      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON                          )          No. 75953-1-1
                                             )
                      Respondent,            )          DIVISION ONE
                                             )
             v.                              )          UNPUBLISHED OPINION
                                             )
LELAND DEAN RUSSELL, JR.,                    )
                                             )
                      Appellant.             )
                                             )          FILED: October 8, 2018


       ANDRUS, J. — Leland Dean Russell was convicted of two counts of first

degree murder and one count of second degree assault. Russell argues the trial

court erred in instructing the jury on how to deliberate to reach a valid unanimous

verdict and the trial court exceeded the authorized term for the assault-related

no-contact order. We affirm Russell's convictions. We remand, however, for the

trial court to correct the scrivener's error in the no-contact order as it pertains to

the assault victim.

                                       FACTS

       The State charged Russell with two counts of first degree murder, with

premeditated intent, and one count of second degree assault. The State alleged

that on August 20, 2014, Russell engaged in verbal confrontations with several

people at a gas station before shooting Carlos E. Gonzales andl David
No. 75953-1-1/2

Christianson multiple times at close range. The State further alleged that earlier

that morning, Russell had chased a motorist, Heather McKenzie, while wielding a

gun. He was also accused of being armed with a handgun on all three counts.

       Russell's trial occurred between July 11,2016 and August 23, 2016. After

the court empaneled the jury, it instructed the jury, consistent with Washington

Pattern Jury Instruction (WPIC) 1.01,1 not to discuss the matter with others,

including other jurors. In addition, the trial court noted that this instruction applied

to the entire proceedings, even if it was not repeated.

       Russell proposed a set of standard jury instructions, including WPIC 1.04,

which states:

                As jurors, you have a duty to discuss the case with one
                another and to deliberate in an effort to reach a unanimous
                verdict. Each of you must decide the case for yourself, but
                only after you consider the evidence impartially with your
                fellow jurors. During your deliberations, you should not
                hesitate to re-examine your own views and to change your
                opinion based upon further review of the evidence and these
                instructions. You should not, however, surrender your honest
                belief about the value or significance of evidence solely
                because of the opinions of your fellow jurors. Nor should you
                change your mind just for the purpose of reaching a verdict.

The trial court adopted this instruction as Instruction 2. Instructions 28(proposed

by Russell) and 29 further informed the jury of the importance of a unanimous

verdict. Russell did not object to these instructions. Nor did he propose any

additional instructions regarding the jury's deliberative process.




         1 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 1.01
(4th ed. 2016)(WPIC).


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No. 75953-1-1/3

      After deliberating more than four hours over two days, the jury found

Russell guilty as charged. A jury poll confirmed that its verdict was unanimous.

At his sentencing hearing, the trial court entered a judgment and sentence for a

term of 756 months and imposed lifetime no-contact orders with the murder

victims' families and the assault victim and her family. Russell appeals.

                                    ANALYSIS

       Russell argues that the trial court erred by failing to instruct jurors that

their deliberation must only occur in the jury room and only then when all 12

jurors are present. He contends there is no basis to assume the verdict was

unanimous. We reject this argument.

      The Washington State Constitution guarantees criminal defendants the

right to a unanimous verdict. CONST. art. 1 §§ 21, 22; see State v. Lamar, 180

Wn.2d 576, 583, 327 P.3d 46 (2014). Jury unanimity is only achieved when the

verdict is reached through consensus. Lamar, 180 Wn.2d at 585. Because

Russell raises this issue for the first time on appeal, RAP 2.5(a)(3) requires that

he must establish manifest error affecting a constitutional right. "RAP 2.5(a)(3)

serves a gatekeeping function that will bar review of claimed constitutional errors

to which no exception was made unless the record shows that there is a fairly

strong likelihood that serious constitutional error occurred." Id. at 583.

       Recently, in State v. Sullivan, this court rejected an identical argument to

that raised by Russell. 3 Wn. App. 2d 376, 415 P.3d 1261 (2018). The court

held that "without evidence to demonstrate that the jury did not deliberate as a

whole," a party's asserted error cannot be considered manifest and declined to


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No. 75953-1-1/4

address the merits of Sullivan's argument. Id. at 381. Sullivan offered no

evidence that the jury failed to deliberate as a whole, and instead speculated that

during deliberations, at least one juror must have left the room for a bathroom

break. Id. at 380. The court reasoned that speculation that a juror may have left

the jury room during deliberations was insufficient to warrant review under RAP

2.5(a)(3). Id. at 380-81; see also State v. St. Peter, 1 Wn. App. 2d 961, 963, 408

P.3d 361 (2018). There is nothing here to distinguish this case from Sullivan.

Russell has not established manifest error.

       Russell also argues that the failure to instruct a jury in a criminal trial how

to achieve unanimity constitutes structural error, which unlike manifest error,

does not require a showing of actual prejudice. Structural error is a special

category of constitutional error, not subject to the harmless error analysis, that

affects the framework within which the trial proceeds, rather than simply an error

in the trial process itself. State v. Wise, 176 Wn.2d 1, 13-14, 288 P.3d 1113

(2012). Structural error necessarily renders a trial fundamentally unfair. See

Rose v. Clark, 478 U.S. 570, 577, 106 S. Ct. 3101, 92 L. Ed. 2d 460(1986).

       Russell compares this error to the structural error of incorrectly instructing

a criminal jury on the reasonable doubt standard, Sullivan v. Louisiana, 508 U.S.

275, 281-82, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993), or in closing the

courtroom during voir dire to individually question jurors, Wise, 176 Wn.2d at 15.

We find neither case analogous to this case.

       In Sullivan v. Louisiana, the state conceded that an erroneous reasonable

doubt instruction had been given at trial. 508 U.S. at 277. The only question


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No. 75953-1-1/5

was whether this constitutional error was amenable to a harmless error analysis

or whether it fell into the category of an error that would always invalidate a

conviction. Id. at 279. Here, Russell has not established that any error occurred.

The authority on which Russell relies does not require such an instruction be

given. Indeed, because trial counsel did not request an instruction, we cannot

determine if it would have been error to refuse it. On this record, in which no

error has been shown, we cannot determine if the hypothetical error might

require evidence of actual prejudice. Therefore, Russell has not established

structural error.

       Lastly, Russell argues the trial court exceeded the 10-year statutory limit

when it imposed a lifetime no-contact order with Heather McKenzie, the assault

victim, and her family.

       A no-contact order is a crime-related prohibition that a trial court may

impose as a sentencing condition. State v. Armendariz, 160 Wn.2d 106, 119,

156 P.3d 201 (2007). However, the maximum operative length of the no-contact

order, or any crime-related prohibition, cannot exceed the statutory maximum

sentence for the connected crime. Id. at 120. Because the statutory maximum

sentence for murder in the first degree is life imprisonment, the lifetime no-

contact orders for the murder victims' families are correct. RCW 9A.32.040.

Second degree assault, however, is a class B felony. See RCW 9A.36.021(2)(a).

The statutory maximum sentence for class B felonies in most cases is 10 years.

RCW 9A.20.021(1)(b).      Therefore, the no-contact order associated with the




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No. 75953-1-1/6

second degree assault conviction cannot exceed 10 years.2 The remedy for

clerical or scrivener's errors in judgment and sentence forms is remand to the

trial court for correction. CrR 7.8(a); see RAP 7.2(e).

        We affirm Russell's convictions, but remand for the trial court to correct

the scrivener's error.




WE CONCUR:




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        2 Although the State conceded in briefing that Russell's judgment and serinceetii=
contained a scrivener's error that required correction, at oral argument, the State sought to retrac;g72
the concession based on State v. Navarro, 188 Wn. App. 550, 354 P.3d 22 (2015). In thatSse,F..pf—
Navarro was convicted of eight counts of communication with a minor for immoral purposeEerdLca
two counts of extortion. Id. at 552. The trial court entered no-contact orders for 10 yearghez     -lca -
                                                                                                   )
maximum term of the extortion conviction, protecting all of his victims, including those minorsattho=<
were not victims of the extortion. Id. at 556. The maximum term for communication with a minor
for immoral purposes is five years. Id. This court affirmed the 10-year no-contact orders,
concluding that all minors were directly connected to the circumstances of the extortion crime
because the "evidentiary value of each boy's testimony was not limited to proving the count for
which he was the victim." Id. at 556.
         In this case, the State analogized that the assault victim's testimony was relied on—
particularly in closing argument—to put Russell in the vicinity for the murders and to show his
demeanor that morning. Because there was video surveillance of the murders, as well as other
witness testimony, and the difference between a lifetime no-contact order and a 10-year no-
contact order is potentially much longer than the five-year difference in Navarro, the analogy
between this case and Navarro is too attenuated. Therefore, we decline to extend Navarro to the
circumstances of this case.


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