FILED
JANUARY 4, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34079-1-111
Respondent, )
)
v. )
) UNPUBLISHED OPINION
JASON DARBY BURRILL, )
)
Appellant. )
SIDDOWAY, J. - Jason Burrill asks us to reverse his controlled substance
convictions based on the trial court's asserted error in failing to specifically instruct
jurors that they must engage in deliberations only when all 12 were assembled together in
the jury room. He did not request such an instruction at trial, and error, if any, is not
preserved. For that reason and because Mr. Burrill raises no meritorious arguments in a
statement of additional grounds, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Given the limited scope of issues on appeal, little discussion of the facts or
procedure is required.
I
I
I
No. 34079-1-III
State v. Burrill
Mr. Burrill was charged with one count of possession of methamphetamine with
intent to deliver, and one count of possession ofhydrocodone with intent to deliver. The
evidence supporting the charges was obtained when Yakima detectives executed two
search warrants: the first, for Mr. Burrill's motor home, and a second for his car.
Before trial, Mr. Burrill moved the trial court to suppress evidence seized from a
backpack officers found in the back seat of his car. He claimed that in the declaration in
support of search warrant requests, a detective misrepresented or omitted material facts
about the unreliability and untruthfulness of the confidential informant on whom the
detective relied. Mr. Burrill requested a Franks 1 hearing to establish the asserted
misrepresentations or omissions.
The trial court heard preliminary argument about the asserted need for a Franks
hearing from the prosecutor and defense counsel several months before trial. Neither side
called any witnesses. At the conclusion of the argument, the trial court orally denied Mr.
Burrill's request for a Franks hearing. It found that even if the facts Mr. Burrill identified
as omitted or misrepresented were true, the inclusion of those facts in the affidavit for a
search warrant would not have had a material impact on the finding of probable cause.
1
Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
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State v. Burrill
At trial, the court gave two Washington pattern instructions that speak generally
about the need for a unanimous verdict in a criminal trial. 2 It was not asked to give, and
did not give, an instruction that jurors should only engage in deliberations if all 12 jurors
were assembled in the jury room.
At the conclusion of trial, the jury found Mr. Burrill guilty of possession of
methamphetamine with intent to deliver and, with respect to the hydrocodone, guilty of
the lesser included offense of possession. Based on those verdicts and a jury finding that
2
Jurors were given the following instructions:
As jurors, you have a duty to discuss the case with one another and
to deliberate in an effort to reach a unanimous verdict. Each of you must
decide the case for yourself, but only after you consider the evidence
impartially with your fellow jurors. During your deliberations, you should
not hesitate to re-examine your own views and to change your opinion
based upon further review of the evidence and these instructions. You
should not, however, surrender your honest belief about the value or
significance of evidence solely because of the opinions of your fellow
jurors. Nor should you change your mind just for the purpose of reaching
a verdict.
and
When you begin deliberating. you should first select a presiding juror.
The presiding juror's duty is to see that you discuss the issues in this case
in an orderly and reasonable manner, that you discuss each issue submitted
for your decision fully and fairly, and that each one ofyou has a chance to
be heard on every question before you.
Because this is a criminal case, each ofyou must agree for you to return
a verdict. When all ofyou have so agreed. fill in the verdict form to
express your decision.
Clerk's Papers (CP) at 49 (Instruction 2) (emphasis added), 63-66 (Instruction 18)
(emphasis added).
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No. 34079-1-111
State v. Burrill
Mr. Burrill committed the former crime within 1,000 feet of a school bus stop, the court
sentenced him to 94 months' total confinement. He appeals.
ANALYSIS
Instruction on unanimous deliberations
Mr. Burrill contends the trial court deprived him of a fair trial and his right to a
unanimous verdict because it failed to instruct jurors that deliberations must occur only
when all 12 jurors were present in the jury room. He relies on our Supreme Court's
decision in State v. Lamar, 180 Wn.2d 576, 580, 584-85, 327 P.3d 46 (2014), in which
the illness of one juror after deliberations began and the trial court's directive to the
remaining 11 jurors to bring the alternate juror "up to speed" created a real risk that the
alternate did not participate in all deliberations. The court observed that "' [t]he
requirement that 12 persons reach a unanimous verdict is not met unless those 12 reach
their consensus through deliberations which are the common experience of all of them.'"
Id. at 585 (quoting People v. Collins, 17 Cal. 3d 687, 693, 552 P.2d 742, 131 Cal. Rptr.
782 (1976)). The court reversed Mr. Lamar's conviction and remanded for a new trial,
which Mr. Burrill contends is what we should do in his case.
In Mr. Burrill's case, no alternate replaced one of the original jurors. But he
suggests that since the jurors' deliberations took over 3 hours during which they were
allowed a lunch break and some presumably used a bathroom, the State cannot
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No. 34079-1-111
State v. Burrill
demonstrate that the only deliberations taking place were among all 12, while assembled
in the jury room.
This division of our court has twice rejected this same argument in unpublished
opinions. In State v. Tucker, No. 33714-6-111, (Wash. Ct. App. Oct. 25, 2016)
(unpublished), http://courts.wa.gov/opinions/, review denied, 187 Wn.2d 1022 (2017), the
panel concluded that because Mr. Tucker did not request such an instruction in the trial
court nor object to the instructions that were given, he was entitled to review on appeal
only if he could demonstrate a "' manifest error affecting a constitutional right.'" Id.,
slip-op. at * 1 (citing RAP 2.5(a)(3)). The panel concluded that because Mr. Tucker's
arguments were based on pure speculation, he did not demonstrate that the claimed error
was "manifest." Demonstrating "manifest" constitutional error requires a sufficiently
complete trial record for the appellate court to determine whether the asserted error
actually prejudiced a defendant by having practical and identifiable consequences at trial.
Id. (citing State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). Like Mr. Tucker,
Mr. Burrill is unable to demonstrate manifest constitutional error. If any error occurred,
it was not preserved.
In State v. Walsh, No. 34396-1-111, (Wash. Ct. App. July 18, 2017) (unpublished),
http://courts.wa.gov/opinions/, the panel rejected Mr. Walsh's argument based on the
failure to object in the trial court as well as on the basis that he cited no decision that
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No. 34079-1-111
State v. Burrill
demands instructing jurors that they may not deliberate unless all 12 are present in the
jury room, participating simultaneously.
We reject Mr. Burrill's assignment of error for the same reasons the argument was
rejected in Tucker and Walsh. 3
Costs on appeal
Mr. Burrill asks the panel to exercise its discretion to waive costs on appeal.
Under RAP 14.2, "[a] commissioner or clerk of the appellate court will award costs to the
party that substantially prevails on review, unless the appellate court directs otherwise in
its decision terminating review." In order for the panel to exercise informed discretion, a
general order of this division requires an appellant to request waiver of costs on appeal in
his or her opening brief or by a motion filed and served within 60 days following the
filing of the opening brief. See Gen. Order of Division III, In re the Matter of Court
Administration Order re: Request to Deny Cost Award (Wash. Ct. App. June 10, 2016),
http://www.courts.wa.gov/appellate_trial_courts/. If the appellant is alleging
3
Division One has also rejected Mr. Burrill's argument, for similar reasons, in at
least four unpublished decisions. See State v. Ahlquist, No. 76734-8-1, slip op. at *2
(Wash. Ct. App. July 24, 2017), http://www.courts.wa.gov/opinions/pdf/767348.pdf; In
re Det. of Malone, No. 72306-5-1, slip op. at* 11 (Wash. Ct. App. May 30, 2017),
http://www.courts.wa.gov/opinions/pdf/723065.pdf; State v. Villatoro, No. 73332-0-1,
slip op. at 5 (Wash. Ct. App. Apr. 3, 2017), http://www.courts.wa.gov/opinions/pdf
/733320.pdf, review denied, 189 Wn.2d 1011 (2017); and State v. Matos-Ramos, No.
71467-8-1 (Wash. Ct. App. Feb. 21, 2017), http://www.courts.wa.gov/opinions/pdf
/714678.pdf.
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No. 34079-1-III
State v. Burrill
inability to pay, he or she is required by the general order to provide the trial court's
indigency report and a report as to continued indigency and likely future inability to pay.
Id.
Mr. Burrill complied with our general order. Based on the information provided,
we decline to award the State costs on appeal.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Burrill raises two. Only
one is sufficiently identified for review. 4
Whether the trial court erred in allowing the prosecuting attorney to argue a
"pre-Franks" issue. Mr. Burrill appears to believe that the trial court erred by allowing
the State to present evidence at the pre-Franks hearing.
If police obtain a search warrant by deliberately or recklessly presenting false,
material information to the magistrate (or omitting the same), the search warrant is not
valid. Franks, 438 U.S. at 155, 171. An evidentiary hearing-referred to as a Franks
hearing-is required when a defendant "makes a substantial preliminary showing that a
4
Mr. Burrill's second complaint is that a sergeant who testified at trial was
instructed not to mention foot traffic to Mr. Burrill's mobile home observed on the day of
the arrest but then, in responding to a defense question about whether he had seen two
particular people, answered, "I saw a lot of people." Report of Proceedings at 280, 353.
A motion for a mistrial on account of the violation of the court's order was denied, but
the defense requested a cautionary instruction, which was given. Mr. Burrill's SAG
insufficiently identifies the nature and occurrence of any error that was not cured by the
cautionary instruction. See RAP 10.lO(c).
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No. 34079-1-111
State v. Burrill
false statement knowingly and intentionally, or with reckless disregard for the truth, was
included [or excluded] by the affiant in the warrant affidavit." Id. at 155-56. "[T]he
defendant must also show that if the deliberately or recklessly false statements were
omitted, or if the deliberately or recklessly misleading omissions included, probable
cause would have been absent." United States v. McMurtrey, 704 F .3d 502, 509 (7th Cir.
2013).
Because it is not always easy to draw the line between a showing that does or does
not warrant a Franks hearing, trial courts have discretion to grant the accused an
opportunity "to supplement or elaborate on [his] original submissions" in a pre-Franks
hearing. Id. In McMurtrey, the court cautioned that at the pre-Franks hearing stage, the
trial court "should not give the government an opportunity to present its evidence on the
validity of the warrant without converting the hearing into a full evidentiary Franks
hearing, including full cross-examination of government witnesses." Id. at 504.
When the trial court entertained pre-Franks argument below, it did not entertain
any presentation of evidence from the State on the validity of the warrant. Having
considered Mr. Burrill's showing, the trial court found that the asserted
misrepresentations and omissions were not material to the magistrate's decision to issue
search warrants. Giving the State a chance to argue the immateriality of the asserted
misrepresentations and omissions does not unfairly deprive a defendant of a full hearing
because if the facts are immaterial, no hearing is needed. No error is shown.
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No. 34079-1-111
State v. Burrill
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, A.CJ.
9