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