State Of Washington v. Tom John Chuol ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70132-1-1 n
Respondent,
DIVISION ONE ^
v.
UNPUBLISHED OPINION ^
TOM JOHN CHUOL, CO
Appellant. FILED: September 29, 2014
Leach, J. — Tom John Chuol appeals his conviction for felony harassment
under 9A.46.020(1) and (2)(b). Chuol challenges the trial court's refusal to
include, in a limiting instruction about ER 404(b) evidence, a statement expressly
prohibiting the use of this evidence to show Chuol's propensity to commit criminal
acts. For the first time on appeal, Chuol also claims that with the limiting
instruction, the judge commented on the evidence in violation of article 4, section
16 of the Washington Constitution. Chuol further claims that the trial court
allowed a witness to testify about Chuol's veracity. Finally, Chuol claims that the
combined effect of these asserted errors warrants a new trial.
The trial court's limiting instruction accurately stated the law. Because
Chuol fails to show manifest error, we do not review his judicial comment claim.
The testimony challenged as a prohibited opinion about Chuol's veracity did not
directly address Chuol's credibility. We affirm.
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FACTS
The State charged Tom Chuol with felony harassment (count I) and
threats to bomb or injure property (count II) after Tracy Robinson reported that
Chuol had threatened her and fellow employees.
Chuol and Robinson worked together at Swedish Hospital. Robinson
testified that during a carpool ride with Chuol on July 20, 2012, Chuol was very
angry and said that he wanted to take a bomb and blow up her, their co-workers,
and the hospital. Robinson also testified that Chuol said he could kill unspecified
people with a gun. Robinson also described an earlier occasion when Chuol said
that he did not like Americans or Filipinos, including Frank Perez and Romulo
Alejo, two Filipino co-workers.
The following day Robinson told a co-worker and a supervisor about part
of Chuol's alleged remarks. The supervisor called the police. Officer Matthew
Lilje responded, interviewed Robinson, and arrested Chuol. Robinson did not
report the alleged bomb threat until her interview with the police.
Chuol denied being angry during the drive with Robinson, denied any
mention of guns or bombs, and denied frustrations with co-workers. He said he
had no bad feelings against members of the Filipino community.
At trial, the court admitted certain evidence of Chuol's prior bad acts under
ER 404(b). Chuol requested a jury instruction limiting the use of this evidence.
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The State submitted proposed instructions for each applicable witness. Chuol
unsuccessfully objected to the instructions. He argued that the instructions must
expressly instruct jurors that the evidence could not be used to show that Chuol
was a "criminal type," had the propensity to commit crimes, and therefore likely
committed the charged offenses.
Chuol also objected by e-mail to the limiting instruction included in the
State's proposed jury instructions: "Additionally, I request that the my [sic]
proposed modification to the state's 'evidence for a limited purpose' be given with
the instruction that the court has been giving throughout the trial. The language
was provided in my prior email."
The court found the specific language proposed by Chuol unnecessary
and instructed the jury:
Certain evidence has been admitted in this case for only a
limited purpose. This evidence consists of the testimony of Romulo
Alejo, Franklin Perez, Mark Jupiter, and Rahel Desta [sic]; and
portions of the testimony of Tracy Robinson, and Mila Pillar. It may
be considered by you only for the purposes of: determining
whether Tracy Robinson was in reasonable fear that these threats
would be carried out; determining whether the Defendant had
motive to make these threats; determining the full context and
history surrounding these threats; and determining whether the
Defendant could forsee [sic] that these threats would be interpreted
as serious threats (as previously instructed by the court during
testimony). You may not consider it for any other purpose. Any
discussion of the evidence during your deliberations must be
consistent with this limitation.
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Earlier, the court gave a version of this limiting instruction when witnesses
Robinson, Alejo, Perez, Pillar, Jupiter, and Deste testified. The court modified
the language in the limiting instruction depending upon the purpose for which it
admitted each witness's testimony about prior bad acts.
Officer Lilje arrested Chuol, provided Miranda warnings, and questioned
him. During trial, the State asked Lilje why he asked Chuol progressively more
specific questions. Defense counsel objected, arguing that the question elicited
Lilje's opinion on Chuol's veracity. The court overruled the objection, and Lilje
testified, "I continued to ask the question because I felt that the answer I had
been given was not complete" and that when he had asked each question, Chuol
had responded, "Why would I say that?"
The jury convicted Chuol of felony harassment and acquitted him of the
threat to bomb or injure property.
Chuol appeals.
STANDARD OF REVIEW
This court reviews jury instructions de novo within the context of the jury
instructions as a whole.1 The trial court must give instructions that when read as
a whole, properly inform a jury of the law. The instructions must also allow each
party to argue the theory of its case and may not mislead the jury. If an
1 State v. Lew, 156 Wash. 2d 709, 721, 132 P.3d 1076 (2006) (citing State v.
Pirtle. 127 Wash. 2d 628, 656, 904 P.2d 245 (1995)).
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instruction does not accurately state the applicable law, a party must show
prejudice before we grant relief.2
Chuol failed to present to the trial court his judicial comment claim.
Generally, a failure to present an issue in the trial court waives the right to raise
the issue on appeal. RAP 2.5(a)(3) allows a party to raise for the first time on
appeal a "manifest error affecting a constitutional right." Thus, a court previews
the merits of the constitutional argument first raised on appeal to determine its
likely success.3 If the appealing party fails to show manifest error, this court will
not review the issue.4
This court reviews a trial court's evidentiary rulings under an abuse of
discretion standard.5 We will find abuse of discretion if no reasonable judge
would adopt the same view.6
The cumulative error doctrine applies when a combination of trial errors
denies the accused a fair trial, though one of the errors alone would not warrant
reversal.7
2Anfinson y. FedEx Ground Package Svs.. Inc., 159 Wash. App. 35, 44, 244
P.3d 32 (2010), affd, 174 Wash. 2d 851, 281 P.3d 289 (2012).
3 State v. Walsh, 143Wn.2d 1,8, 17 P.3d 591 (2001).
4 Walsh, 143Wn.2dat8.
5 State v. Demerv, 144 Wash. 2d 753, 758, 30 P.3d 1278 (2001).
6 Demerv, 144 Wash. 2d at 758; State v. Hager, 171 Wash. 2d 151, 156, 248
P.3d 512 (2011).
7 In re Pers. Restraint of Yates, 177 Wash. 2d 1, 65-66, 296 P.3d 872 (2013).
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ANALYSIS
Chuol first contends that the trial court erred when it admitted ER 404(b)
evidence but rejected his request that it instruct the jury "that the evidence may
not be used for the purpose of concluding that the defendant has a particular
character and has acted in conformity with that character."8
ER 404(b) prohibits the admission of "[e]vidence of other crimes, wrongs,
or acts ... to prove the character of a person in order to show action in
conformity therewith." A court can admit this evidence when offered to prove
motive, intent, or knowledge.9 When evidence is admissible for one purpose but
not another, "the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly."10 A court must provide the jury with a
limiting instruction upon the defendant's request.11 In the context of ER 404(b)
evidence, upon the defendant's request for a limiting instruction, the trial court
has a duty to correctly instruct the jury, even when defense counsel fails to
propose a correct instruction.12
As the sole authority for his position, Chuol quotes State v. Gresham:13
8 State v. Gresham, 173 Wash. 2d 405, 423-24, 269 P.3d 207 (2012).
9 ER 404(b).
10 ER 105; Gresham, 173 Wash. 2d at 423.
11 Gresham, 173 Wash. 2d at 423 (citing State v. Foxhoven, 161 Wash. 2d 168,
175, 163 P.3d 786 (2007); State v. Saltarelli. 98 Wash. 2d 358, 362, 655 P.2d 697
(1982)).
12 Gresham, 173 Wash. 2d at 424.
13 173 Wash. 2d 405, 423-24, 269 P.3d 207 (2012).
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An adequate ER 404(b) limiting instruction must, at a minimum,
inform the jury of the purpose for which the evidence is admitted
and that the evidence may not be used for the purpose of
concluding that the defendant has a particular character and has
acted in conformity with that character.
In response, the State notes that this quoted language is dicta because
the Gresham court did not decide the language required for a correct limiting
instruction. The State also observes that the authority cited in Gresham to
support the quotation, State v. Lough,14 only quoted a limiting instruction in the
context of deciding if the trial court properly admitted evidence or the record
demonstrated an improper use of it. As in Gresham, in Lough the court did not
decide the language required for a correct limiting instruction. Therefore,
Gresham and Lough do not require the specific prohibition requested by Chuol.
The State claims that substitution of a specific prohibition against a
particular use of evidence for a general prohibition against any use not
specifically authorized by the instruction creates a potential for the jury's misuse
of the evidence. The jury may think of a use for the evidence not prohibited by
the instruction and be misled into thinking it can use it for that purpose. Finally,
without citation to any authority, the State asserts,
In light of the many cases approving of the format in which
the permissible uses of the 404(b) evidence are explicitly set out
and all other uses are prohibited, it cannot be said that the trial
14 125 Wash. 2d 847, 864, 889 P.2d 487 (1995).
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court abused its discretion in choosing the more straightforward
language of the WPIC[15] over the wording proposed by Chuol.
We conclude that the trial court did not err by rejecting the form of limiting
instruction requested by Chuol. We agree with the State that Gresham and
Lough do not hold that the trial court must provide the jury with a list of prohibited
uses. We note that the court in Gresham supported its conclusion about the trial
court's duty to give a correct instruction with this pronouncement from State v.
Goebel:
"[T]he court should state to the jury whatever it determines is the
purpose (or purposes) for which the evidence is admissible; and it
should also be the court's duty to give the cautionary instruction
that such evidence is to be considered for no other purpose or
purposes."1161
The trial court did exactly that in this case. To date, our Supreme Court
has not required more.
Chuol further claims that the trial court's limiting instructions contain
judicial comment prohibited by the Washington Constitution. Each limiting
instruction referenced "these threats" rather than "the alleged threats." Chuol
contends that this communicated to the jury the court's belief that the threats
occurred, resolving a critical factual dispute in the prosecution's favor. Because
Chuol raises this issue for the first time on appeal, RAP 2.5(a)(3) requires that
15 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal (3d ed. 2008).
16 Gresham, 173 Wash. 2d at 424 (quoting State v. Goebel, 36 Wash. 2d 367,
379, 218 P.2d 300 (1950)).
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Chuol show a "manifest error affecting a constitutional right." To do this, Chuol
must show that a constitutional error resulted in actual prejudice.17 For the
purposes of our analysis, we assume that the trial court's repetition of "these
threats" in its instructions to the jury violated the constitutional prohibition against
judicial comment on the evidence.
Chuol does not show prejudice and therefore cannot raise the judicial
comment issue for the first time on appeal. Both the felony harassment and the
threat to bomb charges required proof of a threat. When the trial court used the
language "these threats" in its limiting instructions, the court did not distinguish
between the alleged threat to bomb and the alleged threats related to felony
harassment.
The jury found Chuol not guilty of the alleged threat to bomb but guilty of
the alleged threat to kill involved in the felony harassment charge. The only
disputed element of the threat to bomb count was whether Chuol made the
threat. The jury's decision reflects a finding that the State failed to prove that
Chuol made a threat to bomb and was not affected by the alleged judicial
comment. Thus, Chuol does not demonstrate prejudice.
Next, Chuol contends that the trial court allowed Officer Lilje to comment
impermissibly on Chuol's veracity when he testified, over objection, that he
17 Walsh, 143Wn.2dat8.
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"continued to ask the question because [he] felt that the answer [he] had been
given was not complete." We disagree.
Generally, a witness may not testify in the form of an opinion about the
guilt or veracity of the defendant.18 This testimony unfairly prejudices the
defendant because it invades the province of the jury.19 Opinion testimony from
a police officer raises additional concerns because it "often carries a special aura
of reliability."20 Opinion testimony is proper if it is based on inferences from the
evidence, does not comment directly on the defendant's guilt or veracity, and is
otherwise helpful to the jury.21 Here, the witness was a police officer, whose
testimony carries an "'aura of reliability.'"22 However, Lilje's opinion that Chuol's
answer to his questions was "incomplete" did not comment directly on Chuol's
guilt or veracity. Rather, it explained Lilje's motivation for asking Chuol additional
questions. Given Chuol's answers to Lilje's earlier questions, the trial judge
could reasonably conclude that Lilje's testimony describing them as incomplete
did not comment on Chuol's credibility. The trial court did not err by admitting the
testimony.
18 Demerv, 144 Wash. 2d at 759.
19 Demerv, 144 Wash. 2d at 759 (quoting City of Seattle v. Heatlev, 70 Wn.
App. 573, 577, 854 P.2d 658 (1993)).
20 State v. Kirkman, 159 Wash. 2d 918, 928, 155 P.3d 125 (2007).
21 Heatlev, 70 Wash. App. at 578.
22 State v. Montgomery, 163 Wash. 2d 577, 595, 183 P.3d 267 (2008)
(quoting Demerv, 144 Wash. 2d at 765).
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Finally, Chuol alleges that insufficient limiting instructions, judicial
comments on the evidence, and improper opinion testimony amount to
cumulative error. He contends that "[i]n combination, these errors eased
significantly the State's ability to convince jurors it had proved Chuol's guilt while
simultaneously impeding Chuol's ability to establish reasonable doubt," denying
Chuol his right to a fair trial.
An accumulation of errors may deny a defendant a fair trial even where
any one of the errors, viewed individually, may not justify reversal.23 To establish
cumulative error, however, a defendant must show multiple errors that affected
the outcome of the trial.24
Because Chuol cannot show multiple errors affected the outcome at his
trial, we conclude that his cumulative error claim fails.
CONCLUSION
While we have assumed the trial court impermissibly commented on the
evidence in its limiting instructions to the jury, Chuol fails to show any prejudice.
As a result, he cannot raise this issue for the first time on appeal. Because the
trial court's limiting instructions otherwise correctly stated the law and Officer
23 Yates, 177 Wash. 2d at 65-66 (quoting In re Pet, of Coe, 175 Wash. 2d 482,
515, 286 P.3d 29 (2012)).
24 State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646 (2006).
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Lilje's testimony did not improperly comment on Chuol's guilt or credibility, Chuol
cannot show that cumulative error affected the outcome of the trial.
For these reasons, we affirm the trial court's ruling.
WE CONCUR:
^7X,J
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