State v. Smalls

States United its determination. making information Cf. (BNA) (11th Feb. Cir. Lindstrom, L. Rep. Crim. 1983). (Court testimony the mental regarding held allowed should have been prosecutor's witness illness of reason, should, within cross examination. on credibility aid affecting all witness' informed of matters truth.) The claim of self-defense in its determination of the this case. inseparable mental illness petitioner's a bifurcated trial Thus, grant the trial court's refusal not error. JJ., concur Dolliver, Brachtenbach,

Rosellini, Dimmick, J. 9, 1983.] En Banc. June 49058-9. [No. Respondent, Washington, v. Harold The State of Smalls, Petitioner. Respondent, Washington, v. Thomas

The State of Lloyd Simcox, Jr., Petitioner. Henry Browne,

John Browne and Ressler & Foster, for petitioner Smalls. Gaffney, petitioner

William J. Simcox. Maleng, Prosecuting Attorney, Norm Michael V. and Linnabary, Deputy, respondent. appeal J. Defendants consolidated cases Pearson, Appeals affirming of

Court decision their convictions of (Simcox) (Smalls). burglary and murder dispositive presumption issue before us whether a. pur- of court, a defendant arises when the trial jury suant to CrR allows the after delibera- begun. tions We hold CrR 6.7 does not authorize jury begin after creates a RCW 4.44.300 during deliberations. jury separated

defendant Smalls, of Simcox. the conviction Accordingly, we reverse on which we have preserve the issue failed to having case, is the benefit the hold- not entitled to decided conviction is affirmed. and his ing by the Court before us were consolidated The two cases present an issue they appeared to because both Appeals deliberations. out of arising Simcox, Jr., Defendant, Lloyd charged Thomas On June burglary degree. the second the crime County Superior Court. began King stipulated both sides Defendant and counsel for stipulated signed and counsel also persons. six Defendant . . . the trial allowing separation "during order such separa- exists believe that inasmuch as reason a fair trial". jeopardize tion will not day June throughout proceeded The trial having after been in the was excused evening on jury case. The returned admonished not discuss the began 11 to further evidence. Deliberations at June hear At the trial called counsel p.m., judge 11:45 a.m. 8:45 court and indicated that he the State and defendant into for the con- home. Counsel State jury intended to send decision; objected. in his counsel defendant curred separate authority he had stated he believed finding and made a jury evening for the under was probability fatigued was a high that there past p.m. 8:45 would require them deliberate and that rea- He to a fair trial. also found be detrimental to return jury, existed to believe son 12, on would not at 9 a.m. June for further deliberations admonishing again a fair trial. After jeopardize others, case themselves or among to discuss the at 9 a.m. jury, to return court excused 12, 1981, approximately on at returned June approximately At 9:45 continued deliberations. a.m. and jury's on the for a mistrial based a.m., defendant moved having been excused the previous evening. The court denied defendant's motion and found 11, 1981, on June at approximately p.m., 8:45 appropriate. At approximately a.m., the jury returned verdict, finding guilty defendant as charged.

At the time of the scheduled sentencing, 20, 1981, August trial, defendant moved for a new basing the motion on the same argument of improper jury separation. On October 1981, the judge granted defendant's trial, motion for a new declaring that he had not had discretion to act on June 1981, in excusing or, for the evening, he did have discretion, it had been an abuse of discretion to separate the jury when the defense objected.

The State moved for reconsideration of the decision. That motion was denied on November 1981. The State appealed, arguing that the trial court had discretion under CrR 6.7 the jury any point before the verdict was rendered. The Court of Appeals agreed. The court also rejected argument defendant's that separation of a deliber- ating jury over a defendant's objections raises a presump- tion of prejudice. Because defendant relied upon this presumption rather any specific than proof of prejudice, Court of Appeals held that the trial court did not abuse its discretion separating jury. The order granting Sim- cox' new trial reversed, was therefore and the jury's verdict reinstated.

Defendant us, the second case Smalls, before Harold was charged with the second degree murder of Bernard Ballard. Defendant admitted that he shot and killed Bal- lard after dispute at a tavern over defendant's desire to dance with a friend of the victim. The issues of fact at the trial were whether defendant intended to kill Ballard and whether he acted in self-defense.

The case went to the jury at about p.m. on November 26, 1980, the day before Thanksgiving. At p.m. 10:03 jury sent the court a note which read: "We cannot reach a decision!" The trial court informed both counsel that proposed to tell the jury "continue deliberation until 1, Monday, December you to return when I will excuse

p.m. counsel Defense continue deliberations". 9 a.m. at jury 4-day delay long would be too that a objected this Friday, 28, at noon. Over return November should Monday until trial court excused the objection, Monday, December The reconvened on morning. a.m. guilty verdict 10:49 and returned on the that ground moved for a new trial Defendant 1. in until December separating erred trial court Simcox, not CrR 6.7 is argue inap- Smalls did that Unlike Rather, has plicable begun once the deliberations. court failed to com- simply argument Smalls' denying there is no order Although with 6.7. ply papers, in the clerk's the motion was motion defendant's impris- was sentenced to life Defendant denied. apparently 31, 1980, appeal filed notice of onment on December day. the same appeal Smalls' Appeals

The Court of consolidated its rea- Relying upon v. Simcox. appeal the State's State the Court of arguments, Simcox' soning rejecting found no abuse discretion Appeals affirmed. accordingly His conviction was jury. Smalls' requires interpretation appeals The raised both issue "jury may provides of CrR 6.7. This rule finds reason if the court separate allowed fair trial". jeopardize exists believe that such would to which this before the court is the extent question relating to the rule, prior modified law adopted the issue is whether specifically, More juries. to a defend- removes the the rule is allowed to after when a ant begun. considering analytical starting point A convenient Ben in State v. decision CrR 6.7 is this court's prior to law this In that case nett, 129 P. 409 Wash. one deny juror new trial where error to held it was court for half an hour the other from separated had between a distinction court created an adjournment. keep cases where the order to is jury together the based on the discretion of the court and cases where the order to keep the in In jury together is found a statute. the former cases, separation the jury require will not reversal unless In cases, is shown. the latter where statute, the jury prohibited by presumed and by must be rebutted the State. 71 Wash. at 676-77. From in early history state, the of this three statutes have addressed of separation the matter of the jury. Two of provisions these in appeared Laws 1854 and were reenacted in virtually unchanged the Revised Code of Washington. Laws was reenacted as RCW § provides: 10.49.110 and Juries criminal sepa- cases shall be allowed to

rate, except by consent of the prose- defendant and the cuting attorney, but shall be kept together, without meat drink, or by court, unless otherwise ordered to be expense county. furnished of the Laws 194 was reenacted as RCW 4.44.300: § After hearing charge, jury may either decide or box retire for If they retire, deliberation. they must be kept provided them, in a together room or some other convenient under place charge one or officers, until they upon verdict, more agree their or are by discharged his shall, the court. The officer to the best ability, keep the jury thus from per- other sons, drink, except water, without food, and without except ordered the court. He must any not suffer [as] them, communication to he nor any made to make him- self, court, unless except order ask them they upon verdict, their agreed not, and he shall rendered, before the verdict communicate to per- son the state of their deliberations or the verdict agreed on.

In enacted; 1909 another statute was it is now RCW 2.36- .140. whatever,

In except felony no action proceeding try cases shall sworn to the issues therein be kept together custody of the officers of the court, save during progress trial, the actual until them for finally been submitted shall have the case kept together Whenever decision.

their when the trial is not officers custody of the meals at regular they supplied shall be progress, hours, accom- and toilet sleeping with comfortable modations. case by any cited apparently has not been statutes, however, have other two its enactment. The

since generally bodies of case law which significant rise to given analysis in Bennett. Cases decided suggested adhere sepa- predecessors held that RCW 10.49.110 under of the statute a trial violation during ration of the to the defendant. prejudice a presumption created & decided under Rem. Ball. Code Bennett itself was § A analysis 2159, of RCW 10.49.110. similar a forerunner Rose, 553, v. 43 262 194 in State Wn.2d P.2d applied was (1953). case, a where the In the court ordered retrial briefly during adjourn- allowed to had been and use rest rooms. The telephone to make calls ments of RCW 10.49.110 and this was a direct violation court held prejudice. prima presumption created a facie under RCW 10.49.110 arises No permitted separation agree where counsel 211, 221, Hettrick, 67 Wn.2d 407 P.2d 150 State v. statute. however, (1965). out, agree- A that such pointed later case separation; a court had right ment does not create deny parties where the had discretion to a Sperry, v. 79 Superior State ex rel. Court Wn.2d agreed. (1971). Moreover, granted the court a 69, P.2d 483 608 and affected a material reached prejudicial rémedy would be a new proper jury, member of the at 77. supra v. Superior Sperry, ex rel. Court trial. State State v. by CrR 6.7. superseded 10.49.110 was Under 292, P.2d 1382 Turner, Wn. 555 App. 16 in deciding discretion rule, has "broad the trial Cunningham, 93 State v. sequester jury". whether (1980). This discretion 1139 823, 837, P.2d 613 Wn.2d stipulation agreement exists apparently regardless 762 parties. 4.44.300, body

Under RCW another of case law devel- oped. When initially provision chapter enacted this was 1854, Laws 15 of the An entitled "Civil Practice. Act to Regulate Practice and Proceedings Civil Actions". 1854, Laws of p. 194. RCW 4.44.300 Title appears § 4 of the Revised Code "Civil Washington, entitled Pro- provision cedure". The First, has principal aspects: two it forbids unauthorized communications with a deliberations; second, requires kept together until a verdict is reached.

A substantial body applied aspect of cases has the first Carroll, RCW 4.44.300 to criminal cases. In State v. (1922), Wash. P. passed note bailiff to a juror during a criminal case. The court held (RCW 4.44.300) that this violated the Rem. Rev. Stat. § prohibition of jurors. communications with A new denied, however, it affirmatively because appeared that there could have been any prejudice to the defendant arising out the unauthorized communication. 119 Wash. Smith, at 624. In State 261 P.2d 109 (1953), bailiff quiet instructed the their delib held, Carroll, citing erations. The court no the defendant resulted from the bailiff's actions.

RCW 4.44.300 has been cited in several recent cases with unauthorized dealing communications with deliberat- e.g., State ing jurors, Christensen, v. 17 Wn. App. 567 (1977). Crowell, P.2d In State v. 143, 147, 654 92 Wn.2d (1979), 594 P.2d 905 this court characterized the statute as being to "designed insulate the from jury out-of-court may communications that their prejudice verdict". The court in Crowell also affirmed Smith the that holding the statute "does not a new require every technical violation".

If transposition the of the from civil sphere to criminal were limited to its unauthorized the. little, aspect, any, communications it would rele- present Amundsen, vance to the But in State v. issue. (1950), this 1067, 21 A.L.R.2d Wn.2d 223 P.2d of the statute jurors aspect of separation the applied court case, had allowed jury In the been in a criminal case. that of a meal the course briefly taking while raised presump- This held that this deliberations. court prejudice. tion of show- that a sufficient opinion are of the there was

We the was sub- was case separated that the ing mitted to them and that jury after upon placed burden prejudice arising of presumption to rebut respondent from violation Stat., Rem. Rev. provisions § . . . 4.44.300] [RCW presumption is prima rule that a majority facie submis- from fact of after separation arises prejudice upon is of the case to the the burden sion actually no result. that did prejudice state show 37 Wn.2d at 360-61. rule interpret subsequent cases to Amundsen

Two In State v. independent any particular statute. being (1961), this court held Creech, 57 Wn.2d 358 P.2d 805 gave rise to a a few minutes separation that State was able presumption but prejudice, the general court stated rule prejudice. overcome the 594: page before case was separations for sub- respect With deliberations, the burden upon mitted to the . . . to show resulted. the defendant hand, respect separations with occur- On other thereafter, prima there is a ring presumption facie upon the burden state to prejudice, no show that result. actually did general statement rule appears A similar in State 879, 885, Connors, 371 P.2d 541 As a further indication that of a cataclysmic with longer fraught no should consequences, state, many noted this in company others, recognized has a distinction between a and after before case has been submitted situation, In the latter there is a jury. 764 prejudice prejudice no the state to show that and the burden is on actually separation result; but, where the did jury, there is submitted to the before the case is occurs presumption prejudice, of and the defendant

no such (1961), claiming prejudice must show it. State v. Creech (2d) (2d) 805; v. Amundsen P. State 57 Wn. 358 (2d) (2d) (1950), 1067, A. L. P. R. 37 Wn. (2d) 1082. enacted, therefore, court At was this the time CrR 6.7 recognized presumption preju- was a the defendant by separation had diced begun after deliberations separation

where a statute. This is con- violated jurisdictions which with the rule in other sistent most recognizes separation jury during

that where a deliberations of statute, rule, a criminal case is in of expose or order violation of might court, or occurs under circumstances which jurors presumption improper influences, prejudice upon placed is created and the burden is By prosecution injury to show that resulted. the same no although always token, are not lines of demarcation clearly expressed, appears that when. the defendant jurors alleged separation relief because of an seeks during deliberations, criminal trial the defendant has the proving separation harm, reversible where the burden was with authority of the court and not in violation of a separa- rule, instances, or some where the statute temporary such or trivial was nature as not to tion reasonably suggest prejudice. the likelihood of omitted.) (Footnotes Annot., 72 A.L.R.3d promulgation state, 6.7, before of CrR In this recognized presumption where either 10.49.110or RCW 4.44.300. violated the effect of CrR we must there- determine In order to supersedes If rule both statutes. whether fore decide superseded, then both statutes violate no rule and therefore would prejudice. If, on the would not create presump- 6.7, the survives statute hand, other either separation during delib- from arise tion of would despite erations, CrR 6.7. superseded disputed 6.7 has RCW that CrR

It is not App. 292, P.2d 1382 Turner, State v. 16 Wn. 555 10.49.110. (1976). only question, therefore, is whether CrR 6.7 The supersedes RCW 4.44.300. superseded Appeals held CrR 6.7

The Court of noted that CrR 6.7 is not limited 4.44.300. court RCW part prior Therefore, it to deliberations. to that of supersedes applies implicitly 4.44.300 as to criminal RCW Accordingly, delibera- of after trials. begun therefore rule, statute or and violates no tions probability prejudice. It must show a of the defendant undisputed being cases before neither defendant in the prejudice, probability able the court was to show disagree Appeals We Court of affirmed both convictions. Appeals 4.44.300 is RCW with the Court and hold that superseded. support First, the this Several reasons conclusion. supersession expressly comments to CrR 6.7 indicate the Second, 4.44.300. but mention RCW RCW 10.49.110 do not compel recognized the conclusion well rules of construction be harmonized whenever "should that CrR 6.7 possible, statutes interpretation gives effect to which both an interpretation". Emwright provisions preferred is the (1981). King Cy., 538, 543, 637 P.2d 656 96 Wn.2d interpretation Appeals 6.7 CrR curtails Court of despite application to RCW 4.44.300 criminal trials contrary years interpretations over 60 to the or more. This application restriction of is a substantial statute. quite susceptible hand, is the other on to the applies only interpretation proceedings prior that it jury. interpretation the case to the Such an submission considerably CrR 6.7 and RCW 4.44.300 harmonizes more curtailing effectively application than the statute's crim altogether. Appeals Moreover, as inal cases the Court of (State App. v. Smalls, n.1, 32 Wn. conceded (1982)), interpretation creates the P.2d CrR 6.7 deliberating jury result that a in a criminal case anomalous discretion, whereas court's may separated at the trial a civil case the trial has no discretion with the This result conflicts begin. after deliberations are, given if to be possible, rule that statutes and rules Lau, rational, Krystad v. sensible construction.

827, 844, 400 P.2d 72 hold, therefore, applies only proceed- We 6.7 that CrR prior jury. to the of deliberations ings beginning Accordingly, prohibit separation RCW 4.44.300 continues to separated If the jurors during deliberations. 4.44.300, violation of RCW arises course, defendant has been Of defendant prejudiced. protection by agree- waives the afforded ing pre- he cannot assert jury, sumption of prejudice. only by authority,

This conclusion is but supported not by policy. sound Jurors to number might subjected be to prejudicial influences whenever the is allowed A juror separate. overnight allowed to return to his home prejudiced by any be influences on his might myriad say can how a juror by Who influenced con- might life. family friends, his and exposure or to the various tact entertainment media during evening an at home? news jurors are opinion, especially prejudi- In our sensitive to during deliberations. While hearing influence still evi- cial jurors easier for dence, probably keep open to an mind. it is potentially impact prejudicial influences Moreover, the subsequent evidence, arguments, the dissipated will be jurors when the But have heard all the and instructions. onto the been focused issues before evidence, and parties instructions, the them by arguments substantially. increases potential prejudice the case of Simcox. instance Consider p.m. a.m. and at 8:45 11:45 the jury began Deliberations a.m. the following day. at 9 When home, return sent to home, already more than 9 it was hours were sent A testimony and the arguments. since the conclusion or a watched on spouse program chance remark juror's a would have during hours at home juror's television is real immediacy very the evidence. There a more than juror's recollection of the evidence possibility influences by such might of it be distorted perception the evidence. subsequent the conclusion of received whether determine course, impossible it usually Of actually juror against a prejudice influences such himself well juror may particular in a case. defendant his affect deci- the subtle influences which be unaware of reason, admonition and instruction sion. For this prejudicial probably ameliorating ineffective this rea- For the deliberations. effects probability also, prove affidavits to juror the use of son value; swear to juror being cannot is of dubious he is unaware. by influences of which prejudiced we continue Therefore, appropriate recognize when the rule which creates dur- objection allowed defendant's jury is over ing deliberations. us. appeals to the before

We now to the rule apply turn sepa- objected His counsel first consider Simcox. We eventually jury, per- and was successful ration of separation during deliberations the trial suading and on He both before trial court argued, was error. prohibited separation during appeal, that RCW pre- therefore created a and that attempted sumption prejudice. The State has not the issue on presumption. Having preserved thus rebut the trial. is entitled to new appeal, Simcox his counsel Although Smalls is not as fortunate. he days, agree for did objected separation waived the benefit of separation day. He therefore fact, argue In Smalls does not of prejudice. Rather, he argues is presumptively prejudicial. his trial 4 days creates separated fact that him to a new thus entitles and possibility merit. The authorities The is without argument trial. a defendant that, presumption, in the absence of clear State v. Cun- must show at least a probability of prejudice. ningham, State App. (1980); Wn. 620 P.2d 535 Stiltner, (1971). 491 P.2d 1043 Smalls has presented no juror evidence such as affidavits to indicate a probability prejudiced by that he was jury. He therefore is not entitled to a new trial. His convic- tion is affirmed.

Williams, C.J., Rosellini, Stafford, Utter, Brach- Dore, JJ., tenbach, concur.

Dimmick, J. would affirm both convic- (dissenting) —I tions. The trial judge properly allowed the separate during pursuant to CrR 6.7 and neither defendant has shown any prejudice caused by separa- such tion. opinion in majority great part devoted his-

tory separation. discussion, of jury educational, Such while is, clouds the in real issue this case —which does CrR 6.7 exclusively deal with jury separation a criminal trial?

CrR provides: 6.7 jury may be allowed to the court finds reason exists to believe that such would not a fair trial. jeopardize Any motions or proceedings con- cerning made shall be out of presence of the jury. CrR 6.7 was promulgated 1973 and amended in 1976 pursuant authority. to our rulemaking ability pro- Our mulgate the rule is not questioned, jury separation is a Turner, State v. procedural 292, 298, matter. 16 Wn. App. 555 P.2d 1382 As a governing procedure rule all conflicting procedural proceedings supersedes criminal statutes. CrR 1.1. majority

While the concedes that CrR supersedes 6.7 RCW 10.49.110 (prohibiting jury separation criminal trials), it holds CrR 6.7 does not conflict with cases apply- ing (prohibiting jury separation trial) deliberation a civil to criminal proceedings. 6.7

[709] separation during language allows plain its supersedes with and therefore in a trial. It conflicts criminal in criminal trials. application law RCW 4.44.300 the case to in our rules we adhere interpreting have held that We principles One of those statutory construction. principles not require is on its face does is that which clear language McIntyre, State v. permit construction. (1979). terms principle P.2d 1009 Another plain meaning. given used in court rules should be their (1978). Johnson, P.2d 189 App. State v. 21 Wn. Our CrR 6.7 clear on its face and thus no construc- rule trial court discretion to allow permitted. tion is It allows a partic- it not limit this discretion to separation and does Rather, all applies it to phases ular of a trial. phase ordinary clearly of trial includes meaning trial. The A is defined as "all from proceedings deliberations. "trial" to try are called their cases parties the time when time joined from court or the time when issue mine). (Italics determination". Webster's Third its final Dictionary New International RCW jury deliberation and other makes a distinction between prohibiting jury separation. CrR 6.7 phases of separation. allowing no such makes distinction gives several reasons for its "harmoniza- majority The in criminal applied CrR 6.7 and RCW 4.44.300 tion" of First, which it cites the comment to CrR 6.7 proceedings. fails to supersedes the rule RCW 10.49.110 and states course, any comment, is not other statute. mention Additionally, bound it. the rule and thus we are not listing inclusive purport comment does all Second, majority superseded statutes and case law. susceptible the inter- quite concludes that CrR 6.7 "is to sub- only proceedings prior it pretation applies at 765. Majority opinion, the jury." mission of the case to no gives support conclusion majority making this any in the rule which lends language it. It point does not other interpretation point nor does itself to this 4.44.300 was authority. In cases cited wherein fact the inexplicably applied to criminal trials were all decided prior to the adoption of CrR 6.7. The majority merely states that its interpretation allows CrR 6.7 to be harmonized with this prior court's cases applying RCW 4.44.300 pro- to criminal ceedings. Many statutes and rules could be "harmonized" their words are ignored is what majority the does —which here. The majority's strained harmonization will allow our rules, face, no matter how clear their is, on as CrR 6.7 to be questioned and ignored. expressed

Another reason by the for majority its "har- monization" of the rule and statute is that to do otherwise creates an anomalous situation. if Clearly, we full give effect cases, to CrR 6.7 in criminal RCW 4.44.300 as in applied civil cases remains in force. Thus in a civil action there could be no after deliberations have begun (RCW 4.44.300), whereas in criminal actions there could be (CrR in jury separation 6.7). the discretion of the judge The Appeals, Judge Court of Durham writing for the court, recognizes this anomalous situation and the "await[s] wisdom of the Supreme Court to resolve this quandary." Smalls, State v. n.1, App. 32 Wn. 649 P.2d 169 majority's The ignore plain "wisdom" is to the terms of the criminal court rule. presents This case no anomaly application in the of CrR 6.7. The anomalous situ by ation caused the application of CrR 6.7 criminal cases and RCW 4.44.300 civil cases by was created rule and must by be resolved rule. There are proposed two rules now before us which problem. 47(i) address the Proposed CR and proposed CrR 6.7.1 This process rulemaking is the 47(i), proposed, provides: 1 CR "(1) Generally. During separate good trial the shall be allowed to unless shown, record, sequestration jury. cause is on the for After the case has formally decision, throughout jury's been submitted to the the delib- erations, jurors separate only stipulation parties. the shall be allowed to on "(2) separate, Communication Restricted. Unless is the allowed to the jurors kept together charge they shall be under the of one or more officers until agree upon by discharged keep their verdict or are the court. The officer shall jurors separate persons any from other and shall not allow communication to be himself, jurors, by court, except made to nor make unless order of the to procedural our rules —this case change forum proper not.

Furthermore, pur- I agree majority's cannot support policy" which it claims lends "sound ported a jurors contends that majority subject position. separated. when prejudicial influences myriad of by a jurors will be influenced assumes majority spouse program a watched juror's remark "chance 766. Majority opinion, at Pursuant to CrR television". on has judge, parties, the trial who evidence him, may separate all before allow jeop- reason a fair trial will to believe there in the seriousness markedly Criminal cases differ ardized. trial, levels of charge, publicity and the length position them. best surrounding The trial judge whether case appropriate particular determine it is afforded tempered and the discretion light 6.7 allows a to handle situation however, divests all circumstances. The majority, will judge trial of this result majority's discretion. not, jurors they upon agreed shall before ask the if have verdict. The officer their rendered, jurors' any person delib- the the verdict is the state of communicate or their verdict. erations "(3) seque- Any proceedings concerning or the Motions. or motions jury presence jury." stration the shall made out of the of the provides: proposed, "(a) Generally. separate During unless shall be trial allowed shown, record, sequestration jury. case has After the cause on the of the decision, throughout jury's delib- formally been submitted to the erations, only parties. stipulation jurors of the on shall be allowed separate, "(b) allowed to Communication Restricted. Unless the charge until jurors kept together more under the officers shall he one keep discharged by they agree upon shall The officer their verdict or court. persons jurors separate and shall not communication from other allow court, except any himself, jurors, unless of the be made to the nor make order not, they jurors agreed upon shall The officer ask the their verdict. jurors' rendered, any person state of the communicate to before verdict is their verdict. deliberations or "(c) concerning separation or Any proceedings motions or Motions. jury." presence sequestration of the be made out of the shall 1983). (January 7, xli xlii advance sheet No. inconvenience greatly jurors in cases where there is no reason to legitimate do so. One defense counsel conceded at argument that he usually oral agrees separation. This belies majority's argument pre- when sumed a jury separates. Further, the majority assumes will ignore admonishments from the trial as to their duties separated. while The majority's could well attitude be construed to be elitist and paternal- in assuming istic trial judges and jurors perform cannot jobs. their

I, therefore, respectfully disagree with the majority. The complied court with the terms of CrR plain 6.7 and the language and effect of that rule applied must be in these If cases. this court chooses not to allow jury separation during deliberations trial, a criminal it may do so rule, amending but not by plain lan- convoluting guage existing rule.. J., concurs with Dimmick, J.

Dolliver, Reconsideration denied August 1983. 15, 1983.] 49186-1. En

[No. Banc. June Respondent, Washington Bank, Chemical Public Respondent, Supply System, Power Columbia Association, Inc., Rural Electric Petitioners. al, et

Case Details

Case Name: State v. Smalls

Court Name: Washington Supreme Court

Date Published: Jun 9, 1983

Citation: 665 P.2d 384

Docket Number: 49058-9

Court Abbreviation: Wash.