3 NICS App. 343, Port Gamble S'Klallam Tribe v. Rogers (August 1994)

IN THE PORT GAMBLE S'KLALLAM TRIBAL COURT OF APPEALS

PORT GAMBLE S’KLALLAM INDIAN RESERVATION

KINGSTON, WASHINGTON

Port Gamble S'Klallam Tribe v. Rogers

No. POR-Cr-10/93-132 (August 18, 1994)

SUMMARY

Appeal of criminal conviction for Indecent Liberties on grounds that Trial judge committed error by instructing jury to vote anonymously. Court of Appeals dismissed on finding that such an instruction is not error.

FULL TEXT

Before:            Chief Justice Elbridge Coochise, Associate Justice Charles R. Hostnik, and Associate Justice Mary T. Wynne.

HOSTNIK, Associate Justice:

NATURE OF THE ACTION

Appellant was charged with indecent liberties in violation of the Port Gamble S'Klallam Tribal Law and Order Code. The jury came back deadlocked after initial deliberations. After discussion with counsel, the Judge sent the jury back for further deliberations. The jury returned with a guilty verdict.

Appellant appeals to this Court alleging the trial judge committed error: (1) by sending the jury to deliberate further; (2) instructing the jury to vote anonymously; and (3) coercing the jury into reaching a verdict.

JURISDICTION OF TRIBAL COURT

The Port Gamble S'Klallam Tribal Court has subject matter jurisdiction over the criminal charge of Indecent Liberties pursuant to Section 5.1.9 of the Port Gamble S'Klallam Law and Order Code.

3 NICS App. 343, Port Gamble S'Klallam Tribe v. Rogers (August 1994) p. 344

Personal jurisdiction exists because the Appellant lives within the exterior boundaries of the Port Gamble S'Klallam Reservation and is a Native American.

Territorial jurisdiction exists because the alleged crime occurred within the exterior boundaries of the Port Gamble S'Klallam Reservation.

The Port Gamble S'Klallam Tribal Appeals Court has jurisdiction over this appeal pursuant to the Port Gamble S'Klallam Law and Order Code, Section 7.3.1, which provides that a criminal defendant can appeal a judgment of guilt by the Port Gamble S'Klallam Tribal Court as a matter of right.

SEQUENCE OF EVENTS

The six person jury came back after their initial deliberations in a three-to-three split. The Court began to dismiss the jury, but the prosecutor requested that before the jury be excused the court hear argument in the absence of the jury. The jury left the courtroom and a discussion occurred on the record between the prosecutor and defense counsel, before the trial judge. The prosecutor moved that the jury be given additional time to deliberate until a point was reached where it became certain that the jury could not reach a unanimous verdict.

Defense counsel did not object to the additional time to deliberate, but did request that the jury remain sequestered. Defense counsel wanted the jury to continue deliberating, rather than come back the following day.

Counsel also discussed the prosecutor's suggestion that some direction be given to the jurors to allow them to vote anonymously. Defense counsel objected to further instructions on the basis that "they've already been deliberating, I'm sure they've set up a system that's satisfactory to them." Transcript, p. 77.

At that point, the judge requested the jury reenter the courtroom, and the following discussion occurred:

JUDGE WARD:    Okay. Members of the Jury. Both sides on this case are very concerned that you have not been able to reach a verdict. A request has been made that you attempt, continue deliberations and attempt to come up with a verdict. What might be of assistance, so there are going to be continuing deliberations. What might be of assistance in your continuing deliberations in this manner, is to implement a system where you could vote anonymously on the verdict, and I'm going to suggest that you continue your deliberations, when you get to a point where you want to state your opinion, about the guilt or innocence of the Defendant, you write that down on a piece of paper and give it to the Foreman.

3 NICS App. 343, Port Gamble S'Klallam Tribe v. Rogers (August 1994) p. 345

And conduct your deliberations that way. Do any of you have any questions?

JUROR MEMBER:  Do what now?

JUDGE WARD:    You are going to continue deliberating this case. After you discuss the matter in front of you, and you are ready to take a vote on what the verdict will be, each of you will be allowed to put down your verdict on a piece of paper and give it to the Foreman. We are assuming that you expressed your verdict by verbally, or raising your hand, or in some other fashion. I'm going to suggest that you do that by secret ballot. And with that in mind, you may continue your deliberations. I assume you're the Foreman?

JUROR:                Yeah.

JUDGE WARD:    Court is in recess for further jury deliberations, and the Clerk will provide you with pieces of paper so that you can write down your verdict. Court is in recess for jury deliberation.

BASIS OF APPEAL

Defendant raises several issues on appeal. First, Defendant contends that further instructions should not have been given to the jury after they were initially instructed by the court. Second, Defendant contends that the instruction given - that the jury should continue deliberations "in an attempt to come up with a verdict" - impermissibly suggested that a verdict needed to be reached. Third, the Defendant argues that the suggestion that the jury vote anonymously was unduly coercive.

Additional Instructions

In reviewing the transcript of the proceedings, it is apparent that defense counsel did not object to permitting the jury additional time to continue their deliberations, as long as the deliberations commenced immediately, instead of having the jury reconvene and come back to deliberate. Defense counsel's concerns were that it was a small community, and despite admonishments by the judge for the jurors not to speak about the case, such discussions might occur.

Defense counsel did not object to allowing the jury additional time to deliberate, or to continue their deliberations. Defense counsel's objection to "further instructions" related primarily to the suggestion that the jurors could vote anonymously. Therefore, we will treat defense counsel's objection as one relating to the anonymous voting instruction specifically, rather than additional instructions in general.

3 NICS App. 343, Port Gamble S'Klallam Tribe v. Rogers (August 1994) p. 346

Voting Anonymously

Defense counsel did object to the suggestion that the jurors vote anonymously. The basis of defense counsel's objection was that he was sure that they had already set up a system to determine a verdict, since the jury had already been deliberating.

In his brief, defense counsel indicates that his objection was based on an off-the-record discussion with the prosecutor that led defense counsel to believe that jury voting by secret ballot would lead to a greater conviction rate. The prosecutor at oral argument vigorously disputed the content of the alleged off-the-record discussion. That discussion is not a part of the record before us, and is not presented in the form of affidavits or other evidence. Therefore, this Court will disregard these unsupported allegations by defense counsel. The Court must confine its review to the record before us.

Looking at the precise language used by the trial court, it appears that the voting anonymously suggestion was indeed a suggestion. It was not a mandatory requirement and, therefore, was not in that sense a "jury instruction" that the jury was required to follow; it was simply a method which could be utilized by the jury in an attempt to reach a verdict.

We also note that there is no evidence in the record as to whether the suggestion was followed by the jury. Both parties had an opportunity to poll the jury after they reached their verdict. However, neither the prosecution nor defense counsel elected to do so. Clearly the parties were free to ask whether the jury used the voting anonymously suggestion to render their verdict. In order to rule in favor of the Appellant on this issue, we need some evidence that voting anonymously suggestively prompted the guilty verdict by the jury. There is nothing in the record to support this leap of faith.

Coercive Nature of Instruction

Defendant's third allegation of error was that the judge's remarks suggesting that deliberations be continued "in an attempt to come up with a verdict" was coercive and suggested to the jury that they must reach a verdict. Appellant argues that this impermissibly implies that the inability to reach a decision is not an option for the jury.

In looking at the bare language used by the judge, we would tend to disagree with the Appellant. The judge indicated to the jury that they "continue deliberations and attempt to come up with a verdict." The judge did not specifically instruct the jury that they must come up with a verdict, rather the judge indicated that they attempt to come up with a verdict. This in and of itself is not coercive.

However, we also recognize that the remarks of the judge must be viewed in the context of this entire trial proceeding. The Port Gamble S'Klallam Tribe is a small community. Jury trials are a relatively rare occurrence. Jurors are keenly aware of a judge's authority in the courtroom. When viewed in this context, Appellant's argument has more weight.

3 NICS App. 343, Port Gamble S'Klallam Tribe v. Rogers (August 1994) p. 347

However, we are not convinced that the judge's remarks were indeed coercive. As pointed out by the prosecutor at oral argument, defense counsel could have requested an additional instruction that the jury need not reach a verdict in the case. Defense counsel did not do so. It is also entirely possible that the jury's verdict could have been "not guilty," as well as "guilty." The jury was split three to three prior to being sent back for further deliberations.

Only two cases were cited as authority for Defendant's position in his brief. Both of those cases were decided in Washington State courts. Therefore, they are not binding upon this Court. This Court looks first to the codes and cases decided in the Port Gamble S'Klallam Tribal Court. The law of other jurisdictions can be looked to as a guide, but it is not binding in this case.

One of the cases cited by Appellant was State v. McCullum, 28 Wn. App. 145, 622 P.2d 873 (1981), rev'd. on other ground, 98 Wn. 2d 484, 656 P.2d 1064 (1983). In that case, the state Court of Appeals stated that under Washington law:    

A trial court must tread a narrow and dangerous course between unnecessarily interfering with the jury's deliberative function and making sufficient inquiry regarding their progress to determine some basis upon which the jury may be properly discharged. If the judge inquires too often and too directly, his actions may amount to coercion which will require a new trial. On the other hand, if he precipitously discharges the jury without disclosing an adequate basis for such discharge, a retrial will be denied on the basis of double jeopardy.

State v. McCullum, supra, 28 Wn. App. at 150-151. When the jury informed the court that they were split on a vote of three to three, the court did not inquire at all before initially beginning to discharge the jury. The Court of Appeals approved the prosecutor's suggestion that they go back for further deliberations until it was apparent there was no reasonable possibility of reaching a decision. The jury continued deliberations and did reach a unanimous verdict, indicating that an impasse had not been reached at the initial split in votes.

Appellant also cited State v. Watkins, 99 Wn. 2d 166, 660 P.2d 1117 (1983), as guidance to this court in determining when instructions become coercive to a jury. The court in that case stated:

If defendant were required merely to show that the trial court's intervention had a tendency, no matter how remote or speculative, to influence the jury, then he probably should prevail here. But we think that a defendant must show more than a mere tendency to influence the jury ... we conclude therefore that a defendant must provide more than mere speculation about how the trial court's intervention might have influenced the jury's verdict. Rather, a defendant must establish a

3 NICS App. 343, Port Gamble S'Klallam Tribe v. Rogers (August 1994) p. 348

reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention.

State v. Watkins, supra, 99 Wn.2d at 177-178. We agree with this analysis.

In the record before us there are no affidavits concerning how the additional suggestions from the judge influenced the jury's deliberations. Again, we must confine our review to the matters in the record before the trial court. If the defendant had evidence to support his claim that the jury's deliberations were influence by the trial court's discussion, that evidence could have been reduced to affidavits and made a part of the record. We simply do not have any such evidence, and therefore we cannot find a reasonably substantial possibility that the verdict was improperly influenced by the trial judge's discussion.

ORDER

Based upon the foregoing, the jury's verdict of guilty is affirmed.

COOCHISE, Chief Justice, and WYNNE, Associate Justice, concur.