         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                           No. 69022-1-1
                      Respondent,
                                          DIVISION ONE
                v.



LAVELLE KENNETH JOHNSON,                  UNPUBLISHED OPINION

                      Appellant.          FILED: November 18, 2013


         Becker, J. - Lavelle Johnson appeals the judgment and sentence

imposed following his convictions for attempting to elude a pursuing police

vehicle and first degree driving with a suspended license. Johnson argues: (1)

the trial court erred in denying his motion for a new trial when a juror used the

Internet to access information about Johnson's past criminal history and (2) the

information and special verdict instructions regarding the sentencing

enhancement of endangering the public pursuant to RCW 9.94A.834 were
                                                                                ro



defective. Because there is a reasonable possibility that the extrinsic informaUong^
acquired by the juror influenced the verdict, we reverse and remand for a new! - °
                                                                            s
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                                                                                CO   '^~o\
trial.                                                                          ^    ser^


                                       FACTS                                    -      ;-

         Shortly after midnight on October 20, 2010, Detective Edward Chan and

Officer Jason Diamond of the Seattle Police Department were conducting

surveillance on Lavelle Johnson outside a sports bar in south King County. From

a distance of approximately 100 yards, Detective Chan saw Johnson leave the
No. 69022-1-1/2




bar and get into the driver's seat of a black Mercedes. Another man got into the

passenger seat of the car. Detective Chan and Officer Diamond testified that

they were able to identify Johnson as the driver from previous contacts and from

photographs. Detective Chan was also using a telescopic lens to enhance his

observation of Johnson.

      The Mercedes left the parking lot and began driving the wrong way on

Martin Luther King Jr. Way South. Detective Chan discreetly followed the

Mercedes in an unmarked car. At one point, the Mercedes executed a U-turn in

a residential area and passed Detective Chan at approximately 25 miles per

hour. Both Detective Chan and Officer Diamond testified that they could see

through the driver's side window and they observed that Johnson was driving.
Detective Chan radioed other officers to conduct a traffic stop of the Mercedes.

      Officer Aaron Sausman and Detective Benjamin Hughey pulled behind the

Mercedes in a patrol car and signaled the Mercedes to stop by activating their

lights and siren. The Mercedes did not stop but instead ran a stop sign and

accelerated to a high rate of speed. The Mercedes ran another red light and

eventually entered 1-5 going southbound. Once on 1-5, the driver turned offthe
Mercedes' headlights and proceeded to weave in and out of traffic, accelerating

up to 130 miles per hour. The driver eventually left I-5, pulled into an apartment

complex parking lot, and jumped out of the Mercedes, which continued to roll and




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struck a parked car. The Mercedes' occupants fled on foot. A K-9 unit picked up

a scent from the driver's seat and tracked it to Johnson, who was arrested.

      The State charged Johnson with attempting to elude a pursuing police

vehicle and first degree driving with a suspended license. The State later

amended the information to include a sentencing enhancement for endangering

the public pursuant to RCW 9.94A.834. The charging language for the

enhancement read as follows:


             And I, Daniel T. Satterberg, Prosecuting Attorney for King
      County in the name and by the authority of the State of Washington
      further do allege that during the commission of that crime, one or
      more persons other than the defendant or the pursuing law
      enforcement officer were threatened with physical injury or harm by
      the actions of the defendant, which is a special allegation of
       endangerment by eluding under the authority of Chapter 219, Laws
       of 2008.

      At trial, Johnson admitted the Mercedes was driven in a manner that was

"crazy, reckless and erratic" and that put other motorists on the road at risk of
injury. Johnson also admitted that his license was suspended and that he had
been convicted of prior crimes of dishonesty, including taking a motor vehicle

without permission in 2004 and second degree theft and witness tampering in

2007. Johnson's defense to the charges was that his friend was driving the

Mercedes and he was the passenger. He argued that both he and his friend

were African-American males who were dressed identically and that the officers

could not have distinguished between the two men in the dark. He also




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contended that the K-9 unit naturally picked up his scent because the Mercedes

was his girl friend's car and he frequently rode in it.

       At the conclusion of the evidence, the trial court instructed the jury

regarding the sentencing enhancement as follows:

       This special verdict is to be answered only if the jury finds the
       defendant guilty of Attempting to Elude a Pursuing Police Vehicle
       as charged in Count I.

              We, the jury, return a special verdict by answering as
       follows:

       QUESTION: Was any person, other than Lavelle Johnson or a
       pursuing law enforcement officer, threatened with physical injury or
       harm by the actions of Lavelle Johnson during his commission of
       the crime of attempting to elude a police vehicle?

       ANSWER:           (Write "yes" or "no")
The jurywas also instructed that they were not allowed to consider evidence that
had not been admitted in reaching their verdict and were to use evidence of prior

criminal convictions only for the purposes of assessing the defendant's credibility.

       After deliberating over the course of two days, the jury convicted Johnson

of both counts as charged. In addition, the jury answered "yes" on the special

verdict form for the sentencing enhancement.

       After the trial, the deputy prosecutor spoke with some of the jurors. Juror

12 admitted that he had conducted an Internet search of the name Lavelle

Johnson at the end of the first day of deliberations. The deputy prosecutor




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appropriately brought this information to the attention of the parties. In an

affidavit, juror 12 stated as follows:

       1. On December 22, 2011, following the jury's first day of
            deliberations, I conducted an internet search for the defendant's
            name - Lavelle Johnson.
       2. I found a news article about a person named Lavelle Johnson
          having a sexual relationship with a corrections officer at a
          juvenile facility.
       3. I was not sure ifthis person was the same Lavelle Johnson as
            the defendant.
       4. I believe I read the beginning of the article, but did not read the
            entire article.
       5. The information I discovered on the internet did not change my
            feelings about the case or affect my decision about the verdict.
            During deliberations on the first day, I had already expressed
          my feelings about the case.
       6. I did not tell the other jurors about my internet search until I was
          discussing the case in the hallway of the courthouse with [the
          deputy prosecutor] after the verdict was read.
       Johnson filed a motion for a new trial, citing juror misconduct. The trial

court denied the motion, making the following findings of fact and conclusions of

law:

       1.       FINDINGS OF FACT:


            a. During trial, the Defendant testified and three criminal
               convictions were admitted at trial for impeachment purposes:
               Theft in the Second Degree from 2007; Taking a Vehicle
               without Permission in the Second Degree from 2004; and
               Attempted Tampering with a Witness from 2007.
            b. The jury was instructed that the Defendant's convictions
               were to be used for the sole purpose of assessing what
               weight or credibility to give to the Defendant's testimony.
            c. The Court admonished the jurors to not do any outside
               research during the trial or deliberations.



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No. 69022-1-1/6



           d.   Juror 12 conducted an internet search of the Defendant's
                name, which was juror misconduct.
           e. Juror 12 detailed in his affidavit that he conducted an
                internet search for Lavelle Johnson after the first day of
                deliberations on December 22, 2011, and he found a news
                article about a person named Lavelle Johnson having a
                sexual relationship with a corrections officer at a juvenile
                facility; that he was not sure if this person was the same
                Lavelle Johnson as the defendant; that he believed he read
                the beginning of the article, but did not read the entire article;
                that the information he discovered did not change his
                feelings about the case or affect his decision about the
                verdict; that he had expressed his feelings about the case to
                his fellow jurors during the first day of deliberations; and that
                he did not tell the other jurors about the internet search until
                he was discussing the case in the hallway after the jury's
                verdict was read in court.
           f.   Juror 12 is credible. There are no other affidavits of jurors
                and no evidence has been presented that puts Juror 12's
                affidavit in doubt.
           g. The information found by Juror 12 was in the mind of one
              juror who did not share it with the other jurors and it was not
                a part of jury deliberations.

      2.        CONCLUSIONS OF LAW:

            The Defendant's motion for a new trial based on juror
      misconduct is denied for the following reasons:
           a. A juror discovering information about a conviction that would
                have been inadmissible at trial is juror misconduct.
           b. While juror misconduct did occur, it does not automatically
                warrant a new trial.
           c. The trial court conducts a fact-finding hearing since it has a
                better opportunity to consider and weigh whether juror
                misconduct warrants a new trial because the trial court can
                look at the facts and circumstances of the case and the trial
                over which it presided.
           d. Information about a potential juvenile criminal conviction, in
              light of the three adult felonies admitted at trial, made no
              difference in the way the jury deliberated, especially since it



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               was known by only one juror and not shared with the rest of
               the jury.
            e. The juror misconduct in this case did not prejudice the
               Defendant's right to a fair trial, and is not grounds for a new
               trial.


The court also incorporated its oral findings and conclusions into the order.

Johnson appeals his judgment and sentence as well as the order denying a new

trial.


                                      DECISION

         Johnson argues that the trial court erred in denying his motion for a new

trial based on juror 12's misconduct. The decision to grant or deny a motion for a
new trial is reviewed for abuse of discretion. State v. Marks, 71 Wn.2d 295, 302,

427 P.2d 1008 (1967). A trial court abuses its discretion when its decision is

manifestly unreasonable or based on untenable grounds or reasons. State v.
Maaers, 164Wn.2d 174, 189 P.3d 126(2008). The trial court's application of an

incorrect legal analysis or other error of law can constitute an abuse of discretion.
State v.Tobin. 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).

         The consideration of extrinsic evidence by a juror constitutes juror

misconduct that may be grounds for a new trial. State v. Pete. 152 Wn.2d 546,

98 P.3d 803 (2004). Extrinsic evidence is defined as "'information that is outside

all the evidence admitted at trial, either orally, or by document,'" and it is

improper "because it is not subject to objection, cross examination, explanation

or rebuttal." Pete. 152 Wn.2d at 552-53 (internal quotations marks omitted),



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quoting State v. Balisok. 123Wn.2d 114, 188, 866 P.2d 631 (1994). Once juror

misconduct is established, prejudice to the defendant is presumed. State v.

Bolinq. 131 Wn. App. 329, 332, 127 P.3d 740. review denied. 158Wn.2d 1011

(2006). To overcome this presumption, the State must satisfy the trial court that

it is unreasonable to believe the misconduct could have affected the verdict.

Bolinq. 131 Wn. App. at 332. A new trial must be granted unless it can be

concluded beyond a reasonable doubt that extrinsic evidence did not contribute

to the verdict. State v. Briqqs. 55 Wn. App. 44, 55-56, 776 P.2d 1347 (1989).

The court must make an objective inquiry, asking whether the evidence could

have affected the jury's decision, not whether the evidence did in fact affect the
decision; the actual effect of the extrinsic evidence on the jurors' decision inheres

in the verdict. Richards v. Overtake Hosp. Med. Ctr.. 59 Wn. App. 266, 273, 796

P.2d 737 (1990). review denied. 116Wn.2d 1014 (1991). The effect of the

extrinsic evidence should be evaluated in light of all the facts and circumstances

of the trial. State v. Tiqano. 63 Wn. App. 336, 342, 818 P.2d 1369 (1991), review

denied. 118Wn.2d 1021 (1992). Any doubt that the misconduct affected the

verdict must be resolved against the verdict. Briqqs. 55 Wn. App. at 55.

       It is undisputed that juror 12's Internet search of the name Lavelle

Johnson was misconduct. The critical question is therefore whether the trial

court properly analyzed whether reasonable grounds existed to believe that

Johnson was prejudiced.




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       Johnson argues that the trial court erroneously interpreted the law by

making a subjective inquiry into the actual effect of the evidence on the jury

instead of an objective inquiry into whether the evidence could have affected the

jury's determination. A trial court "may consider only such facts asserted in the

affidavits of jurors which relate to the claimed misconduct of the jury and do not

inhere in the verdict itself. ... [Y]he effect the evidence may have had upon the

jurors or the weight particular jurors may have given to particular evidence, or the
jurors' intentions and beliefs, are all factors inhering in the jury's processes in
arriving at its verdict, and .. . inadmissible to impeach the verdict." Cox v.
Charles Wright Acad.. Inc.. 70 Wn.2d 173, 179-80, 422 P.2d 515 (1967). Here, it

is clear that the trial court did consider some subjective factors. For example, the

trial court made findings that juror 12's statement that his verdict was not affected
by the information was credible. Moreover, the trial court noted that juror 12 did
not share the information with any of the other jurors. However, it is clear that

the trial court's ultimate decision was based on objective factors, including: (1)

the fact that the jury was aware of Johnson's criminal history; (2) that the jury

was instructed not to use evidence of Johnson's criminal history for any other

purpose than to evaluate his credibility; and (3) that the information indicated

Johnson was the victim of the corrections officer rather than a willing participant:

              But there were three other offenses that came into evidence.
       To the extent that this went to the issue of your client's, Mr.
       Johnson's, credibility, they had far more evidence that was
       admitted that went to his credibility directly than this would have,


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       and the jury was instructed specifically they could consider it on the
       issue of his credibility and could do that legitimately. They were
       also told that other convictions could not be used for any other
       purpose. So to the extent that he was of the opinion that this
       indicated there was another conviction, he was instructed you can't
       consider for anything other than credibility. This one they shouldn't
       consider at all.
              This is unusual because it raises an issue of sexual
       misconduct in juvenile hall, but to the extent that it raised the issue
       of sexual impropriety at a juvenile facility, the defendant would have
       been the victim of that impropriety rather than the perpetrator
       legally. He was the victim of a jail officer. And you're right, Mr.
       Swaby, had you asked to put that into evidence, I would not have
       let it in. But to the extent that he was previously a victim of a law
       enforcement officer, it logically would not prejudice him. It would
       prejudice the law enforcement officer who victimized him.
We hold the trial court applied the appropriate legal standard in assessing

prejudice.

       However, Johnson also argues that the State failed to prove beyond a

reasonable doubt that the misconduct had no effect on the verdict. He contends

that the extrinsic evidence was prejudicial because: (1) it alerted juror 12 that

Johnson had been incarcerated as a juvenile, making Johnson appear to "be a

lifelong offender" and (2) it portrayed Johnson as a person of "dubious moral

character" who engaged in a sexual relationship with a corrections officer.

       Johnson's only defense was that someone else committed the crimes.

Johnson's credibility was therefore paramount in this case. Here, the information

acquired by juror 12 directly related to Johnson's credibility. First, "'prior

conviction evidence is inherently prejudicial' when the defendant is the witness

because it tends to shift the jury focus 'from the merits of the charge to the


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defendant's general propensity for criminality.'" State v. Hardy. 133 Wn.2d 701,

710, 946 P.2d 1175 (1997) (internal quotation marks omitted), quoting State v.

Jones. 101 Wn.2d 113, 120, 677 P.2d 131 (1984). We are cognizant of the fact

that Johnson's credibility had already been impeached by the admission of his

adult crimes of dishonesty. But it is not unreasonable to believe that the

knowledge that a defendant began committing crimes as a juvenile could

influence a juror to believe that the defendant was therefore an incurable

offender who must have committed the crime at issue.

       The information was also prejudicial to Johnson because it informed juror

12 that Johnson had previously been involved in a sexual relationship with a

corrections officer. The State correctly notes that it is a crime for a corrections

officer to engage in sexual intercourse with an inmate over whom they have

supervisory power and that Johnson was the victim, not the perpetrator, of the
crime. But the risk is too great that any evidence of sexual impropriety could

have had a negative effect on Johnson's credibility. See, e.g.. State v. Peterson.

35 Wn. App. 481, 485, 667 P.2d 645 (purpose of RCW 9A.44.020, the "rape

shield" statute, was "to remedy the practice of producing evidence of a victim's

past sexual conduct and attempting to show that there was a logical nexus

between chastity and veracity"), review denied. 100Wn.2d 1028(1983): Statev.

Hudlow. 99 Wn.2d 1, 14, 659 P.2d 514 (1983) (information regarding victim's




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No. 69022-1-1/12




past sexual conduct "may confuse the issues, mislead the jury, or cause the jury

to decide the case on an improper or emotional basis").

       The State argues that any prejudice was alleviated by the fact that the jury

was instructed to use information about Johnson's prior convictions only to

determine his credibility. While jurors are presumed to follow the instructions

they are given, "if extrinsic evidence is sufficiently prejudicial, a new trial must be

ordered despite admonitions to the jury." Briqqs. 55 Wn. App. at 60. Where

extrinsic evidence concerns a defendant's prior crimes, "the efficacy of such

instructions is subject to serious doubt." Dickson v. Sullivan. 849 F.2d 403, 408

(9th Cir. 1988). We also must reject the State's argument that the information
was not prejudicial because juror 12 did not communicate itto any of the other
jurors. Even a single juror's improperly influenced vote deprives the defendant of
an unprejudiced, unanimous verdict. Dickson. 849 F.2d at 408.

       While the trial court instructed the jurors that they were to decide the case

based only on evidence presented at trial and that they were not to discuss the

case with family or friends, the instructions did not specifically caution jurors

about the use of the Internet. The Internet has become an integral part of our

daily lives, and advances in technology have exponentially increased the risk that

jurors will conduct research and investigate the law and facts on their own. This

case highlights the importance of jurors being thoroughly and repeatedly

admonished not to consult the Internet for information about the case during trial.




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       We cannot say with confidence that the information obtained by juror 12

could not have affected the verdict. Because any doubts must be resolved

against the verdict, we hold that Johnson is entitled to a new trial. As such, it is

unnecessary for us to reach Johnson's other claim of error regarding the

information and special verdict language for the endangerment enhancement

under RCW 9.94A.834.

       Reversed and remanded.




WE CONCUR:




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