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Conway v. Blackburn6/13/2005
that based on how she was dressed, the defendant had a lot of money. Nelson, 33 Wn.2d at 527. Another commented that the defendant 'was one of the big gamblers in town.' Nelson, 33 Wn.2d at 529. The Nelson court held that none of these comments warranted a new trial. Conway argues Nelson is distinguishable because all the comments there were made during or after deliberations, not before.
Blackburn also cites to State v. Hatley, 41 Wn. App. 789, 794-95, 706 P.2d 1083 (1985), which held that a juror does not commit misconduct justifying a new trial by making up his mind before deliberations. The Hatley court also held that evidence concerning when a juror decides on the defendant's guilt is inadmissible because it inheres in the verdict and thus cannot be considered. Hatley, 41 Wn. App. at 793-94. Conway argues Hatley is distinguishable because the juror there revealed his opinion to someone outside the jury, not to another juror.
While Conway distinguishes all the cases cited, she presents no authority supporting her theory that disparaging comments about evidence prior to deliberations is misconduct warranting a new trial where prejudice is not shown. Although Conway speculates that the remarks were prejudicial, she has made no showing of prejudice. In light of Tate, Nelson, and Hatley, which found no prejudicial misconduct even where a juror decided on a verdict prior to deliberations, these comments do not rise to the level of prejudicial misconduct. As the Hatley court stated:
If every verdict were subject to impeachment if the losing side could obtain an affidavit indicating that in making up his or her mind, the juror reached certain critical conclusions prior to commencement of deliberations, disregarded some evidence, misunderstood an instruction, misapplied the rules of law, or completely misunderstood the testimony of one or more witnesses, then a jury verdict would simply be the first round in an interminably prolonged trial process.
Hatley, 41 Wn. App. at 794. We hold that the jurors' comments on evidence prior to deliberations, although in violation of the court's instruction not to discuss the evidence until they receive the case, were insufficient to require a mistrial where, as here, no prejudice has been shown. III. Witness Fees Under RCW 2.40.010 For Expert Witnesses RCW 2.40.010 provides that 'Witnesses shall receive for each day's attendance in all courts of record of this state the same compensation per day and per mile as jurors in superior court.' Conway argues that expert witnesses do not fall within the scope of RCW 2.40.010. Conway relies on Andrews v. Burke, 55 Wn. App. 622, 631, 779 P.2d 740 (1989), which held that '{e}xpert witness fees are not recoverable under RCW 2.40.010.' But, this statement has been construed to disallow only fees paid to expert witnesses for their work as experts. See Wagner v. Foote, 128 Wn.2d 408, 908 P.2d 884 (1996). It has not been used to deny the witness and mileage fees under RCW 2.40.010. In Wagner, the trial court awarded Wagner one-half of the 'lawyer/accountant fees of Wagner's expert' as general damages. Wagner, 128 Wn.2d at 416. The Washington Supreme Court reversed, holding that the 'clearly articulated' Washington rule prohibits the award of expert witness fees. Wagner, 128 Wn.2d at 417-18. Under this rule, the fee charged for rendering an expert opinion is not recoverable under RCW 2.40.010. Here, the trial court awarded statutory witness and mileage fees under RCW 2.40.010. The trial court did not award the fees charged by Blackburn's expert witnesses for rendering services to Blackburn. The text of the statute does not exclude expert witnesses from its purview, and the cases cited do not narrow it. Th
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