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State v. Berhe

Supreme Court of Washington, En Banc

July 18, 2019


          YU, J.

         This case addresses the standards and procedures that apply when trial courts must determine whether an evidentiary hearing is necessary on a motion for a new trial based on allegations that jury deliberations were tainted by racial bias. We recognize that when allegations of juror misconduct arise after the verdict, trial courts have discretion to determine whether an evidentiary hearing is necessary. However, there are limits to that discretion, particularly in cases of alleged racial bias that deprives a defendant of his or her constitutional right to a. fair trial by an impartial jury.

         A jury convicted petitioner Tomas Berhe of murder and assault. After the trial, juror 6 came forward, alleging that racial bias during jury deliberations influenced the verdict. The trial court denied Berhe's motion for a new trial without an evidentiary hearing, instead relying solely on written declarations prepared with the aid of counsel. This was an abuse of discretion for two reasons.

         First, the court did not exercise sufficient oversight of the process, allowing counsel to taint several jurors with inappropriate questions about their deliberations. Second, the court did not conduct a sufficient inquiry before determining that an evidentiary hearing was unnecessary. We therefore vacate the trial court's order denying Berhe's motion for a new trial and remand for further inquiry and other proceedings as necessary.


         On July 22, 2013, multiple gunshots were fired through the closed passenger window of a parked car. One man was killed and another was injured. Witnesses described the shooter as an African-American male, who fled the scene of the shooting in a black sedan. Shortly after, police officers stopped a vehicle matching the witnesses' descriptions and identified Berhe as the shooter. Berhe was charged with first degree murder and first degree assault, each with a firearm enhancement. The case was tried to a jury.

         During voir dire, the trial court asked the potential jurors "whether anybody has any close friends or relatives that have been accused of a crime or charged with a crime or convicted of a crime." Reporter's Tr. on Appeal (Jan. 25, 2016) at 78. Eleven potential jurors indicated they did. The court then asked if any of those potential jurors "felt you or your close friend or relative was treated unfairly by the criminal justice system." Id. at 79. Only juror 6 responded in the affirmative. The court did not ask any follow-up questions at that time.

         The next day, the prosecutor followed up with each juror who had indicated they knew someone accused of a crime. When juror 6 was asked, "[D]o you think that you could be a fair and impartial juror in this case?" juror 6 responded, "Probably so, based on the evidence." Verbatim Report of Proceedings (VRP) (Jan. 26, 2016) at 498-99. The prosecutor then asked for more information about the person who she felt was treated unfairly by the criminal justice system. Juror 6 explained that her nephew had been convicted of stealing and that she felt his sentence was unjust. Juror 6 did not mention at the time that her son's friend had been wrongly accused of murder. However, after the trial, two other jurors stated that this was discussed during deliberations.

         After the parties exercised their peremptory challenges, 13 jurors were seated, including juror 6. One juror was to be an alternate, and the court and counsel "agreed that we would pick the alternate via random pick, a number out of ajar." VRP (Feb. 24, 2016) at 3346. However, outside the presence of the jury, the court noted for the record that juror 6 was the only African-American juror and stated that "it would be very unfortunate if Juror No. 6 were to be the alternate." Id. Therefore, with counsel's agreement, the court removed juror 6's name from the jar, and a different juror was randomly selected to be the alternate.

         The jury found Berhe guilty of all the charged offenses. The court polled the jury after the verdict was delivered, asking each juror, "[W]ere these your individual verdicts?" and were they "the verdicts of the entire jury?" VRP (Mar. 1, 2016) at 3364-66. Each juror answered yes to both questions. Id.

         The next day, juror 6 contacted defense counsel on her own initiative to express concerns about the case, as discussed in more detail below. Juror 6 also contacted the court that day, and "[s]he did express a lot of emotional distress following the jury verdict." VRP (Apr. 6, 2016) at 109. It is not clear from the record whether the trial court was aware of any specific reasons for juror 6's distress. The court's bailiff "got [juror 6] in contact with a counselor, a jury counselor, and she spoke with a counselor." Id.

         Approximately one week later, Berhe moved to extend time to file a motion for a new trial, asserting that his "right to a fair trial has been materially affected" and requesting "additional time to fully investigate." Clerk's Papers (CP) at 532. Defense counsel stated that the basis for the motion for a new trial would be "[j]uror misconduct and prosecutorial misconduct" but did not elaborate on the nature of the alleged misconduct. Id. at 536. The court held a hearing on March 10, 2016, before deciding whether there was good cause for an extension of time.

         The court opened by noting the defense claimed "juror misconduct and prosecutorial misconduct. So that's basically all we know." VRP (Mar. 10, 2016) at 3. Defense counsel then elaborated on specific instances of alleged prosecutorial misconduct during various phases of the trial. Regarding the alleged juror misconduct, defense counsel explained that

we were contacted by-unsolicited-by one juror who indicated that after three and a half days of deliberations, she felt that there was juror misconduct and that she-I guess you could use the word "acquiesced" to a guilty verdict. Against her wishes, ultimately.
So she contacted us very upset, and we need time to get affidavits, investigate that further, and then brief that issue.

Id. at 6. The court noted on the record that juror 6 had contacted the court and had been put in touch with a jury counselor, and that the court was aware juror 6 had also contacted defense counsel.

         The court "was contacted by another juror, too, [who] said that she was contacted by someone on the defense team, unsolicited." Id. at 6-7. Defense counsel acknowledged contacting "most or all of the other jurors," using contact information obtained from juror 6. Id. at 7, 22. The State expressed concerns about juror privacy and "the defense conducting a fishing investigation . . . and going out of their way to contact jurors in an attempt to find what they can label as misconduct." Id. at 10. Although the court granted Berhe's motion to extend time, it recognized the State's concerns and stated that the juror who was contacted by the defense "was not happy about being contacted." Id. at 11. Noting the difficulty of the trial, the court admonished defense counsel that initiating contact with jurors was not "appropriate." Id.[1]

         To accommodate both the jurors' privacy and the defense's interest in obtaining more information, the court sent a letter to all the jurors notifying them that "the lawyers would like the opportunity to talk with you." CP at 292. The court assured the jurors that it had advised counsel "nobody should initiate contact with any juror," but it also stated that jurors were free to contact counsel if they wished to do so. Id. The letter included contact information for both the defense and the prosecution. The record does not indicate whether the trial court or the State were aware of any allegations of racial bias during jury deliberations at the time this letter was sent.

         On March 28, 2016, Berhe filed his motion for a new trial and requested an evidentiary hearing based on alleged prosecutorial misconduct and two types of alleged juror misconduct: consideration of extrinsic evidence and racial bias. Regarding the racial bias claim, Berhe contended that the "jurors' treatment of Juror #6, the sole African-America[n] juror on the panel, evidenced by the disparity and derision towards her during deliberations, is clear evidence of an actual or implied racial bias by one or more members of the jury." Id. at 458. This claim was supported by a written declaration from juror 6, which was presented on defense counsel's stationery and dated March 25, 2016.

         Juror 6 declared, "I did not agree with the verdict on March 1, 2016 and I do not agree with it now." Id. at 474. She explained that "[f]or most of the deliberations, 8 jurors wanted to vote to convict. The remaining four were either voting Not Guilty or shifted between Not Guilty and Uncertain." Id. at 475. However, according to juror 6, "I was the only one accused of being 'partial' and 'close-minded' because of my views on acquittal" and "I was repeatedly accused of being 'partial' because I was the only African-American juror on the panel in a trial with an African-American defendant." Id. Juror 6 was ultimately "the last hold-out before a verdict was reached" and stated that she "only agreed to the Guilty verdicts because I felt emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors." Id. at 475-76.

         Juror 6 provided examples of this derision, stating that she "tried to discuss the lack of concrete evidence that Mr. Berhe was the shooter, but other jurors were outright dismissive." Id. at 475. Juror 6 "suggested that [Berhe] could have taken the gun from the real shooter," but her "idea was mocked as 'stupid' and 'illogical, '" making her feel "personally ridiculed in a way the other dissenting jurors were not." Id. In addition, juror 6 contended that during deliberations,

one juror pointed out that if [Berhe's] pants were so big and baggy that he had to hold them up to walk down Eastlake, why didn't he do the same when he exited the car during the stop by police. I rhetorically commented, "What would have happened if he did that?" Several of the jurors as a group interpreted that as a comment on police misconduct towards African-Americans and loudly mocked me for my response, while others sat quietly.

Id. at 476. Finally, juror 6 said she was reviewing her notes on the morning of March 1, 2016, and two other jurors "surrounded me, taunting: 'She's not going to do anything. She's going to let him walk.' I felt like they were animals and I was their prey. I can only describe it as feeling emotionally and mentally attacked. I felt emotionally abused; so much so that it became debilitating." Id. As a result, juror 6 "couldn't handle the pressure of being a hold-out anymore," and the jury delivered its verdict later that day. Id.

         The State filed a response on April 6, 2016, along with declarations from six other jurors who had contacted the prosecutors. The declarations were all dated either April 3 or April 4, 2016. Each declaration stated that the prosecutors had asked each juror "to answer in my own words the following two questions": (1) "Did you personally do anything to Juror #6 which was motivated by racial bias during deliberations?" and (2) "Did you observe any other juror do anything to Juror #6 which appeared to be motivated by racial bias during deliberations?" Id. at 323-28. It is undisputed that these questions were formulated by the prosecutors and sent to the jurors without the court's review.

         Predictably, each juror denied observing or doing anything to juror 6 that was motivated by racial bias. However, juror 11 stated that "during deliberations I appreciated some of the insights Juror #6 had, specifically around the norm in hip-hop culture of baggy pants without a belt and the need to hold them up with one's hands." Id. at 326. Juror 11 was also made "uncomfortable by the frustration expressed" toward juror 6 by some of the other jurors. Id. In addition, juror 13 noted that another juror had directly accused juror 6 of being "bias[ed] based on her history with the law[, ] i.e. her nephew who was tried for breaking and entry [who] she felt got too long of a sentence and then her son had a friend who was tried for murder." Id. at 325. Nevertheless, juror 13 declared that "there was nothing said or implied that sounded racial." Id.

         At the hearing on Berhe's motion for a new trial, the court acknowledged juror 6's belief that racial bias played a role in the deliberations, stating, "I understand about implicit bias. But we can't just assume. I think it's equally likely that she felt pressured because she was the lone holdout as she did because of any other reason." VRP (Apr. 6, 2016) at 111. Relying solely on the written declarations, the court ultimately found that "[t]he only evidence to support juror #6's subjective feeling that she was attacked by her fellow jurors because of her race comes from juror #6's declaration," that "[t]he only evidence that members of the jury were implicitly or explicitly racially bias[ed] or inappropriately considered race comes from juror #6's declaration," and that "[declarations provided by several other jurors refuted many of juror #6's claims." CP at 406-07. The court then concluded "that there is insufficient evidence to conclude that juror misconduct occurred with respect to racism-implicit or explicit" and ...

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