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

STATE OF WASHINGTON,                              No. 73846-1-


                     Respondent,




DAMON L. MCCART,                                  UNPUBLISHED OPINION

                     Appellant.                   FILED: January 19, 2016


      VERELLEN, A.C.J. - During jury selection in Damon McCart's trial for second

degree burglary and third degree theft, a prospective juror said he knew McCart from

his job at a youth corrections center. Based on that remark and the remarks of another

prospective juror, McCart moved for a mistrial. The court denied the motion, and the

jury convicted McCart as charged. He appeals, arguing that the denial of his mistrial

motion denied him his right to an impartial jury. He also contends the court denied his

right to a public trial by holding trial past the closing time posted on the courthouse door.

We affirm.1

                                          FACTS

       Based on allegations that McCart burglarized two different buildings and stole

clothing, a motorcycle, and a U-Haul truck, the State charged him with two counts of




        This appeal was transferred to this court from Division III.
No. 73846-1-1/2


second degree burglary, two counts of theft of a motor vehicle, and third degree theft.

During jury selection, the court asked if any prospective jurors knew McCart. Juror 46

raised his hand. The following colloquy occurred:

      COURT:               Do you know him personally or just his name?

      JUROR NO. 46:         I retired from the Department of Corrections at
                            Ahtanum Youth --


      COURT:               Okay.

      JUROR NO. 46:        Corrections.

      COURT:               Now, you're not answering my question.

      JUROR NO. 46:        I know him from there.

      COURT:               Okay. You know him from employment. Okay.[2]

The court then excused Juror 46.


       Later, Juror 19 indicated she worked in law enforcement. The court asked if she

knew the defendant, and the following colloquy ensued:

      COURT:               But you don't know the attorneys or defendant; is that
                           correct?

      JUROR NO. 19:        I'm not sure. He looks familiar, but I'm not sure.

       COURT:              Okay. Okay. And is that the reason that you're not sure if
                           you could be fair or not, or is there another reason?

      JUROR NO. 19:        I'm an inmate supervisor.

       COURT:              Okay. There may be some follow-up down the road on
                           thatJ3)




       2 Report of Proceedings (RP) (Feb. 25, 2013) at 96-97.
       3 Id. at 102-03.
No. 73846-1-1/3

       Defense counsel subsequently moved for a mistrial, arguing that the remarks of

Jurors 46 and 19 "together reinforces the idea that he is a criminal, that they know him

from prior incarcerations. And therefore the implication is that he's a criminal then, he

must be a criminal now, and cannot have a fair trial with this particular jury pool."4 The

prosecutor pointed out that neither juror stated that McCart was a former inmate and

that the jury would not necessarily have drawn that conclusion from their remarks. The

court initially ruled as follows:

       COURT:          I'm not concerned with Number 19's statements. She -
                       looking at her body language, looking at her facial
                       expressions, she seemed to be very unsure whether she
                       knew the [djefendant or not. And so I don't think that the jury
                       would extrapolate much from that other than she was just
                       being cautious. Now, it may be that we -- we want to
                       discuss having her off the jury pool -- that's the next thing I'll
                       get to -- without having [defense counsel] use one of his
                       peremptory challenges. But I don't think that her statements
                       were so emphatic that any of the other potential jurors are
                       going to really believe that she did know the [djefendant.
                       Just maybe; she wasn't sure.

       DEFENSE:        Unless she's back there talking to him right now about it.

       COURT:          Okay.

       DEFENSE:        She wasn't retained in the courtroom.



       COURT:          Yeah. We want to make sure she's not discussing this issue
                       with the other jurors. As far as Number 46, that's close, but I
                       think he was cut off in time. And I - I don't think that it's
                       enough to prejudice the entire jury. The jury's going to get
                       instructed that they're to consider only the evidence in the
                       case and that they're to follow the jury instructions. There's
                       a very strong presumption that the jurors are going to follow
                       the law as given to them and they're going to convict or not

       4 Id. at 143.
No. 73846-1-1/4

                       convict based upon the evidence and the instructions to the
                       jury. And so I think that that one statement, although
                       unfortunate, I don't think that's enough to grant a mistrial.
                       And so I'm going to deny the motion for mistrial. But I do
                       want to get Juror Number 19 in here before any further
                       break.[5]

At that point, the bailiff informed the court that prospective Juror 38 had mentioned

concerns about the statements of Juror 46. The court decided to talk to Jurors 19 and

38.

       The court first brought in Juror 19 and asked, "[D]id you make any similar

statements during this short break to any of the prospective jurors that you might know

the [djefendant or was that a statement that you made only to us during these

questions!?]"6 Juror 19 said she had not spoken to the prospective jurors. The court

then excused her from service.

       The court then brought in Juror 38 and asked whether she had concerns about

the statements of Juror 46:

       COURT:                  We heard through the bailiff that you think you might
                               know the [defendant. You're not sure, but you might
                               know the [djefendant. Is that correct?
       JUROR NO. 38:           Well, my concern was that what the gentleman said,
                               that when he asked to be excused because he had
                               retired from the Ahtanum correctional facility!,].... I
                               just immediately made the assumption that the
                               [defendant had previously been serving time there
                                .... for possible prior criminal activity. So it just
                               immediately put a shadow of doubt on whether he is
                               presumed innocent or not.

       COURT:                  Okay. So-

       5 ]a\ at 145-46 (emphasis added).
       6 Id. at 149.
No. 73846-1-1/5


      JUROR NO. 38:         And just like, uh, now I got some prejudice in my brain
                            that wasn't there.


      COURT:                Okay.



      COURT:                Did you have an opportunity to --1 don't know if
                            you've talked to any of the other jurors about -

      JUROR NO. 38:         No.

      COURT:                -- this.

      JUROR NO. 38:         No.'7]

The court excused Juror 38 and then proposed a method for determining whether any

other prospective jurors had been tainted:

      COURT:         Well, this concerns me. . .. Clearly one person felt strongly
                     enough that it was important that she brought it to the bailiff's
                     attention. And I can't ask the jurors, potential jurors, if that
                     statement from Number 46 has affected their bias or lack of
                     bias in this case because that would just highlight that issue,
                     and I certainly don't want to dong the bell twice. . . .

                     Perhaps what I will do is, before you give your questions, I
                     will ask the jurors as a whole if there's anyone here who
                     believes they cannot be fair in this case? And if so, please
                     raise their hands. . . . That's about the gentlest way I think
                     we can [find out] if anyone else feels that same way. I will
                     just ask very generally ifthere's anyone who feels they can't
                     be fair in this case for reasons we either have discussed or
                     haven't discussed. And if people raise their hands, we'll just
                     exclude them on that basis, sort of presuming that it has to
                     do with what Number 46 said.

                     [Defense counsel,] what comment, if any, do you have with
                     that? I know it's not perfect, but do you see any way of
                     doing that other than declaring a mistrial?




       7 Id. at 151-52.
No. 73846-1-1/6

      DEFENSE:       Other than declaring a mistrial, we should still [keep] our
                     motion on the table, Your Honor.    The - I think it needs to
                     go a little bit further. You might ask the jurors if after
                     reflection on some of the things they've already heard, if
                     anybody in the jury pool feels that they cannot be fair or if
                     they've already made certain assumptions with regard to this
                     case.



      COURT:         Okay. Mr. [Prosecutor]?

      [PROSECUTOR]:          Fair enough.!8!

      The court then read a question, approved by counsel, to the prospective jurors:

      COURT:         As I previously instructed you, the way these trials work is
                      . . . that every defendant, including Mr. McCart, they are
                     presumed innocent. In light of what you've heard today
                     about the case, is there anyone who cannot give Mr. McCart
                     that presumption of innocence? And if so, please raise your
                     hand. Okay. For the record nobody raised their hand to that
                     question.191

      The jury convicted McCart of third degree theft and one count of second degree

burglary and acquitted him on the other counts. He appeals.

                                         DECISION

       McCart first contends the court abused its discretion in denying his motion for a

mistrial. He contends the remarks of Jurors 19 and 46 tainted the jury pool and require

reversal. We disagree.

       A mistrial is proper only if "the defendant has been so prejudiced that nothing

short of a new trial can insure that the defendant will be fairly tried."10 We review a

denial of a mistrial motion for abuse of discretion, finding such abuse only if "'no


       8 [dL at 152-54.
       9ld\at156.
       10 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).


                                               6
No. 73846-1-1/7


reasonable judge would have reached the same conclusion.'"11 We will overturn the

denial of a mistrial motion only "'when there is a substantial likelihood the prejudice

affected the jury's verdict.'"12 We conclude there was no abuse of discretion and no

substantial likelihood the juror comments in this case affected the jury's verdict.

       Juror 19 said McCart looked familiar, but she was unsure if she had seen him

before. The trial court correctly concluded that her vague, uncertain remarks had no

effect on the jury. Juror 46 said he knew McCart from his employment at a youth

corrections center, but he did not say whether McCart was an inmate, an employee, or

something else. Although Juror 38 assumed from Juror 46's statements that McCart

had been an inmate, he did not share that assumption with the other prospective jurors,

and was immediately excused from service. Significantly, when the court later asked for

a show of hands if, "in light of what you've heard today about the case," any juror could

not give McCart the presumption of innocence, no juror raised their hand.13 In addition,

as the trial court noted, the jury was instructed to base their decision solely on the

evidence admitted at trial and not on prejudice. We presume the jury follows such

instructions, and nothing suggests the jury did otherwise.14 In these circumstances,

there was no abuse of discretion and no substantial likelihood the prospective jurors'

remarks affected the verdict.



     11 State v. Emery. 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (quoting State v.
Hopson, 113Wn.2d273, 284, 778 P.2d 1014(1989)).
       12 State v. Greiff. 141 Wn.2d 910, 921, 10 P.3d 390 (2000) (internal quotation
marks omitted) (quoting State v. Russell. 125 Wn.2d 24, 85, 882 P.2d 747 (1994)).
       13RP(Feb. 25, 2013) at 156.
       14 State v. Perez-Valdez. 172 Wn.2d 808, 818-19, 265 P.3d 853 (2011).
No. 73846-1-1/8

       McCart's reliance on Mach v. Stewart does not alter our conclusion.15 In that

case, the government charged Mach with having sexual contact with a minor. During

jury selection, a prospective juror said she had a psychology background, currently

worked for child protective services, and had confirmed child sexual assault in every

case where a client reported it.16 The juror also repeatedly stated that she never, in her

three years as a social worker, found a case where a child lied about sexual assault.17

Mach moved for a mistrial, which the district court denied without inquiring into whether

the statements affected the panel's impartiality.18

       The Ninth Circuit reversed, holding that the juror's statements presumptively

infected the jury with bias or prejudice.19 The court noted that the statements were

"highly inflammatory and directly connected to . . . guilt."20 The court also found the
statements had an "expert-like" quality given the juror's years of experience and degree

of certainty.21 The court concluded the juror's repetition of the statements created an

especially high risk they would affect the jury's verdict.22 On these facts, and without
any information regarding the statements' actual impact, the court "presume[d] that at




       15137F.3d630(9thCir. 1998).
       16 Id, at 631-32.
       17 idL at 632.
       18 \± at 632-33.

       19 lg\ at 633.
       20 Id, at 634.
       21 Jd, at 633.
       22 Id.



                                              8
No. 73846-1-1/9

least one juror was tainted-and entered into jury deliberations with the conviction that

children simply never lie about being sexually abused."23

       Mach is distinguishable because it involved repeated, expert-like statements on

guilt, and the district court lacked any information regarding the statements' actual

impact. By contrast, the statements in this case were only tangentially related to

McCart's guilt. And unlike the record in Mach. the record in this case contains the

assurance of the entire venire that despite the challenged remarks, they would presume

McCart innocent. Thus, the analysis and presumption in Mach are inapplicable here.

       McCart next contends the trial court denied his constitutional right to public trial

"by allowing the trial to continue past 4 p.m. on two days . . . when a sign on the
courthouse door indicated the courthouse closed at 4 p.m."24 But the State points out,

and McCart does not dispute, that the State Supreme Court recently rejected an

identical argument on identical facts.25
       McCart also submitted a statement of additional grounds for relief claiming there

are "major issues in the chain of custody" ofseveral pieces of evidence and a problem
with the admission of his identification card. Because these claims do not adequately




       23 jd,
       24 Appellant's Br. at 15.
        25 State v. Andy. 182 Wn.2d 294, 301-02, 340 P.3d 840 (2014) (on appeal from a
trial held in the same courthouse as McCart's, the Andy court held that the record,
which has been made a part ofthe record in the instant case, supported the trial court's
finding that the sign presented no obstacle to members of the public who wished to
attend a trial, that there was no closure, and that Andy's arguments, to the contrary,
"ignore[d] the evidence presented during the hearing on how the public actually reacted
to the sign").
No. 73846-1-1/10

"inform the court of the nature and occurrence of alleged errors," we do not consider

them.26

       Affirmed.




WE CONCUR:




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          26 RAP 10.10(c).


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