FILED
COURT OF APPEALS
DIVISIONiI
2015AfR28 AM 8: 88
STATE rva
TON
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45894 -2 -II
Respondent, UNPUBLISHED OPINION
v.
MICHAEL R. BROGAN,
Appellant.
BJORGEN, A.C. J. — Michael Brogan appeals from his conviction for an unlawful delivery
of heroin conducted within 1, 000 feet of a school bus route stop, arguing that the trial court erred
in denying his motion for a mistrial after the jury had deadlocked.' We disagree and affirm.
The State charged Brogan with unlawful delivery arising out of a controlled buy of
heroin. The State called its first witness, a detective involved in the controlled buy, at 1: 49 p.m.
on Thursday, December 12, 2013. It also called the remaining police officers involved in the
controlled buy and the confidential informant. The trial recessed at 3: 17 p.m. and reconvened at
3: 33 p.m. The State then called a forensic scientist and two witnesses to establish the distance
A commissioner of this court initially considered Brogan' s appeal as a motion on the merits
under RAP 18. 14 and then transferred it to a panel of judges.
No. 45894 -2 -II
between the site of the buy and the school bus route stop. The State rested and the trial court
discharged the jury for the evening at 4: 02 p.m.
Trial resumed the next morning, Friday, December 13, at 10: 17 a.m. Brogan rested
without calling any witnesses. The trial court instructed the jury, the parties made their closing
arguments, and the presiding judge, Judge Haan, excused the jury to deliberate at 11: 11 a.m. At
approximately 2: 30 p.m., the jury informed the bailiff that it was hung. Judge Haan was out of
the courthouse at the time. Judge Warning instructed the jury to resume deliberations or write a
written statement about being hung. At 4: 23 p.m., the jury again informs the bailiff that it was
hung. Judge Haan, who had returned to the courthouse, had the jury brought into the courtroom.
She asked the presiding juror if there was " reasonable probability of the jury reaching a verdict
within a reasonable time in this matter ?" Report of Proceedings ( RP) ( Dec. 13, 2013) at 49. The
juror said no. All 11 other jurors said they agreed. Judge Haan excused the jury to the jury room
at 4: 34 p.m. She decided that rather than discharging the jury, she would have it return on
Monday morning to see if it was still deadlocked. She released the jury for the weekend,
instructing them to return at 8: 50 a.m. on Monday, December 16 " to resume deliberations."
The jury returned on Monday at 9: 43 a.m., and informed the bailiff that it had reached a
verdict. The jury returned to the courtroom and delivered its verdict of guilty to unlawful
delivery of heroin and its answer of yes to the question of whether the delivery occurred within
1, 000 feet of a school bus route stop. The jury was polled, confirming the verdict. Brogan
moved for a mistrial, arguing that the jury should have been discharged on Friday when it
announced that it was deadlocked. Judge Haan denied his motion.
Brogan argues that by ordering the jury, after it had unanimously stated that it was
deadlocked on Friday afternoon, to return on Monday morning to resume deliberations, the trial
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No. 45894 -2 -II
court coerced the jury into reaching a verdict and denied him due process. State v. Boogaard, 90
Wn.2d 733, 736 -37, 585 P. 2d 789 ( 1978). But the court' s limited inquiry into the jury' s status
and its instruction to the jury "to continue to deliberate" on Monday morning does not constitute
coercion, in contrast to the judge' s actions in Boogaard of asking the presiding juror about the
history of the jury' s voting and asking the presiding juror whether he thought the jury could
reach a verdict in a half hour. Boogaard, 90 Wn.2d at 739 -40. Thus, Brogan has not
demonstrated that he was denied due process.
Brogan also argues that the trial court violated CrR 6. 16( a)( 3) 2 when it ordered the jury to
return on Monday morning to resume deliberations. When a jury announces that it is
deadlocked, the trial court may consider the complexity of the case, and the length of
deliberations relative to the length of the trial, in determining whether to discharge the jury or
order it to resume deliberations. State v. Jones, 97 Wn.2d 159, 165, 641 P. 2d 708 ( 1982) ( citing
Boogaard, 90 Wn.2d at 739). We review a trial court' s decision to order a jury to resume
deliberations for an abuse of discretion. State v. Dykstra, 33 Wn. App. 648, 651, 656 P. 2d 1137
1983) ( citing Jones, 97 Wn.2d at 165). Brogan contends that because the State' s case was not
complex, and that the trial took less than three hours but the jury deliberated for more than five
hours before declaring it was deadlocked, the trial court abused its discretion in denying his
motion for a mistrial. While the record indicates that the jury began its deliberations at 11: 11
a.m. and informed Judge Haan of its deadlock at 4: 23 p.m., it does not show how much of that
time the jury was in deliberations. They may have adjourned for lunch. It may be that after
2 CrR 6. 16( a)( 3) provides that if, during the poll of the jury, not all of the jurors concur with the
verdict, " the jury may be directed to retire for further deliberations or may be discharged by the
court."
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No. 45894 -2 -II
informing the bailiff of their deadlock at approximately 2: 30 p.m., and being instructed by Judge
Warning to resume deliberations or write a statement regarding its deadlock, it may not have
deliberated further. Further, even if the jury deliberated for all five hours, that amount of time is
not so disproportionate to the length of the trial to render Judge Haan' s decision to order the jury
to resume deliberations on Monday morning an abuse of discretion.
In his statement of additional grounds, Brogan asserts that when it resumed deliberations
on Monday morning, the jury had already reached a verdict. There is, however, nothing in the
record to support Brogan' s assertion.
We affirm Brogan' s judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
A.cX
We concur:
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