OPINION PUBLISHED IN PART
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rescinded within a short period of time and external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.
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
that reason, and because Karrlee raises no other viable
issues on appeal, we affirm.
AND PROCEDURAL BACKGROUND
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.
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told Monique that she had withdrawn some funds from her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
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.
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.
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.
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.
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,
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.").
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.
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
[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,
THE COURT: I have.
[DEFENSE COUNSEL]: Okay.
THE COURT: Do we still have all of our jurors?
THE BAILIFF: Uh-huh.
RP at 344-45.
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?
THE COURT: Yes.
So, it's just as if you had not reached any verdict. You
are to resume your deliberations until you can reach
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
a short period of additional deliberation, the jurors
returned the second set of verdict forms, finding Karrlee
guilty on both counts and again finding both aggravating
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. 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
• 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
• 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?"
of Fact Pursuant to Order for Reference Hr'g at 3.
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.
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." 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.
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.
court imposed an exceptional sentence of 20 months of total
confinement. Karrlee appeals.
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. We address her claims of error in the
published portion of this opinion, we address only her
assignment of error to the second set of verdicts.
Errors related to the initial discharge of the jury
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 ...