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312 P.3d 1027
Wash. Ct. App.
2013
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Background

  • Dennis McCarthy was convicted by jury of second degree assault and first degree assault against his girlfriend, with sentencing following.
  • During deliberations the jury asked for a tape measure and masking tape; the trial court provided them via the bailiff without prior consultation with McCarthy or his counsel.
  • McCarthy objected on record to the court’s failure to consult counsel before supplying the items, but did not lodge a formal objection or move for mistrial.
  • The trial court later held that the two convictions were not the same criminal conduct for offender-score purposes, counting each as one point.
  • McCarthy appeals, arguing violations of public trial, presence, and counsel rights, and challenging the same-criminal-conduct ruling.
  • The court affirms McCarthy’s convictions and sentence, in part addressing whether the jury’s request implicates public rights and how same-conduct sentencing issues are handled.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Did the trial court’s response to the jury’s request implicate the public trial right? McCarthy McCarthy No public-trial implication; response ministerial and non-substantive.
Did providing materials during deliberations violate McCarthy’s right to be present? McCarthy McCarthy No; response was a ministerial matter not a critical stage.
Did responding to the jury’s request violate McCarthy’s right to counsel? McCarthy McCarthy No; no constitutional violation since not a critical stage and no communication requiring counsel.
Who decides whether two convictions constitute the same criminal conduct for sentencing? McCarthy McCarthy The sentencing court may decide; doctrine allows this finding to potentially decrease offender score.
Does CrR 6.15(f)(1) require notice when a jury asks about instructions or evidence in this context? McCarthy McCarthy No automatic notice required in ministerial contexts; Sublett distinction applied; not applicable here.

Key Cases Cited

  • State v. Sublett, 176 Wn.2d 58 (2012) (public-trial right not implicated by ministerial jury communications; two-prong test)
  • State v. Koss, 158 Wn. App. 8 (2010) (jury communications may raise rights; distinguish ministerial matters)
  • State v. Caliguri, 99 Wn.2d 501 (1983) (no communication between court and jury in absence of defendant for substantive matters)
  • State v. Jasper, 158 Wn. App. 518 (2010) (jury questions and responses; impact depends on substantive vs administrative nature)
  • State v. Irby, 170 Wn.2d 874 (2011) (defendant’s presence required only where there is meaningful opportunity to defend; ministerial matters excluded)
  • State v. Rogers, 422 U.S. 35 (1975) (illustrative of meaningful-counsel-right principles in jury communications)
  • State v. Heddrick, 166 Wn.2d 898 (2009) (defendant entitled to counsel at critical stages; standard aligned with be present analysis)
  • In re Pers. Restraint of Pirtle, 136 Wn.2d 467 (1998) (ministerial vs disputed-fact distinction in presence rights)
  • State v. Market, 154 Wn.2d 262 (2005) (same-criminal-conduct rule can decrease offender score)
  • State v. Jasper, 174 Wn.2d 96 (2012) (affirmation of prior Jasper decision on jury questions and public presence)
Read the full case

Case Details

Case Name: State v. McCarthy
Court Name: Court of Appeals of Washington
Date Published: Nov 19, 2013
Citations: 312 P.3d 1027; 178 Wash. App. 90; No. 42803-2-II
Docket Number: No. 42803-2-II
Court Abbreviation: Wash. Ct. App.
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