State Of Washington v. Edward Mark Olsen ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
June 25, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 51173-8-II
Respondent,
v.
EDWARD MARK OLSEN, UNPUBLISHED OPINION
Appellant.
SUTTON J. — Edward Mark Olsen appeals the superior court’s order denying his CrR 7.8
motion for a new trial based on newly discovered evidence. He argues that pursuant to CrR
3.1(b)(2), he has a right to appointed counsel. He also argues that the rule provides him a right to
be present at his reference hearing. Lastly, Olsen argues that the superior court abused its
discretion by denying his motion for a new trial, by applying the wrong standard of review, and it
violated the appearance of fairness doctrine and the code of judicial conduct. He requests that we
remand for a new trial before a different judge. Olsen also filed a statement of additional grounds
(SAG) asserting the same claims. We affirm.
No. 51173-8-II
FACTS
I. BACKGROUND
A. PROCEDURAL HISTORY, TRIAL, AND APPEAL1
This case arose out of a 2009 incident of domestic violence perpetrated by Olsen against
the mother of his children, Bonnie Devenny, in the presence of their 12-year-old son, JEO.2 Olsen
broke into Devenny’s house, poured gasoline on her while she was sleeping, and told her that she
was going to die. Police later recovered a lighter near the bed.
The State charged Olsen with attempted first degree murder, attempted second degree
murder, first degree burglary, felony harassment, and third degree malicious mischief related to
the gasoline incident, and the felony counts included domestic violence aggravators because the
crimes occurred in the presence of the victims, Devenny and JEO. At trial, Devenny testified
consistent with the above facts. See State v. Olsen, 175 Wn. App. 269, 274-75, 309 P.3d 518(2013). A jury convicted Olsen as charged on all counts except attempted first degree murder, and
he received an exceptional sentence.
Olsen appealed and a panel of this court affirmed his convictions and sentence. Olsen, 175
Wn. App. at 291. Olsen petitioned for review of his exceptional sentence, and the Supreme Court
affirmed.
1
Unless otherwise indicated, the following facts are derived from State v. Olsen, 180 Wn.2d 468,
469-72, 325 P.3d 187 (2014).
2
JEO was a minor in 2010; therefore, we use the minor’s initials to maintain privacy. See
RCW 7.69A.030(4).
2
No. 51173-8-II
B. MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE
On January 31, 2017, Olsen, through retained counsel, filed a CrR 7.8(b)(2) motion for a
new trial based on newly discovered evidence and attached recantation affidavits of Devenny and
JEO dated January 30, 2017. In their recantation affidavits, they both stated that many of the
statements they made under oath at the trial in 2010 were not true.
More specifically, Devenny said that Olsen had not poured gasoline on her, did not have a
lighter, and had not said anything threatening. JEO admitted that he had not seen Olsen pour
anything on Devenny, never saw a lighter, and had not heard any threats. Devenny stated that at
that time she was in a new relationship and did not want her ex-husband around to ruin things. She
explained that she made up the stuff about Olsen pouring gas, threatening her, and standing over
her with a lighter. JEO, who was 12 years old at the time of the incident, had believed Devenny’s
claims and embellished his story to support what she said had happened.
Olsen also filed two memorandums arguing that the newly discovered evidence warranted
a new trial. The State filed a responsive memorandum arguing that the recantations were
admissible, but were not credible and thus, the new evidence did not warrant a new trial as the new
evidence would not change the outcome.
The parties argued over whether Olsen had the right to be present at the reference hearing
and had the right to a court appointed lawyer. The superior court agreed to allow Olsen to be
transported from prison to the jail to assist his counsel. The court explained that unless Olsen’s
counsel provided the court with authority supporting his argument, Olsen would not be allowed at
be present at the reference hearing. The superior court requested briefing from Olsen’s counsel on
the issue of Olsen’s right to be present at the reference hearing. At the next court date, the issue
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No. 51173-8-II
was addressed again and counsel stated that he could not find authority that Olsen had the right to
be present. The superior court then ruled that counsel’s presence was sufficient to represent
Olsen’s interests at the hearing.
The reference hearing was held before the same judge who presided over the original trial.
At the reference hearing both Devenny and JEO testified. Both were examined by counsel for the
State, counsel for Olsen, and the judge. Olsen was represented by retained counsel at the reference
hearing. The superior court requested supplemental briefing regarding the admissibility of
Devenny’s recantation testimony at a retrial and how that would affect the outcome. Both parties
filed supplemental briefing.
On November 9, 2017, the superior court entered a written order denying the motion for a
new trial. The superior court’s order states in relevant part as follows:
Here, both parties agree that [Devenny] and her son [JEO’s] revised
statements recanting their trial testimony (both the declarations signed in 2017 and
their testimony provided at the hearing on June 27, 2017) meet the requirements of
(2)[,] (3)[,] and (4) [In re the Pers. Restraint Petition of Faircloth, 177 Wn. App.
161, 165-66, 317 P. 3d 47 (2013)].
The underlying facts of the case are well detailed in the State’s Response to
CrR 7.8 Motion to Vacate, pp 2-12 which are incorporated here by this reference.
In essence, the “newly discovered evidence” comes from statements made by both
[Devenny] and her son, which recant their trial testimony that Mr. Olsen was
“pouring” gas on [Devenny] as she lay in bed, that he said “Die, Bitch” as he was
doing so, and that he appeared to have a lighter in his hand. The new statements
indicate that Olsen came into the bedroom after [Devenny] and son fell asleep and
that his presence startled them awake. [Devenny] says she was trying to quickly
get out of the bed, her legs got caught up in the covers and she believes she kicked
the gas can that Mr. Olsen was holding. The son says he was startled awake, tackled
the intruder and did not realize it was his father until the son heard Olsen’s voice.
[Devenny] testified at the hearing that she told her family that she had lied some
time ago and that she decided to lie when the police contacted her because she
wanted Olsen out of her life. Her son testified that he told the police what he heard
his mother tell them because he was only twelve, and that between the event and
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No. 51173-8-II
the trial he and his mother discussed the event so much that “it became like a real
memory” to him.
When confronted with this type of testimony it is for the trial court to
determine whether the original testimony of a recanting witness was perjured and,
if so, whether the jury's verdict was likely influenced by it. State v. Macon, 128
Wn.2d 784, 801, 911 P.2d 1004 (1996).
It is notable that both [Devenny’s] and her son’s testimony was corroborated
at trial by other witnesses who described her demeanor—that she was shaking and
terrified. There were several witnesses who described the strong smell of gas in
the bedroom, that the bed’s comforter was wet, that both [Devenny] and her son
were taken to the fire station first for decontamination from the gas; that
[Devenny’s] legs were red and irritated and that she also wore shorts that were wet
and smelled of gas. Several people described her excited utterances naming her ex-
husband as the perpetrator, that he was “pouring” gas on her, and that he said “die
bitch, die.” Also corroborating was the fact that Olsen broke into [Devenny’s]
home; and that there was a red gas can with a small amount of gas remaining in it
near the foot of her bed nearest the door, and that the bathroom window screen was
lying outside of the house—consistent with her crawling out that window
screaming and in fear. [Devenny’s] credibility was also attacked at trial by both
her older son and by Mr. Olsen’s mother.
Given the substantial corroboration at trial for the initial statements made
by both [Devenny] and her son, later testified to at trial, this Court finds that it is
unlikely that either’s testimony at trial was perjured. Additionally, the newly
discovered statements, if true, are not only not corroborated by the other evidence
presented at the trial, they are not consistent with the behavior described, the
observations from other objective witnesses, or [Devenny’s] own statements about
the event, and do not seem reasonable in light of all the other evidence.
The inconsistencies of the new statements, coupled with the Court’s
observations of both witnesses’ trial testimony and their “recanting” testimony lead
this Court to the conclusion that neither [Devenny’s] nor her son’s new statements
are credible. This Court cannot therefore conclude that the outcome of the trial
would probably be changed by the new statements.
Clerk’s Papers (CP) at 384-85.
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No. 51173-8-II
On December 8, the superior court entered findings of fact and conclusions of law which
state in relevant part:
FINDINGS OF FACT
I.
That on December 21, 2010, defendant Edward Mark Olsen was convicted
of attempted second degree murder, first degree burglary, felony harassment, and
third degree malicious mischief each conviction including a jury finding of
domestic violence.
II.
That this court presided over Mr. Olsen’s trial in 2010 and that in the present
matter this court has been provided with transcripts of the testimony in that trial,
including transcripts of the testimony of victims Bonnie [Devenny] and her son,
[JEO], and that this court carefully reviewed the trial transcripts and considered the
demeanor of both witnesses during both instances of testimony in this case.
III.
That on June 27, 2017, this court held an evidentiary hearing at which this
court heard the testimony of [Devenny] and [JEO]. (Footnote omitted).
IV.
That [Devenny] and [JEO] had testified at trial that, inter alia, late one night
Mr. Olsen had come into the bedroom where [Devenny] and [JEO] were sleeping
(in the same bed), had poured gasoline on the bed and on them, and had stood over
the bed with a lighter and said to [Devenny] words to the effect of “die bitch.”
V.
That the trial testimony of the two victims was substantially corroborated
by the circumstances, the testimony of investigating police, and the admissible
excited utterances of the victims, including that [Devenny] was described at the
time as shaking and terrified, that she and [JEO] had gasoline on their skin and
clothing, that they and the bedroom smelled strongly of gasoline, that [Devenny]
and [JEO] had been taken to a nearby fire station in order to shower the gasoline
off of them, that [Devenny] identified Edward Olsen as the assailant and told other
witnesses, while shaking and terrified, that Edward Olsen was “pouring” gasoline
on her and saying “die, bitch, die,” and that she had fled this attack by climbing out
the bathroom window.
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No. 51173-8-II
VI.
That this court finds no indication that the trial testimony of [Devenny] and
[JEO] were perjured.
VII.
That the primary difference in the recantation testimony is that it was
alleged that Edward Olsen was not pouring gasoline on them and the gasoline had
gotten on them when [Devenny] was startled awake and kicked the gas can, that
Edward Olsen did not say “die, bitch,” and that Edward Olsen was not holding a
lighter. [Devenny] alleged that she had lied at trial because she wanted Edward
Olsen out of her life.
VIII.
That this court and the parties agree that in deciding this matter, this court
will apply the five factors used to consider newly discovered evidence, to wit, that
the new evidence must (1) be such that it would probably change the result of the
trial, (2) be discovered since trial, (3) not have been discoverable before trial
through the exercise of due diligence, (4) be material and admissible, and (5) not
be cumulative or impeaching. And that absence of any of the five factors is
sufficient to deny a new trial. In re Faircloth, 177 Wn. App. 161, 165-66, 311 P.3d
47 (2013).
IX.
That this court and the parties agree that items (2), (3), and (4) are
established in that these recantations were discovered since trial, that the
recantations did not exist at the time of trial and therefore could not have been
discovered by the exercise of due diligence, and that the recantations address
material matters and are admissible.
X.
That the recantation testimony is not cumulative and although it may be
used in an impeaching manner at retrial, the recantation testimony is not merely
impeaching.
XI.
That the newly discovered statements are not only not corroborated by the
other evidence at trial, they are not consistent with the behavior described, the
observations from other objective witnesses, or [Devenny’s] own testimony about
the event, and do not seem reasonable in light of all the other evidence.
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No. 51173-8-II
CONCLUSIONS OF LAW
I.
That the above-entitled Court has jurisdiction over the parties and the
subject matter of this action.
II.
That the recanting testimony of [Devenny] and [JEO] are not credible.
III.
That because the recanting statements are not credible, this court cannot
conclude that those statements would probably change the result of the trial.
IV.
That therefore, as ordered in this court’s Order of November 9, 2017,
Edward Olsen’s motion for new trial is denied.
CP at 389-92.
Olsen appeals.
ANALYSIS
I. LEGAL PRINCIPLES
CrR 7.8(b)(2) allows relief from a judgment for “[n]ewly discovered evidence which by
due diligence could not have been discovered in time to move for new trial under [CrR] 7.5.”
CrR 7.8(c)(1) states that the motion must state the grounds upon which relief is sought “and
supported by affidavits setting forth a concise statement of the facts or errors upon which the
motion is based.”
We review a superior court’s ruling on a CrR 7.8(b) motion for an abuse of discretion.
State v. Robinson, 193 Wn. App. 215, 217, 374 P.3d 175 (2016). The superior court abuses its
discretion when its decision is “manifestly unreasonable or based on untenable grounds or
reasons.” Robinson, 193 Wn. App. at 217-18.
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No. 51173-8-II
Our review of an order denying a CrR 7.8(b) motion is limited to the record and evidence
presented at the CrR 7.8 hearing, and on appeal a defendant cannot raise issues regarding the
validity of the underlying judgment and sentence. State v. Schwab, 141 Wn. App. 85, 96-97, 167
P.3d 1225 (2007). We review whether the superior court’s denial of the motion for a new trial
based on newly discovered evidence was proper. State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d
832 (2002).
II. RIGHT TO COUNSEL AND RIGHT TO BE PRESENT
Olsen argues that once the superior court determined that his CrR 7.8 motion for a new
trial was not frivolous and that it would hold a hearing, he had the right to appointed counsel under
CrR 3.1(b)(2) and State v. Robinson.3 He also argues that the rule gave him the right to be present
at the hearing. He further argues that his retained counsel’s failure to cite to CrR 3.1(b)(2) or to
State v. Robinson interfered with his right to counsel.
The State argues that Olsen never raised the issue of the right to counsel below and Olsen
was represented by retained counsel who filed the motion for a new trial and also represented him
at the hearing. The State also argues that Olsen does not have the right to be present under CrR
3.1(b)(2), and the superior court properly declined to allow him to be present but allowed him to
be transported from prison to assist his counsel. We agree with the State.
CrR 3.1(b)(2) provides:
A lawyer shall be provided at every stage of the proceedings, including sentencing,
appeal, and post-conviction review. A lawyer initially appointed shall continue to
represent the defendant through all stages of the proceedings unless a new
appointment is made by the court following withdrawal of the original lawyer
3
153 Wn.2d 689, 696, 107 P.3d 90 (2005).
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No. 51173-8-II
pursuant to section (e) because geographical considerations or other factors make
it necessary.
“Because the asserted error is a violation of a court rule (rather than a constitutional
violation), it is governed by the harmless error test.” State v. Robinson, 153 Wn.2d at 697.
Reversal is appropriate under the harmless error test only if the error was prejudicial, in that, within
reasonable probabilities, if the error had not occurred, the outcome of the motion for relief would
have been materially affected. Robinson, 153 Wn.2d at 697.
Here, Olsen concedes that he has no right to appointed counsel at a post-conviction hearing
under either the federal or state constitutions. He also concedes that a post-conviction proceeding
is not a critical phase of the proceedings. Olsen argues he had a rule-based right to appointed
counsel at the hearing; however, he was represented by retained counsel at the hearing. Thus,
there is no violation of CrR 3.1(b)(2).
Olsen argues that CrR 3.1(b)(2) provides him a right to be present at the hearing; however,
the rule does not provide him such a right. Further, he does not show prejudice by his failing to
be present at the hearing.
Because Olsen had a retained lawyer at the reference hearing to assist him, and he fails to
show a rule violation or prejudice, we hold that his claim of a CrR 3.1(b)(2) violation fails.
III. APPLICABLE LEGAL STANDARD
Olsen argues that a new hearing is warranted because the superior court abused its
discretion by applying the wrong legal standard when it concluded that the outcome of the trial
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No. 51173-8-II
would probably not have been changed by the recantation testimony. We hold that the superior
court applied the correct legal standard, and thus, Olsen’s claim fails. 4
We review a superior court’s application of the law to the facts de novo. State v. Corona,
164 Wn. App. 76, 79, 261 P.3d 680 (2011). We review a superior court’s ruling on a CrR 7.8(b)
motion for an abuse of discretion. Robinson, 193 Wn. App. at 217. The superior court abuses its
discretion when its decision is “manifestly unreasonable or based on untenable grounds or
reasons.” Robinson, 193 Wn. App. at 217-18.
State v. Macon is the seminal case in Washington on granting a new trial based on newly
discovered evidence. 128 Wn.2d 784, 911 P.2d 1004 (1996). The Macon court stated,
To obtain a new trial based upon newly discovered evidence, a defendant must
prove that the evidence: (1) will probably change the result of the trial; (2) was
discovered after the trial; (3) could not have been discovered before trial by the
exercise of due diligence; (4) is material; and (5) is not merely cumulative or
impeaching.
128 Wn.2d at 800. The “[a]bsence of any of the five factors is sufficient to deny a new trial.” In
re Faircloth, 177 Wn. App. at 166.
The superior court must make a threshold determination of the reliability of the recantation
testimony. Macon, 128 Wn.2d at 804. In making that reliability determination, the court may
consider the circumstances surrounding the case, including the recanting witness’s age, possible
reasons for recanting, relevant facts at the time of recantation, and the time between the testimony
and the recantation. Macon, 128 Wn.2d at 802. The existence of independent corroborating
evidence supporting the recanting witness’s original testimony is not a controlling factor. Macon,
4
Olsen also raises this same issue in his SAG. For the same reasons explained here, his SAG
argument also fails.
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No. 51173-8-II
128 Wn.2d at 804. The question is whether a reasonable juror would find the recantation reliable,
given the circumstances under which it was made. See Macon, 128 Wn.2d at 800. “When
determining whether the newly discovered evidence will probably change the result of trial, we do
not consider what effect the newly discovered evidence may have on the defendant’s case, but
rather we weigh the newly discovered evidence against the strength of the State’s evidence.” In
re Faircloth, 177 Wn. App. at 167-68 (citing State v. Peele, 67 Wn.2d 724, 732, 409 P.2d 663(1966)).
The superior court, not the jury, determines the credibility of the recanting witness. See
State v. Ieng, 87 Wn. App. 873, 880, 942 P.2d 1091 (1997) (superior court makes own credibility
determination without regard to whether a jury might find the witness credible). If the testimony
of the recanting witness is the “sole” evidence establishing guilt and the superior court finds the
recantation credible, it is an abuse of discretion to deny the motion. See In re Pers. Restraint of
Clements, 125 Wn. App. 634, 641-42, 106 P.3d 244 (2005).
However, if the superior court determines that the recantation is unreliable and denies the
motion for new trial, there is no abuse of discretion. State v. Gassman, 160 Wn. App. 600, 609,
248 P.3d 155 (2011). Since “[r]ecantation testimony is inherently questionable” and “does not
necessarily, or as a matter of law, entitle the defendant to a new trial,” a determination of the issues
lies within the sound discretion of the superior court. Macon, 128 Wn.2d at 801. Further, when
reviewing the superior court’s factual findings, we consider only whether substantial evidence
supports them and, if so, whether they support the court’s conclusions of law. Macon, 128 Wn.2d
at 799. “Unchallenged findings of fact are verities on appeal.” State v. Rankin, 151 Wn.2d 689,
709, 92 P.3d 202 (2004). As with all credibility determinations, if the superior court bases its
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No. 51173-8-II
decision on a determination of credibility, we do not disturb that finding on appeal. See Morse v.
Antonellis, 149 Wn.2d 572, 574-75, 70 P.3d 125 (2003) (credibility determinations are solely for
the trier of fact).
Olsen argues that if the superior court had applied the correct legal standard, it would have
found the recantation testimony to be credible and that the newly discovered evidence would
“likely affect the verdict” because the only evidence supporting the attempted murder and felony
harassment crimes was the “pouring gasoline on and threatening to kill Bonnie Devenny.” Br. of
App. at 42 (quoting Olsen, 175 Wn. App. at 173-74).
Olsen further argues5 that the superior court applied the wrong legal standard by failing to
consider the following relevant factors related to JEO’s testimony: (1) JEO’s youthfulness at the
time as he was 12 at the time of the incident and 13 at trial; (2) JEO’s “vulnerabilities of youth;”
(3) the pressure from family members who did not believe the initial accusations; (4) JEO’s trial
testimony that his “instinct” was to protect his mother who he was living with at the time; and (5)
JEO’s trial testimony that it was very dark, and he “couldn’t see much,” but still maintained he
could see the intruder pouring gas and the color of the gas can, and he was present when his mother
talked to the policed officer before he was interviewed. Br. of Appellant at 35-36.
Olsen also argues that the superior court failed to consider the following factors related to
Devenny’s testimony: (1) she was not involved with Olsen and had not been for many years and
was not under his influence at the time she recanted; (2) there was no evidence she had any motive
or pressure to recant; (3) the recantations only addressed the second degree attempted murder
5
Olsen assigned error to the superior court’s finding of fact XI and conclusion of law II.
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No. 51173-8-II
conviction, not Olsen’s other convictions; and (4) there was no other evidence other than the
recanted evidence to support the felony harassment conviction based on Olsen’s “die, bitch,”
comment at the time, overheard by JEO, which she had to reasonably believe would be carried out
by him at the time. Br. of Appellant at 39, 41.
But we do not review credibility determinations. State v. Cross, 156 Wn. App. 568, 581,
234 P.3d 288 (2010). We limit our review to whether the recantation findings support the superior
court’s conclusions, and as explained below, we hold that the findings support the court’s
conclusion, and the superior court did not err.
Regarding JEO’s age at trial, Olsen cites Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012) and State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3 409 (2017).
However, he fails to explain how youthful factors considered at sentencing apply to a youth who
recants his earlier trial testimony. Thus, the superior court did not err in this regard.
As to Devenny’s recantation testimony, Olsen concedes that Devenny’s excited utterances
made on the day of the incident are admissible as substantive evidence of his guilt under ER
801(d)(1). The State summarized her statements as follows:
These statements include that Olsen was in the house unannounced. Each statement
includes that [Devenny and JEO] were awoken to this unannounced intruder
pouring gasoline on the bed in which they had only moments before been sleeping.
Each statement included threatening statements by the assailant. [Devenny] was
reasonably certain that Olsen had a lighter when he was pouring and threatening.
Police found the lighter next to the bed and [Devenny] testified that she had not put
it there – she was “positive” that it was not there before Olsen came into the
bedroom.
There is no doubt in this record that [she] had a lot of gasoline on her. She
can be heard on the 911 call saying, “I’m burning, I’m burning.”
CP at 228.
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No. 51173-8-II
In response to the motion for a new trial, the State argued:
If [Devenny] testifies [at a retrial], she will be subject to cross examination
concerning her original testimony. That original testimony is inconsistent [with her
recanted testimony] and was given under oath in the prior trial. Thus, as not
hearsay, her prior inconsistent statements are also admissible as substantive
evidence of Olsen’s guilt [under ER 801]. . . . [S]hould [she] be “unavailable” as
defined by ER 804(a), the former testimony would be admissible under ER
804(b)(1).
CP at 311-12. We agree with the State that Devenny’s prior, recanted testimony would be
admissible upon retrial.
We determine that the findings support the superior court’s conclusion of law “[t]hat
because the recanting statements are not credible, this court cannot conclude that those statements
would probably change the result of the trial.” CP at 391-92. Because the recantation testimony
was not credible and would not have probably changed the outcome of a retrial, the superior court’s
order denying the motion for a new trial was neither untenable nor unreasonable. Accordingly,
we hold that the superior court did not abuse its discretion and we affirm the superior court’s order.
IV. APPEARANCE OF FAIRNESS
Olsen argues that the superior judge violated the appearance of fairness and the relevant
code of judicial conduct by the nature and tone of her questioning of Devenny and JEO at the
hearing on his motion. We disagree and hold that the superior court did not violate the appearance
of fairness. We decline to consider whether the superior court violated the code of judicial conduct
because Olsen fails to adequately brief this claim.
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No. 51173-8-II
Criminal defendants have a due process right to a fair trial by an impartial judge. WASH.
CONST. art. I, § 22; U.S. CONST. amends. VI, XIV. Impartial means the absence of actual or
apparent bias. See State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). “‘The law goes
farther than requiring an impartial judge; it also requires that the judge appear to be impartial.’”
State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992) (quoting State v. Madry, 8
Wn. App. 61, 70, 504 P.2d 1156 (1972)).
The test for determining “whether a judge should disqualify himself where his impartiality
might reasonably be questioned is an objective one.” State v. Leon, 133 Wn. App. 810, 812, 138
P.3d 159 (2006). A court must determine “whether a reasonably prudent and disinterested
observer would conclude [the defendant] obtained a fair, impartial, and neutral trial.” State v.
Dominguez, 81 Wn. App. 325, 330, 914 P.2d 141 (1996). But “[w]ithout evidence of actual or
potential bias, an appearance of fairness claim cannot succeed and is without merit.” Post, 118
Wn.2d at 619. Further, a defendant who has reason to believe that a judge should be disqualified
must act promptly to request recusal and “cannot wait until he has received an adverse ruling and
then move for disqualification.” State v. Carlson, 66 Wn. App. 909, 917, 833 P.2d 463 (1992).
ER 614(b) provides that
[t]he court may interrogate witnesses, whether called by itself or by a party;
provided, however, that in trials before a jury, the court’s questioning must be
cautiously guarded so as not to constitute a comment on the evidence.
Olsen argues that the superior court’s own questioning of Devenny and JEO was improper
due to the manner and phrasing of questions, the similarity to cross examination, and tone attacking
the witnesses’ veracity. Olsen points to several examples during the hearing, and admits he did
not object at the time. He cites to the judge’s questions to Devenny, asking Devenny why a
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No. 51173-8-II
stranger would be in her home with a gas can in hand. Olsen claims that the judge confronted
Devenny by asking if she colluded with JEO, and the judge also questioned JEO’s “reality” and
ability to remember, asking, “Is that still your truth?” VRP (June 27, 2017) at 50-52. The judge
further asked JEO if he had talked to his dad about the incident.
Olsen takes issue with the nature of the questions asked, the follow-up by the superior
court, and the manner of her questions. Olsen ignores that ER 614(b) allows for interrogation by
the court as long as the questioning does not constitute a comment on the evidence before the jury.
Here there was no jury present. Thus, the superior court’s examination of Devenny and JEO was
authorized under the rules of evidence. Because Olsen fails to show how the superior court was
biased and because the court’s findings do not suggest a lack of impartiality, we hold that Olsen’s
claim that the appearance of fairness doctrine was violated fails.
Olsen also argues that the superior court violated the relevant code of judicial conduct.
Olsen fails to adequately brief this issue. We do not consider inadequately briefed argument. RAP
10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992)
(argument unsupported by citation to the record or authority will not be considered). Because
Hopwood inadequately briefed this issue, we decline to consider his claim.
17
No. 51173-8-II
CONCLUSION
We hold that the superior court did not abuse its discretion in denying Olsen’s motion for
a new trial and affirm the superior court’s order.
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.
SUTTON, J.
We concur:
MELNICK, P.J.
GLASGOW, J.
18