                                                                    FILED
                                                                  MAY 26, 2020
                                                          In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )         No. 36406-2-III
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
JESSE LEE CRISWELL,                           )
                                              )
                     Appellant.               )

       PENNELL, C.J. —Jesse Criswell appeals the trial court’s denial of his motion for

relief from judgment based on juror misconduct. We affirm.

                                          FACTS

       A jury convicted Jesse Criswell of forgery and theft. Less than one year later,

Mr. Criswell filed a motion for new trial and relief from judgment under CrR 7.5 and

CrR 7.8. The motion was based on newly discovered allegations of juror misconduct.

       Mr. Criswell’s motion was supported by two statements—an affidavit and a

transcribed interview—from the juror in question, Melvin Harrell. According to both

statements, Mr. Harrell realized during trial that he knew of Mr. Criswell through

Mr. Criswell’s girlfriend. In the transcribed interview, Mr. Harrell stated he came to this

discovery during a telephone conversation with a friend. In both the affidavit and the
No. 36406-2-III
State v. Criswell


interview transcript, Mr. Harrell indicated that personal knowledge of Mr. Criswell

impaired his ability to be an impartial juror and impacted his vote toward the jury’s

verdict.

       Upon reviewing Mr. Criswell’s motion, the trial court expressed concern about

the reliability of Mr. Harrell’s out-of-court statements. The court noted that during the

interview Mr. Harrell made inconsistent statements about whether he was biased against

Mr. Criswell. The court expressed concern that Mr. Harrell appeared to be “just saying

whatever the questioner wanted to hear.” Report of Proceedings (Aug. 14, 2018) at 28.

In addition, Mr. Harrell appeared to have signed the affidavit at the prompting of Mr.

Criswell’s mother.

       Despite these concerns, the court convened an evidentiary hearing and considered

Mr. Criswell’s motion under CrR 7.8. At the hearing, testimony was taken from Melvin

Harrell, Jesse Criswell, and the defense investigator who interviewed Mr. Harrell.

       Mr. Harrell’s in-person testimony at the evidentiary hearing differed significantly

from his out-of-court statements. Mr. Harrell testified that he remembered serving as a

juror and the deliberation process. However, he could not remember how he came to

realize his familiarity with Mr. Criswell. He never mentioned a telephone call. In

addition, Mr. Harrell denied having any strong feelings about Mr. Criswell. He testified

that his acquaintance with Mr. Criswell’s girlfriend did not make any difference in his

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No. 36406-2-III
State v. Criswell


assessment of the case. Mr. Harrell denied having a clear memory of either signing the

prehearing affidavit or talking to the defense investigator. Mr. Harrell explained that he

had recently fallen, injured his ribs, and was experiencing some pain. Nevertheless, he

claimed he was capable of testifying.

       The defense investigator testified about her interview of Melvin Harrell. She stated

Mr. Harrell did not appear to have any memory difficulties during the interview. She

testified the interview was audio recorded with Mr. Harrell’s permission, and that the

transcription was an accurate record of their conversation.

       Jesse Criswell testified that he knew Melvin Harrell and had experienced a

couple of disagreements with him over the telephone. Mr. Criswell indicated he and

Mr. Harrell were not on friendly terms. Nevertheless, Mr. Criswell claimed he did not

recognize Mr. Harrell during voir dire. He explained that he has poor eyesight and is

almost legally blind.

       The trial court admitted Melvin Harrell’s affidavit into evidence, but the transcript

of his recorded interview was admitted only for impeachment purposes.

       The court rendered a preliminary oral decision denying Mr. Criswell’s CrR 7.8

motion, and entered formal findings and conclusions several weeks later. The court

noted Mr. Harrell’s three “statements ([affidavit], interview and testimony) varied

significantly.” Clerk’s Papers at 88. Given the inconsistencies, the court determined

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No. 36406-2-III
State v. Criswell


Mr. Harrell’s affidavit was not credible and that insufficient evidence supported Mr.

Criswell’s claim of juror bias. The motion for relief from judgment was therefore denied.

       Mr. Criswell appeals.

                                       ANALYSIS

       Mr. Criswell makes two claims on appeal. First, he argues the trial court

erroneously failed to admit the transcript of Mr. Harrell’s interview with the defense

investigator as a recorded recollection under ER 803(a)(5). Second, he argues the trial

court erroneously denied his request for substantive relief from judgment. Both matters

are reviewed for abuse of discretion. State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924

(2012); In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 879-80, 123 P.3d 456

(2005).

       A recorded recollection may be admitted as substantive evidence if (among other

things) it was made while the declarant’s memory was “fresh” and it “accurately” reflects

the witness’s memory. ER 803(a)(5); see also In re Det. of Peterson, 197 Wn. App. 722,

727, 389 P.3d 780 (2017). Admission of a recorded recollection does not depend on the

availability of the hearsay declarant. ER 803(a)(5). As such, there is no need for the

declarant to vouch for a statement’s accuracy. State v. Alvarado, 89 Wn. App. 543, 551,

949 P.2d 831 (1998). Instead, admissibility turns on whether, under the totality of the



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State v. Criswell


circumstances, the recorded statement “accurately reflected [the declarant’s] knowledge

when [the statement was] made.” Id. at 553.

       The trial court did not abuse its discretion in its disposition of Mr. Harrell’s

recorded statement. Significant to our analysis is the fact that the court was sitting as an

adjudicator of both fact and law. The court was aware of Mr. Harrell’s transcribed

statement; it even quoted portions of the statement during the oral ruling. Nevertheless,

the court found the statement unreliable. The court was not required to formally admit

Mr. Harrell’s prior statement before rejecting its contents. No evidentiary error hampered

Mr. Criswell’s ability to seek relief from judgment.

       Turning to the merits, Mr. Criswell had the burden of establishing that juror bias

prejudiced the outcome of his case. State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47

(2000). Mr. Harrell’s in-person testimony provided the trial court adequate reasons for

finding this burden unmet. The record lacked any indication that Mr. Harrell was

intentionally dishonest during voir dire or that he purposefully talked to a third party

about Mr. Criswell’s case. Despite realizing a limited familiarity with Mr. Criswell

during the course of trial, Mr. Harrell testified that he was not biased against Mr. Criswell

and that his assessment of Mr. Criswell’s case was based solely on the evidence

presented at trial. Given these circumstances, Mr. Criswell has not shown that he was



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State v. Criswell


denied his right to a fair trial by an impartial jury. See In re Pers. Restraint of Elmore,

162 Wn.2d 236, 266-69, 172 P.3d 335 (2007).

                                      CONCLUSION

       The order denying relief from judgment is affirmed.

       A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           _________________________________
                                           Pennell, C.J.

WE CONCUR:



______________________________
Siddoway, J.



______________________________
Lawrence-Berrey, J.




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