¶23 (concurring in part and dissenting in part) — I respectfully dissent only on the issue of whether the trial court abused its discretion by replaying the audiotape of the entire trial testimony, apparently to avert a deadlocked jury.
¶24 The majority does not discuss the jury’s first question following approximately 3 hours and 45 minutes of deliberations. They asked, “What if it appears we have a 10-2 hung jury?” Report of Proceedings (RP) at 129. After asking the presiding juror whether she believed there was a reasonable probability of the jury reaching a verdict within a reasonable time and receiving her affirmative response, the trial court directed the jury to continue deliberating. It then appears from the record on appeal that, following a brief recess,4 the trial court and counsel addressed the jury’s second question, “Could [they] have a copy of the statements made by Officer Tamura and Mr. Morgensen while on the stand[?]” RP at 132. Instead of telling the jury to continue deliberating based on the jurors’ collective memories and notes, the trial court replayed all of the trial testimony.
¶25 I believe that here, as our Supreme Court said in State v. Koontz, 145 Wn.2d 650, 659-60, 41 P.3d 475 (2002), “The initial deadlock illustrates the difficulty the jury had making its determination without what amounts to a retrial.” “A determination to allow videotape replay should balance the need to provide relevant portions of testimony in order to answer a specific jury inquiry against the danger of allowing a witness to testify a second time. It is seldom proper to replay the entire testimony of a witness.” Koontz, 145 Wn.2d at 657 (emphasis added). The Supreme Court’s holding in Koontz does not suggest, as does the majority, that hearing the entire trial testimony on audiotape is a *93“note-taking device, akin to that permitted under CrR 6.8.” Majority at 89.
¶26 The trial court’s proper response to a jury’s request to rehear5 trial testimony in the absence of a specific question is to deny the request and direct the jury to continue to deliberate. The majority overlooks this alternative response that avoids the many issues raised when a jury again hears an entire trial (1) without a specific jury question, (2) after the jury indicates that it is deadlocked, (3) shortly after beginning deliberations, and (4) without trial counsel’s prior review of the audiotape.
¶27 I would hold that the circumstances here did not meet the requirements in Koontz justifying repetition of trial testimony during deliberations. Thus, the trial court’s actions constituted an abuse of discretion. Morgensen was denied his right to a fair trial because, after the jury indicated that it was deadlocked and asked to rehear the entirty of Tamura’s and Morgensen’s trial testimony, apparently to overcome the impasse, the trial court agreed to the jury’s request without requiring a specific question. Under these circumstances, the replay constituted a second trial within the first trial, without the presence of the witnesses so the jury could observe demeanor and judge credibility and without new argument by counsel. I know of no provision allowing blatant disregard for the right of litigants to only one trial when a jury is unable to reach a verdict based on the evidence properly and fully presented the first time.
¶28 I would reverse and remand for a new trial.
Review denied at 166 Wn.2d 1007 (2009).
The record before us does not specify how much time elapsed between the jury’s two questions, but the discussion on the record following the first question, concerning a hung jury, indicates that Morgensen remained in the courtroom rather than returning to the jail while they waited on the jury. Then, following a recess, the court reconvened to discuss the jury’s second question, asking for copies of witness statements, while Morgensen was still present.
The jury asked to read Tamura’s and Morgensen’s testimony but the trial court rejected that request in favor of playing the audiotape. See majority at 85, ¶ 4.