State Of Washington v. Steven Faausu ( 2013 )

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23133JUL 29 &nU:3'173 Wn. App. 684, 698, 294 P.3d 847 (2013) (quoting
State v Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007)); RAP 2.5(a).
3 Evman, 173 Wn. App. at 698 (citing Kirkman, 159 Wn.2d at 926; State v.
O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)); RAP 2.5(a)(3).
4 Parrell-Sisters MHC, LLC v. Spokane County, 147 Wn. App. 356, 364, 195 P.3d
573 (2008) (citing State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980 P.2d 1257 (1999)).
5 Evman, 173 Wn. App. at 699 (quoting WWJ Corp., 138 Wn.2d at 602).
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argues, "The inexplicable involvement of an unauthorized 13th juror in the deliberations
of Mr. Faausu's case requires a new trial."
Article I, section 21 of the Washington Constitution states, "The right of trial by
jury shall remain inviolate, but the legislature may provide for a jury of any number less
than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases
in any court of record." Our Supreme Court has declared, "[T]here can be no question
that [a jury] must reach its decision in private, free from outside influence. This principle
is of constitutional stature."6
In State v. Cuzick,7 our Supreme Court held that permitting an alternate juror to
be present during deliberations in a criminal trial was reversible error. In Jones v.
Sisters of Providence in Washington, Inc.,8 a civil case, the court relied on Cuzick to
hold that an alternate juror's participation during deliberations constituted prejudicial
error. The court in Jones stated, "Under Cuzick, prejudice is presumed where there has
been a breach in the sanctity of the jury room because it is impossible, or at least overly
burdensome, to determine what occurred in the jury room and what effect the alternate
had on the other jurors."9
The clerk's minutes and the trial transcript indicate that the court excused juror
10 before the jury began its deliberations. The record does not indicate if juror 10 left
the courtroom, retired into the jury room after being excused, or was present in the jury
6 State v. Cuzick, 85 Wn.2d 146, 149, 530 P.2d 288 (1975).
785Wn.2d 146, 148-51, 530 P.2d 288 (1975).
8140Wn.2d 112, 117-19, 994 P.2d 838 (2000).
9 Jones, 140 Wn.2d at 118-19 (citing Cuzick, 85Wn.2d at 150 (prejudice
presumed "unless 'it affirmatively appears that there was not, and could not have been,
any prejudice.'" (quoting State v. Carroll, 119 Wash. 623, 624, 206 P. 563 (1922)))).
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box when the jury returned its verdict. The transcript of the clerk's poll provides the only
evidence suggesting that the alternate juror may have been present during
deliberations.10 This transcript repeats the exact same questions and responses for
each juror and identifies each by number only. The record provides no explanation for
the discrepancy between the clerk's minutes and trial transcript on the one hand and the
polling transcript on the other. The record contains no other information about any
participant's observations as to what occurred.
On the record before us, an error in reporting the polling is at least as likely as a
13th person's presence during jury deliberations. Because this is a direct appeal, we do
not have and cannot consider extrinsic evidence to resolve the conflict in the record.
Because Faausu must demonstrate manifest error from the record and cannot do so,
we decline to review this issue.
Conclusion
Because the record contains insufficient evidence to establish that the alternate
juror participated in the jury's deliberations, we affirm.
WE CONCUR:
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