State v. Pete

Fairhurst, J.

(dissenting) — I agree with the majority’s presentation of the essential facts of this case and with its exposition of the applicable law, but I dissent from its application of law to fact. I would affirm the trial court and Court of Appeals.

As the majority notes, a trial court may order a new trial under CrR 7.5(a)(1) if evidence improperly provided to the jury causes the defendant to be “ ‘ “so prejudiced that nothing short of a new trial can insure that the defendant will be treated fairly.”’” Majority at 552 (quoting State v. Bourgeois, 133 Wn.2d 389, 406, 945 P.2d 1120 (1997) (quoting State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994))). The majority then asserts that the admissible, but unadmitted, evidence briefly provided to the jury may have prejudiced Laris Pete. According to the majority, Pete’s statement “may be considered inculpatory” and the two unadmitted statements “could suggest” that Pete cannot be believed. Majority at 554 (emphasis added).

In my view, the majority’s arguments are strained, and I agree instead with the trial court and Court of Appeals’ characterization of the evidence as exculpatory and/or harmless. At best, the majority’s argument raises only a possibility that Pete was prejudiced by the evidence improperly furnished to the jury. The mere possibility of prejudice, however, is insufficient to require a new trial under CrR 7.5(a)(1). State v. Lemieux, 75 Wn.2d 89, 91, 448 P.2d 943 (1968) (“Something more than a possibility of prejudice must be shown to warrant a new trial.”). Requiring a new trial every time a possibility of error arises would amount to a per se rule requiring a new trial every time a jury is improperly presented with evidence. Such a per se rule is not, and should not be, our standard. Instead, the question of whether improperly admitted evidence is so prejudicial that it requires a new trial lies within “the sound discretion of the trial court, who saw both the witnesses and the trial proceedings, and had in mind the evidence.” Allyn v. Boe, 87 Wn. App. 722, 730, 943 P.2d 364 (1997); see also Bourgeois, 133 Wn.2d at 406.

*557After noting that the unadmitted statements “may be considered inculpatory” and “could suggest” that Pete is a liar, the majority simply concludes “the introduction of these documents into the sanctity of the jury room did prejudice Pete and that the trial court, therefore, abused its discretion in not granting a new trial.” Majority at 555. If this court were standing in the shoes of the trial court, it would be appropriate for us to assess, as the majority does, whether Pete’s statements were only partly exculpatory or inculpatory, or whether the two unadmitted statements were so prejudicial that a new trial is warranted. That, however, is not this court’s role, and by doing so, the majority replaces the trial court’s decision that the unadmitted statements did not require a new trial with its own decision that a new trial is required.

The majority opinion disregards the proper standard of review in this case. Rather than assess whether this court merely agrees or disagrees with the trial court’s decision, we must determine whether the trial court’s decision represents a clear abuse of discretion. It is well settled that:

“The granting or denial of a new trial is a matter primarily within the discretion of the trial court, and the decision will not be disturbed unless there is a ‘clear abuse of discretion.’” State v. Bartholomew, 98 Wn.2d 173, 211, 654 P.2d 1170 (1982) (quoting State v. Wilson, 71 Wn.2d 895, 899, 431 P.2d 221 (1967)). An abuse of discretion occurs only “when no reasonable judge would have reached the same conclusion.” Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771 P.2d 711, 780 P.2d 260 (1989).

Bourgeois, 133 Wn.2d at 406; see also majority at 552.

The majority falls far short of showing that no other reasonable judge could conclude that the jury’s brief encounter with two admissible but unadmitted statements (whose exculpatory or inculpatory nature is debatable) does not require a new trial. The majority has not shown that the trial court committed a clear abuse of its discretion when it concluded that a new trial was not necessary. I agree with *558the Court of Appeals’ conclusion that the trial court did not abuse its discretion.

For these reasons, I dissent and would affirm the conclusions reached by both the trial court and Court of Appeals.

Bridge and Owens, JJ., concur with Fairhurst, J.