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State v. Besiz

March 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
CARLOS RICO BESIZ, JR., APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-1-07270-1. Date filed: 01/29/96. Judge signing: Hon. Kathleen J. Learned.

PER CURIAM. Carlos Besiz appeals his jury conviction for two counts of possession of a controlled substance, contending the trial court improperly influenced the jury to reach agreement by telling them to continue deliberations. We find no error and affirm.

FACTS

Seattle police arrested Besiz on a misdemeanor warrant and conducted a patdown search incident to arrest. In Besiz's coat pocket they found diazepam pills and a baggie containing crack cocaine. Besiz contended at trial that the coat was not his and he did not know the drugs were in the pocket.

Trial took one day and the jury retired to deliberate at 3:55 p.m. At 4:15 they were excused to go home. The jury returned to begin deliberations at 8:55 a.m. the next day. An hour later they submitted a written inquiry to the court asking where the defendant's coat was. The Judge sent back a message saying she could not answer their questions and they should not guess about matters not in evidence.

At 11:15 a.m. the jury submitted another message to the court:

We the jury have decided on Count # 1, possession of cocaine 11-guilty; 1 not guilty: on count # 2, possession of Diazepam 11-guilty; 1 not guilty. The court responded in writing at 11:25 a.m.: "Please continue your deliberations." At 1:40, the jury returned verdicts of guilty on both counts. The court polled the jury and accepted the verdict.

DECISION

Besiz's sole contention is that because the court knew the majority were voting to convict, its instruction to continue deliberations was a coercive message suggesting the minority juror should change his or her vote in order to reach agreement. This contention is without merit.

The right to a fair and impartial jury trial requires that a Judge not bring coercive pressure to bear upon jury deliberations. State v. Jones, 97 Wash. 2d 159, 164, 641 P.2d 708 (1982). To this end CrR 6.15 (f)(2) provides:

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.

In challenging conduct of the trial court, the defendant must establish a reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention. State v. Watkins, 99 Wash. 2d 166, 177-78, 660 P.2d 1117 (1983). The reviewing court must consider all the circumstances of the court's communications with the jury. Watkins, 99 Wash. 2d at 177.

There is no reasonably substantial possibility that the court's instruction in this case improperly influenced the jury's verdict. The court did not suggest that the jury must reach agreement or direct pressure toward the hold-out juror. Nor did the court suggest consequences of failing to agree or the length of time they should deliberate. Instead, the court merely instructed them to continue deliberations, which was a proper response. See State v. Watkins, 99 Wash. 2d at 175, (quoting with approval ABA Standards allowing the court to require continued deliberations if the jury appears unable to agree). In addition, before deliberations began the court gave WPIC 1.04, directing jurors to attempt to reach a unanimous verdict but not to change their opinions merely because of other jurors' views or for the mere purpose of returning a verdict. The jury is presumed to have followed this instruction. State v. Imhoff, 78 Wash. App. 349, 351, 898 P.2d 852 (1995).

Finding no basis for Besiz's argument, we affirm the ...


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