State of Washington v. Jason Darby Burrill, 34079-1

Jason Burrill was charged with possession with intent to deliver methamphetamine and hydrocodone after police executed search warrants on his motor home and car.
Burrill sought a Franks hearing, alleging the warrant affidavits omitted or misrepresented the informant’s untruthfulness; the trial court denied the request without an evidentiary hearing, finding any alleged omissions not material to probable cause.
At trial the court gave general unanimity and deliberation instructions but did not instruct jurors that deliberations must occur only when all 12 jurors are assembled together. Burrill did not request such an instruction.
The jury convicted Burrill of methamphetamine possession with intent to deliver and possession of hydrocodone (lesser included), and the court imposed a 94-month sentence (including a school-bus-stop enhancement).
On appeal Burrill argued (1) the court’s failure to give the “all 12 present” deliberation instruction violated his unanimity/right-to-jury trial rights and (2) the trial court erred in allowing the prosecutor to argue at the pre-Franks stage. The court rejected both claims and affirmed.

Issue	Burrill's Argument	State's Argument	Held
Failure to instruct jurors that deliberations must occur only when all 12 are present	Lack of that instruction risked non-unanimous verdicts because jurors could have deliberated in smaller groups during breaks	No contemporaneous objection or request; error not preserved and Burrill’s claim is speculative, not manifest	Affirmed: Error not preserved; appellant failed to show manifest constitutional error
Denial/refusal to hold a Franks evidentiary hearing	Franks hearing required because affidavit omitted/misrepresented informant reliability, undermining probable cause	Trial court found alleged omissions immaterial to probable cause; pre-Franks argument by the State did not convert proceedings to a full evidentiary hearing	Affirmed: no error—court properly found omissions immaterial and no full Franks hearing was required
Request to waive appellate costs	Burrill asked the court to waive costs based on indigency	State sought ordinary award of costs as prevailing party	Court declined to award costs to the State based on Burrill’s submitted indigency materials

Franks v. Delaware, 438 U.S. 154 (holding that a defendant must make a substantial preliminary showing that a warrant affidavit contains deliberate or reckless falsehoods or omissions and that those errors were material to probable cause to trigger an evidentiary hearing)
State v. Lamar, 180 Wn.2d 576 (Wash.) (explaining unanimity requires that all jurors participate in the common experience of deliberations and reversing where an alternate was insufficiently involved)
State v. O'Hara, 167 Wn.2d 91 (Wash.) (describing the standard for demonstrating manifest error affecting a constitutional right on appeal)
United States v. McMurtrey, 704 F.3d 502 (7th Cir.) (cautioning against converting pre-Franks argument into a full evidentiary hearing and explaining the pre-Franks showing needed)
People v. Collins, 17 Cal.3d 687 (Cal.) (noting that unanimity requires that the jury’s consensus arise from deliberations that are the common experience of all jurors)