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State v. Clements

Court of Appeals of Washington, Division 3

August 2, 2018



          Siddoway, J.

         Dicta in the Washington Supreme Court's 1931 decision in Beglinger v. Shield expressed then-prevailing common law that once a jury's verdict is accepted and the jury is discharged, "'[t]he power of a jury over their verdict . . . ceases . . . and they cannot be recalled to alter or amend it.'" 164 Wash. 147, 152, 2 P.2d 681 (quoting 27 Ruling Case Law Verdict § 67, at 895 (1920)). Well-reasoned modern cases reject this bright line rule, recognizing that if a jury's discharge is rescinded within a short period of time and external influences have not compromised its impartiality, reempaneling a jury can be a more reasonable response to an error in a verdict than is the alternative of a new trial.

         Karrlee Clements appeals her convictions and exceptional sentence for first degree theft and first degree identity theft, arguing in part that her conviction for identity theft cannot stand where the jury, having completed a flawed verdict form, was momentarily discharged before being recalled to complete a corrected verdict form. Following a reference hearing and clarification of the timing and circumstances of the jury's brief discharge, we conclude the conviction can stand.

         For that reason, and because Karrlee[1] raises no other viable issues on appeal, we affirm.


         Catherine Clements worked as a nuclear operator for 24 years at the Hanford Nuclear Reservation. She retired in 2013, at age 55. She did not yet qualify for Social Security, but her house was paid off and until she did qualify, she planned to live frugally using assets in a 401(k) account that she held with The Vanguard Group.

         A couple of years later, Catherine's daughter-in-law, Monique, expressed concern about a conversation she had recently had with Catherine's daughter, Karrlee. Karrlee told Monique that she had withdrawn some funds from her mother's 401(k) account. Karrlee told Monique that withdrawals from the account were permitted for limited purposes, one being home improvements. She said that friends would provide her with inflated bids for improvement projects for her mother's home, she would withdraw the funds, pay the actual cost for the home improvement, and pocket the difference.

         Assisted by her brother-in-law, who always helped Catherine with computer transactions, Catherine discovered that the registered user address for her online account with Vanguard had been changed from her brother-in-law's e-mail address to an address belonging to Karrlee. Using Vanguard's security questions for Catherine, they were able to access account statements and discovered that substantial funds had been withdrawn. The next day, Catherine and her son, daughter-in-law, and brother-in-law went to the Kennewick Police Department to file a police report.

         Investigation by Kennewick police revealed that Karrlee used a number of e-mail addresses to access her mother's 401(k) account online. Karrlee had also applied for an American Express credit card in her mother's name and then created subaccounts, obtaining six cards in variations on Karrlee's own name. Through transfers from the 401(k) account, to the American Express card in Catherine's name, to a subaccount in a variation on her own name, Karrlee had withdrawn over $200, 000 from her mother's 401(k) account between May 2014 and August 2015. Catherine eventually realized that Karrlee had tricked her into providing the answer to Catherine's security question for online access to the Vanguard account. Claiming to be preparing a family tree, Karrlee asked Catherine for Catherine's mother's unusual and unusually-spelled maiden name. Catherine provided the information but no family tree was ever prepared.

         Karrlee was charged with theft and identity theft with aggravating circumstances: that the crimes were major economic and domestic violence offenses. She defended on the basis that the funds were withdrawn with her mother's permission, to be used for improvements to her mother's home. Karrlee lived with her mother, and Karrlee's boyfriend had moved into Catherine's home as well.

         Catherine testified at trial that she knew Karrlee and her boyfriend had undertaken some improvement projects in her home. But Catherine testified that Karrlee continually said her boyfriend was paying for the improvements "[b]ecause he was gonna be livin' in the house." Report of Proceedings (RP) at 234.

         At trial, the State offered photographs of projects Karrlee had undertaken on the house, many of which remained unfinished or had been finished poorly. It presented evidence that the home, which Catherine had since sold, sold for only $135, 000.

         The jury found Karrlee guilty on both counts, and found both aggravators. When the jury returned its verdicts and the clerk read them aloud, however, the first and second verdict forms indicated a finding of guilt of theft in the first degree, neither addressing identity theft in the first degree-an irregularity that went unnoticed. A special verdict form for the major economic offense aggravator was predicated on having found Karrlee guilty of identity theft, however. See Clerk's Papers (CP) at 152 ("We, the jury, having found the defendant guilty of Identity Theft in the First Degree return a special verdict by answering as follows . . . ."). The jury had been properly instructed on the different crimes charged in count I and count II and the prosecutor had discussed the different crimes in his closing argument. E.g., RP at 322 ("She's guilty of theft in the first degree. She's guilty of identity theft in the first degree. It is a major economic offense, and it was by a family or a household member. It's important to hold her accountable, and I'll ask you to do that by finding her guilty as charged.").

         After polling the jury, the trial court told the jurors, "You are all now discharged as jurors and discharged from my instructions regarding independent research and speaking about the case. You are free to talk to anyone you wish, and you're also free to decline to talk to anyone." RP at 343. The court went on to say, "I always enjoy the opportunity to chat with jurors after a verdict," and invited them to stay if they wanted to meet after the court completed "a little bit of business here in the courtroom." Id. The court also stated, however, "If not, you're sure free to go as soon as you hit the door." Id. The jurors were then escorted from the courtroom.

         The report of proceedings reflects what happened next:

(Whereupon the jurors were escorted from the courtroom.)
[DEFENSE COUNSEL]: Your Honor, I heard something from the clerk that sounded odd to me. It said Count II was theft in the first degree, and they found her guilty of theft in the first degree as Count II.
THE COURT: The verdict forms, may I have them?
THE CLERK: (Indicating.)
THE COURT: Count I is the theft and Count II is the identity theft.
[DEFENSE COUNSEL]: That's not how I heard it.
THE COURT: Oh my. Oh my. Will you run and stop any jurors from leaving the building, please?
THE CLERK: (Indicating.)
[PROSECUTOR]: What is it?
THE COURT: They both say theft in the first degree. Verdict Form One says theft in the first degree as charged in Count I. Verdict Form Two says theft in the first degree as charged in Count II.
[To the lawyers:] You may be seated, if you wish.
[DEFENSE COUNSEL]: I've never had this issue come up, your Honor.
THE COURT: I have.
THE COURT: Do we still have all of our jurors?

RP at 344-45.

         The court then told counsel that it believed the proper course of action was to recall the jurors, explain that there was an error in one of the verdict forms, not identify what it was, give them the four blank verdict forms (with the second form corrected), and have them complete the forms a second time. Neither party objected or requested any questioning of the jurors about what had transpired following their discharge. The following then occurred:

(Whereupon the jurors were escorted into the courtroom.)
THE COURT: Ladies and gentlemen, I made an error. Specifically, I made an error on one of the four verdict forms. So, I must tell you a couple of things. One, you are not discharged as jurors. You're still jurors subject to all of the instructions of the Court. Two, once we get the corrected verdict-once we get that verdict form corrected you will be given four new blank verdict forms, and my instructions to you will be to resume deliberations until you have reached your verdicts.
Notice I'm not telling you what the error was because I'm afraid that if I were to do so that could be interpreted as my giving you certain instructions as to what to do, okay? So, Madam Bailiff will take you back to the jury room. In the meantime, these instruction forms-blank instruction forms will be prepared and you should have them within five or ten minutes.
THE BAILIFF: Do I have to bring the evidence back?
So, it's just as if you had not reached any verdict. You are to resume your deliberations until you can reach verdicts.
And their notepads are still in the jury room?
THE BAILIFF: Nope. I will retrieve them.
THE COURT: Okay, good. All right, why don't you accompany the bailiff back to the jury room.

(Whereupon the jurors were escorted from the courtroom.) RP at 349-50.

         Following a short period of additional deliberation,[2] the jurors returned the second set of verdict forms, finding Karrlee guilty on both counts and again finding both aggravating factors.

         After oral argument of this appeal, the panel ordered a reference hearing to take evidence and answer the panel's questions about events transpiring following the jury's initial discharge. The superior court conducted a hearing in which it heard from the deputy clerk and bailiff who were present for the trial, and from Karrlee's defense lawyer.[3] Based on the testimony of the witnesses, all of whom the superior court found credible and to have a good understanding of the events, the court found that the following events happened at the following times:

• 2:26 p.m. Court is in session for the announcement of the verdicts.
• Between 2:29 and 2:32 p.m. Jurors were excused.
• Between 2:30 and 2:34 p.m. Jurors were stopped and notified not to leave the building pursuant to the trial court's directive.
• Between 2:31 and 2:36 p.m. Bailiff answers "Uh-huh" to the court's question, "Do we still have all of our jurors?"

         Findings of Fact Pursuant to Order for Reference Hr'g at 3.

         The superior court found that between the time jurors were excused following the taking of the first verdicts and the time they were stopped and notified not to leave the building, they were being taken to the jury room or were in the hallway outside the jury room. It found that the clerk told the bailiff not to release the jurors as the bailiff was escorting them to the jury room, at which point the bailiff had the jurors line up in the hallway in preparation for returning to the courtroom.

         More important than the time of day, which is necessarily a range, the superior court found that "at most between 1-2 minutes elapsed from the time the jurors were excused and the Judge asked the clerk to stop the jurors."[4] Id. at 2. The court also found that it was only another 1-2 minutes before the bailiff returned and indicated to the trial judge that "we still have all of our jurors." Id. at 3. The balance of the 16 minutes was consumed by the jury providing its verdicts, being polled, being excused, and waiting in the hallway to return.

         The court made additional findings that the bailiff who served at the trial is strict about juror access to social media and has a practice of telling jurors to either leave their cell phones in their vehicles or use their phones only with her permission and with her monitoring the call. The court found no evidence that any jurors were in communication with anyone other than their fellow jurors and the bailiff before returning to the courtroom. It added that it is not positively known that there were no communications, however.

         The court imposed an exceptional sentence of 20 months of total confinement. Karrlee appeals.


         Karrlee makes two related assignments of error to the second set of verdicts: that they violated her right to trial by jury and, if not, then her trial lawyer provided ineffective assistance of counsel by bringing the problem with the verdict form to the court's attention in time to cure the error. She raises two alleged evidentiary errors, two alleged instructional errors, and two alleged sentencing errors.[5] We address her claims of error in the foregoing order.

         In the published portion of this opinion, we address only her assignment of error to the second set of verdicts.

         I. Errors related to the initial discharge of the jury

         Karrlee contends that reassembling the jury after its discharge and allowing jurors to return a second set of verdicts violated her constitutional right to a sentence authorized by a jury's verdict. But the harm she alleges is one associated with a different constitutional concern: her right to an impartial jury. We conclude that Karrlee's right to a ...

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