15 CCAR 32, 8 CTCR 9
Desiree FREUND, Appellant,
v.
COLVILLE CONFEDERATED TRIBES, Appellee.
No. AP21-010
Colville Confederated Tribes Court of Appeals
March 3, 2022

 

Smith, J.

SUMMARY

Appellant and a female friend (Greydall) of her's from out of state, were in Appellant's home drinking alcohol. Appellant's two daughters, Greydall's children, and a friend of Appellant's oldest daughter were also present. The two older girls were in a bedroom listening to music and the other children were in the living room playing. An altercation ensued between the children in the living room. Greydall was yelling at them, so Appellant's oldest daughter (A.S.) went to investigate. A.S. tried to intervene between Greydall and her children. Greydall grabbed A.S.'s arm and A.S. told Greydall not to touch her. Greydall then went to the kitchen and told Appellant that A.S. had disrespected her. Appellant called A.S. into the kitchen and told her to apologize to Greydall. A.S. refused. Appellant threatened A.S. that her stepfather would beat her. A.S. testified that her mother threw the first punch, then a fight ensued between them in the kitchen. A patch of hair was pulled from A.S.'s head, she was hit with a closed fist to her face, and had several scratches. A.S.'s friend (A.N.), who was in the bedroom, recorded some of the argument and fight on her phone. The two girls then left the house to go to the A.N.'s grandmother's place next door. Someone called the Colville Tribal Police (CTP), and when they arrived they spoke with A.S.. She downplayed the incident, not wanting to get her mother in trouble. The CTP did an investigation. Pictures taken later by the CTO showed scratches, bruising, and other indications of a fight on A.S. Appellant was subsequently charged with Battery with a Domestic Violence enhancement. At trial, the jury found Appellant guilty of the charge and enhancement. Appellant timely appealed the decision, alleging that there was insufficient evidence presented to the jury to find guilty and that the alternate juror was allowed into the jury deliberations.

STANDARD OF REVIEW

The issues are of mixed law and fact. Our standard of review is de novo. CCT v. Naff, 2 CCAR 50 (1995).

ISSUES There are two issues before us: 1) Was there sufficient evidence submitted to the jury to affirm a guilty verdict? If yes, then 2) Was it error to allow an alternate juror to be allowed in deliberations, even with the instruction that the juror was not allowed to contribute to the deliberations?

ISSUE 1

Was there sufficient evidence submitted to the jury to affirm a guilty verdict?

A.S. testified that her mother struck her first. A.S. also testified that her mother threatened her with a beating by her stepfather. A.S. had a patch of hair pulled out, and the hairless spot was still visible months after the incident. There were pictures of the scratches and bruises on A.S. taken by the CTP. The pictures were shown to the jurors.

A.N. testified that she was in the bedroom when the fight started, but she managed to record a lot of the altercation on her phone. There was yelling and other fight-related sounds recorded. The jury was able to listen to the phone evidence.

The jury heard the testimony, saw the evidence presented, and determined that the defendant was guilty as charged.

A jury trial and a bench trial have one thing in common - both have "triers of fact." In a jury trial, the trier of fact is the jury. In a bench trial, the trier of fact is the judge. Both of their duties are to look to the law and facts and make an informed decision. In Campobasso v. Cawston, 14 CCAR 59 (2019), we stated, "Under a de novo review we evaluate the credibility of the testimony and evidence submitted to the record, as well as the weight the credibility was given by the Trial Court. The test is whether there was a reasonable basis for the judge to make her ruling, based on the facts and the law before her, and not whether we might have ruled differently under the same circumstances." In Desautel v. CCT, et al., 13 CCAR 31 (2017) we stated, "The credibility of any witness or evidence is the sole province of the fact-finder."

The Court finds that there were sufficient facts presented to the jury to allow them to make an informed decision.

Appellant's younger daughter (A.K.), who was only 7 at the time and now 10 years old, was called to testify. She was allowed a support person to sit with her. She was allowed to not have to sit on the witness stand. The spokesmen were ordered to be gentle or they would be out real quick. They were also ordered to keep the questioning brief. The judge refused to put A.K. under oath as he felt she was too young. A.K. briefly testified for the defense that her older sister started the fight. The Prosecutor countered that A.K. was supportive of her mother and would not want to go against her. The Prosecution did not get to further rebut A.K.'s testimony because the judge stopped the questioning before any questions could be asked. He felt she looked scared. The judge stated that he would not allow a child of 10 to testify, that it was a travesty, and he was not going to subject her to that When the Prosecutor stated that the State of Washington determined that 8 year olds were presumptive competent witnesses, the judge stated that he had made his ruling and wasn't going to change it. When asked to reconsider his prior ruling that testimony be allowed by prior testimony, the judge refused and said that he was not going to reconsider. Prosecutor could appeal if he wanted.

In Desautel v. CCT, et al., 13 CCAR 31 (2017) we stated, "We have addressed the competency and hearsay evidence issue once before in our Court. Bush v. CCT, AP90-[006], in which the CoA affirmed the Trial Court's adoption, as guideline, Washington State RCW 9A.44.120, which set out the parameters of when a child is competent and when the child's out-of-court statements could be used as evidence as an exception to the hearsay rule."

ISSUE 2

Was it error to allow an alternate juror to be allowed in deliberations, even with the instruction that the juror was not allowed to contribute to the deliberations?

Jury[1 ] selection proceeded without any major issues. Prior to opening arguments Defense realized he didn't think he had been allowed to offer any for-cause challenges[2 ]. He brought this to the attention of the Judge, but the Judge brushed it off, telling him he was too late in bringing it to the attention of the Court, and that the Judge was certain he gave both parties the opportunity to contribute. When asked if he would review the record, the Judge made it clear that he wasn't going to review the record as he was sure he asked both parties for for-cause challenges. He refused to take any more time to discuss the matter. He had made his decision and he was not going to take extra time to determine if he was right or not. It could be appealed if Defense felt he had been wronged.

Upon review by this Court of the oral record, the Judge was in error. He went right into pre-emptories immediately after asking the Prosecutor if he had any for-cause challenges. He did not ask Defense if he had any for-cause challenges. It appears that taking a few extra minutes to confirm whether he erred or not was less of a priority to the Judge than getting the trial to the jury quickly.

At the end of voir dire, the Judge enquired from the clerk and Spokesmen what the usual procedure was for selection of the alternate jurors and when told the procedure[3 ], he said that he was not going to do it that way, he was going to do it his way, as it was easier for him. The Judge designated the last juror seated as the alternate. The alternate juror would go into deliberations, but would not be allowed to participate. The judge did send the alternate into the deliberations with the other jurors, with the command that the alternate was not to participate in any fashion during deliberations. When the jury finished deliberations, the alternate was dismissed. There was no inquiry if the command to not participate was actually followed nor was there any comments made to the Court suggesting the command had not been followed.

Prior to the trial actually starting and after voir dire, Appellant brought to the attention of the Court that there was a problem with the alternate juror, but the Judge indicated that he had made his decision and would not hear anything further on the subject. The juror was selected and that was that. The trial then moved forward.

It is a concern of this Court that the judge's seeming need to hurry through trials and not wanting to take time to make sure all the parties' rights are being protected may cause harm in the future. We are a tribal court and though we need to make timely decisions, we also are very protective of making sure everyone has an opportunity to have their say in court. We would caution the judge to be concerned less with the time and be more concerned with making sure rights are not being violated.

Appellant argues that we must look to state common law before any other law when tribal statute and common law are lacking[4 ] Appellant cites to State v. Cusick, 11 Wn.App. 539 (WA Ct. App. 1974). "The presence of an alternate juror during jury deliberation, contrary to RCW 10.49.070[5 ] and CrR 6.5[6 ], invades a criminal defendant's right by an impartial jury and is presumed to be prejudicial."

The WA Supreme Court affirmed the conclusion of the Ct of Appeals saying, "A verdict rendered by a jury membership in any strength other than that specifically authorized by law is void." State v. Cusick, 530 P.2d 288 (1975). The prosecutor in that case also asked that the case be remanded to see if any actual prejudice could be determined. The Court declined, saying "A factual hearing would not be likely to shed much light on the actual effect of the alternate juror's presence in the jury room. It would certainly be impossible to recreate at this point every move, every expression he might have made during the several hours of deliberations." Other states have adopted the Cusick standard: Maryland, North Carolina, New Mexico, Massachusetts, and Oklahoma.

Another issue that was discussed by the Cusick court was there was no objection by the defense to the alternate juror. Cusick determined that the error was such an intrusion into the defendant's right to a fair and impartial jury that the fact that there was no initial objection was insufficient to reverse its findings.

Appellee counters that the Trial Court did not err by allowing an alternate juror in the deliberations. He states that Colville Tribal law does not prohibit the Court from directing the alternate juror from being present at deliberations. The Code is silent on that subject. He goes on to state that State Court rule and state laws do not apply to our courts. He is correct, however, we have looked them in the past for guidance in deciding issues that we have no prior tribal law to rely on.

Appellee states that Cusick held that prejudice would be found unless "it affirmatively appears that there was not and could not have been any prejudice." He goes on to cite to United States v. Olano, 507 U.S. 725 (1993). There the court directed two alternate jurors to go to the deliberation room with the 12-person jury, with instructions not to participate in deliberations. The Court advised the attorneys that he was contemplating letting the alternate jurors into deliberations with instructions that they not participate, only observe. He gave them one day to consider. The next day, the Court had an exchange with one of the attorneys. The attorney indicated that they did not want the alternates in deliberations. The following day, the last day of the trial, the Court again asked again if the alternates could be in deliberations. One of the attorneys indicated that he thought the alternates would be allowed. The Court concluded that this attorney spoke for all the parties. None of the other counsel intervened, nor did they object later in the day when the jury was instructed to deliberate. The Supreme Court declined to presume prejudice and held that the unobjected-to presence of the alternates did not warrant reversal. If the jurors did not actively participate, either verbally or through body language, then it was no more intrusive than a book on the table. They were not persuaded because the defendants made no specific showing of prejudice by the presence of the alternate jurors. We can distinguish the instant case from Olano. The Olano case was a huge trial, involving many defendants and spanning many weeks. The deliberations were anticipated to take several days/weeks. The judge in that case was concerned that any of the jurors might not make it to the end of deliberations. That is why he sat the two alternates as he did. In the instant case, it concerns only one defendant, deliberations may take one or two days. Less reason to worry that the jurors would make it to the end of the trial and through deliberations.

Appellee further argues that we are not limited to only looking at Washington state case law. The Code only says "state" not "Washington state." Appellee then cites to a case from Maryland in which the defendant did not object to the presence of an alternate juror. The court held that it was a tactical decision and was not ineffective assistance of counsel. If there was no objection to the alternate juror then the issue was waived by the defendant and could not be used in an appeal. State v. Newton, 146 A.3d 1204. This case can be distinguished from the instant case. The judge in the Newton case had already had to declare a mistrial due to illness, conflicts, and being unable to sit a 12-member jury. The judge, who declared that he normally doesn't do this, asked the parties if they would agree to having an alternate juror sit in the deliberations, with instructions that they were not to participate. He was concerned that there might be a mistrial if problems continued to surface. Both parties agreed. The jury subsequently found the defendant guilty and he was sentenced to life in prison. He appealed, stating that his counsel was ineffective for agreeing to the alternate juror being present in deliberations. There were other issues, but they don't pertain to this issue. The Appellate Court found that if the parties agreed with the change in procedure, then there was no ineffective assistance of counsel and that it could not be appealed.

In the instant case, there had not been any mistrial, there had been no issues of juror illness or conflicts. This was a standard tribal jury trial, which was anticipated to take one to two days to complete. Deliberations were not expected to take days to come to a conclusion. Therefore, there wasn't a valid reason to allow the alternate juror into deliberations. Even the judge in the Sexton case said that it was out of common for his to even suggest the alternative procedure.

The Court of Appeals finds the Trial Court erred in allowing an alternate juror into deliberations.

CONCLUSION

The Court of Appeals finds sufficient facts presented to the jurors to support their decision. The Court of Appeals finds sufficient cause to remand for a new trial in that the Trial Court erred by allowing an alternate juror to be present in deliberations.

This matter is remanded to the Trial Court for action consistent with this Opinion and Order.

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Notes:

[1 ]CTC 1-1-221. Number of Jurors. In any case a jury shall consist of six (6) jurors drawn from the current list of eligible jurors by the Court clerk or judge.

[2 ]CTC 1-1-222. Challenges. Any party to the case may challenge and have dismissed not more than three jurors selected from the list of eligible's without cause, but there shall be no limit to challenge for cause. The judge shall decide as to the sufficiency of a challenge for cause.

[3 ]The procedure for selection of an alternate was that seven jurors would be selected through voir dire. All seven would be sworn in for the trial. At the end of the trial, one juror would be randomly selected just prior to deliberations and excused.

[4 ]CTC 1-2-11. Applicable Law. In all cases the Court shall apply, in the following order of priority unless superceded by a specific section of the Law and Order Code, any applicable laws of the Colville Confederated Tribes, tribal case law, state common law, federal statutes, federal common law and international law.

[5 ]RCW 4.44.290. Replacement juror procedure.

If after the formation of the jury, and before verdict, a juror becomes unable to perform his or her duty, the court may discharge the juror. In that case, unless the parties agree to proceed with the other jurors: (1) An alternate juror may replace the discharged juror and the jury instructed to start their deliberations anew; (2) a new juror may be sworn and the trial begin anew; or (3) the jury may be discharged and a new jury then or afterwards formed.

[6 ]Cr Rule 6.5 Alternate jurors.

When the jury is selected the court may direct the selection of one or more additional jurors, in its discretion, to be known as alternate jurors. Each party shall be entitled to one peremptory challenge for each alternate juror to be selected. When several defendants are on trial together, each defendant shall be to one challenge in addition to the challenge provided above, with discretion in the trial judge to afford the prosecution such additional challenges as circumstances warrant. If at any time before submission of the case to the jury a juror is found unable to perform his duties the court shall order him discharged, and the clerk shall draw the name of an alternate who shall take his place on the jury. [Adopted April 18, 1973, effective July 1, 1973.] Comment: Supersedes RCW 10.49.070.

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