State Of Washington, V Bruce E. Townsend ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
October 11, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48127-8-II
Respondent,
v.
BRUCE EARL TOWNSEND, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Bruce Earl Townsend appeals his convictions for one count of third
degree rape of a child and one count of unlawful delivery of a controlled substance—
marijuana—to a person under the age of 18. Townsend argues that his right to a fair trial was
violated because the trial court denied his challenge of juror 1 for cause and admitted improper
opinion testimony regarding the credibility of the minor victim. Because the trial court did not
err when it denied Townsend’s challenge of juror 1, and because Townsend failed to preserve the
improper opinion issue for appeal, we affirm.
FACTS
In 2013, 15-year-old S.G.1 spent Fourth of July weekend with her mother, sister, and her
mother’s boyfriend, Townsend. On the evening of July 3, S.G. and Townsend decided to watch
a movie in a tent set up on the front yard of her mother’s home. Before starting the movie,
1
We use initials to identify the minor victim under this court’s General Order 2011–1, which
states in part, “in all opinions, orders and rulings in sex crime cases, this Court shall use initials
or pseudonyms in place of the names of all witnesses known to have been under the age of 18 at
the time of any event in the case.” http://www.courts.wa.gov/appellate_trial_courts.
No. 48127-8-II
Townsend and S.G. smoked marijuana that Townsend provided. While the movie was playing,
S.G. and Townsend fell asleep. S.G. later awoke to Townsend digitally raping her. The State
charged Townsend with one count of third degree rape of a child2 and one count of unlawful
delivery of a controlled substance to a person under the age of 18.3
During jury voir dire, the parties inquired about juror 1’s answers to a jury questionnaire,
which stated that she had two cousins and a friend who were sexually assaulted as children. The
following exchange took place:
[STATE]: And specific to those people that you know were abused, you said that
when asked if you could be fair and impartial you said I’m not sure. Have you
thought about it more?
[PROSPECTIVE JUROR 1]: Yeah, a little bit, I guess. Like I said, I was trying to
make sure I was honest in saying I wasn’t sure. I said I don’t know the specific
details of that. I think, not knowing that it would be easier to separate it, because I
don’t know what their details specifically were. I just know how it affected them
later in life, so I think I might be able to—be impartially able to look at it, but again,
I don’t know 100 percent if I could be.
[STATE]: If you got seated on this jury you—at the end you would be asked to
decide it based on the facts that were presented through testimony, through exhibits.
You think you would be able to separate these things that have—that you have some
vague knowledge of with your cousins and make your decision just based on the
evidence and not based on any of that?
[PROSPECTIVE JUROR 1]: I think so. I served once before and we were able to
not—not something with this but in a different case, and we were able to—I was
able to make sure that I focused just on what evidence was actually presented . . . I
realized the evidence just wasn’t there to prove that and so we were able to kind of
make sure we separated what there was proof of and what there wasn’t.
2 Verbatim Report of Proceedings (VRP) at 67-68.
2
RCW 9A.44.079(1).
3
RCW 69.50.401(1), (2)(a), .406(1).
2
No. 48127-8-II
Defense counsel followed:
[DEFENSE COUNSEL]: On a case of this nature, which is an allegation of child
rape, you, having known, or you knowing people in your life who said they too
were molested as children, am I correct in saying you feel hesitancy in whether or
not you can be a fair and an impartial juror . . . ?
[PROSPECTIVE JUROR 1]: Yeah, I would say so.
[DEFENSE COUNSEL]: Do you think that if this case was a case involving a theft
or another drug charge, you would have no doubts about whether or not you could
be fair and impartial; is that right?
[PROSPECTIVE JUROR 1]: Yes.
[DEFENSE COUNSEL]: But right now as you sit here, because of the allegation
in this case, you have doubts about whether you can be fair or impartial; is that a
fair statement?
[PROSPECTIVE JUROR 1]: Yes, possibly.
....
[DEFENSE COUNSEL]: . . . [D]o you have concerns that somewhere in the back
of your mind you may be thinking about this cousin who’s had a very difficult life
because of the trauma that she suffered, that somehow that might influence or color
your decision? Do you have concerns that may be—that those thoughts would be
in the back of your mind as you are deliberating?
[PROSPECTIVE JUROR 1]: There’s a possibility that, yeah, it would be there.
2 VRP at 69-70, 73.
On rebuttal, the State asked:
[STATE]: . . . Would you make a decision just based on the evidence or do you
think that those things would effect [sic] your decision?
[PROSPECTIVE JUROR 1]: I would do my best to try to stick to just the evidence
that’s presented. Like I said, there’s always thoughts that might trigger back to that
if I think about it, but I would try and do my best just to stick with just the evidence
that’s presented and stick with the case from there.
2 VRP at 74-75.
Townsend challenged juror 1 for cause arguing, “If you can be a fair juror and you know
you can be a fair juror on a different type of case but you have doubts about whether you can be
on a case of this kind, then I think that’s sufficient basis for cause.” 2 VRP at 77. The trial court
denied Townsend’s motion, and juror 1 sat on the jury.
3
No. 48127-8-II
At trial, witnesses testified to the above facts. The State also called Detective Darren
Moss as a witness. The State asked Detective Moss about his not contacting possible witnesses
to whom S.G. disclosed the abuse:
[STATE]: What is the point of contacting disclosure witnesses in these types of
cases?
[DETECTIVE MOSS]: To seek additional information, to look for consistency in
the story.
....
[STATE]: How—what role do these interviews play in your investigation in these
types of cases?
[DETECTIVE MOSS]: In most cases it supports the story of the victim.
6 VRP at 767-68. Townsend objected to Detective Moss’s statement, arguing that what
happened in most cases was not relevant to the case at hand. The trial court overruled
Townsend’s objection.
The jury found Townsend guilty of both counts on July 22, 2015. Townsend appeals.
ANALYSIS
I. CHALLENGE FOR CAUSE
Townsend first argues the trial court violated his right to a fair trial by denying his
challenge to strike juror 1 for cause. We disagree.
The Sixth and Fourteenth Amendments guarantee a defendant the right to a fair trial
before an impartial jury. CONST. art I, § 22; In re Pers. Restraint of Yates, 177 Wash. 2d 1, 30, 296
P.3d 872 (2013). Including a biased juror on the jury violates this right. Yates, 177 Wash. 2d at 30.
The trial court is in the best situation to determine whether a juror can serve impartially because
it has the ability to observe the juror’s demeanor and evaluate the juror’s answers. State v.
Grenning, 142 Wash. App. 518, 540, 174 P.3d 706 (2008), aff’d, 169 Wash. 2d 47, 234 P.3d 169
4
No. 48127-8-II
(2010). Thus, we review a trial court’s denial of a challenge for cause for manifest abuse of
discretion. 142 Wash. App. at 540.
A party may challenge a juror for cause if the juror shows actual bias. RCW 4.44.170(2).
A juror shows actual bias when she cannot put her opinions and beliefs aside for the purpose of
impartiality in deciding the merits of the case. State v. Noltie, 116 Wash. 2d 831, 839, 809 P.2d
190 (1991). To successfully challenge a trial court’s decision regarding a challenge for cause on
appeal, a defendant must prove actual bias by showing “‘more than a mere possibility that the
juror was prejudiced.’” 116 Wash. 2d at 840 (quoting 14 L. Orland & K. Tegland, Washington
Practice: Trial Practice § 202, at 331 (4th ed. 1986)). A juror’s “equivocal answers alone do not
require a juror to be removed when challenged for cause.” 116 Wash. 2d at 839. Instead, the
appropriate question is “whether a juror with preconceived ideas can set them aside” and decide
the case impartially based on the law and the evidence at trial. RCW 4.44.170(2); 116 Wash. 2d at
839.
Townsend relies on State v. Fire, 100 Wash. App. 722, 988 P.2d 362 (2000), rev’d on other
grounds, 145 Wash. 2d 152, 34 P.3d 1218 (2001), to support his claim, but Fire is easily
distinguishable. There, a juror stated, “I consider [the defendant] a baby raper, and [child rape]
should just be severely punished. . . . I’m very opinionated when it comes to this kind of a
crime.” 100 Wash. App. at 724. Division One of this court held that the juror’s statements
indicated actual bias. 100 Wash. App. at 728. Further, Division One held that the prosecutor’s
attempt to rehabilitate the juror by asking leading questions and receiving one-word affirmative
responses was insufficient. 100 Wash. App. at 728.
5
No. 48127-8-II
Unlike in Fire, juror 1’s voir dire statements did not indicate actual bias. Instead, juror 1
expressed equivocations regarding whether she was certain she could be fair and impartial, and
equivocations alone do not require that a juror be removed for cause. While juror 1 stated it was
possible that her decision might be influenced by her two cousins and her friend, actual bias
requires more than the mere possibility of prejudice. Juror 1 said she would do her best to decide
the case based on the law and the evidence presented, rather than her vague knowledge of the
assault of her cousins and her friend.
Also unlike the juror in Fire, juror 1 responded affirmatively to open-ended questions
about her ability to be fair and impartial and decide the case on the evidence. The trial court did
not base its decision on one-word responses to rehabilitative questions. Juror 1’s responses
during voir dire demonstrated her ability to set aside her preconceived ideas about sexual assault
and her commitment to do the best that she could to consider only the evidence presented.
The trial court determined that juror 1’s answers on voir dire did not manifest actual bias.
Because juror 1 did not show actual bias, the trial court was within its discretion in denying the
challenge for cause. Therefore, the trial court did not manifestly abuse its discretion by denying
Townsend’s challenge of juror 1 for cause.
II. OPINION TESTIMONY
Townsend next argues his rights to fair trial and trial by jury were violated because
Detective Moss gave improper opinion testimony regarding S.G.’s credibility. The State
contends Townsend waived this issue because it was raised for the first time on appeal and is not
a manifest constitutional error. We agree with the State.
6
No. 48127-8-II
A defendant may assign evidentiary error on appeal only on the specific ground made at
trial. State v. Kirkman, 159 Wash. 2d 918, 926, 155 P.3d 125 (2007). Generally, we will not
consider an issue raised for the first time on appeal. RAP 2.5(a); Kirkman, 159 Wash. 2d at 926. A
defendant may, however, raise a claim of error for the first time on appeal if it is a manifest error
affecting a constitutional right. RAP 2.5(a)(3); Kirkman, 159 Wash. 2d at 926. To demonstrate
manifest error, the defendant must show actual prejudice by identifying a constitutional error and
showing that the alleged error actually affected his rights at trial. Kirkman, 159 Wash. 2d at 926-
27. If we determine the claim raises a manifest constitutional error, it may be subject to a
harmless error analysis. 159 Wash. 2d at 927.
To determine if the defendant claims a manifest constitutional error, we preview the
merits of the defendant’s claim to see if it would succeed. State v. Kirwin, 165 Wash. 2d 818, 823,
203 P.3d 1044 (2009). It is generally improper for a witness to offer testimony concerning the
credibility of another witness. State v. Demery, 144 Wash. 2d 753, 764, 30 P.3d 1278 (2001). Such
testimony is unfairly prejudicial to a defendant and may be reversible error because it invades the
exclusive province of the jury. 144 Wash. 2d at 764. A law enforcement officer’s testimony
regarding the credibility of another witness may be especially prejudicial because “an officer’s
testimony often carries a special aura of reliability.” Kirkman, 159 Wash. 2d at 928. A showing
that improper witness testimony constitutes manifest error requires an explicit or almost explicit
statement by a witness that he believed the accusing victim. 159 Wash. 2d at 936.
Here, Detective Moss testified that he routinely interviews disclosure witnesses as part of
an investigation in order to determine the consistency of a victim’s story. Detective Moss also
7
No. 48127-8-II
stated that these interviews typically corroborate a victim’s story. Townsend objected to
Detective Moss’s testimony on grounds of relevance.
Townsend relies on Kirkman to argue that a similar statement was held to be an
improper, explicit statement of the witness’s credibility. 159 Wash. 2d at 918. Townsend is
mistaken; Kirkman is analogous to this case.4 In Kirkman, a detective testified about the
competency protocol he administered to a victim, which showed the victim was able to
distinguish between the truth and a lie. 159 Wash. 2d at 930. The Washington Supreme
Court determined the testimony was simply an account of the interview protocol the
detective used, and the detective did not make a statement regarding whether he believed
the victim was telling the truth. 159 Wash. 2d at 931. Ultimately, the court held that it is
not a manifest constitutional error to admit opinion testimony that indirectly relates to a
victim’s credibility. 159 Wash. 2d at 922.
Here, Detective Moss similarly testified about the procedure of his investigation.
Detective Moss simply stated that he contacts disclosure witnesses so that he can
determine whether a victim’s story is consistent. In addition, Detective Moss testified
that interviews with disclosure witnesses support the story of the victim in most cases.
Detective Moss did not make an explicit or almost explicit statement regarding whether
he believed S.G. was telling the truth. Further, Detective Moss’s testimony that the
interviews support the story of the victim in most cases was a general statement and was
4
Townsend actually quotes State v. Schultz, noted at 141 Wash. App. 1017, 2007 WL 3138050
(2007), rather than State v. Kirkman, to support his analysis. In Schultz, Division One of this
court held that a detective’s statement that a victim “seemed to be pretty honest” was an explicit
statement concerning the victim’s credibility. 2007 WL 3138050, at *9.
8
No. 48127-8-II
not specific to S.G. Because Detective Moss did not make an explicit or almost explicit
statement about S.G.’s credibility, the admission of his opinion testimony was not a
manifest constitutional error. Therefore, Townsend waived this point of appeal.
We affirm Townsend’s convictions.
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.
Worswick, J.
We concur:
Maxa, A.C.J.
Melnick, J.
9