State v. Marks

Brown, J.

(dissenting) — The reasons expressed by the *988trial judge for granting a new trial are both reasonable and tenable, therefore not an abuse of discretion. This is not, as the State suggests, a case of invited error or jury misunderstanding inhering in the verdict. The trial judge decided, within his discretion, Mr. Marks and the State did not receive a fair trial. CrR 7.6(a)(8). Additionally, the judge acted within his discretion when deciding irregularity. CrR 7.6(a)(5). Consequently, a new trial was ordered for Mr. Marks. I would affirm.

ADDITIONAL FACTS

The trial court said when deciding to grant a new trial:

When I went back to the jury room, almost the entire jury unanimously asked me, “Where was Tommy Marks and where was Ms. Steve?” So, obviously, the missing witness instruction was taken by them to also include Tommy Marks, which was not the intent of the missing witness instruction. . . .
I do not believe that the missing witness instruction, therefore was curative of the problem. It was not curative of the expectation that she would be here and she would give her testimony. This is an accomplice/conspiracy type of case. And absent some testimony from her, I believe that justice was not done, even though I attempted to try and cure that fault....
Put another way I don’t think either side had a fair trial, and it may very well have influenced the outcome of the jury; . . . I have thought about this from the moment that the verdict was rendered and I had the question, right afterwards, from the jury, what happened to both those people. I feel the only fair thing to do is to vacate the verdict and grant a new trial in this matter.

ANALYSIS

A. Standard of Review. I have no quarrel with the majority reasoning about what the standard for review should be; however, the present standard for review of a grant of a new trial to a criminal defendant is long standing.

The trial judge, by his very presence, is in a favored posi*989tion. It has been reiterated in appeals from orders granting new trials in both civil and criminal cases that a much stronger showing is required to overturn an order granting the new trial than denying a new trial. The question is: Did the respondents have a fair trial? The trial judge thought that they did not. The question is not whether this court would have decided otherwise in the first instance, but whether the trial judge was justified in reaching his conclusion. In that respect, he has a very wide discretion.

State v. Taylor, 60 Wn.2d 32, 42, 371 P.2d 617 (1962) (cited with approval in State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967)). A more recent case elaborates on the standard we are now hound to follow:

Pursuant to CrR 7.6(a)(8), a trial court may grant a new trial when “substantial justice has not been done.” The decision to grant or deny a new trial will not be disturbed unless it constitutes a manifest abuse of discretion. State v. Jackman, 113 Wn.2d 772, 777, 783 P.2d 580 (1989); State v. Crowell, 92 Wn.2d 143, 145, 594 P.2d 905 (1979); State v. Havens, 70 Wn. App. 251, 255, 852 P.2d 1120 (1993). A much stronger showing of abuse of discretion is required to set aside an order granting a new trial than one denying it. Crowell, 92 Wn.2d at 145-46. An abuse of discretion exists unless it can realistically be said that “no reasonable person would take the position adopted by the trial court.” State v. Clapp, 67 Wn. App. 263, 272, 834 P.2d 1101 (1992) (citing State v. Huelett, 92 Wn.2d 967, 603 P.2d 1258 (1979)), review denied, 121 Wn.2d 1020, 854 P.2d 42 (1993)).

State v. Dawkins, 71 Wn. App. 902, 906-07, 863 P.2d 124 (1993). The Dawkins expression of standard of review is an alternative and perhaps more accurate form to the classic formula:

Where the decision or order of the trial court is a matter of discretion, it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d *990775 (1971). See State v. Scott, 72 Wn. App. 207, 230, 866 P.2d 1258 (1993) (Forrest, J., dissenting), aff’d sub nom. State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995).

B. Missing Witness Instruction. The trial court implicitly admitted the failure to limit the missing witness instruction to Ms. Steve. Thus, the instruction, as given, was not properly tailored to the case facts and permitted the application of the law (a presumption) to create an incorrect adjudicative fact, that the absence of Tommy Marks should be held against Michael Marks. Additionally, both sides during opening statements argued Ms. Steve would appear and give favorable testimony supporting their case; the impact on Mr. Marks was therefore doubly prejudicial. Because the instruction was confusing, misleading, and more importantly in the reasonable view of the trial judge, unfair, it was part of the cumulative problems contributing to a failure of justice. What could be more compelling than the trial judge’s assessment in the context of the whole case that the instruction was irregular and unfair?

The instruction, in any event, was not the core of the problem. It was, in the trial judge’s view, not curative of the expectation created by both sides that Ms. Steve would appear and give her testimony. The court observed “absent some testimony from her, I believe justice was not done . . . .” Implicit in this statement is the court’s recognition that it erred by not granting a continuance to secure the presence of Ms. Steve. Significant is the court’s questioning the fairness of the trial before speaking with the jurors “from the moment that the verdict was rendered . . . .”

A trial court is required to give only “definite reasons of law and facts” to justify its order. CrR 7.6(d). “Objectively assessable reasons or facts must be set out so that meaningful appellate review of the exercise of discretion is possible.” State v. Williams, 96 Wn.2d 215, 228, 634 P.2d 868 (1981). The trial court set out objective reasons and facts supporting his decision. They include (1) the failed expectation of appearance of a critical witness; (2) the injustice *991absent the appearance of Ms. Steve; (3) the failed attempt to cure the failed expectation by giving the missing witness instruction without properly limiting its application; (4) the implicit error in not providing additional time to secure the critical witness; and (5) the jury confusion. The trial court’s comments on the jury confusion merely reinforced his prior misgivings underlying his decision to declare a new trial.

C. Invited Error. The facts do not give rise to the legal doctrine of invited error and its application here. The doctrine “prohibits a party from setting up an error at trial and then complaining of it on appeal.” State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984); State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996). There is no allegation Mr. Marks was responsible for Ms. Steve’s absence. This is not a case where the defendant has invited error by seeking a new trial based solely on an incorrect instruction it submitted. See State v. Boyer, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979). Instead, this is a case where the trial court on its own initiative decided the case, taken as a whole, was unfair) including the instruction permitting improper and unintended presumptions to be drawn from the failure of witnesses to appear.

CONCLUSION

Under the present alternative standards of review or under the standard suggested by the majority, even if an appellate judge would do differently, appellate judges are to focus on the trial judge’s stated justification(s) when granting a new trial. Then we answer the critical questions related to our choice of the alternative standards of review: (1) whether “no reasonable person would take the position adopted by the trial court.” Dawkins, 71 Wn. App. at 906-07; or (2) whether there has been “a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Junker, 79 Wn.2d at 26. Because the objective reasons and facts stated and reasonably implied by the trial judge sup*992port his decision to grant a new trial, I answer the critical questions in favor of the trial judge, although preferring the later statement of the standard. The grounds stated are reasonable and tenable. The missing witness instruction was misleading under these facts and impermissibly allowed the application of a presumption to create an incorrect adjudicative fact. Further, invited error does not apply to bar the defendant a new trial because Mr. Marks was not responsible for the absence of the critical missing witness. Accordingly, I respectfully dissent.

Review denied at 136 Wn.2d 1024 (1998).