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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

STATE OF WASHINGTON,                                                           No. 42579 -3 -II


                                       Respondent,                        PUBLISHED OPINION


         v.



CLABON TERREL BERNIARD,


                                       Appellant.


         BJORGEN, J. —         Clabon Terrel Berniard appeals his jury convictions and exceptional

sentence for first degree felony murder, burglary, two counts of first degree robbery, and two

counts of second degree assault based on his participation in a 2010 robbery at the home of

James
                           Sanders1

        and   Charlene                 and their two children, JS and CK. As aggravating factors, the jury

found by special verdict that Bernard used a high degree of sophistication or planning in

committing the crimes and that his conduct with respect to one of the assault and one of the

robbery charges manifested deliberate cruelty to the victims.

         On appeal, Bernard argues that the trial court ( 1) violated his right to a jury trial by

dismissing    a   juror   during   deliberations; ( 2)   violated his confrontation clause rights by admitting




1
    We refer to James and Charlene Sanders by their first name for clarity. We intend no
disrespect.
No. 42579 -3 -II


                                                              codefendants; ( 3)   violated his rights under
police   testimony concerning    statements made     by his

article I, section 3 of the Washington Constitution by admitting Charlene' s identification from a

news   broadcast; ( 4)   erred under the Privacy Act, chapter 9. 73 RCW, in admitting a recording of

a journalist' s interview with Bernard' s family members; and ( 5) violated the prohibition against

double jeopardy by entering convictions for all of the crimes where the proof of some of the

charges required proof of certain others. Berniard also appeals from the exceptional sentence

imposed, arguing that the trial    court erred   in ( 1) applying the aggravating factors; ( 2) not


permitting the jury to answer " no" on the special verdict forms; and ( 3) refusing to consider

some of the offenses as the same criminal conduct in calculating his offender score.

          Because the trial court violated Berniard' s confrontation and jury trial rights, we reverse

and remand for further proceedings. We therefore find it unnecessary to reach Bernard' s double

jeopardy, Privacy Act, and eyewitness identification claims, as well as his challenges to the

sentence imposed.


                                                    FACTS


          Following a home invasion robbery in which one participant shot and killed James, the

State charged Joshua Reese, Amanda Knight, Kiyoshi Higashi, and an unidentified fourth


participant with a number of crimes. Ultimately, the State charged Berniard, as the fourth

participant, with first degree felony murder, burglary, and two counts each of first degree

robbery and second degree assault. The State sought firearm sentencing enhancements and

alleged aggravating factors of deliberate cruelty and a high degree of sophistication or planning




                                                       2
No. 42579 -3 -II


                                                                                                   2
on all counts.     The trial   court severed   the   cases, and   Berniard was tried separately.


            The victims' testimony at Bernard' s trial established that Knight and Higashi initially

obtained entrance to the Sanders' s home posing as potential buyers of a ring the Sanders had

advertised on     the   web site "   Craigslist." Verbatim Report of Proceedings ( VRP) at 900 -03.


Higashi then drew a gun and ordered James and Charlene to lie face down on the floor. They

complied, and Knight and Higashi restrained their hands with plastic zip ties, taking the wedding

rings from Charlene' s and James' s fingers.


            On a signal from Knight, two additional intruders, wearing masks and armed with guns,

entered the home and proceeded to the second story, where they ordered the Sanders' s two

children, JS and CK, downstairs. One of these masked intruders, identified by the victims as

 the   mean one,"       demanded the location of the Sanders' s safe, threatening to kill the victims.

VRP    at   909 -10, 932. He kicked Charlene in the head, pointed a gun at her head, and began


counting backwards from three.

            At that point, Charlene told the perpetrators that the safe was in the garage. As Higashi


and another intruder took James toward the garage, he broke free from the zip ties and a fight

ensued. JS, who remained unrestrained, joined the struggle, and in the course of the fight the


perpetrators beat JS severely with a pistol and shot James repeatedly, killing him. The four then

fled the scene.


2 We have already affirmed the convictions of Berniard' s codefendants. State v. Knight, 176
Wn.    App.    936, 309 P. 3d 776 ( 2013),     review   denied, 179 Wn.2d 1021, 318 P. 3d 279 ( 2014); State
v.   Reese, 177 Wn.       App.   1006, 2013 WL 5592952 ( 2013), review denied, 179 Wn.2d 1017, 318
P. 3d 279 ( 2014); State       v.   Higashi, 171 Wn.    App.    1015, 2012 WL 5354547 ( 2012). The
circumstances of the crimes appear in some detail in those opinions. We have limited the
discussion here to essential background and those facts directly relevant to the legal issues
presented in Bernard' s appeal.



                                                            3
No. 42579 -3 -II



        A few days later, California police apprehended Knight, Reese, and Higashi. All three


ultimately made statements implicating themselves and a fourth participant. Police later

determined that the fourth   participant,   known to the     perpetrators as "     YG," was Bernard. VRP at


1380 -81.


        Prior to trial, Bernard moved to suppress certain evidence the State intended to


introduce, including Charlene' s identification of Berniard as one of the participants, a video

recording of a conversation with Bernard' s family members made by KOMO reporters, and the

statements his codefendants had made to police. Except as to the KOMO recording, the court

ultimately denied the motions, but entered written orders limiting the State' s use of some of the

evidence.




        The court' s order denying Bernard' s motion to suppress incriminating statements made

by his codefendants limited the State to using the codefendants' statements to establish their own

involvement and to explain the course of the investigation. At trial, the State introduced a


number of statements from the codefendants in the form of testimony from the investigating

officers.   One officer testified extensively about Knight' s statements regarding the planning and

execution of the crimes, including the participation of other codefendants, over Bernard' s

objection and in violation of the court' s order on motions in limine. Another officer testified that


Reese and Higashi had identified the other people involved in the crimes and shortly thereafter

testified that he began seeking to   identify   a   black   male   known   as "   YG," whom he later


discovered    was   Berniard. VRP   at   1380 -81. Telephone records showed that, in the period before


the robbery, a cell phone associated with Berniard received calls from the other perpetrators' cell




                                                        4
No. 42579 -3 -II



phones and made calls using the same cell tower as the phone Knight used to make an

appointment to see the advertised ring.

        The jury began deliberations after more than two weeks of testimony. On the day after

deliberations began, the court held a hearing to discuss a report from court staff concerning their

interactions with juror 2. At the hearing, jury administrator Connie Janiga described the

following contact with that juror:

         A] s [ juror 2] is handing me her [ parking] validation, I said something like, Have
        a good    day at jury service. And she burst into tears. And I' m like, Oh, are you
        okay?      And     so   I    gave   her,   you    know, Here is    some [    Kleenex].       And she said, I
        thought I was going to be okay. I thought I could do it. This has been so stressful
        for me.
                   I   said,   You know,      we    do have    a service   that   will assist you with     this.   And

        I reached over, and I got one of Judy Snow' s cards out, and I passed it across to
        her. And        she said,     You know, I didn' t sleep       at all      last   night.   And I said, Well, I
        think that' s what this service is for. And that' s all that was said.


Clerk' s Papers ( CP) at 2214. Juror 2 apparently spoke to Janiga between 8: 00 and 9: 00 a.m. on

August 25, 2010.


        The court then examined juror debriefer Judy Snow, who testified at length about her

subsequent interactions with juror 2. According to Snow' s testimony, the juror spoke to Snow

on the telephone at around 11: 30 a.m., then again in person in the afternoon of the same day. On

examination by the court, Snow initially described their interactions as follows:

                   I had a phone call message this morning saying that she was a juror and
        my name was given to her by [ Juror Administrator] Connie [ Janiga] and that she
        seemed very distressed and asked if I would return the call. So I returned the call
        probably around 11: 30. She stated to me she was quite distressed about a case
        and   that it    was    very — she felt like she could harm herself, that it got to the point
        that if she had to continue on like this that she could do serious damage to herself.
        I told her I      would      be   more     than   happy to meet with her. I asked her what case it
        was and when was              the   case over.      She advised me that the case was still going on
        and which case          it   was.
No. 42579 -3 -II



                   So at that point I told her that I advised her that if it was traumatic, I' m
           there to support her, that I need to advise the court, would she be safe until 1
           o' clock until I came and saw her and talked with the court. And she said that she
           would.

                      At that point, I called court escort officers and found out that they were
           starting   at   1   o' clock, and      they advised me that no, they are in deliberations. So I
           found   out at that point            they were in deliberations. Then I came to the court and
           advised you.         I   saw   her   outside.    She asked if she could speak with me, and I said,
           no, I couldn' t discuss anything with her. I needed to advise the court.
                   She did say, I want you to know that I feel better after talking with you —
           and I said I was happy about that —and I don' t think I could hurt myself, actually

           hurt myself. She did say that she felt like it could get to the point where
           everybody would be against her.        So it was very traumatic for her, the jury
           process.



VRP   at   2219 -20. Snow            reiterated    that "[ juror 2] said that she was fearful that all the jurors


would   be   against       her." VRP at 2220.


           The court then invited the attorneys to question Snow. On examination by Bernard' s

attorney, Snow stated that

           I did   speak       to her     about   how   she was      feeling. She felt that she felt much more
           optimistic      that there      would   be   a   jury   debriefer     after   deliberations   after   this —if she
           continued with           deliberations. She        stated, "    I would want to do that."

VRP   at   2221.      On questioning from the deputy prosecutor, Snow also testified that

                   Juror 2] stated to me also that she had these thoughts starting to come into
           her head about harming herself as a way out and she doesn' t think she would act
           on   them, but       they    were    intrusive —what I interpreted as intrusive thoughts of self -

           harm. She was very tearful, crying rather hysterical on the phone.
                       State]:      Did she appear that same demeanor when you met her in person?
                       Snow]:        As    we were      talking     near   the    room, no.     She was continuing to
           cry, but felt that this was a very difficult decision -making process to be on a jury
           of such magnitude and that she was feeling that she could continue.

VRP   at   2223. The State then moved to dismiss juror 2 for misconduct, or in the alternative, as


unfit for jury service due to a mental defect, and substitute an alternate. Bernard objected on




                                                                       6
No. 42579 -3 - II



Sixth Amendment grounds. The court reserved ruling until the following day to allow the parties

to brief the issue.


        After reconvening, the court found no juror misconduct because juror 2 did not discuss

the substance of deliberations. Bernard requested that the court inquire whether juror 2' s


distress resulted from being in the minority, arguing that to dismiss her without doing so would

violate his jury trial rights. Instead, the court ruled as follows:

        Juror 2 sought out the help of Judy Snow as the juror debriefer after she was given
        that information by the jury administrator yesterday morning. And Juror 2 quite
        clearly admitted that she had thoughts of self - arm if she continued as a juror.
                                                        h
        She was not specific about this case or about the case being in deliberations. She
        later   also explained   that it   could   happen if     everyone was against        her. Again, she
        had intrusive thoughts      of self harm.
                                            -            This clearly, because of her unstable mental
        and emotional condition, makes             her   unfit   to   serve as a   juror in this   matter.   The
        reference to everyone else being against her does not in my mind arise to the level
        of   showing   evidence   that   she   is actually   a   hold -
                                                                      out juror in this     situation....     So
        we will dismiss Juror Number 2.


VRP at 2248 -49. After a brief colloquy, the court substituted an alternate and instructed the jury

to begin deliberations anew.


        The reconstituted jury returned guilty verdicts on all counts and answered " yes" on

special verdict forms finding a high degree of sophistication or planning as to all counts. CP at

392 -409. The jury also found that Berniard' s conduct exhibited deliberate cruelty to the victims

on one count of robbery and one count of assault. Berniard timely appeals.

                                                    ANALYSIS


        Of Bernard' s many claims, two require reversal: the trial court violated Berniard' s right

to a unanimous verdict from an impartial jury and his right to confront the witnesses against him.

Resolving the appeal on these grounds, we decline to reach the remainder of his claims. We first



                                                             7
No. 42579 -3 - II



address the trial court' s dismissal of juror 2, then the investigating officers' testimony concerning

statements made by Bernard' s codefendants.

                        I. IMPROPER DISMISSAL OF A DELIBERATING JUROR


        Bernard argues that the trial court' s dismissal of juror 2 violated his right to a unanimous


verdict from an impartial jury under the federal and Washington constitutions and that the

dismissal constituted an abuse of discretion under the governing statute. Specifically, Berniard

contends that juror 2' s statement, related to the court by Snow, that she feared all the other jurors

would be against her, established a reasonable probability that the grounds for dismissal

stemmed from juror 2' s assessment of the merits of the State' s case. Therefore, Berniard argues,


the trial court erred in refusing to allow examination ofjuror 2 and should have either allowed

juror 2 to continue deliberating or declared a mistrial.

        The State responds that the trial court was under no duty to examine juror 2 or to inquire

further into her fitness for jury duty and that the court properly concluded, based on the

testimony of Snow and Janiga, that juror 2 was unfit to serve as a juror due to a mental defect.

The State asserts that no heightened standard of review applies because juror 2' s comments to


Snow did not raise the possibility that juror 2' s distress resulted from being a " holdout juror,"

and that the dismissal did not result from an allegation that juror 2 was refusing to follow the

law. Br. of Resp' t at 13.

        Washington statute provides that


         i]t shall be the duty of a judge to excuse from further jury service any juror, who
        in the opinion of the judge, has manifested unfitness as a juror by reason of bias,
        prejudice, indifference, inattention or any physical or mental defect or by reason
        of conduct or practices incompatible with proper and efficient jury service.
No. 42579 -3 -II



RCW 2. 36. 110. We have interpreted this statute, along with CrR 6. 5, which specifies the

procedure for substituting an alternate for a dismissed juror in criminal cases, to " place a

continuous obligation on the trial court to excuse any juror who is unfit and unable to perform

the   duties    of a     juror."    State v. Jorden, 103 Wn. App. 221, 227, 11 P. 3d 866 ( 2000).

             This obligation, however, may easily ensnarl the workings of central constitutional rights.

Our Supreme Court has interpreted article I, section 21 of the Washington Constitution to

                                                                                               3
guarantee criminal               defendants the   right   to   a unanimous   jury   verdict.       State v. Ortega -
                                                                                                                   Martinez,


124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994). Both the federal and Washington constitutions also


guarantee criminal defendants the right to trial by an impartial jury. U.S. CONST. amend. VI;

WASH. CONST.              art.   I, § 22. The defendant, however, " has        no right to be tried by a particular juror

or   by     a particular    jury." State v. Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105 ( 1995).

             Viewed in the abstract, the dismissal of a juror whose emotional response to the case


imperiled her health or ability to deliberate would not seem to threaten any constitutional flaws.

Facts, though, have a way of complicating abstractions. If, as argued here, the juror' s emotional

state which led to her dismissal arose in part from her perceived status as a minority of one, the

dismissal could be characterized as arising from the juror' s view of the merits. Of greater

potential damage, if emotional stress tended to arise more frequently from holdout status, the

unexamined dismissal of a juror for that stress could unintentionally cull holdout jurors.



3
    In a fractured opinion, the United States Supreme Court declined to apply the federal right to a
unanimous verdict to the states through incorporation into the Fourteenth Amendment. Apodaca
v.   Oregon, 406 U. S. 404, 406, 92 S. Ct. 1628, 32 L. Ed. 2d 184 ( 1972). Because the Washington
Constitution also guarantees this right, however, we consider cases involving alleged violations
of    the   right   to   a unanimous verdict       in federal    prosecutions "     instructive."     State v. Elmore, 155
Wn.2d 758, 771 n.4, 123 P. 3d 72 ( 2005).

                                                                    9
No. 42579 -3 -II



         The appropriate standard to apply in reviewing a trial court' s dismissal of a juror depends

on the nature of the request for the dismissal. In State v. Elmore, 155 Wn.2d 758, 778, 123 P. 3d

72 ( 2005),   our Supreme Court held that, as long as the trial court applied the correct evidentiary

standard, an appellate court reviews a trial judge' s decision to dismiss a juror for abuse of


discretion. A trial court abuses its discretion if its " decision is manifestly unreasonable, or is

exercised on untenable grounds, or            for   untenable reasons."         State v. Rundquist, 79 Wn. App. 786,

793, 905 P. 2d 922 ( 1995) ( internal         quotation marks omitted).            A court acts on untenable grounds


 if its factual findings      are unsupported       by the      record,"   acts for untenable reasons " if it has used


an   incorrect   standard,"   and its decision is manifestly unreasonable " if its decision is outside the

range of acceptable choices given          the     facts   and   the legal   standard."   Rundquist, 79 Wn. App. at

793.


         The Elmore court, however, also adopted the " any reasonable possibility" standard

employed by the Ninth Circuit Court of Appeals in reviewing cases " where a request for juror

dismissal focuses on the quality of a juror' s thoughts about the case and his ability to

communicate       those thoughts to the       rest of     the   jury." Elmore, 155 Wn.2d at 775, 778. Under this

heightened evidentiary         standard, "[   w]here there is a reasonable possibility that the impetus for

the   complaint    is the juror' s   views on      the   merits, `   the trial judge has only two options: send the

jury   back to   continue   deliberating      or   declare   a mistrial. '    Elmore, 155 Wn.2d at 776 ( quoting

United States v. Symington, 195 F. 3d 1080, 1087 ( 9th Cir. 1999)).


         Unlike the present appeal, Elmore involved claims that a deliberating juror refused to

follow the court' s instructions and disregarded all of the State' s witnesses as not credible. Even


with this difference, the reasons why Elmore followed the " any reasonable possibility" standard


                                                                  10
No. 42579 -3 - II



speak strongly for its use here. First, the court noted that, unlike in other cases of alleged juror

misconduct or bias, a trial court' s inquiry into a claim that a juror refuses to follow the law

necessarily risks intruding on the secrecy of jury deliberations. Elmore, 155 Wn.2d at 770 -71.

Thus, the court admonished that " trial courts investigating such allegations must take special care

not to delve into the substance of deliberations or the thought process of any particular juror."

Elmore, 155 Wn.2d       at   771.   The same hazard lies in any inquiry into the reasons for juror 2' s

distress. As in Elmore, the " any reasonable possibility" standard lessens that concern.

         The Elmore court also rested its holding on the grounds that dismissal of a holdout juror

implicates the defendant'       s rights   to both     an   impartial jury   and a unanimous verdict.    155 Wn.2d


at 771 -72. On the one hand, such a dismissal could " enable the government to obtain a


conviction even though a member of the jury that began deliberations thought that the

government      had failed to   prove   its   case."    Elmore, 155 Wn.2d at 771 ( quoting Sanders v.

Lamarque, 357 F. 3d 943, 945 ( 9th Cir. 2004)) ( internal               quotation marks omitted).       On the other,


it raises the prospect that the " trial court is reconstituting a jury in order to reach a particular

result" and may give the reconstituted jury the " impression that the trial judge prefers a guilty

verdict."     Elmore, 155 Wn.2d at 772. Each of these dangers may arise if a juror is disqualified

due to distress arising from holdout status. As in Elmore, the " any reasonable possibility" test

helps secure the rights to an impartial jury and a unanimous verdict in that setting.

         The Elmore court limited the application of this heightened standard to " the rare case


where a juror is accused of engaging in nullification, refusing to deliberate, or refusing to follow

the   law."   155 Wn.2d at 778. The Symington court, however, whose reasoning the Elmore court

adopted, 155 Wn.2d at 781, did not limit its holding in the same way. The Symington court


                                                                11
No. 42579 -3 -II



based its reasoning on the " special challenges" a trial court faces " when attempting to determine

whether a problem between or among deliberating jurors stems from disagreement on the merits

of the case" and limited the rule announced to " cases where the allegations go to the quality and

coherence of     the   juror' s   views on       the   merits."   Symington, 195 F. 3d at 1086, 1087 n. 6.


          Subsequently,      in State     v.    Depaz, 165 Wn.2d 842, 853 -55, 204 P. 3d 217 ( 2009),                our




Supreme Court declined to extend the heightened " reasonable possibility" standard to dismissal
                 juror4

of a   holdout            accused of inappropriately discussing the case with her husband. The court

rested its holding on the ground that investigation of that type of allegation would not

 necessarily     require   investigation into the          jury' s   deliberations." Depaz, 165 Wn.2d at 855.


          The Depaz court nonetheless held a finding of misconduct alone insufficient to justify a

dismissal " that    will   have    a   direct   and    foreseeable e ffec t   on   the outcome of the case ...       because


the    court cannot avoid     considering the           effect of   the   removal on   the   jury' s   deliberations."   165


Wn.2d at 857. Thus, the Depaz court held that


          where the trial court has knowledge of a deliberating juror' s substantive opinion
          of the case, trial courts must make a determination regarding prejudice. Prejudice
          should be determined by concluding whether any misconduct committed by the
          juror has affected the juror' s ability to deliberate before deciding to excuse the
          juror under RCW 2. 36. 110.


Depaz, 165 Wn.2d at 857. Ultimately, the court held that the trial court had " abused its

discretion by reaching a decision based on untenable reasons" because, contrary to the trial

court' s view, the record did not support a finding that the improper communication prejudicially

influenced the juror. Depaz, 165 Wn.2d at 862.



4
  The trial court had learned that the juror held a minority viewpoint favoring acquittal
inadvertently, when the juror volunteered the information in response to questioning by the court
regarding the improper communication. Depaz, 165 Wn.2d at 847, 855 n.2.
                                                                     12
No. 42579 -3 -II



         The State likens the present case to Jorden, 103 Wn. App. 221, where we held that a trial

court did not abuse its discretion in dismissing a sitting juror whom the judge, the bailiff, and the

attorneys had observed sleeping during the presentation of evidence, nor in denying the defense

an opportunity to first examine the accused juror. However, the judge' s personal observation of

the juror sleeping and her dismissal prior to the start of deliberations, facts on which we relied in

our analysis,   greatly distance Jorden from the facts            of   this   case.    103 Wn. App. at 229 -30.

Elmore' s reasons for applying the heightened standard are wholly absent from Jorden.

         As Bernard points out, this case much more closely resembles State v. Johnson, 125 Wn.

App.   443, 105 P. 3d 85 ( 2005),       a felony murder prosecution in which we held that the trial court' s

dismissal of a deliberating juror violated the defendant' s jury trial rights. There, a juror asked

the court to dismiss her after she experienced extreme stress during deliberations. Johnson, 125

Wn. App. at 451 -52. The court examined the foreperson, who testified that the juror was

 emotionally ` distraught, "'      cried a lot, would retreat to the corner and stop communicating, and

that her   condition was      deteriorating.   Johnson, 125 Wn.          App.    at   451. Examination of the juror,


however, suggested that her stress resulted in large part from disagreements about the jury

instructions and how to conduct deliberations, and " did not indicate at any time that she was

unable to proceed due to unrelated health or emotional concerns or that she was unable or


unwilling to    participate    in the deliberations   process."        Johnson, 125 Wn. App. at 451 -52, 458 -59.

           The State, in attempting to distinguish Elmore, points out that here " none of the other

jurors   requested    the   court' s assistance with"   juror 2. Br.      of
                                                                               Resp' t      at   15.   Our analysis in


Johnson, discussed above, makes clear that the source of the initial complaint has no bearing on

the propriety    of   dismissing   a   deliberating juror.   125 Wn.          App.    at   451 -52. The Elmore court



                                                             13
No. 42579 -3 -II



itself pointed out that trial courts " must be equally careful" when the complaint originates with

the dismissed juror herself. Elmore, 155 Wn.2d at 772 n.5 ( citing United States v. Brown, 823

F.2d 591, 595 -97 ( D. C. Cir. 1987)) (                 reversing conviction even though dismissed juror himself

requested       dismissal).     Here, furthermore, the party moving to dismiss juror 2, over Bernard' s

objections, was the State. Thus, the fact that juror 2' s purported unfitness came to the court' s


attention due to that juror' s own complaints about the stress of deliberations is immaterial.


           To summarize, the Elmore court applied the heightened " any reasonable possibility"

standard       based   on a number of considerations: (                    1) whether the request for juror dismissal


focuses    on    the quality     of a   juror'   s   thoughts      about    the case, ( 2) whether there is a reasonable


possibility that the impetus for the                  complaint      is the juror' s   views on     the   merits, ( 3)     whether the


dismissed juror was a holdout, and ( 4) the need to preserve the secrecy of jury deliberations.

           The remarks attributed to juror 2 by Snow plainly imply that the juror' s distress likely

stemmed, at least in part, from a difference of opinion with other jurors concerning the merits of

the State'     s case.    Contrary      to the trial      court' s   finding   that the   statement       did   not "[]   rise to the level


of               evidence       that   she                      out juror," the main explanation Snow related for
                                             is actually a hold -
     showing


juror 2'   s   distress   was   that juror' s        fear " that   all   the jurors   would   be   against   her."    VRP at 2220,


2249. Furthermore, her statements in no way establish that juror 2 could not continue

deliberating: to the contrary, Snow reported that juror 2 said she could continue and apparently

wished to do so. Thus, the reasons that led the Elmore court to apply the heightened standard

also urge its application here.


           As noted above, Elmore limited the heightened standard to " the rare case where a juror is

accused of       engaging in      nullification;         refusing to deliberate,        or   refusing to follow the law."           155




                                                                          14
No. 42579 -3 -II



Wn.2d at 778. The present appeal admittedly does not fall within those categories. As also

noted, however, the Supreme Court in a subsequent case declined to extend the heightened


standards because a challenge to a juror' s dismissal would not " necessarily require investigation

into the jury' s deliberations."       Depaz, 165 Wn. 2d      at   855. Here, the challenge to juror 2' s


dismissal risks just that investigation. Under Elmore and Depaz, the heightened standard should

be applied to the present circumstances.


         Under that standard, we hold that the trial court erred in dismissing juror 2 without

further inquiry into the cause of her complaint. Snow' s testimony establishes that the State' s

motion to replace juror 2 implicated " the quality and coherence of the juror' s views on the

merits" and raised a " reasonable possibility" that juror 2' s distress arose " from disagreement on

the   merits of   the   case."   Symington, 195 F. 3d   at   1086, 1087   n.   6. In these circumstances, the trial


court had a duty to conduct a balanced investigation and apply the heightened evidentiary

standard. See Elmore, 155 Wn.2d 774 -75. Despite Berniard' s timely and specific request, the

court did neither. This error led to the removal of a juror who had begun deliberations and may

have believed that the State had not met its burden, violating Berniard' s right to unanimous

verdict, and may have suggested to the reconstituted jury that the court preferred guilty verdicts,

violating Berniard' s right to an impartial jury.

         Denial of the right to an impartial trier of fact is a classic structural error, requiring

reversal without a showing of prejudice. See Chapman v. California, 386 U.S. 18, 24 n.8, 87 S.

Ct. 824, 17 L. Ed. 2d 705 ( 1967) (       citing Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 71 L.

Ed. 749 ( 1927) (       reversing the defendant' s conviction despite clear evidence of guilt because

  n] o matter what the evidence was against him, he had the right to have an impartial judge ")).



                                                             15
No. 42579 -3 -II



The remedy for improper dismissal of a deliberating juror is reversal and remand for a new trial.

Elmore, 155 Wn.2d           at    781.   We reverse Bernard' s convictions and remand for further


proceedings consistent with this opinion.


                                         II. CONFRONTATION CLAUSE VIOLATION


          Because the issue is likely to recur, we also address Bernard' s claim that the trial court

violated his rights under the confrontation clause of the Sixth Amendment. Bernard argues that,


because he had no opportunity to cross -examine his codefendants, the testimony of investigating

officers concerning statements Knight, Reese, and Higashi made during custodial interrogation

violated his right to confront the witnesses against him. We agree.

          In all federal and state criminal prosecutions, the Sixth Amendment' s confrontation


clause guarantees         that, " the    accused shall   enjoy the   right ...   to be confronted with the witnesses


against   him." Crawford v. Washington, 541 U. S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177


 2004).    Regardless of state law or rules of evidence, a trial court may admit " testimonial

statements" of witnesses not present at trial only if ( the declarant is unavailable, and ( 2) the
                                                       1)

defendant had a prior opportunity to cross -examine the declarant concerning the statements.

Crawford, 541 U. S.          at   53 -54, 59 -61.    The defendant, however, must timely raise the issue in the

trial   court.   Melendez -
                          Diaz           v.   Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 174 L. Ed. 2d


314 ( 2009) ( " The       defendant always has the burden of raising his Confrontation Clause

objection. ") (emphasis omitted).                Appellate courts review confrontation clause challenges de


novo.     State   v.   Mason, 160 Wn.2d 910, 922, 162 P. 3d 396 ( 2007) ( Mason I).


           Here, officers testified extensively concerning statements the codefendants made

concerning the planning and execution of the robbery, the number of participants, the weapons


                                                               16
No. 42579 -3 - II



used, and the property taken. Detective Kevin Johnson, for example, testified that Knight had

told     him that " she     was part of a plan        to   commit a      robbery in [ the Sanders'      s] residence ";   that " she


was      involved in      looking [ for]     expensive      items   on   Craigslist to   steal ";   that " she had a plan to go


into the house, tie them up,              and ransack       the house,    looking for    expensive      things to take "; that



 there were four people involved, including herself'; that " she was wearing a Bluetooth ear

phone      device   at   the time ... [      with] an open      line ... [ s] o that someone outside could hear what


was      going   on ";   and that " once [ James and Charlene] were zip tied two more people entered the

house ... [      who] were         both   armed."    VRP at 1213 - 1216. Johnson also testified that Knight told


him " she took Charlene Sanders' wedding ring                       off   her finger "; that " she pawned Jim Sanders'


wedding ring in California";                and   that "   she provide[    d] information ...       about other participants in


this   event."     VRP at 1540 -41.


            Detective Timothy Donlin testified that he interrogated Higashi, who told him that he

 planned      to   commit a        robbery "; that " he      pulled a gun on      Mr.   and   Mrs. Sanders "; that " he took


the ring that had been advertised on                 Craigslist [ and]      an   iPod "; that " he went into the garage to


look for     a safe ";    and that " while in California he sold two of the rings that were stolen from the


 Sanders'     s]   home." VRP          at   1554 -55.      Similarly, Detective John Jimenez testified that he

interrogated Reese, who admitted that " he had a plan to find expensive stuff on Craigslist to set


up   a   robbery ";      that " he waited outside Jim Sanders' house wearing a Bluetooth phone device

with an open        line "; that " he       was armed with a . 22 revolver ";           and " that he stole property from the

upstairs portion of          the   residence."      VRP at 1462 -63


            Some of Detective Jimenez' s testimony about Reese' s and Higashi' s statements also

implied that Bernard was the fourth participant:



                                                                     17
No. 42579 -3 -II



           Q.      On May 4th, did you have occasion to interview Joshua Reese?
           A.      Yes, I did.
           Q.      And did you interview him again on May 5th?
           A.      Yes, ma' am.
           Q.      Did you ask him about his involvement in this crime?
           A.      Yes, we did.
           Q.      Did he provide information to you about his involvement?
           A.      Yes.
           Q.      Did you ask him about the other people involved in this crime?
           A.      Yes.
           Q.      And did he provide information to you about that? •
           A.      Yes, he did.


           Q.      After he    arrived   here ... ,   did you have occasion to interview Kiyoshi
           Higashi?
           A.      Yes, I did.
           Q.      Did he tell you about his participation in this crime?
           A.      Yes, he did.
           Q.      Did you ask him who the other participants were?
           Defense Counsel]:        Objection.
           THE COURT:               Overruled.
           A.      Yes, we did.
           Q. [     Deputy    Prosecutor Robnett]: And did he provide information to you?
           A.      Yes, he did.


VRP   at   1365 -66, 1377 -78.    After asking a series of 15 questions about Charlene' s wedding ring,

the prosecutor returned to the subject of the other participants;


           Q.      During the course of this investigation, did you begin trying to identify a
           black male known as YG?
           A.      Yes, ma' am.
           Q.    Did you have information that YG was involved in a traffic stop in Federal
           Way, specifically an illegal U -
                                          turn?
           A.      Yes.


           Q.      And were you able to determine that the driver of that vehicle was Clabon
           Berniard?
           A.      Yes.
           Q.      Have you since been able to determine that [ Berniard] sometimes goes by
           the name YG?
           A.      Yes, ma' am.




                                                          18
No. 42579 -3 - II



VRP 1380 -81.        Although Jimenez did not directly state that the codefendants identified Bernard,

only the most inattentive juror could have missed the implication that Reese and Higashi had

identified Bernard,       also      known   as "   YG," as the fourth participant.


        As the. State properly concedes, the statements at issue here qualify as testimonial:

 Statements taken by police officers in the course of interrogations are also testimonial under

even a narrow standard."             Crawford, 541 U. S. at 52. Berniard had no opportunity to cross -

examine the declarants, Knight, Higashi, and Reese, all of whom the trial court expressly found
                               5
unavailable    to   testify.       Finally, Bernard repeatedly objected to the detectives' testimony

concerning the statements on confrontation clause grounds, both before trial and

contemporaneously, and the court allowed him a standing objection.

        The trial court admitted the testimony, however, on the ground that the statements were

not offered for " the truth of the matter asserted, but rather to explain why the police were

pursuing the     identity   of     YG," relying     on   Mason, 127 Wn.         App.   at   566 ( Mason I). VRP at 804.


The court required the State to limit introduction of the codefendants' statements to matters

                                                                   6
relating to their    own participation        in the     crimes,       and instructed the jury to consider the

statements "   only for the        purpose of      determining [ their]      involvement in the     charged crime."    CP


377 -79. These limitations comply with the rules for admission of inculpatory statements made



5 Reese and Knight invoked the privilege against self-incrimination. Higashi did not explicitly
do so, but used his appearances on the stand to mock the deputy prosecutors, answering most of
the State' s questions with evasions, jokes, or insults and claiming a lack of memory due to heavy
marijuana use. After Higashi admitted that he had never intended to give testimony, but "just
came   here to   waste you all        time," the     court   found him " uncooperative"          and " unavailable."   VRP
at 1505 -06.


6 As the State properly conceded, the testimony concerning Knight' s statements exceeded the
scope of the court' s order on Bernard' s motion in limine.

                                                                   19
No. 42579 -3 -II



by codefendants in joint trials as laid out in Richardson v. Marsh, 481 U.S. 200, 201 -11, 107 S.

Ct. 1702, 95 L. Ed. 2d 176 ( 1987) and its progeny.

            In a similar vein, the State argues that, because the statements admitted did not explicitly

reference him, Reese, Knight, and Higashi were not " witnesses against" Bernard, so the


confrontation issue does not even arise. Br. of Resp' t at 19 -20. The State' s argument relies on

In   re   Personal Restraint of Hegney, 138 Wn.      App.      511, 543 -47, 158 P. 3d 1193 ( 2007), decided


after Crawford, in which this court adhered to the rule in Richardson and held that admission of

a codefendant' s confession in a joint trial does not violate the confrontation clause if ( it does
                                                                                           1)

not refer    to the nonconfessing     codefendant   by   name, (   2) it contains no obvious redactions, and


 3) the court instructs the jury to consider the statement only as to the defendant who made it.

            The Hegney court reasoned that the absence of obvious redactions and the limiting

instruction prevented the confessing codefendant from being a witness against Hegney, and thus

admission of the statements did not violate Hegney' s confrontation clause rights. Hegney, 138

Wn. App. at 547. The court noted that the codefendant' s confession " may have become

incriminating      when   linked   with other evidence   introduced    at   trial," but considered this irrelevant



to its admissibility under the confrontation clause. Hegney, 138 Wn. App. at 547 n. 15.

            Neither Mason I nor Richardson nor Hegney allow for the admission of a codefendant' s

inculpatory statements under the circumstances presented here. To begin with, this was not a

joint trial, so Richardson and Hegney are simply inapposite. The only issues in this case

involved Bernard' s culpability; if the statements were not offered " against" Bernard, then, as

defense counsel pointed out, they were irrelevant.




                                                          20
No. 42579 -3 -II



          Rather than supporting it, Mason I further undermines the trial court' s confrontation

clause analysis. In its review of Mason' s trial, Division One of this court held that the admission


of certain statements made to police did not violate the confrontation clause even though the


declarants did not testify at trial, relying in part on the view that some of the statements were not

testimonial and in part on reasoning similar to the trial court' s here. Mason I, 127 Wn. App. at

560 -68. Like the trial court, Division One of our court held that certain statements were " not


admitted for the truth of the matter asserted" and were not admitted " so that [ the declarant] could


bear   witness against    Mason."    Mason I, 127 Wn. App. at 566. Thus, they were deemed not to be

subject   to Crawford'    s   limitations. Mason I, 127 Wn.   App.   at   564 -68. On review, our Supreme


Court rejected the reasoning that a statement is immunized from a confrontation clause challenge

simply because it is not offered for the truth of the matter. Mason II, 160 Wn.2d at 921 -22.

Here, there is no question that the statements were testimonial.


          As our Supreme Court noted in Mason II, courts must " guard against any ` backdoor'

admission of inadmissible hearsay statements" that violate the confrontation clause. Mason II,

160 Wn.2d     at   921.   We have held that the defendant' s confrontation rights were not implicated


by an officer' s testimony that, after " contacting people at the location to find out what exactly

happened,"    he arrested the defendant. State v. O' Hara, 141 Wn. App. 900, 909 -11, 174 P. 3d 114

 2007),   reversed on other grounds,       167 Wn.2d 91, 217 P. 3d 756 ( 2009). In that case, however,


we specified    that "[   a] n officer may appropriately describe the context and background of a

criminal investigation, so long as the testimony does not incorporate out -of court statements."
                                                                              -

O' Hara, 141 Wn. App. at 910 ( emphasis added).




                                                      21
No. 42579 -3 - II



           Here, Jimenez testified that Reese and Higashi both explicitly identified the other people

involved in the     crimes.    Shortly thereafter, Jimenez testified that he began trying to identify a

black male known as YG, whom he later discovered was Bernard. This testimony

 incorporate[ d] out - - ourt statements" and was tantamount to telling the jury that Reese and
                     of c

Higashi identified Bernard         as one of    the   participants.   O' Hara, 141 Wn. App. at 910.

           Moreover, the statements at issue here plainly served to help establish other matters in the

case. Even assuming that the jury could perform the mental gymnastics necessary to not

consider the statements with respect to Berniard' s involvement, the statements go to more than


just the number and identity of the participants in the crime. Johnson, for example, testified

extensively about Knight' s statements regarding the planning and execution of the crimes, over

Bernard' s objection and in clear violation of the court' s order on motions in limine. Since the


State sought firearm enhancements, as well as sentencing enhancements for a high degree of

sophistication and planning and for deliberate cruelty, the statements plainly implicated

Bernard' s culpability.

           The State' s reliance on principles of accomplice liability further demonstrates that the

codefendants were witnesses against Bernard. The State sought sentencing enhancements based

on   the   allegation   that " the defendant,   or an accomplice, was armed with a      firearm." CP at 322-


26. At the State' s request, the court instructed the jury on accomplice liability, and the State

relied extensively on accomplice liability in closing argument. Thus, the State' s theory

encouraged the jury to use the codefendants' statements against Berniard. The officers'

testimony amounted to a " backdoor" introduction of inadmissible out -of court statements.
                                                                         -

Mason II, 160 Wn.2d at 921.



                                                             22
No. 42579 -3 -II



        The trial court' s direction prohibiting the officers from explicitly stating that the

codefendants identified Bernard as the fourth perpetrator does not prevent the constitutional

violation. In Melendez -
                       Diaz, 557 U. S. at 311 - 12, the court held that declarations from crime lab

analysts that a substance tested positive for cocaine were testimonial, and that the analysts were


therefore " witnesses" against the accused. That the declarations did not name the defendant, and


only implicated him by inferences based on other evidence, did not alter the analysis. Melendez-

Diaz, 557 U.S. at 313 -14. Berniard' s co- participants, furthermore, were not on trial: the only

relevant purpose for introducing the statements was to establish Bernard' s culpability. Under

Crawford and Mason II, admission of the statements by the other participants violated Bernard' s

right to confront the witnesses against him.


        Because this is a constitutional violation, the State bears the burden of showing the

admission of these statements harmless beyond a reasonable doubt. State v. Coristine, 177


Wn.2d 370, 380, 300 P. 3d 400 ( 2013).         The State makes no attempt to do so in its briefing.

        We will hold a confrontation clause violation harmless only where the untainted evidence

overwhelmingly establishes no reasonable probability of a different outcome. Mason II, 160

Wn.2d at 927. The identity of the fourth participant, the degree of planning and sophistication,

and the level of cruelty were key issues in the case. The remaining evidence on some of these

points, although substantial, cannot be called overwhelming. The State has not met its burden.

The remedy is      reversal and remand   for   a new   trial.   Gray v. Maryland, 523 U. S. 185, 197, 118 S.

Ct. 1151, 140 L. Ed. 2d 294 ( 1998).




                                                         23
No. 42579 -3 -II


                                          CONCLUSION


        We hold that the trial court erred in dismissing juror 2 without adequate investigation into

the cause of the complaint, where the circumstances showed a reasonable possibility that her

distress arose out of a difference with other jurors regarding the merits of the case. The dismissal

amounted to a structural error. We also hold that the trial court' s admission of testimony

concerning incriminating out -of court statements made by Bernard' s codefendants violated the
                                 -

confrontation clause. The State has not shown the error harmless beyond a reasonable doubt.


        Having resolved the appeal on these grounds, we decline to reach Bernard' s remaining

claims. We reverse Bernard' s convictions and remand for further proceedings.




I concur in the result only:




                                                 24
