515462MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 51546-2-I
Title of Case: State of Washington, Respondent v. Michael
John Stanley, Appellant
File Date: 03/01/2004


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 02-1-07011-2
Judgment or order under review
Date filed: 11/22/2002
Judge signing: Hon. Michael C Hayden


JUDGES
------
Authored by William W. Baker
Concurring: Anne L Ellington
Faye C. Kennedy


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Sharon Jean Blackford
Attorney at Law
1218 3rd Ave Ste 1800
Seattle, WA 98101

Sarah Mcneel Hrobsky
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Gregory Charles Link
WA Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101-2402

Counsel for Respondent(s)
Carla Barbieri Carlstrom
King Co Pros Office
W 554
516 3rd Ave
Seattle, WA 98104-2390


IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) DIVISION ONE
Respondent, )
) NO. 51546-2-I
vs. )
) OPINION PUBLISHED
MICHAEL JOHN STANLEY, ) IN PART
) Respondent. )
) FILED:

BAKER, J. - During deliberations in Michael Stanley's trial for felony
harassment, a juror became ill. The trial court replaced the sick juror
with an alternate juror without instructing the reconstituted jury on the
record to begin deliberations anew. The record also does not show that the
continued impartiality of the alternate juror was confirmed, nor does it
indicate the presence or any input from the defendant or his counsel. The
reconstituted jury found Stanley guilty of felony harassment. Stanley
appeals on various grounds, including a claim that the trial court
committed reversible error by failing to use proper procedure in seating
the alternate juror. We agree, and reverse and remand for a new trial.
I

At the beginning of the second day of jury deliberations in Michael
Stanley's trial, a juror called in sick. The jury had deliberated for
approximately one hour. An alternate juror was substituted for the ill
juror. The record does not indicate whether Stanley or his counsel was
present when the alternate juror was seated, whether the court conducted a
hearing to assess the alternate juror's continued impartiality, or whether
the reconstituted jury was instructed to disregard all previous
deliberations and begin deliberations anew.
The reconstituted jury deliberated for approximately 30 minutes before
submitting a question to the court. The court answered the question about
30 minutes later and then, in less than an hour, the jury returned a
verdict. The jury found Stanley guilty of the only count with which he was
charged, felony harassment. After delivering the verdict, the jury was
polled. Each juror confirmed that the verdict was both the verdict of the
jury as a whole and the verdict of that individual juror.
The felony harassment charge was based on threats to kill that Stanley made
while a resident at Pine Lodge, a pre-release facility run by the
Department of Corrections.
From mid-April 2002 until the first week of June 2002, Stanley roomed with
Ronald Davis at Pine Lodge. Approximately twice a week, Davis heard
Stanley make threats to kill his stepfather, Eugene Lloyd. Stanley
discussed shooting or hiring someone else to kill Lloyd, and also commented
that hiring someone had a disadvantage because he wanted to see Lloyd's
face. Stanley said he would not get caught because he would have an alibi.
In June or July 2002, Bill Stutz, a Department of Corrections employee,
contacted Lloyd and explained that Stanley had been making threats to kill
him. Lloyd took the threats to be 'believable.' He knew that Stanley had
a bad temper, and believed Stanley was angry because he had told the police
where to find Stanley. Over the telephone, Stanley had threatened 'to get'
Lloyd for helping the police.
Stanley was arrested and charged with felony harassment. During the trial,
Lloyd testified about Stutz contacting him and telling him about Stanley's
threats. Stanley's trial counsel did not object to Lloyd's testimony, nor
did he call Stutz as a witness.
The court's instructions included a 'to convict' instruction followed
immediately by a special verdict instruction. The 'to convict' instruction
did not require the jury to decide whether the threat to cause bodily harm
was also a threat to kill. The special verdict instruction did require the
jury to make that determination.
II

We review claims of manifest constitutional error de novo.1
Stanley argues that by failing to determine on the record whether the
alternate juror remained impartial, by failing to allow input from the
defendant and his attorney, and by failing to instruct the reconstituted
jury on the record to begin deliberations anew, the trial court committed
reversible error.
CrR 6.5 governs the use of alternate jurors and provides that:
{an} alternate juror may be recalled at any time that a regular juror is
unable to serve . . . . If the jury has commenced deliberations prior to
replacement of an initial juror with an alternate juror, the jury shall be
instructed to disregard all previous deliberations and begin deliberations
anew.{2}

In State v. Ashcraft,3 we noted that CrR 6.5 does not specify that a
hearing is required before replacing an initial juror with an alternate.4
But the rule does 'clearly contemplate a formal proceeding which may
include brief voir dire to insure that an alternate juror who has been
temporarily excused and recalled has remained . . . impartial.'5 We also
noted that 'the rule requires that a jury which has commenced deliberations
before an initial juror is replaced by an alternate juror 'shall be
instructed to disregard all previous deliberations and begin deliberations
anew.''6
Moreover, in Ashcraft we found troubling a 'trial court's seating of an
alternate juror without giving the parties any opportunity for input and
without a record of reinstruction.'7 We held that 'the trial court's
failure to reinstruct the reconstituted jury on the record that it must
disregard the previous deliberations and begin deliberations anew was
manifest constitutional error.'8 We also held that 'the trial court should
have made a reasonable effort to contact the parties through their counsel
to obtain their input before rendering its discretionary decision' of
seating an alternate juror.9
The State concedes that the trial court committed error, but argues that
because the evidence on the record suggests that the reconstituted jury did
deliberate anew, and because the evidence against Stanley was overwhelming,
the trial court committed only harmless error by not instructing the
reconstituted jury. With an error of constitutional magnitude, the State
bears the burden of proving beyond a reasonable doubt that the error is
harmless.10 And the 'reviewing court must be able to determine from the
record that jury unanimity' was preserved.11
In Ashcraft, the initial jury deliberated for four hours without reaching a
verdict and the reconstituted jury deliberated for two to three and a half
hours (depending on whether it stopped for lunch).12 Ashcraft involved
three separate counts with lesser included offense instructions for each of
those counts.13 We commented that '{i}t is not beyond the realm of
reasonable possibility that . . . the alternate and the remaining 11
initial jurors could have concluded . . . that they need not deliberate
anew as to any counts or issues upon which the initial 12 jurors may have
reached agreement.'14
The State argues that because the original jury deliberated for just over
an hour and there was only one count, there is no risk that the
reconstituted jury did not deliberate anew. The State also asserts that
the fact that the reconstituted jury sent a question to the judge is
another sign that the jury deliberated anew. Finally, the State notes that
the jury was polled and each juror confirmed that the verdict was both his
or her individual verdict as well as the verdict of the jury as a whole.
We conclude that just as in Ashcraft, the State has not met its heavy
burden to prove beyond a reasonable doubt the harmlessness of the error.15
Although consideration of the counts in Ashcraft was certainly a more
complex undertaking, the deliberation of Stanley's guilt or innocence on
the one count still required the jury to consider a number of issues. It
is not beyond the realm of reasonable possibility that the reconstituted
jury could have concluded that it need not begin deliberations anew as to
any issues already considered by the original 12 jurors.
It is true that in a different context, our Supreme Court found the lack of
complexity faced by a jury in a one defendant, one-charge trial to be
significant. In State v. Mickens,16 the court commented that 'since the
jury was polled, there is no doubt that the verdict was unanimous and was
the result of each juror's individual determination.'17 Later, in State v.
Badda,18 the court clarified that 'the poll of the jury in the Mickens case
. . . showed the verdict to be unanimous could confidently be stated, for
it applied to one defendant charged with a solitary count of second-degree
burglary.'19
But even though Stanley, like Mickens, was a single defendant faced with
only one charge, Mickens is inapposite. The court in Mickens addressed the
lack of a jury instruction regarding the requirement of unanimity, not the
lack of an instruction to begin deliberations anew.20 The jury had not been
reconstituted. All 12 jurors in Mickens had been present for all of the
deliberations, while the alternate juror in Stanley's trial was only
present for the second day of deliberations. Polling the jury cannot
substitute for the procedural omissions in this record. The State cannot
show on the record beyond a reasonable doubt that the jury began
deliberations anew. The error was not harmless.
The State's argument that overwhelming evidence against Stanley
renders any error harmless also fails. The evidence supporting the verdict
is substantial but not so overwhelming as to necessarily lead 12 fair-
minded individuals to only one conclusion.21
The State requests that if we conclude that the error was not harmless, we
remand to give the State an opportunity to further develop the record. But
a hearing at this late date is not appropriate. We reverse and remand for
retrial.
Because we have reversed the conviction, we do not determine whether the
trial court's seating of the alternate juror without determining on the
record his continued impartiality was reversible error. Nevertheless, we
note that this was error, and that the trial court compounded the error by
not seeking out the parties through counsel to obtain input before seating
the alternate juror.
A majority of the panel has determined that the remainder of this opinion
lacks precedential value and will not be printed in the Washington
Appellate Reports. But the remainder of this opinion is ordered to be
filed for public record pursuant to RCW 2.06.040.
Stanley argues that due to ineffective assistance of counsel, he was denied
his right to a fair trial. Specifically, he argues that by failing to
object to Lloyd's inadmissible hearsay testimony, his trial counsel was
deficient and the deficiency was prejudicial to his defense. Because the
issue of whether or not Lloyd's statements are hearsay will likely arise
again on retrial, we will consider the issue.
Stanley's trial counsel's performance was not deficient, because Lloyd's
testimony was not hearsay. Hearsay is a 'statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.'22 In Williams v. Department of
Licensing,23 a guard stated to an officer that the defendant's breath
smelled of alcohol.24 The defendant argued that the guard's statement as
related by the officer at trial was inadmissible hearsay.25 The court noted
that the statement gave the officer 'a basis for detaining Williams for
further investigation of his intoxication.'26 Thus, the court ruled that
'the statement was not offered for the truth of the matter asserted and was
not hearsay, and the trial court did not err in permitting it.'27
Likewise, Lloyd's statements were not offered for the truth of the matter
asserted. Lloyd's testimony about the threats was not offered to prove
Stanley's statements were a serious expression of intent to harm him. His
testimony merely showed that Lloyd had notice of the threats.
Next, Stanley argues that the 'to convict' instruction omitted 'threat to
kill the person threatened,' an essential element of felony harassment by
threats to kill. This exact issue was resolved recently by this court in
State v. Mills.28
In Mills, the defendant was charged with a crime that was a misdemeanor,
but could be raised to a felony if the jury also found an enhancing factor.29
The trial court bifurcated the instructions for the misdemeanor from the
instructions for the felony by putting the elements of the misdemeanor in
the 'to convict' instruction and the elevating element in the special
verdict instruction.30 Thus, the 'to convict' instruction omitted the
'threat to kill' element.31 But the special verdict instruction instructed
the jury, if it found the defendant guilty of harassment, to decide whether
'the State has proved beyond a reasonable doubt that the defendant's threat
to cause bodily harm was a threat to kill the person threatened . . . .'32
We noted that in State v. Oster33 the defendant was also charged with a
misdemeanor that elevated to a felony on the basis of one factor and that
Oster's trial court also bifurcated the instructions.34 In Oster our
Supreme Court upheld the instructions because 'it was not error to instruct
the jury separately and by special verdict form on prior criminal history
because the instructions clearly set forth all the elements of the crime
and the jury did not have to search the other instructions for missing
elements.'35
We also noted in Mills that 'all the pertinent law need not be incorporated
in one instruction.'36 We further noted that 'only when {the} court leads
the jury to assume that the to-convict instruction is itself a complete
statement of the elements of the crime charged that it must in fact include
them.'37 We held that because the trial court included the special verdict
instruction right after the 'to convict' instruction, it did not intend to
provide all the elements of the charge in the 'to convict' instruction.38
We further noted in Mills that the defendant benefited from the bifurcation
of the instructions.39 With crimes structured like harassment, where one
specific element distinguishes a misdemeanor from a felony, constructing a
single 'to convict' instruction has 'great potential to confuse the jury
and result in erroneous verdicts.'40 The use of a bifurcated instruction
and special verdict form protects the defendant 'from being mistakenly
convicted of the elevated crime because of a confusing instruction.'41
As in Mills, the instructions included a 'to convict' instruction for
harassment that omitted the element of 'threat to kill' and immediately
after, a special verdict instruction about the 'threat to kill.' Also as
in Mills, the instructions did not force the jury to search for missing
elements in other instructions. Moreover, the bifurcation of the
instructions protected Stanley from the risk of being convicted of the
felony because of a confusing single instruction.
Jury instructions, taken as a whole, are adequate if they properly inform
the jury of the applicable law and are not misleading.42 The jury
instructions, taken as a whole, given in Stanley's trial were not
misleading and properly informed the jury of the applicable law. Stanley
has not demonstrated that the holding in Mills is incorrect. We find no
constitutional infirmity with the trial court's instructions.
Stanley raises a number of pro se arguments that are without merit.43
The trial court committed reversible error by not instructing the
reconstituted jury to begin deliberations anew. We reverse and remand for
retrial.
REVERSED.

WE CONCUR:

1 State v. Pirtle, 127 Wn.2d 628, 656-657, 904 P.2d 245 (1995); State v.
Curtis, 110 Wn. App. 6, 11, 37 P.3d 1274 (2002); State v. White, 80 Wn.
App. 406, 410, 907 P.2d 310 (1995).
2 CrR 6.5.
3 71 Wn. App. 444, 859 P.2d 60 (1993).
4 Ashcraft, 71 Wn. App. at 462.
5 Ashcraft, 71 Wn. App. at 462.
6 Ashcraft, 71 Wn. App. at 462-63 (quoting CrR 6.5).
7 Ashcraft, 71 Wn. App. at 460.
8 Ashcraft, 71 Wn. App. at 467.
9 Ashcraft, 71 Wn. App. at 467.
10 Ashcraft, 71 Wn. App. at 466 (citing Chapman v. California, 386 U.S. 18,
24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)).
11 Ashcraft, 71 Wn. App. at 466 (citing State v. Badda, 63 Wn.2d 176, 182-
83, 385 P.2d 859 (1963)).
12 Ashcraft, 71 Wn. App. at 466.
13 Ashcraft, 71 Wn. App. at 466.
14 Ashcraft, 71 Wn. App. at 466-67.
15 Ashcraft, 71 Wn. App. at 466.
16 61 Wn.2d 83, 377 P.2d 240 (1962).
17 Mickens, 61 Wn.2d at 87.
18 63 Wn.2d 176, 385 P.2d 859 (1963).
19 Badda, 63 Wn.2d at 182.
20 Mickens, 61 Wn.2d at 87.
21 Ashcraft, 71 Wn. App. at 467.
22 ER 801(c).
23 85 Wn. App. 271, 932 P.2d 665 (1997).
24 Williams, 85 Wn. App. at 279.
25 Williams, 85 Wn. App. at 279-80.
26 Williams, 85 Wn. App. at 280.
27 Williams, 85 Wn. App. at 280.
28 116 Wn. App. 106, 64 P.3d 1253, rev. granted 149 Wn.2d 1032 (2003).
29 Mills, 116 Wn. App. at 113.
30 Mills, 116 Wn. App. at 111.
31 Mills, 116 Wn. App. at 111.
32 Mills, 116 Wn.2d at 111.
33 147 Wn.2d 141, 52 P.3d 26 (2002).
34 Mills, 116 Wn. App. at 113 (citing Oster, 147 Wn.2d at 144).
35 Mills, 116 Wn. App. at 113 (citing Oster, 147 Wn.2d at 147).
36 Mills, 116 Wn. App. at 115 (citing State v. Emmanuel, 42 Wn.2d 799, 819,
259 P.2d 845 (1953)).
37 Mills, 116 Wn. App. at 115.
38 Mills, 116 Wn. App. at 115-16.
39 Mills, 116 Wn. App. at 115.
40 Mills, 116 Wn. App. at 115.
41 Mills, 116 Wn. App. at 115.
42 Mills, 116 Wn. App. at 110 (citing State v. DeRyke, 110 Wn. App. 815, 819-
20, 41 P.3d 1225 (2002)).
43 State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (where claims are
insufficiently argued, court will not consider them); State v. Marintorres,
93 Wn. App. 442, 452, 969 P.2d 501 (1999) (where pro se arguments are
conclusory, court will not consider them).
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