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State v. Eggleston9/14/2001
decided to accept the verdict reached and called the jury into the courtroom. After the presiding juror informed the court that the jury had not reached a verdict on count I, the court polled the jury and concluded that 'extraordinary and striking circumstances' warranted discharging the jury without its reaching a verdict on that count.
In so stating, the court was referring to the standard that must be met before a judge may discharge a jury. See State v. Jones, 97 Wn.2d 159, 164, 641 P.2d 708 (1982). A jury's acknowledgment of hopeless deadlock is an 'extraordinary and striking' circumstance that justifies a judge's exercise of his discretion to discharge the jury. Jones, 97 Wn.2d at 164. Here, the judge's reluctance to find such circumstances until May 5 was supported by the defense after the presiding juror reported that some progress had been made. The court did not err in ordering the jury to continue deliberating.
Eggleston next contends that the presiding juror's incorrect statements of law resulted in his assault conviction. As the trial court noted, the jurors were instructed to follow the court's instructions and those instructions clearly stated that self-defense applied to the assault charge. (Instruction 27 informed the jury that '{i}t is a defense to a charge of assault that the force used was lawful as defined in this instruction{,}' with that definition including acting in self-defense. 1 CP at 1954.) As the trial court also observed, jurors' discussions concerning instructions inhere in the verdict and cannot be used as grounds for impeachment. See Ayers, 117 Wn.2d at 769 (a juror's failure to follow the court's instructions inheres in the verdict and affidavits relating to such alleged misconduct may not be considered).
Finally, Eggleston argues that the court erred in failing to offer an instruction explaining to the jurors that they could change their vote during the polling procedure. In making this argument, Eggleston admits that he never proposed such an instruction and that he cannot find authority to support his claim of error. The trial court did explain the polling procedure to the jury, informing them that it would ask each juror whether he or she voted for the verdict and whether the jury's verdict was unanimous. As the court explained in denying the motion for a new trial, the polling of the jury is not an opportunity to revote. 'It is to consider whether the verdict, as I have announced it and received it from the person who is the presiding juror is, in fact, the verdict of the jury. It was affirmed that it was.' 6-12 RP 19. The trial court did not err in denying Eggleston's motion for a new trial following the first trial.
G. Second Amendment Instruction
Eggleston argues here that the trial court erred in refusing to give the following instruction during the second trial: 'A person has the right to carry, exhibit, display or draw any firearm while in his place of abode.' 2 CP at 1237. Eggleston claims that without this instruction, the jury was not informed that he had the right to have a weapon to protect himself and that he thus was unable to fully present his theory of the case.
During both trials, Eggleston testified that he had concealed weapons permits and that his guns were registered. The trial court declined to give the same proposed instruction during the first trial, reasoning that there was no contention that the possession of any weapon in evidence was unlawful or incorrect. When the defense responded that the instruction addressed the State's theory that Eggleston was the initial aggressor by bringing out a weapon, the court responded that the proposed instruction did not address t
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