(dissenting) — I would reverse on the issue of substituting an alternate juror. I believe that CrR 6.5 authorizes a trial court to substitute an alternate during deliberations before the jury has reached a decision. I do not believe that CrR 6.5 authorizes a trial court to substitute an alternate during deliberations after the jury has reached a decision, at least where, as here, the jury has announced that fact in a note sent to the judge. I do not believe that 11 members of a jury, having already reached agreement and announced that fact to the court, can start over even if instructed to do so.
I do not overlook that a jury is presumed to follow its instructions, or that the trial court here instructed the remaining 11 jurors to start over. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), held that even if instructed to do otherwise, a jury could not reasonably be expected to refrain from using A’s pretrial confession against B when A and B are on trial together and A’s confession implicates both. Similarly, Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), held that even if instructed to do otherwise, a jury could not reasonably be expected to disregard a confession that was true but involuntary. The presumption that a jury follows its instructions has limits, and those limits have been reached and exceeded in this case. Indeed, the clerk’s minutes in this very case show that the original jury deliberated for about 10 hours, while the second jury — the one with the alternate — deliberated for only about 45 minutes.
I attach no importance to the idea that a jury’s verdict becomes final only when formally received in open court. The question here is not whether the verdict was or was not final, but whether the deliberations that led up to the verdict were improperly conducted.
I respectfully dissent.
Review denied at 152 Wn.2d 1018 (2004).