Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE 

STATE OF WASHINGTON,

Respondent,

v.

ATERE KEVEL NORMAN,

Appellant.

 No. 83330-8-I

 DIVISION ONE

UNPUBLISHED OPINION

COBURN, J. — Atere Norman appeals his conviction of assault in the 

second degree because the court dismissed a deliberating juror and replaced 

him with an alternate. The juror had punched himself in the face because of 

stressful disagreements during deliberations but said he did not think it would 

happen again and wanted to continue deliberating. A new trial is warranted 

because the trial court dismissed the juror on grounds not supported by the 

record, and because there is a reasonable possibility that the dismissal stemmed 

from that juror’s view of the merits of the case. Accordingly, we reverse and 

remand for a new trial.

FACTS

In January 2020, Norman was on trial for burglary in the first degree and 

assault in the second degree. On the first day, the case was submitted to the 
No. 83330-8-I/2

2

jury, and deliberations began right after lunch. At 3:30 p.m., the court heard loud 

pounding on the door. The jurors told court staff that they were breaking for the 

evening and they would be back at 8:00 a.m. the following day. When the court 

clerk entered the jury room, five jurors were still departing. They asked the clerk 

what they should do if they have a problem with one of the jurors, and the clerk 

responded that the presiding juror should contact the clerk privately about it in 

the morning. 

That night, the court received two phone calls about Juror 9 from two 

separate jurors who were not the five jurors the clerk spoke with earlier. The 

next day, the clerk explained both phone calls, as well as an additional 

conversation with the presiding juror, to the parties in court. Juror 11 had called 

the clerk advising that there was an incident in the jury room that afternoon and 

the clerk responded by saying she would speak to the presiding juror about it the 

following morning. The clerk further explained:

Then Juror Number 2 left a message that said Juror Number 

9 became overwhelmed and frustrated and started punching 

himself in the face and said that he has a problem with inflicting 

self-harm, and she said it was very scary and she didn’t want to be 

sitting next to him or really in the room with him. 

Then this morning, the presiding juror contacted me and 

indicated that Juror Number 9 was accused of not being openminded, then began -- then he punched himself in the face twice 

and made several of the other jurors uncomfortable and also said 

that Juror Number 9 stated he has a problem with inflicting selfharm.

The State asked the court to excuse Juror 9 for cause. Defense counsel 

requested to first hear from Juror 9. 
No. 83330-8-I/3

3

The court inquired with Juror 9 in the courtroom outside the presence of 

the other jurors. The court explained, “So we’ve called you here today to tell us 

about anything unusual relating to your actions yesterday and your ability to 

perform your duties.” The court cautioned, “Please do not tell us anything about 

the case.” Juror 9 replied:

So yesterday, discussions became very heated, and how would I 

describe – and there were a number of people who had 

disagreements with me. This caused raising of voices, and I 

became -- and I’d say it’s just, I was somewhat overwhelmed. I felt 

somewhat like -- a little bit attacked, and I reacted with an 

emotional outburst of punching myself in the face. That has 

happened in the past when I get into high-stress situations. I have 

self-harmed in the past, but it hasn’t happened in a number of 

years. That being said, I still consider myself of sound mind and 

ability to continue going forward with this case.

The court asked Juror 9 if he had ever in situations of high stress turned 

that emotion on others rather than harming himself, to which Juror 9 responded, 

“Outside of, like, junior high school brawls, no.” The court asked if Juror 9 

believed that there was any reason for any of the other jurors to feel unsafe since 

he physically reacted to high-stress situations, and Juror 9 responded, “No. I 

have never become violent with another person because of one of these highstress events. It has always resulted in self-harm.” 

Defense counsel asked Juror 9 if he saw this happening again. 

Juror 9 responded:

I do not think so. I am -- I’m going to -- I’ve tried to basically ready 

myself and steady myself. And this was -- now that I know that --

how stressful the situation can get, I’m more prepared to handle 

and deal with it, and if I feel like it is getting to that point again, I will 

simply ask the jury for a break and take a small break and cool 

down so it doesn’t occur again.
No. 83330-8-I/4

4

The State renewed its motion to dismiss Juror 9. The defense requested 

to hear from the jury foreman “to maybe speak on behalf of the jury.” The court 

then inquired with Juror 2 and then Juror 8, who was the presiding juror. The 

following exchange took place:

THE COURT: So I want to caution you not to tell me 

anything about anything that was said or -- anything that was said 

in the jury room or anything about the case, but I know you left a 

message yesterday, and part of the message told us what you saw, 

and we’re aware of that. So I want to know from you how you’re 

feeling or what your thoughts are about going forward.

JUROR NO. 2: I’m fine to continue going forward. I just 

don’t want that to -- I don’t want the incident that happened 

yesterday to limit what people feel comfortable saying so we don't 

have a repeat of that, just because --

THE COURT: So just tell me how it made you feel and how 

you think that may affect you?

JUROR NO. 2: I just -- it made me feel uncomfortable 

because I don’t like seeing someone respond that way to things 

that are happening. I – I do want to continue to move forward. I just 

-- I just don’t want a repeat of what happened yesterday to occur 

again.

The State followed up asking, “Was there anything about [Juror 9’s]

behavior that might cause jurors not to speak their opinions?” Juror 2 

responded:

I think so, yes, just because nobody wants to see him do that 

again, and I think everybody is a little on edge just a little bit just 

because they’re not quite sure what—how he’s going to react to 

certain things that are said and if he is potentially going to have 

another incident like that again.

Defense counsel followed up asking, “Are you saying that this would 

hinder your ability to speak your mind?” Juror 2 replied:
No. 83330-8-I/5

5

It would not hinder my ability. I have no issues with coming 

forward and sharing how I feel about it, and I don’t think anybody is 

having any issue. They just don’t want a repeat. They just don’t 

want to see him punch himself in the face again. They don't want 

to see him as if he is about to break out into tears, and we’re just –

we’re just more concerned with his behavior versus the nature of 

our conversations and the things that are being said.

The defense followed up with the question, “[W]hat was the vibe in the room?” 

Juror 2 said:

It’s very -- we’re just not sure what to expect. That’s really 

what it is, and we haven’t discussed anything, but you can just tell. 

You know, we just kind of scan around and we’re just not really 

sure what today is going to hold for us in terms of that person’s 

behavior.”

The court explained that the jury had not been allowed to continue deliberations.

The court then inquired with Juror 8, the presiding juror. 

THE COURT: Mr. Presiding Juror, first I’d like to caution you 

that we don’t want to hear anything about your deliberations or 

anything about your factual discussions of the case. But we are

aware, from Juror Number 9 himself as well as a report from at 

least one or more other jurors that he became overwhelmed and 

started punching himself in the face yesterday. And our question to 

you is whether or not you believe the jury will be able to fully and 

fairly discuss these matters based on that incident and whether or 

not you have any concerns for his, your, or anyone else’s safety 

and health.

JUROR NO. 8: There was some disagreement. I don’t think 

that there is any physical threat, but there was some physical – self 

physical punching of the face by Juror Number 9, and he stated 

that he had problems with self-harm growing up. Now, because of

the disagreements, I’m not sure that that won’t continue. I’m not 

sure that there will be a resolution. He was pretty adamant about 

his beliefs, so I don’t know that we’ll be able to come to an

agreement. In fact, I don’t think we will.

THE COURT: Well, I don’t want to hear about that. Sorry.

JUROR NO. 8: Okay. Okay.
No. 83330-8-I/6

6

THE COURT: What I want to know is whether there will be a 

full and fair discussion and without intimidation from anybody 

feeling --

JUROR NO. 8: No.

THE COURT: No.

JUROR NO. 8: I don’t think there will be.

Defense counsel followed up and asked, “What do you mean? And I 

know the question generally and I know the answer, but how do you see this 

playing out? Do you think people will not be able to openly discuss or give their 

views on it?” Juror 8 responded as follows with a question interjected by the 

court:

JUROR NO. 8: I think they will be able to give their views 

openly, sure. Yes.

THE COURT: So they won’t be inhibited by --

JUROR NO. 8: No, I don't -- no. No. I must have 

misunderstood the question. No, I don’t think any of the other jurors 

will be inhibited.

The State followed up. The following exchange took place:

[STATE]: Is it your opinion that Juror Number 9 is not 

allowing other people to have their opinions?

JUROR NO. 8: He is.

[STATE]: He is allowing them.

JUROR NO. 8: He is allowing, but oftentimes, he’s 

interrupted during those opinions. That was the course that was 

taken yesterday.

[STATE]: And did he seem in control of himself during the 

course of deliberations?

JUROR NO. 8: Probably 80 percent of the day, yeah.
No. 83330-8-I/7

7

[STATE]: What about the other 20 percent?

JUROR NO. 8: Well, it led to him punching himself in the 

face a couple times and grabbing his hair. He apologized every 

time, so maybe he was remorseful about it.

[STATE]: Are you concerned about his well-being?

JUROR NO. 8: Well, I’m -- yeah.

[STATE]: You said that discussions were contentious; is that 

correct?

. . .

JUROR NO. 8: Yes.

[STATE]: And do you feel that’s what led to his reaction?

JUROR NO. 8: Yes.

[STATE]: And do you expect that that is going to continue or 

could – or could continue?

JUROR NO. 8: Well, it could. I don't know Juror Number 9 

well enough to know whether he’s able to keep himself in check. I -

- I -- I would hope it didn’t happen again.

Defense counsel followed up asking, “[A]s you sit here now, are you willing to go 

in there and move forward and see how it plays out? Are you comfortable with 

that?” The presiding juror responded, “Yes, sure.” 

The court did not inquire with any other juror. The State again asked the 

court to excuse Juror 9 for cause. Norman disagreed. The court replaced Juror 9

with an alternate juror. The court explained its ruling:

I’m going to dismiss Juror Number 9. Twenty percent of the 

day, he was not in control of himself, and he apparently has a long 

history of self-harm when he’s overwhelmed, highly stressed, and 

not in control of himself. And I don’t doubt that he’ll make his best 

efforts, but being out of control and punching yourself in the face 
No. 83330-8-I/8

8

has to be intimidating on the process of discussing your views 

openly and freely. . . . [Juror 2] said that she -- you know, felt bad 

that he was hitting himself in the face and didn’t want him to do 

that, and I think that shows an inhibition at some level. So that's 

what we’ll do. We’ll call Juror 13. We’ll tell the jurors that they 

won’t be deliberating until Juror 13 arrives, and hopefully that won't 

be too long. 

The court called in the alternate juror, Juror 13, and instructed the 

jury to disregard all previous deliberations, begin deliberations anew, and 

to not discuss the excused juror in any respect. That same afternoon the 

jury returned its verdicts, finding Norman not guilty of burglary in the first 

degree and guilty of assault in the second degree. 

Norman appeals.

DISCUSSION

Norman contends that the trial court violated his due process right to a fair 

and impartial trial under the federal and Washington constitutions because it 

dismissed Juror 9 during deliberations after he had an emotional outburst that 

stemmed from other juror’s pressure to change his views on the merits of the 

case. The State counters that the dismissal was proper because Juror 9’s 

conduct of punching himself in the face and pulling his hair was incompatible with 

proper and efficient jury service and that the juror was not dismissed because of 

his views on the merits of the case. 

Our Supreme Court has interpreted article I, section 21 of the Washington 

Constitution to guarantee criminal defendants the right to a unanimous jury 

verdict. State v. Ortega–Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). 

Both the federal and Washington constitutions guarantee criminal defendants the 

right to a trial by an impartial jury. U.S. CONST. amend. VI; WASH. CONST. art. I, § 
No. 83330-8-I/9

9

22. However, the defendant “has no right to be tried by a particular juror or by a 

particular jury.” State v. Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105 (1995). 

Further, RCW 2.36.110 provides:

It shall be the duty of a judge to excuse from further jury service 

any juror, who in the opinion of the judge, has manifested unfitness 

as a juror by reason of bias, prejudice, indifference, inattention or 

any physical or mental defect or by reason of conduct or practices 

incompatible with proper and efficient jury service.

This statute places a “continuous obligation on the trial court to excuse any juror 

who is unfit and unable to perform the duties of a juror.” State v. Jorden, 103 Wn.

App. 221, 227, 11 P.3d 866 (2000). 

However, dismissal of a holdout juror implicates the defendant's rights to 

both an impartial jury and a unanimous verdict. State v. Berniard, 182 Wn. App. 

106, 119, 327 P.3d 1290, 1297 (2014) (citing State v. Elmore, 155 Wn.2d 758, 

771-72, 123 P.3d 72 (2005)). Doing so also may give the reconstituted jury the 

“impression that the trial judge prefers a guilty verdict.” Berniard, 182 Wn. App. 

at 119 (citing Elmore, 155 Wn.2d at 772). “Each of these dangers may arise if a 

juror is disqualified due to distress arising from holdout status.” Berniard, 182 

Wn. App. 119-20.

The appropriate standard to apply in reviewing a trial court's dismissal of a 

juror depends on the nature of the request for the dismissal. Berniard, 182 Wn. 

App. at 118. Generally, as long as the trial court applied the correct evidentiary 

standard, this Court reviews the dismissal of a juror for abuse of discretion. 

Elmore, 155 Wn.2d at 778. “Discretion is abused when the trial court’s decision 

is manifestly unreasonable, or is exercised on untenable grounds, or for 
No. 83330-8-I/10

10

untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 

(1993). A trial court “acts on untenable grounds ‘if its factual findings are 

unsupported by the record,’ and acts for untenable reasons ‘if it has used an 

incorrect standard,’ and its decision is manifestly unreasonable ‘if its decision is 

outside the range of acceptable choices given the facts and the legal standard.’” 

Berniard, 182 Wn. App. at 118 (citing State v. Rundquist, 79 Wn. App. 786, 793, 

905 P.2d 922 (1995). The question of whether the proper standard of proof was 

applied by the trial court is a question of law subject to de novo review. Elmore, 

155 Wn.2d at 768-69.

The applicable standard of proof changes, depending on the 

circumstances, when a trial court is investigating a deliberating juror’s alleged 

misconduct and is aware that the juror in question holds a minority view on the 

merits. See Elmore, 155 Wn.2d at 758; Berniard, 182 Wn. App. at 118; State v. 

Depaz, 165 Wn.2d 842, 854, 204 P.3d 217 (2009).

Our Supreme Court in Elmore held that “in the rare case where a 

deliberating juror is accused of attempting jury nullification,” “in analyzing the 

evidence obtained from investigation, the trial judge must apply a heightened 

evidentiary standard: a deliberating juror must not be dismissed where there is 

any reasonable possibility that the impetus for dismissal is the juror’s views of the 

sufficiency of the evidence.” 155 Wn. 2d at 761.

A discharge stemming from a juror’s doubts about the sufficiency of 

the evidence would violate the right to a unanimous jury verdict 

because it “would enable the government to obtain a conviction 

even though a member of the jury that began deliberations thought 

that the government had failed to prove its case.”
No. 83330-8-I/11

11

Elmore, 155 Wn. 2d at 771 (internal quotation marks omitted) (quoting Sanders 

v. Lamarque, 357 F.3d 943, 945 (9th Cir. 2004).

[W]here a trial court concludes that there is a reasonable possibility 

that the impetus for removal of a deliberating juror is disagreement 

with the juror’s view of the sufficiency of the evidence, the trial court 

must send the jury back to deliberate with instructions that the jury 

continue to try to reach a verdict. Otherwise, the defendant is 

entitled to a mistrial.

Elmore, 155 Wn. 2d at 772 (citing United States v. Symington, 195 F.3d 1080, 

1085-86 (9th Cir.1999)).

In Depaz, the Supreme Court rejected the opportunity to extend Elmore, 

and “expressly reserved the ‘reasonable possibility’ standard for cases involving 

accusations of nullification and refusing to deliberate or follow the law.” 165 Wn. 

2d at 855. The trial court in Depaz dismissed a deliberating juror after she called

her husband and shared that she was in the minority view in a case that rested 

on circumstantial evidence and that she would continue to persuade others of her 

view. Id. at 859. 

The Supreme Court reasoned that investigating that type of allegation 

would not “necessarily require investigation into the jury’s deliberation,” because 

“the trial court did not have to evaluate her views of the case in order to 

determine whether she communicated with a third party or received extrinsic 

information about the case.” Depaz, 165 Wn.2d at 854-55. The Supreme Court 

rejected the proposition that RCW 2.36.110 permits the trial court to remove a 

juror simply for engaging in misconduct. Id. at 855. The Depaz court reasoned, 

“While a finding of misconduct relates to ‘conduct or practices incompatible with 
No. 83330-8-I/12

12

proper and efficient jury service,’ it does not fully reflect that a juror has 

manifested unfitness to serve on the jury as required under RCW 2.36.110.” 

Depaz, 165 Wn. 2d at 856. The Supreme Court reversed the conviction and 

held:

[W]here the trial court has knowledge of a deliberating juror's 

substantive opinion of the case, trial courts must make a 

determination regarding prejudice. Prejudice should be determined 

by concluding whether any misconduct committed by the juror has 

affected the juror's ability to deliberate before deciding to excuse 

the juror under RCW 2.36.110.

Depaz, 165 Wn.2d at 857.

This court has applied the heightened “reasonable possibility” standard to 

circumstances where the dismissed juror exhibited a high level a stress because 

of disagreements regarding merits of the case during deliberations. See State v. 

Johnson, 125 Wn. App. 443, 457, 105 P.3d 85 (2005); Berniard, 182 Wn. App. at 

122.

The heightened “reasonable possibility” standard is used “ ‘where a 

request for juror dismissal focuses on the quality of a juror’s thoughts about the 

case and his ability to communicate those thoughts to the rest of the jury.’ ” 

Berniard, 182 Wn. App. at 118 (quoting Elmore, 155 Wn.2d at 775). Under this

standard, “[w]here there is a reasonable possibility that the impetus for the 

complaint is the juror's views on the merits, ‘the trial judge has only two options: 

send the jury back to continue deliberating or declare a mistrial.’ ” Berniard, 182 

Wn. App. at 119 (quoting Elmore, 155 Wn.2d at 776).

In Johnson, the trial court removed a juror because it found she was 

incapable of deliberating with the other members of the jury. 125 Wn. App. at 
No. 83330-8-I/13

13

458. The trial court stated that it based its determination on the presiding juror’s 

testimony that the other juror was “emotionally distraught and had been crying a 

lot, she frequently retreated to the corner where she would cease communicating 

with the other members of the jury, and that her condition was worsening and 

impeding on the deliberations process.” Id. The dismissed juror told the court 

that she had been crying and was upset because she took a different view of the 

jury instructions and how the presiding juror was conducting deliberations. Id. at 

459. The record demonstrated that the juror disagreed at least in part because 

she had different views regarding the merits of the case, and “[she] did not 

indicate at any time that she was unable to proceed due to unrelated health or 

emotional concerns or that she was unable or unwilling to participate in the 

deliberations process.” Id. 

Relying on Elmore, the Johnson court concluded that the trial court 

“improperly intruded into the jury deliberations, becoming in essence a thirteenth 

and presiding juror to rule on what the jurors said during deliberation” by finding 

the presiding juror credible and the other juror not credible. Id. at 459 (citing 

Elmore, 121 Wn. App. at 757). The Johnson court held that the trial court violated 

the defendant’s constitutional rights when it removed the juror and reasoned that 

“the record discloses a reasonable probability that [the dismissed juror] had 

questioned the sufficiency of the State’s case—even if she had at times retreated 

from deliberations.” Id.

Johnson was decided before Depaz, but later the Berniard court 

demonstrated why Depaz actually supported its application of the heightened 
No. 83330-8-I/14

14

“reasonable possibility” standard despite the fact the juror in Berniard was not 

accused of engaging in nullification, refusing to deliberate, or refusing to follow 

the law. Berniard, 182 Wn. App. at 120. 

In Berniard, a deliberating juror, while getting her parking validated, burst 

into tears and told the jury administrator she thought she could do jury service, 

but it had been stressful for her. Id. at 113. The jury administrator explained the 

court had a service that could assist the juror and gave her the contact 

information for Judy Snow, a jury debriefer. Id. Snow explained to the court that 

when the two connected by phone the next morning, the juror said she felt like 

she could harm herself, and that if it got to the point that she had to continue on 

like this, she could do serious damage to herself. Id. at 113-14. Snow explained 

to the juror that if it was traumatic, she was there to support her. Id. at 114. That 

same afternoon, the juror told Snow in person that she felt better after talking 

with her and that she did not think she “could hurt herself, actually hurt herself.”

Id. at 114. The juror said she was fearful that all the jurors would be against her 

and that the jury process was very traumatic for her. Id. at 114. Snow explained 

that the juror said she felt much more optimistic that there would be a jury 

debriefer after deliberations. Id. at 114. Snow also explained that although the 

juror had been crying rather hysterically on the phone, when they talked in 

person, “[s]he was continuing to cry, but felt that this was a very difficult decisionmaking process to be on a jury of such magnitude and that she was feeling that 

she could continue.” Id. at 115. The trial court denied the defense’s request to 

inquire if the juror’s distress resulted from being in the minority, and instead, 
No. 83330-8-I/15

15

dismissed her as unfit because of her “unstable mental and emotional condition.” 

Id. at 115. 

The Berniard court applied the heightened “reasonable possibility” 

standard because the circumstance, unlike that in Depaz, did risk investigation 

into the jury’s deliberation. Id. at 123. The Berniard court held that the trial court 

erred in dismissing the juror without further inquiry into the cause of her 

complaint. Id. at 123. The court took particular note of the link between stress 

and holdout jurors:

If, as argued here, the juror’s emotional state that led to her 

dismissal arose in part from her perceived status as a minority of 

one, the dismissal could be characterized as arising from the juror’s 

view of the merits. Of greater potential damage, if emotional stress 

tended to arise more frequently from holdout status, the 

unexamined dismissal of a juror for that stress could unintentionally 

cull holdout jurors.

Id. at 118. The court noted that Snow’s testimony established that replacing the 

juror implicated the quality and coherence of the juror’s views on the merits and 

raised a reasonable possibility that the juror’s distress arose from disagreement 

on the merits of the case. Under these circumstances, the Berniard court held 

that the trial court had a duty to conduct a balanced investigation and apply the 

heightened evidentiary standard. Id. at 123.

The instant case is more analogous to Johnson and Berniard than Depaz.

We first examine if the record supports the basis for which the trial court 

dismissed Juror 9. The State argues that Juror 9’s “personal challenges 

prevented him from fulfilling the duties of a juror.” Nothing in the record indicated 

that Juror 9 would not or could not fulfill the duties of a juror. The presiding juror 
No. 83330-8-I/16

16

explained that Juror 9’s physical response was a reaction in response to 

contentious deliberations but was able to apologize to the other jurors afterward. 

Juror 9 explained that his outburst was in reaction to heated disagreements with 

him where he felt “a little bit attacked.” He recognized this self-harm was a 

response to a high-stress situation. The presiding juror explained that Juror 9 

was allowing other people to express their opinions but that Juror 9 was 

oftentimes interrupted. The record establishes that Juror 9’s self-harm did not 

prevent him from participating; it was a reaction to the contentious deliberations. 

Juror 9 explained to the court that now that he was aware that this reaction could 

occur, he did not think it would happen again as he was more prepared to handle 

it and deal with it, including asking the jury for a small break to cool down if 

needed.

Contrary to the State’s characterization, the trial court did not dismiss 

Juror 9 because it found he could not fulfill his duties as a juror. The trial court 

was more concerned about whether his self-harm impacted the process of 

discussing views openly and freely. The trial court noted that Juror 9 was not in 

control of himself 20 percent of the day. Despite stating “I don’t doubt that he’ll 

make his best efforts,” the trial court found that “being out of control and 

punching yourself in the face has to be intimidating on the process of discussing 

your views openly and freely.” The evidence the trial court relied on to support 

that conclusion was the fact that Juror 2 “felt bad that [Juror 9] was hitting himself 

in the face and didn’t want him to do that, and I think that shows an inhibition at 

some level.” 
No. 83330-8-I/17

17

First, Juror 9 was not out of control 20 percent of the day. It appears the 

trial court grasped onto the presiding juror’s response to the State asking if Juror 

9 seemed in control during the course of deliberations. Juror 8, the presiding 

juror, answered, “Probably 80 percent of the day, yeah.” When the State asked 

about the other 20 percent, the presiding juror responded, “Well, it led to him 

punching himself in the face a couple times and grabbing his hair. He apologized 

every time so maybe he was remorseful about it.” The jury deliberated from after 

lunch until about 3:30 p.m. on the day of the incident. Why the jury chose to 

recess at 3:30 p.m. is not in the record.1 Juror 8’s answer to the State suggests 

that the 20 percent of the couple of hours of deliberation included events that “led 

to” Juror 9’s physical response.

More importantly, as to whether Juror 9’s outburst would inhibit other 

jurors from deliberating openly and freely, Juror 8 said, “I think they will be able to 

give their views openly, sure. Yes,” and, “No, I don’t think any of the other jurors 

will be inhibited.” The trial court also disregarded Juror 2 when she clarified her 

answers regarding how Juror 9’s conduct could impact her ability to speak freely. 

The defense counsel asked, “Are you saying that this would hinder your ability to 

speak your mind?” Juror 2 replied:

It would not hinder my ability. I have no issues with coming forward 

and sharing how I feel about it, and I don’t think anybody is having 

any issue. They just don’t want a repeat. They just don’t want to 

see him punch himself in the face again. They don’t want to see 

him as if he is about to break out into tears, and we’re just – we’re 

 1 The trial court instructed the jury before deliberations began that they 

could decide when to take breaks for lunch and when to go home for the day with 

the understanding they could only be in the building when the courthouse was 

open. 
No. 83330-8-I/18

18

just more concerned with his behavior versus the nature of our 

conversations and the things that are being said.

It is undisputed that Juror 9’s self-harm was extremely unusual and the 

record indicates that Jurors 2 and 8 were concerned about Juror 9’s well-being. 

The trial court checked in with Juror 9, who was able to explain why it happened, 

that he did not think it would happen again, that he had a plan to manage it, and 

that he was of “sound mind” and able “to continue going forward with the case.” 

The trial court was aware that five other jurors also asked the clerk about 

what to do if there was a problem with a juror. However, the trial court did not 

inquire with any other jurors. The trial judge dismissed Juror 9 on grounds not 

supported by the record. 

We next turn to the heightened “reasonable possibility” standard. The

State argues that the heightened “reasonable possibility” standard does not apply 

because the complaints from the other jurors stemmed solely from Juror 9’s 

actions and behaviors and not because of his views on the merits of the case. 

However, in Berniard, the concern about the juror was raised by the jury 

debriefer who was concerned about the juror’s emotional state and was not even 

part of the jury. Berniard, 182 Wn. App. at 113-15. And in Johnson, it was the 

juror herself who initially asked to be dismissed. Johnson, 125 Wn. App. at 451. 

How the trial court learns about the stressed juror is less important than the 

court’s awareness that there is a reasonable possibility the stress arose from the 

juror’s view on the merits of the case.

In the instant case, the trial court was aware that Juror 9’s outburst 

stemmed from stress directly associated with contentious deliberations where 
No. 83330-8-I/19

19

several jurors disagreed with Juror 9, there were raised voices, and he felt 

attacked. Juror 8, the presiding juror, also alerted the trial court that Juror 9 “was 

pretty adamant about his beliefs, so I don’t know that we’ll be able to come to an 

agreement. In fact, I don’t think we will.” 

Juror 9, like the dismissed jurors in Berniard and Johnson, had an extreme 

reaction to the stressful deliberation process where the trial court was aware that 

there was a reasonable possibility that the stress arose from the juror’s views on 

the merits of the case. The trial court dismissing Juror 9 under these

circumstances violated Norman’s right to a unanimous verdict. Also, the removal 

may have suggested to the reconstituted jury that the court preferred guilty 

verdicts, violating Norman’s right to an impartial jury.

CONCLUSION

The remedy for improper dismissal of a deliberating juror is reversal and 

remand for a new trial. Berniard, 182 Wn. App. at 124 (citing Elmore, 155 Wn.2d 

at 781). The trial court dismissed a deliberating juror assuming his outburst “has 

to be intimidating on the process of [jurors] discussing [their] views openly and 

freely.” This was an abuse of discretion because the basis for the dismissal was 

not supported in the record and, thus, based on untenable grounds. The trial 

court also violated Norman’s constitutional right to a unanimous verdict and 

impartial jury when it removed the deliberating juror where there was a 

reasonable possibility that the juror had questioned the sufficiency of the State’s 
No. 83330-8-I/20

20

evidence. 

Accordingly, we reverse and remand for a new trial.

WE CONCUR: