State Of Washington v. Carri Darlene Williams ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 71193-8-1 f-*0
CD
C-Ti
Respondent, C3
rn
v.
CARRI DARLENE WILLIAMS, UNPUBLISHED OPINION
Appellant. FILED: December 21,2015 CD
Verellen, A.C.J. — After a seven-week jury trial, Carri Williams was convicted of
homicide by abuse for the death of her adopted daughter H.W. and first degree assault
of a child as to her adopted son I.W.1 H.W. died from hypothermia after the young girl
spent approximately nine hours outside with inadequate clothing in rainy, cold weather.
Cam's assignments of error on appeal all lack merit. Sufficient evidence
supports the element that H.W. was under 16 years of age when she died, and that I.W.
suffered substantial bodily harm as a result of beatings by Carri; the exclusion of a late-
disclosed defense expert's testimony on the age of H.W. and the admission of the
State's experts' testimony on torture were within the trial court's discretion; it was within
the trial court's discretion to strike testimony rather than grant a mistrial when the
prosecutor failed to timely disclose amenities it had provided to a witness; prompt
curative instructions adequately addressed any prosecutorial misconduct in closing
1 Carri Williams and her husband Larry Williams were tried together. For ease of
reference, we refer to them by their first names.
No. 71193-8-1/2
argument; the statutory elements of homicide by abuse and first degree assault of a
child are not unconstitutionally vague; and the public trial right is not implicated by
taking peremptory juror challenges on paper.
We affirm Cam's convictions for homicide by abuse and first degree assault of a
child.
FACTS
Carri and Larry married in 1990. They have seven biological children. In August
2008, they adopted two children from Ethiopia, H.W. and I.W., who is deaf.
Larry worked swing shift at his job, leaving home at noon and returning around
midnight. Larry cooked the children breakfast every morning before work. He was
frequently home on weekends. Carri, fluent in sign language, raised and home
schooled the children and made them do chores around the house. She also made the
children do "boot camp," a form of punishment consisting of extra chores both inside
and outside the house.2
When H.W. first arrived at the Williamses' home, she behaved and integrated
well. After the first year, she occasionally disobeyed the Williamses, such as taking
food without permission. As a result, H.W. was not allowed to participate in some
holiday activities and family events. When I.W. first arrived at the Williamses' home, he
acted out aggressively and also occasionally disobeyed the Williamses.
Both Carri and Larry disciplined their children. The Williamses punished I.W. and
H.W. more than the other children, and their punishments increased in "severity" and
2 Report of Proceedings (RP) (Aug. 5, 2013) at 55.
No. 71193-8-1/3
"frequency" over time.3 Punishment included spankings with a belt, a wooden stick, or a
glue stick and being hosed down with cold water outside. The Williamses spanked I.W.
all over his body.
The Williamses used food deprivation as punishment. They served cold food
and leftovers, frozen vegetables, and sandwiches soaked in water to I.W. and H.W. but
not the other children. They forced H.W. and I.W. to eat some of their meals outside in
"any kind of weather."4 During the last six months of her life, H.W. ate breakfast and
other meals outside "more times than not."5 Sometimes, when H.W. was placed
outside, she would not come back inside "even though she was allowed back inside."6
The Williamses occasionally "didn't let her into the house to warm up."7
The Williamses used isolation as punishment. At times, the Williamses forced
H.W. to stay and sleep alone in the barn outside without electricity and to take cold
showers outside. Other times, the Williamses forced H.W. to stay and sleep alone in a
shower room. H.W. would generally stay outside "for long periods of time."8 Beginning
in late 2010 and up until her death, the Williamses forced H.W. to stay and sleep alone
in a closet at "night and during the day sometimes."9 The closet measured "two foot by
four foot three inches."10 H.W. "wasn't able to stretch" or "change her position
3RP(Aug. 27, 2013) at 32.
4RP(Aug. 1,2013) at 26.
5RP(Aug. 27, 2013) at 103.
6 Id, at 135.
7RP(Aug. 1,2013) at 20.
8RP(Aug. 20, 2013) at 50.
9RP(Aug. 5, 2013) at 49.
10RP(Aug. 7, 2013) at 127.
No. 71193-8-1/4
significantly" inside it.11 None of the other children were forced to sleep in the closet.
The closet door was locked from the outside.
The Williamses used humiliation as punishment. When I.W. wet himself, the
Williamses would hose him down with cold water and force him to sleep in the shower
room. When he wet the bed, the Williamses would give him cold showers. H.W. had
Hepatitis B. When she started menstruating, H.W. would smear "her menstrual blood
on bathroom surfaces."12 Concerned that their other children would contract Hepatitis
B, the Williamses purchased a port-a-potty, placed it outside, and frequently forced
H.W. to use it. Carri also shaved off H.W.'s hair multiple times.
In Ethiopia, H.W. was "a healthy size and stature" for her age.13 "There was no
evidence of malnutrition."14 When she first arrived at the Williamses' home, H.W. "had
fairly normal height and weight."15 During the first two years, H.W.'s weight increased
steadily and overall "she was generally healthy."16 Her body weight was in the "90th
percentile" of the body mass index chart (BMI), which is considered "overweight."17 By
2011, H.W.'s weight dropped from 110 pounds to around 80 pounds. When H.W. died,
her weight was in the "third percentile" of the BMI.18
1 RP(Aug. 2, 2013) at 28.
2RP(Aug. 28, 2013) at 131.
3RP(Aug. 13, 2013) at 87.
4 jd at 98.
5 RP (July 29, 2013) at 70.
6 Id
7 id, at 130.
8 Id. at 75.
No. 71193-8-1/5
On May 11, 2011, Larry left for work as usual around noon. Carri sent H.W.
outside around 3:00 p.m. Initially, H.W. wore sweatpants and a long-sleeve shirt. The
temperature was "in the mid- to upper fifties."19 It started to rain later that evening, and
the temperature became "cold."20 Carri told H.W. to do exercises to keep warm. Carri
told H.W. multiple times to come inside, but she refused. Carri told one of her
daughters to check on H.W. every 10 or 15 minutes. Carri placed dry clothes outside
for H.W. because the rain had soaked her clothes.
Around 8:30 p.m., Carri told H.W. to go to the port-a-potty. H.W. "took about ten
or twenty steps, and she began throwing herselfdown" on her hands and knees.21
H.W. repeated this behavior all the way to the port-a-potty. H.W. did the same thing on
the way back to the house, hitting her forehead on the concrete patio several times.
H.W. continued to "throw herself around" for "twenty or thirty minutes."22 Carri observed
that H.W. "had skinned up her knees and her elbows quite a bit" and "had a knot on her
forehead."23 Each time that one of Cam's daughters looked outside to check on H.W.,
H.W. had removed pieces of clothing until she was naked.24
Shortly before midnight, one of Cam's daughters saw H.W. lying naked face
down in the grass. Carri went to check on H.W. She tried to carry H.W. inside, but
H.W. was too heavy. Carri grabbed a sheet to cover H.W.'s naked body. Cam's sons
19RP(Aug. 30, 2013) at 92.
20RP(Aug. 6, 2013) at 96.
21 RP(Aug. 28, 2013) at 166.
22 id, at 167.
23 jd, at 168.
24 The false sensation of warmth and removal of clothing, called "paradoxical
undressing," is common to hypothermia. RP (July 30, 2013) at 81.
No. 71193-8-1/6
helped carry H.W. inside. Carri did not feel a pulse. She performed cardiopulmonary
resuscitation (CPR), called Larry, and then called 911. Larry arrived and helped
perform CPR before medics arrived. H.W. died at the hospital at 1:30 a.m.
A jury convicted Carri of homicide by abuse, first degree manslaughter, and first
degree assault of a child. At sentencing, the court vacated the manslaughter conviction
on double jeopardy grounds.
Carri appeals.
ANALYSIS
Sufficiency of the Evidence
Carri challenges the sufficiency of the evidence for both of her convictions.
Evidence is sufficient to support a conviction if any rational trier of fact could have found
the crime's essential elements beyond a reasonable doubt.25 We view the evidence
and all reasonable inferences from the evidence in the light most favorable to the
State.26
Carri contends insufficient evidence supports that H.W. was under 16 years of
age. A conviction for homicide by abuse, as charged here, requires that a person
"causes the death of a child or person under sixteen years of age."27 The jury heard
conflicting testimony from many experts about H.W.'s age. For example, Dr. Gary Bell,
a forensic dentist, testified that Hana was "at least 15 years old, but she could be
25 State v. Condon, 182 Wn.2d 307, 314, 343 P.3d 357 (2015) (quoting State v.
Luvene, 127 Wn.2d 690, 712, 903 P.2d 960 (1995)).
26 State v. Ozuna. 184 Wn.2d 238, 359 P.3d 739, 744 (2015).
27RCW9A.32.055(1).
6
No. 71193-8-1/7
anywhere from 13 to 18."28 Dr. David Sweet, a forensic dentist, testified that H.W. was
"16.25 years of age, . . . plus or minus ... 1.5 years."29 Katherine Taylor, a forensic
anthropologist, testified that H.W. was between "13 to 17 years of age" and "right
around 15 years of age."30 Dr. Jordan Haber, a radiologist, testified that H.W. was
"between 15 and 17 years old."31
Dr. Carolyn Roesler, a general medical practitioner in Australia, met H.W. in
December 2007 while volunteering in Ethiopia and last saw her in 2008. Dr. Roesler
observed H.W. on several occasions. She diagnosed and treated H.W. for abdominal
discomfort and an eye infection. Dr. Roesler also observed H.W. exiting the shower
once and saw no signs of breast development or pubic hair. Based upon her
observations, Dr. Roesler concluded H.W.'s "age was between ten and eleven years
old" when she saw H.W. in 2008.32 This would have made H.W. 13 or 14 years old at
the time of her death. Dr. Roesler's testimony is sufficient evidence to support the
element that H.W. was under 16 years of age at the time of her death.
Carri contends insufficient evidence supports that I.W. suffered substantial bodily
harm. A conviction for first degree assault of a child, as charged here, requires that a
person intentionally assaults a child and causes substantial bodily harm.33 "Substantial
bodily harm" means "bodily injury which involves a temporary but substantial
28RP(Aug. 9, 2013) at 32.
29 RP (Aug. 22, 2013) at 45, 46.
30RP(Aug. 23, 2013) at 54.
31 RP(Aug. 29, 2013) at 24.
32RP(Aug. 13, 2013) at 116.
33RCW9A.36.120(1)(b)(ii).
No. 71193-8-1/8
disfigurement, or which causes a temporary but substantial loss or impairment of the
function of any bodily part or organ."34
I.W. had a scar under his arm that he showed to the jury. He testified that he did
not have any scars when he arrived at the Williamses' home and that Carri caused the
scar under his arm. The family's physician Dr. Harold Clark testified that he never saw
any marks or scars on I.W.'s body during his initial examinations in 2008. This
testimony is sufficient evidence that the scar on I.W.'s body was caused by Carri and
resulted in a temporary but substantial disfigurement.
We conclude sufficient evidence supports Cam's convictions for homicide by
abuse and first degree assault of a child.
Exclusion of Dr. Eric Bartelink's Testimony
Carri contends the trial court abused its discretion when it excluded Dr. Eric
Bartelink's testimony as a discovery sanction. We disagree.
We review a trial court's decision to exclude evidence for abuse of discretion.35
A trial court abuses its discretion when its decision is manifestly unreasonable or based
upon untenable grounds or untenable reasons.36
CrR 4.7 governs discovery in criminal cases and "defines the discovery
obligations of both the prosecution and defense."37 A defendant has "a continuing
obligation"38 to promptly disclose the names and addresses of intended witnesses and
34RCW9A.04.110(4)(b).
35 State v. Franklin, 180 Wn.2d 371, 377 n.2, 325 P.3d 159(2014).
36 State v. Neal. 144 Wn.2d 600, 609, 30 P.3d 1255 (2001) (quoting State v.
Stenson. 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)).
37 State v. Linden, 89 Wn. App. 184, 190, 947 P.2d 1284 (1997).
38 Id.No. 71193-8-1/9
the substance of their testimony "no later than the omnibus hearing."39 To enforce
CrR 4.7, a trial court is given "wide discretion in ruling on discovery violations."40
CrR 4.7(h)(7) lists sanctions for a party's failure to comply with any discovery rule. The
trial court may "grant a continuance, dismiss the action or enter such other order as it
deems just under the circumstances."41 Our Supreme Court in State v. Hutchinson
interpreted CrR 4.7(h)(7) to permit "exclusion of defense witness testimony as a
sanction for discovery violations."42 But exclusion of evidence is "an extraordinary
remedy" that "should be applied narrowly."43
The Hutchinson court identified four factors that a trial court should consider in
determining whether to exclude evidence as a discovery sanction: "(1) the
effectiveness of less severe sanctions; (2) the impact of witness preclusion on the
evidence at trial and the outcome of the case; (3) the extent to which the prosecution
will be surprised or prejudiced by the witness's testimony; and (4) whether the violation
was willful or in bad faith."44 Although the trial court here did not expressly apply the
four factors in excluding Dr. Bartelink's testimony, the State and the defense briefed
those factors at trial. The lack of express findings regarding the four factors does not
preclude us from evaluating those factors based on the record developed at trial.45
39 CrR 4.7(b)(1).
40 Linden, 89 Wn. App. at 189-90.
41 CrR 4.7(h)(7)(i).
42135 Wn.2d 863, 881, 959 P.2d 1061 (1998) (relying on the "deems just"
language in CrR 4.7(h)(7)(i)).
43 \± at 882.
44 l± at 883.
45 See State v. Venegas, 155 Wn. App. 507, 521-22, 228 P.3d 813 (2010).
No. 71193-8-1/10
Many months before trial, the parties knew that H.W.'s age was a contested
issue. The parties discussed the potential for various tests to estimate H.W.'s age,
including the use of radiocarbon dating of teeth. In January 2013, six months before
trial, the trial court authorized Dr. Bartelink to assess H.W.'s teeth in order to estimate
her age. It appears Larry listed Dr. Bartelink as a potential witness but then removed
him from the witness list. Mid-trial, after the State disclosed that H.W.'s cousin would
travel from Ethiopia to testify to H.W.'s birth date, Larry asked Dr. Bartelink to arrange
for radiocarbon dating of H.W.'s teeth. When Larry received the results of those tests
and Dr. Bartelink's report, he advised the State and asked the court to supplement the
witness list.
The trial court initially permitted Dr. Bartelink to testify despite the late disclosure.
The court focused upon the defense's reasonable need to respond to the cousin's
testimony of a specific birth date and upon counsel's representation that Dr. Bartelink
would conclude it was scientifically impossible for H.W. to be 13 or 14 years of age at
the time of her death. But once the court struck the cousin's testimony, the court
granted the State's motion to exclude Dr. Bartelink's testimony as a discovery sanction
for late disclosure. The court determined that the defense no longer needed to rebut
the cousin's testimony and that Dr. Bartelink's testimony would not exclude H.W. from
being under 16 years of age.
The issue here is whether excluding Dr. Bartelink's testimony was the proper
remedy under the circumstances.
Less severe sanctions. A party's failure to identify witnesses in a timely manner
is "appropriately remedied by continuing trial to give the nonviolating party time to
10
No. 71193-8-1/11
interview a new witness or prepare to address new evidence."46 The defense disclosed
Dr. Bartelink as a witness mid-trial, but the State knew about Dr. Bartelink's testing
methods as early as December 2012. The State objected that there was inadequate
time to prepare to interview and cross-examine Dr. Bartelink on the technical area of
radiocarbon dating of teeth. Although it is not clear from the record why a continuance
was an inadequate remedy, the trial court is best situated to analyze the extent of the
delay that would be required to adequately prepare to cross-examine Dr. Bartelink. At
most, this factor mildly weighs against exclusion.
Impact of witness preclusion. The impact of precluding Dr. Bartelink's testimony
that H.W. was 15 years of age or older was not significant and did not undermine Carri's
defense. Dr. Bartelink alone used the radiocarbon testing method when he estimated
with "95% confidence" H.W.'s "minimum age at death to be 15.6 years.47 But his
ultimate conclusion that H.W. was between 15 and 20 years of age is cumulative to the
age ranges testified to by the other experts at trial. When the trial court excluded
Dr. Bartelink's testimony, it had already struck H.W.'s cousin's testimony that H.W. was
born on a specific date and had instructed the jury to disregard the cousin's testimony.
The defense no longer needed to rebut that testimony. This factor weighs in favor of
exclusion.
Surprise or prejudice. The State knew about the potential for radiocarbon testing
in January 2013, six months before trial, when Dr. Bartelink received the teeth. The
State did not know the results of the testing until mid-trial, but the State was able to
46 Hutchinson, 135 Wn.2d at 881.
47 Clerk's Papers (CP) at 265.
11
No. 71193-8-1/12
interview Dr. Bartelink shortly after receiving his report. Although the trial court is best
situated to evaluate the level of surprise or prejudice from the late disclosure of a
witness, the extent of any surprise to the State here was limited.
Willfulness and bad faith. Larry did not seek to conduct radiocarbon testing of
H.W.'s teeth until several months after Dr. Bartelink received them. That delay was
intentional and not inadvertent or the result of miscommunication. Carri did not disclose
Dr. Bartelink as a potential witness until the August 13, 2013 hearing and never
supplemented her witness list to include Dr. Bartelink. Her decision not to list
Dr. Bartelink as a witness was also intentional conduct. This factor weighs in favor of
exclusion.
On this record, with at most two factors supporting exclusion and two factors
opposing exclusion, we conclude the trial court acted within its wide discretion in
excluding Dr. Bartelink's testimony.
Denial of Defense Counsel's Motion for Mistrial
Carri contends the trial court abused its discretion in denying her motion for
mistrial based on the State's misconduct involving H.W.'s cousin Tenassay
Wondetsaddik. We disagree.
We review a trial court's denial of a motion for mistrial for abuse of discretion.48
A trial court abuses its discretion in denying a motion for a mistrial only if its decision is
manifestly unreasonable or based on untenable grounds.49 To determine whether a trial
irregularity warrants a new trial, we examine the seriousness of the irregularity, whether
48 State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002).
49 State v. Allen, 159Wn.2d 1, 10, 147P.3d581 (2006) (quoting Stenson, 132
Wn.2dat701).
12
No. 71193-8-1/13
the testimony was cumulative, and whether the irregularity could be cured by a limiting
instruction.50
Wondetsaddik testified that he was present at H.W.'s birth, lived with H.W. for
five or six years, and recorded H.W.'s birth date in a family bible. But the strength of his
testimony must be measured against the level of confusion and inconsistency revealed
on cross-examination. For example, Wondetsaddik acknowledged that he incorrectly
wrote H.W.'s birth date in the family bible, that he incorrectly wrote the date of H.W.'s
baptism, and, contrary to his initial testimony, that he lived with H.W. for only one year.
This cuts against the strength of his testimony.
After Wondetsaddik testified, he fled his motel and did not return to Ethiopia.
Defense counsel later discovered that one of the prosecutors had given Wondetsaddik
a chauffeur, meals, cash, and clothes during his trip. The prosecutor's conduct in
providing Wondetsaddik such amenities without disclosure to the defense and without
ensuring that Wondetsaddik remained available to testify about bias is serious. But the
defense requested the trial court to either grant a mistrial or strike Wondetsaddik's
testimony. We conclude it was within the trial court's broad discretion to strike the
testimony and related exhibits and to instruct the jury to disregard such evidence.
Further, several factors distinguish this case from State v. Escalona,51 relied
upon by Carri. There, the State charged the defendant with second degree assault with
a knife. During cross-examination, the State's witness volunteered that the defendant
50 State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (quoting State v.
Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)).
51 49 Wn. App. 251, 742 P.2d 190 (1987).
13
No. 71193-8-1/14
had a record and had previously stabbed someone.52 The trial court instructed the jury
to disregard the witness's statement.53 The Escalona court characterized the
unsolicited statement as "extremely serious" and "inherently prejudicial."54 The court
concluded the prejudice was not curable by an instruction.55
Unlike Escalona, where the irregularity involved the admission of improper
character evidence, Wondetsaddik's testimony was relevant, admissible, and not
inherently prejudicial. There was no "paucity of credible evidence" supporting Carri's
convictions.56 Wondetsaddik's testimony was also filled with inconsistencies and
confusion. The trial court's instruction to disregard the testimony was an adequate
remedy under these circumstances. The prosecutor's conduct did not taint the jury or
the defendant such that the only remedy was a new trial.
Therefore, we conclude the trial court properly denied defense counsel's motion
for new trial.
Prosecutorial Misconduct
Carri contends the prosecutor committed misconduct by improperly expressing
his personal opinion on the evidence in closing. We disagree.
To establish prosecutorial misconduct, a defendant must show improper conduct
and resulting prejudice.57 The defendant must demonstrate there was a substantial
52 id, at 253.
53 id,
54 id, at 255-56.
55 Id, at 256.
56 id, at 255.
57 State v. Thorqerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (quoting State
v. Magers. 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
14
No. 71193-8-1/15
likelihood the prosecutor's misconduct "affected the jury's verdict."58 We "review the
statements in the context of the entire case."59
A prosecutor commits misconduct by expressing a personal opinion about either
a witness's credibility or a defendant's guilt or innocence.60 Defense counsel's failure to
object to alleged prosecutorial misconduct fails to preserve the issue for appeal, unless
the misconduct is "so flagrant and ill intentioned that an instruction could not have cured
the resulting prejudice."61
During closing at trial, the prosecutor twice expressed his personal belief about
the evidence:
[PROSECUTOR]: [Larry] was the one who approved of this isolation, putting
them out there ... at the picnic table or at the kitchen table, I
guess, at times. He said he never gave them bad food. The
fact of the matter, I think the testimony is that he did give
them leftovers. And what is his response? The response
was that they stole. And I do take offense at the words --
[LARRY'S COUNSEL]: Objection.
THE COURT: Ladies and gentlemen, you're instructed to disregard
the statement about being offended. Go ahead.[62]
[PROSECUTOR]: And we sort of had a disagreement on the witness
stand . . . talking about whether you could blow up
things because you would hurt this atlas. And I
disagree, and ~
[LARRY'S COUNSEL]: Objection, Your Honor.
58 Id, at 443 (quoting Magers, 164 Wn.2d at 191).
59 Jd,
60 State v. Dhaliwal, 150 Wn.2d 559, 577-78, 79 P.3d 432 (2003).
61 Emery, 174 Wn.2d at 760-61.
62 RP (Sept. 4, 2013) at 20 (emphasis added).
15
No. 71193-8-1/16
THE COURT: Ladies and gentlemen, you're instructed to disregard
the portion of the argument where [the prosecutor]
comments on his disagreement.1631
Larry immediately objected to both statements, but Carri did not.
Carri fails to demonstrate any prejudice that affected the jury's verdict. The trial
court immediately gave an instruction to the jury to disregard the prosecutor's
comments after each objection. Nothing in the record suggests the prosecutor's
comments affected the verdict. This is not the type of misconduct that is so flagrant and
ill-intentioned that a limiting instruction would not have cured any prejudice. Therefore,
we conclude Carri's prosecutorial misconduct claim fails.
Voidfor Vagueness Challenge
Carri contends the terms "torture" and "extreme indifference to human life" as
used in the homicide by abuse and first degree assault of a child statutes are
unconstitutionally vague as applied to her. We disagree.
"We review constitutional issues de novo."64 The party challenging a statute has
the heavy burden of proving unconstitutionality beyond a reasonable doubt.65 There is
a "strong presumption in favor of the statute's validity."66 A statute is void for vagueness
if it "does not define the criminal offense with sufficient definiteness that ordinary people
can understand what conduct is proscribed," or it "does not provide ascertainable
63 id, at 42-43 (emphasis added).
64 State v. Enguist, 163 Wn. App. 41, 45, 256 P.3d 1277(2011).
65 id,
66 State v. Harrington, 181 Wn. App. 805, 824, 333 P.3d 410 (2014).
16
No. 71193-8-1/17
standards of guilt to protect against arbitrary enforcement."67 Carri argues only that the
statutes lack ascertainable standards of guilt.
"Due process requires criminal statutes to establish workable standards that
ensure the law will be enforced in a nonarbitrary, nondiscriminatory manner."68 A
statute must contain ascertainable standards of guilt.69 Statutes are unconstitutionally
vague when they rely upon "inherently subjective terms" that are amenable to varying
and arbitrary interpretations.70
The term "torture" is not defined by statute, but State v. Brown71 and State v.
Russell72 are instructive. The Brown court held that the term "torture" as used in the
second degree assault statute is not unconstitutionally vague.73 The Russell court held
that the phrase "pattern or practice of assault or torture" in the homicide by abuse
statute is not unconstitutionally vague.74 The Russell court concluded the homicide by
abuse statute "sets ascertainable and adequate standards of guilt," and provides
"adequate guidelines to prevent subjective enforcement."75
Carri cites no authority to support that the term "extreme indifference" is
unconstitutionally vague. Although the homicide by abuse statute does not define
67 id, at 823.
68 State v. Evans, 177 Wn.2d 186, 207, 298 P.3d 724 (2013).
69 In re Detention of Danforth, 173 Wn.2d 59, 73, 264 P.3d 783 (2011); City of
Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522 (1967).
70 Evans, 177 Wn.2d at 207.
71 60 Wn. App. 60, 802 P.2d 803 (1990).
72 69 Wn. App. 237, 848 P.2d 743 (1993).
73 Brown, 60 Wn. App. at 66.
74 Russell, 69 Wn. App. at 248.
75 Id. at 247-48.
17
No. 71193-8-1/18
"extreme indifference," nothing suggests that it is inherently subjective and subject to
arbitrary enforcement. The term "extreme" means "existing in the highest or the
greatest possible degree; very great; very intense."76 The term "indifference" means
"the quality or state of being indifferent."77 The term "indifferent" means "looked upon as
not mattering one way or another" or "regarded as being of no significant importance or
value."78 The plain meaning of "extreme indifference" provides adequate guidelines to
prevent arbitrary enforcement by a jury, judges, prosecutors, or police officers.79
Therefore, we conclude the terms "extreme indifference" and "torture" provide an
ascertainable standard of guilt and are not inherently subjective as applied to Carri's
conduct.
Admission of the State's Experts' Testimony
Carri contends the trial court abused its discretion in admitting expert testimony
on the meaning of "torture." We disagree.
76 Webster's Third New Int'l Dictionary 807 (3d ed. 2002); see also State v.
Madarash, 116 Wn. App. 500, 512, 66 P.3d 682 (2003).
77 Webster's Third New Int'l Dictionary 1151 (3d ed. 2002); see also
Madarash, 116 Wn. App. at 512.
78 Webster's Third New Int'l Dictionary 1151 (3d ed. 2002); see also
Madarash, 116 Wn. App. at 512.
79 We also reject Carri's contention that the vagueness issue was exacerbated
when the trial court refused to give Carri's proposed definitional instruction on "extreme
indifference." See CP at 234 ("'Extreme indifference to human life' means to not care
whether the deceased lived or died."). The plain meaning of "extreme indifference"
provided the jury adequate standards to determine the culpability of Carri's conduct as
to H.W.
18
No. 71193-8-1/19
We review a trial court's decision to admit expert testimony for abuse of
discretion.80 The trial court has broad discretion to determine the admissibility of
testimony.81
ER 702 governs the admissibility of expert testimony. Expert testimony is
admissible "if the expert testimony would be helpful to the trier of fact"82 and if it "is
informed by specialized knowledge, experience, or training."83 Expert testimony is
helpful to the jury if it concerns matters beyond the common knowledge of the average
layperson and it is not misleading.84 "Courts generally 'interpret possible helpfulness to
the trier of fact broadly and will favor admissibility in doubtful cases.'"85 But expert
testimony is unnecessary for issues involving matters of common knowledge.86
There may be some tension between concluding that the term "torture" provides
an ascertainable standard of guilt, but the jury needs expert testimony on what
constitutes torture. But these two positions are not inconsistent. Whereas the term
"torture" as used in the homicide by abuse and first degree assault of a child statutes
provides the prosecutor with ascertainable standards of guilt for charging decisions, a
juror may still find it helpful for an expert to explain subtler forms of torture. The State's
expert witnesses testified that the use of corporal punishment, humiliation, isolation,
80 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007).
81 City of Seattle v. Heatlev, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).
82 Russell. 125Wn.2dat69.
83 State v. Nelson, 152 Wn. App. 755, 767, 219 P.3d 100(2009).
84 State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258(2004).
85 Moore v. Hagge, 158 Wn. App. 137, 155, 241 P.3d 787 (2010) (quoting Miller
v. Likins, 109 Wn. App. 140, 148, 34 P.3d 835 (2001)).
86 State v. Smissaert, 41 Wn. App. 813, 815, 706 P.2d 647 (1985).
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sensory deprivation, and denial of food constitute aspects of torture. The experts'
specialized knowledge helped the jury understand that some of the conduct here was a
subtle form of torture, extended over a period of time, and systematized.
Therefore, we conclude the trial court did not abuse its discretion in admitting
expert testimony on the meaning of the term "torture."
Public Trial Right
Carri's public trial argument fails. In State v. Love, our Supreme Court approved
sidebar conferences for the exercise of peremptory jury strikes on paper, concluding
that this practice did not amount to a courtroom closure.87
Cumulative Error
We reject Carri's contention that the cumulative effect of the alleged errors at trial
denied her a fair trial. She fails to demonstrate any single instance of error.
CONCLUSION
We affirm Carri's convictions for homicide by abuse and first degree assault of a
child.
WE CONCUR:
' irScMn ; a
87 183 Wn.2d 598, 606-08, 354 P.3d 841 (2015).
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