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State v. Sullivan

Court of Appeals of Washington, Division 1

April 30, 2018

THE STATE OF WASHINGTON, Respondent,
v.
KEVIN PATRICK SULLIVAN, Appellant.

          MANN, A.C.J.

         Kevin Sullivan appeals his conviction for one count of burglary in the second degree. Sullivan argues that he was deprived of his constitutional right to a unanimous jury verdict because the trial court failed, sua sponte, to instruct the jury that all deliberations must always involve all jurors. We affirm Sullivan's conviction. We remand, however, for the trial court to correct two scrivener's errors in Sullivan's sentence.

         FACTS

         The State charged Sullivan with one count of burglary in the second degree. The State alleged that on October 23, 2016, Sullivan and codefendant Aaron Fox unlawfully entered an unoccupied home in Renton with intent to commit a crime.

         A trial was held on January 4 through 10, 2017. The State proposed a set of the standard jury instructions, including Washington Pattern Jury Instruction (WPIC) 1.04[1] which states:

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and to change your opinion based upon further review of the evidence and these instructions. You should not, however, surrender your honest belief about the value or significance of evidence solely because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of reaching a verdict.

         Instruction 14 further informed the jury how to initiate and carry out the deliberative process, and explained that each juror has the right to be heard. Sullivan did not object to these two instructions, or propose any additional instructions.

         After deliberating less than two hours, the jury found Sullivan guilty as charged. A poll of the jury confirmed that their verdict was unanimous. Sullivan appeals.

         ANALYSIS

         Unanimity Instruction

         The primary issue in this case is whether the trial court erred by failing to instruct the jury that they must complete all deliberations when all twelve jurors are in the jury room. Sullivan argues that without such an instruction, "there is no basis to assume the verdicts rendered were the result of the common experience of all of the jurors."

         Because Sullivan did not request such an instruction below, nor object to the trial court's instructions given, RAP 2.5(a) precludes him from raising this issue for the first time on appeal unless he can show that failure to provide the additional instruction is a "manifest error affecting a constitutional right." RAP 2.5(a)(3); State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). For an error to be manifest, there must be evidence of "actually prejudice" having "practical and identifiable consequences [at] trial." O'Hara, 167 Wn.2d at 98-99. "If the facts necessary to adjudicate the claimed error are not in the record on appeal, no actual prejudice is shown and the error is not manifest." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995), as amended (Sept. 13, 1995).

         Sullivan relies primarily on State v. Lamar, 180 Wn.2d 576, 327 P.3d 46 (2014). In Lamar, the trial court provided the pattern jury instruction, WPIC 1.04, on the first day of jury deliberations. Lamar, 180 Wn.2d at 580. On the second day of deliberations, however, a juror fell ill and the trial court substituted an alternate juror. Instead of instructing the jury to begin deliberations anew, the trial court instructed the remaining jurors to spend some time "reviewing" and "recapping" the past deliberations to bring the alternate juror "up to speed" and then to resume deliberations. Lamar, 180 Wn.2d at 580-81.

         While our Supreme Court found that the original instruction, patterned after WPIC 1.04, was constitutional, it held that the second instruction was "manifest constitutional error" because the instruction "affirmatively told the reconstituted jury not to deliberate together as is constitutionally required." Lamar, 180 Wn.2d at 582. The court then determined the error was prejudicial because the jury is presumed to follow the ...


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