State v. Thomas

Brachtenbach, J.

The defendant was convicted of third degree rape. The Court of Appeals affirmed. State v. Thomas, 46 Wn. App. 280, 730 P.2d 117 (1986), review granted, 108 Wn.2d 1001 (1987). We affirm.

The sole issue raised by the petition for review is whether the trial court must instruct on character evidence when the defendant has introduced relevant character testimony. Defendant contends the failure to give his requested instruction is contrary to the holding in State v. Allen, 89 Wn.2d 651, 574 P.2d 1182 (1978).

Defendant requested the following instruction:

Evidence of the defendant's good character may be sufficient to raise a reasonable doubt whether the defendant is guilty, where doubt would otherwise not exist.

Clerk's Papers, at 19.

The trial court gave no instruction dealing specifically with character evidence. The given instructions did instruct the jury to consider all the evidence and that a reasonable doubt could exist after "fully, fairly and carefully considering all of the evidence”. (Italics ours.) Clerk's Papers, at 18. The defendant in closing argument argued fully the testimony of defendant's character.

We conclude (1) that when justified by the evidence an instruction of the nature discussed hereafter should be given, (2) that the defendant's requested instruction was properly refused and (3) that any error was harmless.

The 14-year-old victim was a frequent visitor in the home of defendant, his wife and their two small children. On the night of the incident, the victim was asleep in a bedroom in defendant's home. Defendant left the home about 10 p.m. He and a friend returned at about 4:30 a.m. from a lengthy bout of drinking, privately and in lounges in Tacoma.

The victim heard defendant's wife ask him what he was doing at that hour. The victim then saw someone at the door of the bedroom. She asked defendant "[i]s that you Doug [defendant]?" He replied "Yes". The defendant's wife confirms the approximate time and hearing defendant and the victim talking. Shortly thereafter the victim was awakened by someone whom she positively identified as the defendant, who asked her if "she would tell?" She feigned sleep and did not answer. Again, later, she was awakened by the person who got in bed and raped her. She felt a wet and sticky liquid on her legs. There was evidence of semen and blood on the victim's underpants. The victim testified that she could not see her attacker because of darkness, but knew it was the defendant because of his large legs and chest. The other man in the house, who is implicated as the possible rapist according to the defendant, was described as skinnier than the defendant. Upon awakening later in the morning, the victim left promptly, called her mother and informed her of the rape, reported it to the police and named defendant as the assailant.

Defendant's wife testified that defendant was drunk when he came home about 4:30 a.m., that he came into their bedroom briefly after she heard him talking to the victim, and that he said he and his friend were going out cruising. Then he left the bedroom and she did not know where he was until he came back, perhaps a half an hour later, and passed out in the bed.

The other man in the house fell asleep immediately after defendant and he decided not to go out again. He denied any contact with the victim. The defendant also denied having any contact with the victim other than speaking to her when he first came home.

In a lengthy and vigorous closing argument defense counsel dwelt at length on the State's burden of proof, he questioned whether there had even been a sexual act with the victim, alluded to her having a boyfriend, and argued that it was unlikely that she was a virgin as she testified. Counsel accused the victim and her mother of lying.

Our analysis proceeds upon several established principles. First, the claimed error is not of constitutional magnitude. Second, the claimed error is not ground for reversal unless it was prejudicial. It is not prejudicial "unless, within reasonable probabilities, had the error not occurred, the outcome . . . would have been materially affected." State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).

Two points must be emphasized. First, the proposed instruction was properly refused. Second, even if it is assumed, arguendo, that it was error not to give any instruction on the effect and rule of character evidence, that assumed error was harmless in this case. To be contrasted, although not applicable here, is the instance where an instruction contains erroneous statement of law. See State v. Wanrow, 88 Wn.2d 221, 237, 559 P.2d 548 (1977).

It is interesting to note that defendant's brief contends that it is a per se automatic reversible error to fail to give an evidence of character instruction. He does not claim that it prevented him from arguing his theory nor does he argue that within reasonable probabilities the omission materially affected the outcome. Defendant's position elevates his contention to an error of such constitutional significance that it can never be harmless error. That is not the law.

The record must be evaluated in terms of reasonable probabilities and whether the outcome was materially affected. Thus, the proper resolution depends upon the probability that the error materially affected the result, i.e., a 2-component analysis. It is not a question of some possibility and not a question of a remote probability. Rather it must involve a reasonable probability. Connected to that must be a determination whether the omitted instruction materially affected the outcome. Again, it is not the fact that every event or omission in a trial might conceivably have some effect upon the verdict. Rather, the inquiry is whether it has a material effect.

The reviewing court cannot isolate evidence, but must "scrutinize the entire record" and determine whether the claimed error affected the result. State v. Britton, 27 Wn.2d 336, 341, 178 P.2d 341 (1947).

In evaluating the claimed error it is important to put the underlying testimony in context. Three witnesses testified that defendant had a good reputation for being "sexual[ly] moral," for "sexual uprighteousness" and for being a "sexually decent person." Their entire collective testimony represents 14 pages of 494 pages of the report of proceedings.

Defense counsel was not only invited by the court, when discussing the instruction, to argue the issue to the jury, defense counsel did so. Defense counsel specifically named the three witnesses who testified as to defendant's character and argued as follows:

Theresa Dixon, Doug Ross, Valorie Lowe, just briefly, they told you what kind of man Doug Thomas is and they told you a little bit about his family. What I think is important here to note is that as they testified they all know his reputation in the community in which he resides, to portray sexual morality, uprighteousness and decency, the kind of guy he is. And what did they have to say? That his reputation, in essence, is good or excellent and they have known him for collectively speaking over a decade and a half.

They are not going to get on the stand and lie under oath. And what I think is very instrumental here, and extremely important to note, is that they are parents and not only are they parents, they have young girls, young girls just like . . . [the victim].

Verbatim Report of Proceedings, at 78 (Nov. 6, 1984).

Defense counsel was not interrupted by the prosecutor nor limited in any manner from arguing his defense theory. That eliminates the necessary predicate that instructional error must prevent a fair argument of the party's theory to the jury.

Defendant's evidence of a character trait was admitted in careful compliance with ER 404(a)(1). The sole factual question of relevance here was whether the jury believed the victim who, with plausible reasoning, positively identified the defendant, or whether it believed the defendant, who denied everything. Character trait was forcefully argued to the jury. We cannot conclude that there was a reasonable probability that one more sentence in the instructions would have materially affected the outcome. To find that, one has to say that the jury would have then disbelieved the victim and believed the defendant because of the weight attached to a character trait testified to by three of defendant's close friends. The jury was instructed to consider all the evidence and that a reasonable doubt could exist after "fully, fairly and carefully considering all of the evidence". The jury did not find a reasonable doubt nor do we.

If there were any error in not giving any instruction about character evidence, we conclude, after reviewing the entire record, including defendant's lengthy jury argument, that there is not a reasonable probability that the outcome of the trial would have been materially affected. Thus, the claimed error was not prejudicial and therefore the equivalent of harmless error.

We now turn to the matter of an appropriate instruction when defendant has properly introduced testimony of character or trait. ER 404, 405.

Evidence of character or of a character trait is different from most evidence. It does not prove or disprove an element of a charged crime nor prove or disprove a particular defense. Its relevance is to permit, but not require, the jury to infer from the particular character trait that it is unlikely or improbable that the defendant committed the charged act. 1A J. Wigmore, Evidence §§ 54.1-56 (rev. ed. 1983). Because such evidence does not usually bear directly upon the disputed facts, it is desirable to instruct the jury as to its purpose and effect.

The central question is the appropriateness of the words that character evidence "may in and of itself create a doubt as to the guilt of the defendant."

Preliminarily, it is well to caution use of federal cases such as those cited by the defendant, Michelson v. United States, 335 U.S. 469, 476, 93 L. Ed. 168, 69 S. Ct. 213 (1948) and Edgington v. United States, 164 U.S. 361, 366, 41 L. Ed. 467, 17 S. Ct. 72 (1896). The first reason for such caution is the distinction between the right of a federal court to comment on the facts and the constitutional prohibition in this state. The second reason is the division among the federal circuit courts. Only three circuits follow the principle that the defendant is entitled to an instruction that character evidence in and of itself may create a reasonable doubt. At least seven circuits do not follow that rule and require at least that character evidence simply be considered along with all the other evidence. See 75 Am. Jur. 2d Trial § 802 (1974).

Defendant places great reliance on State v. Allen, 89 Wn.2d 651, 574 P.2d 1182 (1978) and State v. Mark, 94 Wn.2d 520, 618 P.2d 73 (1980). Both demonstrate the disarray in this area, but neither answers the question.

The muddle in our cases is easily illustrated. In State v. Humphreys, 118 Wash. 472, 478, 203 P. 965 (1922), the trial court refused an instruction that evidence of good character may of itself be sufficient to raise a reasonable doubt. The court said: "Whatever may be the rule in other jurisdictions, this state has answered the argument to the contrary in the case of State v. Cushing, 17 Wash. 544, 50 Pac. 512 [1897]". Yet, in State v. Tyree, 143 Wash. 313, 317, 255 P. 382 (1927), the court said that such evidence may itself create a doubt.

Then in State v. Allen, supra at 655, we stated that we have recognized that "such evidence may, in a given case, create a doubt in and of itself as to the guilt of the accused."

The proposed instruction in State v. Allen, supra, included the phrase that such evidence may in and of itself create a doubt as to guilt. We said that the proposed instruction did not incorrectly state the law. To confound the matter, State v. Mark, supra at 526, stated that Allen "does not go so far as to say that the refusal of such an instruction [the in and of itself portion] is reversible error, where the jury is otherwise instructed that it should consider the evidence as bearing on the guilt or innocence of the defendant." We then hedged by commenting: "And we indicated that the proposed instruction was vulnerable, at least to some extent, to an objection that it might mislead the jury." Mark, at 526.

Nothing is to be gained by trying to harmonize all of these cases. What should be the appropriate instruction? It is not desirable to include the direction to the jury that character or reputation evidence in and of itself may create a doubt. That places undue emphasis upon one item of testimony, emphasis which is not warranted. It isolates and singles out one bit of testimony. We need not decide here whether it is a comment on the evidence; however, Mark recognizes that the phrase may mislead the jury.

Because such evidence does not usually bear directly upon the issues, it is desirable to instruct the jury as to its purpose and effect. The following instruction, taken from WPIC 6.12 (Supp. 1986) but omitting the "in and of itself" phrase, should suffice:

Any evidence which bears upon good character and good reputation of the defendant should be considered by you, along with all other evidence, in determining whether or not the defendant is guilty. However, even if you find that the defendant is a person of good character or reputation, you should not acquit if you are convinced beyond a reasonable doubt of the defendant's guilt.

This instruction, when requested and when justified by the evidence, should be given. Whether its omission, when requested and justified, is reversible error will still depend upon application of a harmless error review. The potential issue can be avoided by giving it in an appropriate case. Affirmed.

Pearson, C.J., and Utter, Dolliver, Andersen, Callow, and Durham, JJ., concur.