            IN THE SUPREME COURT OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                              )
                                                  )      No. 89060-9
                     Petitioner,                  )
                                                  )
       v.                                         )      En Bane
                                                  )
LONNIE CURTIS LAMAR,                              )
                                                  )
                     Respondent.                  )       Filed    JllN 1 2 1014


       MADSEN, C.J.-After an alternate was substituted for an indisposed juror, the

trial court told the reconstituted jury that the remaining original jurors should bring the

alternate "up to speed" as to what had already occurred and deliberate from there. The

defendant claimed error for the first time on appeal because the jury was not instructed to

begin deliberations anew. The Court of Appeals concluded the claimed error was a

violation of CrR 6.5 that can be raised for the first time on appeal and reversed because

the rights to jury impartiality and unanimity were violated. The State argues that the

error was only a rule violation that does not constitute manifest constitutional error that

may be raised for the first time under RAP 2.5(a)(3).
No. 89060-9


         We affirm the Court of Appeals, although under a different analysis. It is

unnecessary to address CrR 6.5 because the trial court's affirmative instruction to the

reconstituted jury violated the right to a unanimous jury verdict regardless of any

violation ofCrR 6.5.

                                                         FACTS

         After the State rested in Lamar's trial on one count of rape of a child and one

count of child molestation, the trial court gave jury instructions, including the following

instruction on the jurors' duty to deliberate together in an effort to reach a unanimous

verdict:

                     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
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         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.

Clerk's Papers at 50 (Jury Instruction 2).

         The jury deliberated for about 45 minutes to an hour on Friday afternoon. The

next Monday morning, one of the jurors notified the court he was ill and could not

continue. At a hearing to address this problem, counsel for both parties agreed to replace

the juror with the alternate juror. 1


1
    CrR 6.5 provides in part:
                 When the jury is selected the court may direct the selection of one or more
         additional jurors, in its discretion, to be known as alternate jurors .... If at any
                                                                2
No. 89060-9


       The court said it would tell the other jurors that they should review their Friday

deliberations with the alternate. There were no objections. When the jury was brought

into the courtroom, the court told the jury that an alternate would replace the ill juror.

The court then instructed the reconstituted jury:

              What I will advise you to do is this: When you go back to the jury
       room and begin your deliberations, you should spend some time reviewing,
       recapping with [the alternate] any discussion that you may have already had
       Friday in terms of the case so that he's first brought up to speed in terms of
       whatever the deliberative process was.

              Then once that's been done, resume your deliberations without any
       other hitches or anything else.



              So with that, the court will be in recess and you can begin your
       deliberations.

3 Verbatim Report of Proceedings (VRP) at 43 0-31. The court did not reinstruct the



the evidence impartially with the other jurors, nor did the court instruct the jury to

disregard prior deliberations and begin anew. Neither party objected to the instructions

the court gave or to the failure to give any further instruction.

       About four hours later the jury returned with its verdicts, acquitting Lamar of rape

of a child and convicting him of child molestation. The court polled the jury. Each juror

answered "yes" when asked if the verdicts were "how you voted on both of these counts."

3 VRP at 432-33.

       time before submission of the case to the jury a juror is found unable to perform
       the duties the court shall order the juror discharged, and the clerk shall draw the
       name of an alternate who shall take the juror's place on the jury.
                                                 3
No. 89060-9


       Lamar appealed, arguing that the trial court violated his constitutional right to an

impartial jury by failing to instruct the reconstituted jury to disregard any prior

deliberations and begin deliberating anew. He argued his conviction should be reversed.

The Court of Appeals observed in a footnote that the claimed error was manifest error

affecting a constitutional right that could be raised for the first time on appeal. The court

held that the trial court's failure to instruct the jury to disregard prior deliberations and

begin deliberations anew violated Lamar's constitutional rights to an impartial jury and a

unanimous jury verdict. The court reversed his conviction and remanded for a new trial.

The State then sought discretionary review of this decision.

                                         DISCUSSION

       We are asked to determine whether the Court of Appeals erred by addressing the

claimed constitutional violation when no objection had been made to the instructions



erred when it failed to instruct the jury it must begin deliberations anew after the alternate

was seated on the jury. 2 The State argues, however, that this was only a rule violation

that does not rise to the level of manifest error affecting a constitutional right within the

meaning of RAP 2.5(a)(3). Accordingly, the State argues, the claimed error cannot be

raised for the first time on appeal.

       We agree that CrR 6.5 was violated, as the State concedes. However, regardless

of this rule violation, the trial court violated Mr. Lamar's constitutional right to a

2
 CrR 6.5 requires that when an alternate juror is substituted for another juror during
deliberations, "the jury shall be instructed to disregard all previous deliberations and begin
deliberations anew."
                                                 4
No. 89060-9


unanimous verdict by an impartial jury when the trial court instructed the jurors to bring

the alternate "up to speed" on the deliberations that had already occurred and go on from

there. This instruction affirmatively told the reconstituted jury not to deliberate together

as is constitutionally required.

            RAP 2.5(a)(3)

            Under RAP 2.5(a)(3), an "appellate court may refuse to review any claim of error

which was not raised in the trial court," but there are exceptions to this general rule. One

exception is that "a party may raise ... manifest error affecting a constitutional right" for

the first time on appellate review. I d. This exception recognizes that"[ c]onstitutional

errors are treated specially because they often result in serious injustice to the accused."

State v. Scott, 110 Wn.2d 682, 686, 757 P.2d 492 (1988). However, the exception is not

intended as a method of securing a new trial whenever there is a constitutional issue that
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             Rather, a defendant must make a showing that satisfies requirements under RAP

2.5(a)(3). For a claim of error to qualify as a claim of manifest error affecting a

constitutional right, the defendant must identify the constitutional error and show that it

actually affected his or her rights at trial. The defendant must make a plausible showing

that the error resulted in actual prejudice, which means that the claimed error had

practical and identifiable consequences in the trial. State v. Davis, 175 Wn.2d 287, 344,

290 P.3d 43 (2012); State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011); State v.

O'Hara, 167 Wn.2d 91, 99,217 P.3d 756 (2009). "[T]o determine whether an error is



                                                                                     5
No. 89060-9


practical and identifiable, the appellate court must place itself in the shoes of the trial

court to ascertain whether, given what the trial court knew at that time, the court could

have corrected the error." O'Hara, 167 Wn.2d at 100. "If the trial court could not have

foreseen the potential error or the record on appeal does not contain sufficient facts to

review the claim, the alleged error is not manifest." Davis, 175 Wn.2d at 344.

       The requirements under RAP 2.5(a)(3) should not be confused with the

requirements for establishing an actual violation of a constitutional right or for

establishing lack of prejudice under a harmless error analysis if a violation of a

constitutional right has occurred. The purpose of the rule is different; 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.



       Our state constitution requires that in a criminal prosecution an impartial jury

render a unanimous verdict. CONST. art. I, §§ 21, 22; State v. Ortega-Martinez, 124

Wn.2d 702,707, 881 P.2d 231 (1994); State v. Stephens, 93 Wn.2d 186, 190,607 P.2d

304 (1980).

        Jury unanimity means that jurors should reach "consensus ... through rational,

persuasive argument" among themselves. Saul M. Kassin, The American Jury:

Handicapped in the Pursuit of Justice, 51 OHIO ST. L. J. 687, 703 (1990). Neither the use

of coercion nor concurrence by compromise constitutes proper deliberation. Thus,



                                                6
No. 89060-9


consensus "should not be achieved through heavy-handed social pressure," where jurors

who disagree with the majority are "beaten, bullied, or harangued into surrendering their

convictions for the purpose of returning a verdict." !d.

       Unanimity should not be achieved by mere acquiescence of jurors holding a

minority view to the majority view:

       "[T]welve jurors must concur before a verdict can be reached. . . . In
       determining the verdict, it is the duty of the jurors to consider carefully the
       evidence, and the views and arguments of their fellow jurors. The law
       contemplates that jurors shall, by their discussion, harmonize their views, if
       possible, but not that they shall compromise with their consciences and
       yield to the majority for the mere purpose of agreement.

State v. Ring, 52 Wn.2d 423, 428, 325 P.2d 730 (1958).

       As we recently noted,'" [T]he very object of the jury system is to secure unanimity

by a comparison of views, and by arguments among the jurors themselves.'" Jones v.

United States, 527 U.S. 373, 382, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999) (alteration in

original) (quoting Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528

(1896)), quoted in State v. Guzman Nunez, 174 Wn.2d 707,719,285 P.3d21 (2012). 3

       Our state approach, evidenced, for example, by the quotations above from Nunez

and Ring, is in accord with the American experience of jury unanimity. In an often-cited

passage, the California State Supreme Court said:

       The requirement that 12 persons reach a unanimous verdict is not met
       unless those 12 reach their consensus through deliberations which are the

3
  The Sixth Amendment right to unanimous jury verdicts in federal criminal trials does not
extend to the states under the Fourteenth Amendment due process clause. U.S. CONST. amends.
VI, XIV; Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972); see also
Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972). As noted, our state
right to a unanimous jury is a state constitutional right. CoNST. art. 1, § 21.
                                               7
No. 89060-9


      common experience of all of them. It is not enough that 12 jurors reach a
      unanimous verdict if 1 juror has not had the benefit of the deliberations of
      the other 11. Deliberations provide the jury with the opportunity to review
      the evidence in light of the perception and memory of each member.
      Equally important in shaping a member's viewpoint are the personal
      reactions and interactions as any individual juror attempts to persuade
      others to accept his or her viewpoint.

People v. Collins, 17 Cal. 3d 687, 693, 552 P.2d 742, 131 Cal. Rptr. 782 (1976).

       Thus, a unanimous jury vote does not necessarily mean that unanimity in the

constitutional sense has been attained. Rather, it is a consensus reached after each juror

examines the evidence and the parties' arguments about what the evidence means, in light

of the jury instructions, and all of the jurors exchange their individual perceptions,

experiences, and assessments.

       The instruction to the reconstituted jury is manifest error affecting a
       constitutional right

       Here, before the jury deliberations commenced on Friday afternoon, the jurors

were instructed to deliberate together in the constitutionally required manner. However,

after the alternate juror was substituted, the reconstituted jury was not instructed on its

duty to engage in this deliberative process anew. Instead, the jury was specifically

instructed to deliberate together only with respect to whatever remained to be addressed.

The record thus shows instructional error that affected Lamar's constitutional right to a

unanimous jury verdict. The asserted error had practical and identifiable consequences in

Lamar's trial because if followed, its effect was to bar the reconstituted jury from

deliberating together on all aspects of the case against him.




                                               8
No. 89060-9


          We conclude, therefore, that the erroneous instruction to the jury is manifest error

affecting the constitutional rights to a jury trial and a unanimous verdict. See CONST. art.

I, § 21. This conclusion is consistent with our past recognition that jury instructions that

fail to require a unanimous verdict constitute manifest error affecting a constitutional

right. Scott, 110 Wn.2d at 688; see O'Hara, 167 Wn.2d at 100-01; State v. Carothers, 84

Wn.2d 256,262,525 P.2d 731 (1974), disapproved of on other grounds by State v.

Harris, 102 Wn.2d 148, 685 P.2d 584 (1984).

          The record shows the claimed error and that it was apparent at the time it occurred.

Because the threshold showing required by RAP 2.5(a)(3) is made on this record, we will

next consider the asserted constitutional error on the merits despite Lamar's failure to

object.

          Constitutional right to a unanimous jury was violated



Lamar's right to jury unanimity.

          "Juries are presumed to follow instructions absent evidence to the contrary." State

v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192 (2013); State v. Kirkman, 159 Wn.2d 918,

928, 155 P.3d 125 (2007). The trial court initially gave instructions that the jurors had

the duty to discuss the case with each other and to deliberate together in an effort to reach

a unanimous verdict. However, when the sick juror was excused, the instruction on

unanimity was not repeated and instead the remaining jurors were affirmatively told that

they were to inform the alternate of what had already taken place in the deliberations and



                                                 9
No. 89060-9


then continue deliberations from that point. Thus, all of the members of the reconstituted

jury could reasonably conclude only that the later instruction, being given at the critical

point when the alternate was seated, overrode any inconsistent earlier instruction and

must be followed. We presume they followed the instruction given when the alternate

joined the deliberating jury.

       Accordingly, the reconstituted jury did not deliberate as constitutionally required.

The jurors' entire course of deliberations was infected by the erroneous instruction that

dictated that the alternate juror would have no part in any of the deliberative process that

occurred on Friday and which was to stand under the instruction given. The alternate had

no opportunity to offer his views or try to convince his fellow jurors of a different view if

he disagreed with any determinations about the evidence or anything else that had been

decided. Nor were the rest of the jurors alerted to the requirement that they consider the



deliberative process. '"One honest doubter may be right, and it is as much the duty of the

eleven to give open-minded and candid consideration to the views of one as for him to

give open-minded and candid consideration to the views of the eleven."' Ring, 52 Wn.2d

at 427 (quoting State v. Keeble, 49 S.D. 456, 207 N.W. 456, 458 (1926)).

       Of course we do not know what actually occurred on Friday and so do not know

what was addressed. And a court must not intrude into the jury deliberations to

determine what the jury has decided or why, or how the jury viewed the evidence. See

generally State v. Elmore, 155 Wn.2d 758, 770-71, 123 P.3d 72 (2005); State v. Cuzick,



                                              10
No. 89060-9


85 Wn.2d 146, 149-50, 530 P.2d 288 (1975). But whatever the substance of Friday's

deliberations, the constitutional flaw was the erroneous instruction that affirmatively told

the reconstituted jury not to revisit and deliberate together with regard to anything

discussed on Friday.

       The State maintains, however, that the results of polling the jury show that

unanimity was in fact attained and therefore there was no constitutional infirmity

affecting Lamar's right to a jury trial and a unanimous verdict.

       Polling a jury, when properly carried out, is generally evidence of jury unanimity.

However, polling may not be effective to establish that a defendant's right to unanimity

was secured if the record affirmatively shows a reason to seriously doubt that the right

has been safeguarded. See State v. Badda, 63 Wn.2d 176, 182-83,385 P.2d 859 (1963)

(the case involved multiple defendants, multiple counts, and special verdicts, and



record did not show that all 12 jurors unanimously agreed as to each verdict but did show

that the jury had not been instructed on the requirements of a unanimous verdict; the

court held the polling did not establish unanimity, and "[i]n a criminal case we must be

certain that the verdict is unanimous").

       As noted, we presume that the jury followed the instruction it was given when the

alternate was seated and took up where the deliberations had ended on Friday. Any

determinations that were made on Friday then became part and parcel of the verdicts

ultimately reached by the jury, even though the alternate had not participated in Friday's



                                              11
No. 89060-9


deliberations. Under the trial court's instruction, none of the jurors would have had any

reason to doubt the propriety of this process and each would naturally respond that the

verdict was his or her own. Under these circumstances, polling the jury does not

establish unanimity.

      No argument made that the error is harmless constitutional error

       The constitutional error that occurred is presumed prejudicial, and the State bears

the burden of showing that it was harmless beyond a reasonable doubt. State v. Lynch,

178 Wn.2d 487, 494, 309 P.3d 482 (2013); see Chapman v. California, 386 U.S. 18, 24,

87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The State makes no attempt in its briefing to this

court to show harmless error, and accordingly the presumption of prejudice stands. 4 Mr.

Lamar's conviction must be reversed.

                                        CONCLUSION



must be unanimous. The affirmative instruction given to the reconstituted jury

constitutes manifest error affecting the constitutional right to a unanimous jury verdict

under article I, section 21 of the Washington State Constitution. Accordingly, the

defendant could raise the asserted error for the first time on appeal.

       On the merits, the instruction violated the defendant's right to a unanimous jury

verdict and this constitutional violation is presumptively prejudicial. The State does not

4
 The State may have confused the necessary showing required of a defendant under RAP
2.5(a)(3) with the necessary showing required of the State under the constitutional harmless error
analysis. Contrary to the State's apparent belief, the Court of Appeals did not place the burden
on the State to show an absence of prejudice for purposes of RAP 2.5(a)(3), but rather placed this
burden on the State for purposes of the harmless error inquiry.
                                               12
No. 89060-9


argue that the error was harmless. Therefore, the defendant's conviction must be

reversed and this case remanded for retrial. The Court of Appeals is affirmed.




                                            13
No. 89060-9




WE CONCUR:




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