration of those
documents was tantamount to Pete actually testifying without the
opportunity for explanation by his counsel.
4The dissent also implies that our decision reversing the Court of Appeals
and granting Pete a new trial establishes a 'per se rule requiring a new
trial every time a jury is improperly presented with evidence.' Dissent at
2. We have not endorsed a per se rule by our decision here. We continue
to apply the long standing rule that 'consideration of any material by a
jury not properly admitted as evidence vitiates a verdict when there is a
reasonable ground to believe that the defendant may have been prejudiced.'
State v. Rinkes, 70 Wn.2d 854, 862, 425 P.2d 658 (1967) (emphasis added)
(citing State v. Burke, 124 Wash. 632, 215 P. 31 (1923)); see also Marshall
v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959).
>>