State of Washington v. Charles William Kuneki ( 2018 )

FILED
FEBRUARY 13, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34174-7-III
Respondent, )
)
v. )
)
CHARLES WILLIAM KUNEKI, ) UNPUBLISHED OPINION
)
Appellant. )
SIDDOWAY, J. — While serving time in the Klickitat County Jail, Charles Kuneki
was accused by a cellmate of twice raping him late at night, with accompanying threats to
kill if the cellmate did not submit. Mr. Kuneki admitted to intercourse with his cellmate,
but claimed it was consensual. The State filed twin sets of first degree rape and felony
harassment charges against him for the two alleged events. Following a jury trial, Mr.
Kuneki was acquitted of the charges related to the first alleged event but was found guilty
of the charges related to the second.
No. 34174-7-III
State v. Kuneki
On appeal, he contends (1) the trial court improperly admitted forensic testimony
over valid hearsay and confrontation clause objections, (2) the two convictions violated
double jeopardy, (3) the trial court failed to give a “true threat” instruction, violating his
rights under the First Amendment to the United States Constitution, and (4) his trial
lawyer provided ineffective assistance of counsel when he failed to argue the two
convictions were the same criminal conduct for sentencing purposes.
Because the State relied on the same evidence to prove the elements of first degree
rape and the elements of felony harassment, double jeopardy applies. We vacate the
conviction for felony harassment, rendering moot the other assignments of error relating
to that conviction. We affirm the conviction for first degree rape.
FACTS AND PROCEDURAL BACKGROUND
One morning in August 2014 corrections officer Gloria Rosales was distributing
inmate medications in the Klickitat County Jail when inmate R.M.1 whispered that he
wanted to speak with her. He was red-eyed, “like he’d been either crying or hadn’t got
any sleep.” Verbatim Transcript of Proceedings (VTP) at 327. She took him to the
booking room to talk but he started sobbing and was unable to speak. Another
corrections officer, Andrew Gonzalez, took R.M. to a more private area, where R.M. told
the officer that he had been raped by his cellmate, Charles Kuneki.
1
We use the initials of the victim, R.M., to protect his privacy.
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Sheriff’s Deputy Randy Wells was called in to investigate and took R.M. to the
hospital for a sexual assault examination. Under the supervision of an emergency room
physician, a nurse took oral and rectal swabs. Together with blood, urine, and pubic hair
samples, the swabs were sealed in a sexual assault evidence collection kit and given to
Deputy Wells. Once back at the jail, R.M. provided the deputy with a written statement
describing the rapes.
Mr. Kuneki was charged with two counts of first degree rape and two counts of
felony harassment (threats to kill). A search warrant was obtained to take a DNA2
sample from Mr. Kuneki. That, and R.M.’s sexual assault kit were forwarded to the
Washington State Patrol Crime Laboratory. The lab determined that the DNA result from
the anal swab of R.M. taken at the emergency room was a mixture of two individuals,
and that the DNA profile from the nonsperm fraction of the anal swab matched R.M.’s
DNA profile, while the DNA profile from the sperm fraction of the anal swab matched
Mr. Kuneki.
At Mr. Kuneki’s trial, the prosecutor told jurors in his opening statement, “We
know that there was sexual intercourse. And the only issue is consent.” VTP at 199. Mr.
Kuneki’s lawyer delivered his opening statement immediately thereafter, agreeing there
was sexual intercourse and “it is a question of whether or not there was consent.” Id.
2
Deoxyribonucleic acid.
3
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The defense lawyer reminded jurors that “as we discussed in selecting you as jurors,” a
homosexual act in and of itself is not a crime.3 Id. at 206-07.
R.M. and Mr. Kuneki testified at trial to their different versions of their
relationship and the nights of the alleged rapes. R.M. testified that on the first occasion,
after accusing R.M. of having used his toothpaste, which R.M. denied, Mr. Kuneki
grabbed a pencil, moved to where R.M. was lying on the bed, and told R.M. to be quiet—
that if R.M. yelled, or screamed, or pushed a call button on the wall he would kill him.
Holding the pencil to R.M.’s neck, he then pulled down R.M.’s pants and underwear to
his knees. Repeating his threat to kill if R.M. made a sound, made R.M. raise his feet in
the air (R.M. was on his back) and raped him anally for between 30 to 45 minutes.
R.M. testified that the next day, Mr. Kuneki followed him everywhere, making it
impossible for R.M. to tell anyone what had happened. That night, he was sleeping on
his stomach when, sometime between lockdown and midnight or 1:00 a.m., he awoke to
find that Mr. Kuneki was on top of him, again armed with the pencil that he held to
R.M.’s neck. According to R.M., he said to Mr. Kuneki, “Don’t do this again,” but Mr.
Kuneki told him to shut up, penetrated his anus with his penis, and again raped R.M. for
3
This portion of the opening statement is reported by the verbatim transcript of
proceedings as partially inaudible, but based on what was discussed during jury selection,
we are confident of this substance of the opening statement. See, e.g., jury selection at
Verbatim Transcript of Proceedings at 183 (obtaining juror agreement that if the sex is
consensual, it is not rape, and that homosexual activity is not a crime).
4
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30 to 45 minutes. VTP at 243. R.M. testified that Mr. Kuneki again threatened that if
R.M. said anything or pushed the call button he would kill him.
In the defense case, Mr. Kuneki testified there had been a single instance of
consensual sex. According to him, R.M. was openly gay and would grab at Mr. Kuneki’s
and other inmates butts during basketball games. Mr. Kuneki said he jokingly made
comments like “[y]ou want that” after R.M. would grab at him. Id. at 463.
Mr. Kuneki stated that he and R.M. became “pretty close.” Id. at 461. The men
expected R.M. to be released before Mr. Kuneki, who was looking at prison time, and
Mr. Kuneki told R.M. that when released, he could live in Mr. Kuneki’s trailer free of
charge in exchange for watching his place and his dogs and cashing checks Mr. Kuneki
received from his tribe. Mr. Kuneki also said that when he was released, he would give
R.M. a job. Eventually, following a proposition by R.M., Mr. Kuneki said they engaged
in five minutes of consensual anal sex one Saturday morning around 1:00 a.m. Mr.
Kuneki denied threatening R.M. in any way.
Mr. Kuneki said that it was after the two had an argument later that Saturday and
Mr. Kuneki withdrew his offer of housing that R.M. made the rape allegations.
In the State’s case, it called Heather Pyles, a forensic DNA analyst with the state
patrol crime lab, to provide further evidence of the anal intercourse. Before she testified,
and outside of the hearing of the jury, the trial judge asked, “[W]hy do we need all the
forensic evidence[?]” observing “this is a consent case.” Id. at 216. The prosecutor
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stated that beyond the testimony of R.M. and the forensic evidence, the only evidence
that intercourse occurred would be the possible testimony of Mr. Kuneki, and “there’s
nothing to guarantee Mr. Kuneki’s going to testify.” Id. at 217. He also told the court
that the forensic evidence “should go really quickly.” Id. at 218.
Ms. Pyles testified to the crime lab’s analysis of a sexual assault kit reportedly
collected from R.M. and an oral swab reportedly collected from Mr. Kuneki, which the
lab had determined to be a match for sperm in R.M.’s anal swab. After first describing
the DNA analysis process, she was asked “who did the initial testing” of evidence in Mr.
Kuneki’s case and answered it had been Wendy Cashawbara, who was no longer
employed by the state patrol. Id. at 309.
When Ms. Pyle began to testify to the results of the lab’s analysis, the defense
lodged a hearsay objection. The objection was overruled but the State still elicited
clarifying testimony from Ms. Pyles that although Ms. Cashawbara did the analysis, Ms.
Pyles did the “technical review” of Ms. Cashawbara’s report, which she testified is
standard laboratory procedure:
[A]s part of the process of completing a case, every case goes through a
process called technical review. . . . [W]hat that means is . . . that I looked
over all of the case file that she created, looked over all of her notes, and I
compared that with our standard operating procedures and verified that
everything that [Ms. Cashawbara] did was within our operating procedures,
that it was technically sound and scientifically relevant, and that I agreed
with her conclusions based on my review of her notes as well as the
electronic data.
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Id. at 311-12 (emphasis added).
The trial court overruled a second defense objection that Ms. Pyles “didn’t do the
testing,” Id. at 312, and heard a few more complaints from defense counsel about the
testimony. It allowed Ms. Pyles to testify to the lab’s test result detecting semen in the
anal swab taken from R.M., her conclusion that the profile from the sperm fraction of that
anal swab matched Mr. Kuneki’s DNA profile, and her calculation that the odds of some
other individual having a DNA profile that would match the sperm fraction profile was
one in 160 quadrillion.
The jury acquitted Mr. Kuneki of the first set of rape and harassment charges, but
convicted him of the second set. It returned a special verdict stating that it had been
unable to agree whether Mr. Kuneki was armed with a deadly weapon during the rape.
The trial court calculated Mr. Kuneki’s offender score as a nine for the rape and an
eight for the felony harassment. It sentenced Mr. Kuneki to the high end of the standard
range on both counts, with the sentences to run concurrently. Mr. Kuneki appeals.
ANALYSIS
Of the five assignments of error made by Mr. Kuneki, three prove dispositive.
Given the State’s evidence and argument at trial, we accept its concession that Mr.
Kuneki’s Fifth Amendment right to be free of double jeopardy was violated by entering
judgment convicting him of both felony harassment and first degree rape. We vacate the
felony harassment conviction.
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As to the remaining conviction of first degree rape, we reject Mr. Kuneki’s
arguments that the trial court erroneously overruled his hearsay and confrontation clause
objections. Alternatively, we would find any error harmless.
We address the issues in the order stated.
Double jeopardy
Mr. Kuneki argues that his double jeopardy right was violated when he was
punished for both first degree rape and felony harassment. The State conceded the
double jeopardy violation in its brief without elaboration At oral argument, we
questioned whether we should accept the State’s concession. The State’s counsel on
appeal, who also represented the State at trial, explained that its concession was based on
the factual basis for the rape charge. E.g., Wash. Court of Appeals oral argument, State
v. Kuneki, No. 34174-7-III (Oct. 18, 2017), at 13 min., 41 sec. to 14 min., 10 sec.4
The federal and state double jeopardy clauses protect against multiple punishments
for the same offense. U.S. CONST. amend. V; WASH. CONST. art. I, § 9; State v. Gocken,
127 Wn.2d 95, 100, 896 P.2d 1267 (1995). “Within constitutional constraints, the
legislative branch has the power to define criminal conduct and assign punishment,” so
“the question whether punishments imposed by a court, following conviction upon
criminal charges, are unconstitutionally multiple cannot be resolved without determining
4
Available at http://www.courts.wa.gov/appellate_trial_courts/appellateDockets
/index.cfm?fa=appellateDockets.showDateList&courtId=a03&archive=y.
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what punishments the legislative branch has authorized.” State v. Calle, 125 Wn.2d 769,
776, 888 P.2d 155 (1995). Appellate courts review claims of double jeopardy de novo.
State v. Jackman, 156 Wn.2d 736, 746, 132 P.3d 136 (2006).
The Washington Supreme Court has identified several steps to be taken in making
the determination of what punishments the legislative branch has authorized. The first is
to see whether the legislature expressed its intent in the criminal statute. A paradigm is
the express provision that a burglary shall be punished separately from other crimes
committed during commission of the burglary. State v. Freeman, 153 Wn.2d 765, 772,
108 P.3d 753 (2005) (citing RCW 9A.52.050). In this case, neither RCW 9A.44.040(1),
which identifies when a person is guilty of the crime of rape in the first degree, nor RCW
9A.46.020(1), which identifies when a person is guilty of felony harassment, expressly
authorize multiple punishment.
If the legislative intent is not clear, we may apply what Washington courts have
called a “‘same evidence’” or Blockburger5 test, as rules of statutory construction for
discerning legislative purpose. Calle, 125 Wn.2d at 778; Freeman, 153 Wn.2d at 772.
Under the test, “If each crime contains an element that the other does not, we presume
that the crimes are not the same offense for double jeopardy purposes.” Id. In applying
5
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
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the test, we do not compare the statutory elements of each crime at their most abstract
level; rather, “‘where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.’”
In re Pers. Restraint of Orange, 152 Wn.2d 795, 817, 100 P.3d 291 (emphasis omitted)
(quoting Blockburger, 284 U.S. at 304). Accordingly, a generic term that acquires
meaning only from the facts of the case must be given its factual definition in order to
assess whether one crime requires proof of a fact not required to prove the other. Id. at
818.
RCW 9A.44.040(1)(a) provides that “[a] person is guilty of rape in the first degree
when such person engages in sexual intercourse with another person by forcible
compulsion where the perpetrator . . . [u]ses or threatens to use a deadly weapon or what
appears to be a deadly weapon.” The “forcible compulsion” element acquires meaning
only from the facts of the case. “‘Forcible compulsion’ means physical force which
overcomes resistance, or a threat, express or implied, that places a person in fear of death
or physical injury to [oneself] or another person.” RCW 9A.44.010(6) (emphasis added).
The State agreed at oral argument that in Mr. Kuneki’s case, the type of forcible
compulsion relied on was not “physical force which overcomes resistance,” but was
instead a threat that placed R.M. in fear of death or physical injury. This is borne out by
the record. See VTP at 533, 535 (State’s closing argument).
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RCW 9A.46.020(1)(a) provides in relevant part that “[a] person is guilty of
harassment if: . . . Without lawful authority, the person knowingly threatens: (i) To cause
bodily injury immediately or in the future to the person threatened or to any other person;
. . . [and] (b) The person by words or conduct places the person threatened in reasonable
fear that the threat will be carried out.” Applying the Blockburger test at the concrete (as
opposed to abstract) level, first degree rape includes an element that felony harassment
does not: sexual intercourse. But felony harassment includes only elements that are
elements of first degree rape as applied in Mr. Kuneki’s case: a threat and resulting fear.
Application of the Blockburger test supports the finding of a double jeopardy violation.
Although the result of the Blockburger test is presumed to be the legislature’s
intent, it is not controlling if there is clear evidence of contrary legislative intent.
Freeman, 153 Wn.2d at 777.6 Neither party suggests nor do we find that other evidence
of legislative intent supports a conclusion that the legislature intended multiple
6
In State v. Eaton, 82 Wn. App. 723, 919 P.2d 116 (1996), reversed on other
grounds by State v. Frohs, 83 Wn. App. 803, 811 n.2, 924 P.2d 384 (1996), this court
held that a defendant’s convictions of both first degree rape and felony harassment did
not violate double jeopardy. But in that case, the dispute was over whether the merger
doctrine applied and this court correctly held that it did not. The merger doctrine is an
additional tool for determining legislative intent. Under Calle’s approach, it is applied
after the Blockburger test. We assume the Blockburger test was not urged as a basis for
finding a double jeopardy violation in Eaton because in that case the acts constituting
felony harassment were alleged and proved to continue after the rape.
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punishments for the crimes with which Mr. Kuneki was charged. Because conviction of
both crimes violates double jeopardy, we vacate the conviction for felony harassment.7
Hearsay and confrontation clause objections
Mr. Kuneki assigns error to the admission of Ms. Pyles’s testimony, arguing it was
hearsay and violated his confrontation right. We first consider whether a confrontation
clause objection was made or was waived.
Any challenge under the confrontation clause was waived
Before error can be predicated on a ruling that admits evidence, an objection
“stating the specific ground of [the] objection, if the specific ground was not apparent
from the context” must be made. ER 103(a)(1). Mr. Kuneki’s lawyer stated a specific
ground for objection only once, and the ground was hearsay:
Q You did not do the tests.
A That is correct.
Q So you’re going to be testifying as to Wendy’s document.
A As to her report, yes.
[DEFENSE COUNSEL]: Now, I’m going to object that it’s going to be
hearsay.
THE COURT: Overruled. Please proceed.
VTP at 311.
7
The finding of a double jeopardy violation renders moot Mr. Kuneki’s
assignments of error to the trial court’s failure to give a “true threat” instruction and his
claim that counsel was ineffective for failing to argue same criminal conduct at
sentencing.
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Shortly thereafter, he objected without stating a specific ground for objection, but
only that Ms. Pyles “didn’t do the testing”:
A . . . I looked over all of the case file that she created, looked over all of
her notes, and I compared that with our standard operating procedures
and verified that everything that Wendy did was within our operating
procedures, that it was technically sound and scientifically relevant, and
that I agreed with her conclusions based on my review of her notes as
well as the electronic data.
[DEFENSE COUNSEL]: Your Honor, I’m going to object because she
didn’t do the testing. And—she doesn’t—
THE COURT: She—
[DEFENSE COUNSEL]: —testify.
THE COURT: She agrees she did not do the testing so she’s responding as
an expert in this field to a report [a] colleague of her[s] produced.
[DEFENSE COUNSEL]: Yeah. So,—
Q —you—you have reviewed?
A Yes. I have reviewed the data and independently came to the same
conclusions as [Ms. Cashawbara] did.
[DEFENSE COUNSEL]: Yeah. I’m still going to object. She didn’t do
the testing.
VTP at 312. If Mr. Kuneki’s lawyer had a confrontation clause challenge in mind, he
never stated it. The words “confrontation” or “Sixth Amendment” were never used. It
was also not apparent from the context. The trial court could reasonably understand
defense counsel to be repeating his hearsay objection. It evidently did, since the court’s
ruling (“she’s responding as an expert in this field to a report [a] colleague of her[s]
produced”) was implicitly based on ER 703 and/or 705, which would apply to a hearsay
objection but not to a challenge under the confrontation clause.
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Mr. Kuneki argues that a confrontation clause violation is a manifest constitutional
error that can be raised for the first time on appeal under RAP 2.5(a)(3). But we never
reach that rule because the defendant’s obligation to assert the right to confrontation at
or before trial is more fundamental—it “is part and parcel of the confrontation right
itself. . . . When a defendant’s confrontation right is not timely asserted, it is lost.” State
v. O’Cain, 169 Wn. App. 228, 240, 279 P.3d 926 (2012) (citing Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 326, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009)).
We also point out that a further consequence of defense counsel not making a
confrontation clause challenge is that the record is not well-developed on which steps of
the analysis Ms. Pyles repeated independently. At the time of trial, Ms. Pyles had been
performing DNA analysis for nine years, and was competent to perform and explain it to
jurors. Mr. Kuneki bases his argument on appeal to Ms. Pyle’s statements that she did
not do “the testing,” but Ms. Pyles’s testimony also includes a number of statements that
she performed an independent analysis. E.g., VTP at 312 (“I agreed with her
conclusions” and “I have reviewed the data and independently came to the same
conclusions”), 313 (Pyles was “able to develop DNA profiles”), 317 (“I did do a
statistical estimate” for the profile from the sperm fraction.). As far as we can tell from
the record, Ms. Pyle’s involvement is indistinguishable from the testifying DNA analyst
in State v. Lui, 179 Wn.2d 457, 489, 315 P.3d 493 (2014), aff’d, 188 Wn.2d 525, 397
P.3d 90 (2017), whose testimony did not violate the confrontation clause. That analyst
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was held to be sufficiently involved to “produce her own analysis, ‘an original product
that can be tested through cross-examination.’” Id. (quoting United States v. Johnson,
587 F.3d 625, 635 (4th Cir. 2009)).
She reviewed the results of the control samples, she reviewed the testing
procedures, and she reviewed her subordinate analysts’ results at each step
in the process. She was ‘a supervisor, reviewer, or someone else with a
personal, albeit limited, connection to the scientific test at issue.’
Bullcoming [v. New Mexico], [564 U.S. 647, 672,] 131 S. Ct. [2705, 180 L.
Ed. 2d 610 (2011)] (Sotomayor, J., concurring).
Id. at 490-91. Mr. Kuneki cannot demonstrate from the record developed that Ms. Pyles
could not be cross-examined about how she arrived at her interpretation and conclusions.
That is all that the confrontation clause requires. Id. at 491.
Hearsay
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER
801(c). We can infer from the trial court’s ruling that it overruled Mr. Kuneki’s objection
based on ER 703 and/or 705. ER 703 permits an expert to base her opinion on facts that
are not otherwise admissible if they are of a type reasonably relied on by experts in the
particular field. ER 705 grants the trial court discretion to allow an expert to relate
hearsay or otherwise inadmissible evidence to the trier of fact to explain the reasons for
her expert opinion. While we review many evidentiary decisions for manifest abuse of
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discretion, we review whether or not a statement was hearsay de novo. State v. Hudlow,
182 Wn. App. 266, 281, 331 P.3d 90 (2014).
Mr. Kuneki points to the distinction between the expert’s right to base an opinion
on otherwise inadmissible facts and whether the expert should be allowed to tell jurors
about those inadmissible facts. Notably, the most significant facts on which Ms. Pyles
based her opinion were the testing results, which would probably have been admissible as
business records under RCW 5.45.020,8 although we recognize that the State did not
attempt to offer the records themselves.
As to facts that were otherwise inadmissible, ER 705 grants the trial court
discretion to allow an expert to relate hearsay or otherwise inadmissible evidence to the
trier of fact to explain the reasons for her expert opinion. Mr. Kuneki does not
demonstrate an abuse of discretion. For otherwise inadmissible facts that Ms. Pyles
related under this rule, Mr. Kuneki was entitled to a limiting instruction if requested. ER
105 (providing that court “upon request” shall restrict the evidence to its proper scope
and instruct the jury accordingly); State v. Lui, 153 Wn. App. 304, 323 and n.20, 221
8
RCW 5.45.020 provides: “A record of an act, condition or event, shall in so far
as relevant, be competent evidence if the custodian or other qualified witness testifies to
its identity and the mode of its preparation, and if it was made in the regular course of
business, at or near the time of the act, condition or event, and if, in the opinion of the
court, the sources of information, method and time of preparation were such as to justify
its admission.”
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P.3d 948 (2009), aff’d, 188 Wn.2d 525, 397 P.3d 90 (2017). He did not request a limiting
instruction, however.
Finally, if the evidence had been admitted in error, it was harmless. An erroneous
evidentiary ruling “is not prejudicial unless, within reasonable probabilities, the outcome
of the trial would have been materially affected had the error not occurred.” State v.
Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). It was uncontested that Mr. Kuneki
engaged in anal intercourse with R.M. Ms. Pyles’s opinion that the odds were one in 160
quadrillion that someone other than Mr. Kuneki would match the sperm fraction profile
was irrelevant. Her testimony did not shed light on the disputed issues of whether
intercourse took place once or twice, or whether it was consensual or not.
Mr. Kuneki argues that he was prejudiced because only Ms. Pyles provided
evidence of “Mr. Kuneki’s ‘semen in the rectum of the alleged victim,’” which he
contends would have been “inflammatory” for jurors. Br. of Appellant at 21. But Mr.
Kuneki never objected to Ms. Pyles’s testimony on ER 403 grounds. And we disagree
that Ms. Pyle’s necessary references to “sperm,” “semen,” “anus” and “rectum” would
have discomfited jurors any more than the testimony of R.M., or Mr. Kuneki, or the
emergency room physician.
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We vacate the conviction for felony harassment and remand to the superior court
for any further proceedings consistent with our disposition. 9
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
j
9Mr. Kuneki asked that we exercise discretion to not impose appellate costs if the
State substantially prevailed. Since it has not, his request is moot.
18