¶27 (dissenting) — I believe Elmore’s “reasonable possibility” standard applies here. And because under such standard there is a reasonable possibility the excused juror’s claimed unfairness stems at least in part from her view of the State’s case, I would reverse and remand for a new trial.
¶28 In State v. Elmore, 155 Wn.2d 758, 123 P.3d 72 (2005), two jurors accused a third of being prejudiced and
*478refusing to follow the law. Upon questioning by the court, the accused juror denied saying that he, in effect, would not follow the law, explaining that what mattered was whether “ ‘we believe the witnesses are credible.’ ” Elmore, 155 Wn.2d at 765. The Supreme Court adopted the Ninth Circuit’s test that where the claim of juror bias and refusal to follow the law first arises during deliberations, the trial court cannot excuse the challenged juror if there is any reasonable possibility the juror’s views are based on an evaluation of the sufficiency of the evidence. Elmore, 155 Wn.2d at 778. But the court limited the “reasonable possibility” standard to the “rare case where a juror is accused of engaging in nullification, refusing to deliberate, or refusing to follow the law.” Elmore, 155 Wn.2d at 778.
¶29 Recently, in State v. Depaz, 165 Wn.2d 842, 204 P.3d 217 (2009), the court reiterated its limits on use of the “reasonable possibility” standard. Depaz involved juror misconduct clearly unrelated to the jury’s deliberations: the challenged juror had talked with her husband during deliberations about the “ ‘circumstantial evidence’ ” and being in the “ ‘minority.’ ” Depaz, 165 Wn.2d at 847. The court explained that it adopted the “reasonable possibility” test to allow the trial court to ascertain, without invading the secrecy of jury deliberations, whether the challenged juror is truly unwilling to follow the law. Depaz, 165 Wn.2d at 855. But this conflict does not exist where the court can explore juror misconduct — talking with someone outside the jury room during deliberations — without delving into juror deliberations. Depaz, 165 Wn.2d at 855. Thus, the court refused to apply the “reasonable possibility” standard. Depaz, 165 Wn.2d at 855.
¶30 Here, we do not have a claim of juror misconduct. Rather, like Elmore, the claim centers on possible juror prejudice or partiality. And, like Elmore, the trial court could not evaluate the claim without risking invading the jurors’ secret deliberative process. I find no meaningful difference between the situation where one juror accuses another of being partial and that where a juror decides during delib*479erations that she is no longer impartial. In the first situation, the accusing juror may simply want to remove a hold-out juror, and in the second, the self-accusing juror may simply want out of a contentious, confrontational discussion. In either situation, the trial court faces the same dilemma: how to ascertain the true source of the claimed partiality without invading the jury’s secret deliberative process. Because the dilemma is the same in either case, I would apply the “reasonable possibility” test here. See United States v. Symington, 195 F.3d 1080, 1088 (9th Cir. 1999) (error to dismiss juror because it was reasonably possible that impetus for removal came from her position on merits of case); United States v. Thomas, 116 F.3d 606, 624 (2d Cir. 1997) (error to dismiss juror on ground he acted in purposeful disregard of court’s instructions where there was reasonable possibility he was simply unpersuaded by government’s case against defendants); United States v. Brown, 262 U.S. App. D.C. 183, 823 F.2d 591 (1987) (error to excuse juror who reported he was unable to discharge his duties after five weeks of deliberations because of possibility that discharge request was based on insufficient evidence to convict).
¶31 I find a reasonable possibility that juror 6’s claim of partiality arose, at least in part, from her view of the evidence. The majority reports only one note from the jury; the jury actually sent out four notes. The first asked if the jury could see the police report; the second asked, “If you lawfully entered a building and then your intent to commit the crime became present, is it still burglary?” Verbatim Report of Proceedings (VRP) at 308; the third asked, “Is it illegal for a member of law enforcement to allow a piece of evidence to leave his or her sight?” VRP at 310; and the last note read:
One of the jurors feels unable to continue this case because of being too emotional regarding] the prosecutor and police officer. She feels she can not be fair and impartial. She thought she could when being interviewed but can[’]t now. She wishes to be dismissed at this time if possible.
Clerk’s Papers (CP) at 50, 92.
*480¶32 Hopkins’s defense was that he and his friend were walking on the beach and because they were thirsty, he walked to the store, which was unlocked and appeared to be open. He entered, calling out, and when nobody responded, he left. He explained that he had the piece of wire in his pocket because he had worked on his truck. He denied that the piece of wire entered into evidence was the same wire he had in his pocket.
¶33 Officer Whelan testified that he gave the piece of wire from Hopkins’s pocket to David Morgan, an electrician who works for Steilacoom’s electrical department. Morgan went to the allegedly burgled store where he found a bunch of coiled-up wire. He matched the piece of wire to a missing section of the coiled wire. Morgan testified that the piece of wire did not appear to have been cleanly cut, but he had previously told defense counsel he thought a wire cutter had been used.
¶34 The jurors’ second question suggests that some had concerns about whether the State had proved Hopkins had the intent to steal when he broke into the store. The third question suggests that some of the jurors had problems with the State’s control and processing of the allegedly stolen wire.
¶35 The fourth and critical note then reports that juror 6 was being “too emotional regarding] the prosecutor and police officer” and believed she could not be fair and impartial. CP at 50 (emphasis added). In response to the court’s questions, juror 6 agreed to the sentiments stated in note four. But, if we consider the fourth note in light of the jury’s first three questions, it is reasonably possible that juror 6, either alone or with others, questioned the State’s proof as to Hopkins’s intent in entering the store and, more importantly, questioned whether the officer’s release of the wire to the electrician was legal. This record demonstrates a reasonable possibility that the source of juror 6’s discontent was the State’s evidence. This is particularly likely where the juror expressed no partiality during voir dire, the *481trial testimony, final arguments, or even the first day of deliberations.
¶36 I fully sympathize with the trial court’s frustration about how to question juror 6. After the juror confirmed that note four accurately reported her feelings, the court asked only whether anything outside deliberations or any outside influence had led her to believe she could no longer be impartial. The juror answered “no,” an answer that supports rather than removes a reasonable possibility that her view of the State’s case contributed to her partiality. The court followed the approach other courts have attempted in similar situations: it questioned the juror about what, other than deliberations, caused the claimed partiality. Thomas, 116 F.3d at 620-21. Because some “claims of partiality or bias often arise from some event, or from a relationship between a juror and a party,” the court can identify, investigate, and make findings on such matters without intruding into the deliberative process. Thomas, 116 F.3d at 621. If nothing outside of deliberations has caused the juror’s partiality, it becomes a near certainty that the deliberative discussions have. Finally, even if the juror inadvertently reveals her views or those of other jurors, this is not fatal to further deliberations. Depaz, 165 Wn.2d at 855 n.2.
¶37 In conclusion, the court’s questions here did not remove the reasonable possibility that juror 6’s “partiality” stemmed from her view of the State’s case. Accordingly, the trial court erred in excusing her in violation of Hopkins’s constitutional right to be convicted only by a unanimous jury. Elmore, 155 Wn.2d at 781.