State Of Washington, V. Chaz R. Butler

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 81024-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
CHAZ ROBERT BUTLER,
Appellant.
ANDRUS, A.C.J. — Chaz Butler challenges his convictions for third degree
assault, arguing the two victims, employed by a private security company to
provide security services to Sound Transit and King County Metro, were not
employed by a “transit company” or a “contracted transit service provider” as
required by RCW 9A.36.031(1)(b). He further contends the court erred in declining
to instruct the jury on cross-racial eyewitness identification. Finally, he argues the
prosecutor committed prosecutorial misconduct during closing arguments. We
affirm his convictions.
FACTS
On November 2, 2018, Michael Bilodeau was employed by a private
security firm, Securitas, and was working as a transit security officer in the light rail
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Beacon Hill station. Bilodeau, wearing a uniform emblazoned with the words
“Transit Security” and “Security Sound Transit,” was dispatched to investigate
someone skateboarding on the train platform. When he arrived at the platform, he
heard the skateboard and followed the sound until he saw a man doing skateboard
tricks near the elevators.
Bilodeau described the skateboarder as a black man, over six feet tall,
weighing approximately 200 pounds, with facial hair. The man wore an orange
hooded sweatshirt, shorts, and a backpack, and one of his shoes had duct tape on
the side. Bilodeau informed Butler that it was not safe to skateboard on the
platform and asked him to stop. Butler responded, “F— you,” so Bilodeau asked
him to leave. When Butler just stood there, apparently unwilling to leave the
platform, Bilodeau reiterated that he was not allowed to skateboard on the
platform. They “went back and forth” like this until a nearby bystander angered
Butler by calling him a jackass. Butler retorted “I’ll kick your ass, old man.”
Bilodeau intervened, telling Butler “it’s not worth it. Just leave. Just leave on the
next elevator.”
At that point, Butler lunged and struck Bilodeau repeatedly in the face with
a closed fist until Bilodeau fell against the wall. Butler struck Bilodeau hard enough
to cause his vision to black out and to knock his hat and glasses off. Bilodeau
testified that the attack was very painful and caused him to feel “dizzy and dazed.”
Bilodeau quickly collected his hat and glasses and radioed for help. Butler
got into an elevator and left.
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On November 3, 2018, one day after this incident, another transit security
officer, Kurtis Mays, was assaulted while standing on the platform of the Pioneer
Square station. At the time, he wore a bright yellow uniform with the word
“Security” on the back. This jacket was consistent with the uniform worn by King
County Metro Transit security officers.
In security video footage, Mays can be seen speaking with a man carrying
a skateboard. The man struck Mays in the face, knocking him to the floor.
Responding officers could see that Mays’ face was swollen from the attack and his
bottom denture had been broken in half.
Detective Ross Markham reviewed security video footage from both
incidents and quickly noticed similarities between the events. The assailants
appeared to be the same person—they had the same physical characteristics,
including the same build, height, weight, and facial hair, and they possessed
similar items, including a taped-up shoe, a skateboard with distinctive stickers, and
a backpack. And both assailants punched using their left hand. Detective
Markham distributed still shots from the videos to other officers to help identify the
assailant.
Detective Markham initially suspected a man named Michael Ross. He
created a photo montage of six African-American men, including Ross, in the
montage to show to Bilodeau. But Bilodeau indicated that none of the men in the
montage was the assailant. Butler was not pictured in this photo montage.
On November 10, 2018, Sergeant David Hoag spotted a man on Capitol Hill
who looked like the transit station assailant. Both were black, over six feet tall,
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weighed approximately 210 pounds, and had close-cropped hair and facial hair.
Both wore black shoes and the left shoe was duct-taped along the outer edge.
Sergeant Hoag testified that the man he observed on Capitol Hill carried a similar,
military-style backpack and a skateboard with the same pattern of stickers affixed
to the bottom of the deck. Sergeant Hoag stopped the man, identified him as Butler
from his driver’s license, and arrested him.
The State charged Butler with two counts of third degree assault for the
attacks on Bilodeau and Mays. Bilodeau testified and identified Butler as his
assailant. Mays did not testify and police were unable to locate him after the
assault to determine if he could identify Butler as the man who assaulted him. The
jury convicted Butler as charged, and Butler was sentenced to 182 days
imprisonment.
ANALYSIS
A. Sufficiency of the Evidence
Butler was charged with two counts of assault in the third degree under
RCW 9A.36.031(1)(b). Under that statute, the State had to prove that Butler
assaulted “a person employed as . . . a security officer, by a public or private transit
company or a contracted transit service provider, while that person is performing
his or her official duties at the time of the assault.” Butler asks us to reverse his
convictions because the two security guards were not employed by either a “transit
company” or a “contracted transit service provider” as required by RCW
9A.36.031(1)(b).
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We review issues of statutory interpretation de novo. State v. Dennis, 191
Wn.2d 169, 172, 421 P.3d 944 (2018). The purpose of statutory interpretation is
to give effect to the intent of the legislature. State v. Sweany, 174 Wn.2d 909, 914,
281 P.3d 305 (2012). To derive legislative intent, we look to the “plain language
enacted by the legislature, considering the text of the provision in question, the
context of the statute in which the provision is found, related provisions, and the
statutory scheme as a whole.” State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724(2013). If the statute's meaning is unambiguous, our inquiry ends. State v.
Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). A statute is ambiguous
when it is susceptible to two or more reasonable interpretations, but not merely
because different interpretations are possible. In re Det. of Aston, 161 Wn. App.
824, 842, 251 P.3d 917 (2011).
It is undisputed that Bilodeau and Mays were employed by Securitas, a
private security company that contracts with Sound Transit and King County Metro
Transit to provide security officers at various transit stations. At issue in this appeal
is whether transit security officers, whether employed directly by Sound Transit or
King County Metro, or employed by a company contracting with these agencies to
provide transit security, are included in the protections of RCW 9A.36.031(1)(b).
We conclude they are.
The statute explicitly criminalizes assault on persons employed as “a transit
operator or driver, the immediate supervisor of a transit operator or driver, a
mechanic, or a security officer.” RCW 9A.36.031(1)(b) (emphasis added). There
is no dispute that Bilodeau and Mays were so employed. But the statute covers
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security officers only if they are employed by “a public or private transit company
or a contracted transit service provider.” RCW 9A.36.031(1)(b).
Sound Transit and King County Metro fall within the scope of the employers
covered by the statute because these agencies are public transit companies. But
Bilodeau and Mays were not employed by either agency. And both parties agree
that Securitas is not a “private transit company” because it is not in the business
of operating trains, buses, or any other form of transit.
The only question here is whether the security guards Butler assaulted were
employed by a “contracted transit service provider.” While this phrase could mean
an entity under contract to provide the actual transit services, such as the operation
of the trains or buses, the phrase could also mean an entity under contract to
provide any service to a transit company. Butler asks us to adopt the first of these
two interpretations. We decline to do so.
First, Butler’s narrow reading ignores the fact that the legislature separated
the phrase “a private transit company” and “a contracted transit service provider”
with the word “or.” When the legislature uses the term “or,” we presume it is being
used in the disjunctive sense unless the legislative intent is clearly to the contrary.
Childers v. Childers, 89 Wn.2d 592, 595-96, 575 P.2d 201 (1978). And use of the
disjunctive in a statute indicates alternatives. See generally, A. SCALIA & B.
GARNER, READING THE LAW : THE INTERPRETATION OF LEGAL TEXTS,
Conjunctive/Disjunctive Canon, 116 (2012). Thus, under rules of statutory
construction, a transit company—the entity actually operating the trains and
buses—is distinct from a contracted transit service provider; the two are not
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intended to be the same. We cannot conclude that a “contracted transit service
provider” means an entity operating the trains and buses because such an
interpretation would collapse the two statutory alternatives into one, ignoring the
legislature’s use of the disjunctive. The phrase “contracted transit service provider”
must mean something other than a “transit company.”
Second, Butler’s interpretation of RCW 9A.36.031(1)(b) would lead to an
absurd result. It would make a defendant’s level of culpability for assaulting a
security officer on a transit platform or in a transit tunnel dependent on who signs
the victim’s paycheck, rather than on the victim’s work duties. Common sense
informs our analysis and we will avoid absurd results in statutory interpretation.
State v. Alvarado, 164 Wn.2d 556, 562, 192 P.3d 345 (2008). We therefore
conclude the legislature intended to make it a felony to assault a security officer
working within a transit system, whether employed by the actual operator of that
system or employed by an independent contractor.
Because Butler’s interpretation of RCW 9A.36.031(1)(b) is not supported
textually and would lead to absurd results, we reject it. Securitas, under contract
to Sound Transit and King County Metro to provide security services in their transit
facilities, is a contracted transit service provider. Substantial evidence thus
supports Butler’s assault in the third degree convictions.
B. Cross-Racial Jury Instruction
Butler next argues the trial court erred in denying his proposed instruction
on cross-racial eyewitness identification. Because Butler is African American and
Bilodeau appeared to be white, Butler argues he was entitled to this instruction.
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We review a trial court's choice of jury instructions for an abuse of discretion.
State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). “[I]t is not error
for a trial court to refuse a specific instruction when a more general instruction
adequately explains the law and allows each party to argue its case theory.” Id. at
647. We similarly review a trial court’s rejection of a cross-racial eyewitness
identification instruction for abuse of discretion. State v. Allen, 176 Wn.2d 611,
624-26, 294 P.3d 679 (2013).
Butler proposed Washington Pattern Jury Instruction (WPIC) 6.52, which
states:
Eyewitness testimony has been received in this trial on the
subject of the identity of the perpetrator of the crime charged. In
determining the weight to be given to eyewitness identification
testimony, in addition to the factors already given you for evaluating
any witness's testimony, you may consider other factors that bear on
the accuracy of the identification. These may include:
• The witness's capacity for observation, recall and identification;
• The opportunity of the witness to observe the alleged criminal act
and the perpetrator of that act;
• The emotional state of the witness at the time of the observation;
• The witness's ability, following the observation, to provide a
description of the perpetrator of the act;
• [The witness’s familiarity or lack of familiarity with people of the
perceived race or ethnicity of the perpetrator of the act;]
• The period of time between the alleged criminal act and the
witness's identification;
• The extent to which any outside influences or circumstances may
have affected the witness's impressions or recollection; and
• Any other factor relevant to this question.
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11 W ASHINGTON PRACTICE: W ASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL
6.52, at 218 (5th ed. 2021) (WPIC).
The trial court agreed to give this instruction but redacted the bracketed
language in the fifth bullet point of WPIC 6.52 because there was no expert
testimony to support it and no evidence that Bilodeau, the only person who
provided an eyewitness identification, lacked a familiarity with people of different
races or ethnicities.
We see no abuse of discretion here. First, the pattern instruction gives the
trial court the discretion to determine whether the instruction is warranted. Our
Supreme Court has recognized concerns about the reliability of cross-racial
identifications in criminal cases. Allen, 176 Wn.2d at 617. But the WPI Committee
also expressed concerns that this type of instruction could constitute an
impermissible comment on the evidence. See WPIC 6.52, cmt at 219. The WPI
Committee thus endeavored to develop language to avoid this constitutional
problem, and chose to put the cross-racial language in brackets, cautioning courts
to carefully review Allen before determining whether the factor should be included
in any instruction given to the jury. 1 The trial court correctly concluded that the
language relating to cross-racial identification may or may not be appropriate,
depending on the evidence presented at trial.
Second, the trial court was also correct in concluding there was a lack of
evidence to support the bracketed language of WPIC 6.52. There is no
requirement that the State or defense present expert testimony on the fallibility of
1
When a pattern instruction includes bracketed language, it signifies “that the enclosed language
may or may not be appropriate for a particular case.” WPIC 0.10 at 6.
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cross-racial identification before the bracketed language in WPIC 6.52 would be
appropriate. The WPI Committee noted that the instruction may be used, whether
or not expert testimony has been presented. WPIC 6.52, Notes on Use at 218-19.
But there was no evidence, lay or expert, regarding either the fallibility of cross-
racial identification in general or Bilodeau’s familiarity or lack of familiarity with
people who share Butler’s race.
Finally, Butler was able to present evidence and argue to the jury that
Bilodeau had misidentified him as the assailant. Butler cross-examined Bilodeau
extensively about his ability to observe his assailant’s face at the time of the assault
and the time delay between the assault and his in-court identification. In closing,
Butler argued that Bilodeau’s in-court identification was unreliable because his
encounter with the assailant was so brief, it left Bilodeau dazed, it led him to lose
vision during the encounter, and the identification occurred some 14 months after
the assault. Butler also highlighted the fact that the perpetrator’s facial features
were obscured by his sunglasses and hood and Bilodeau did not see the facial
features of his assailant. Butler even argued that Butler’s identification may have
been infected by implicit and explicit biases towards African Americans.
While the court could have left the cross-racial identification language in
WPIC 6.52 in its instructions to the jury, its decision to delete it was not an abuse
of discretion under the circumstances of this case.
C. Prosecutorial Misconduct
Finally, Butler argues that, during closing arguments, the prosecutor
committed misconduct when he made a burden-shifting argument designed to
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appeal to the racial prejudices of the jury. We agree that the prosecutor’s
comments were improper, but we disagree that they appealed to racial prejudice.
Moreover, the trial court sustained Butler’s objections and instructed the jury to
disregard them. He therefore cannot establish prejudice.
To establish prosecutorial misconduct during closing argument, a defendant
must show that the prosecuting attorney's statements were both improper and
prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). We consider
the prosecutor's conduct in the context of the record and all the circumstances at
trial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). The
prosecution commits misconduct by misstating or shifting its burden to prove the
defendant's guilt beyond a reasonable doubt. State v. Lindsay, 180 Wn.2d 423,
434, 326 P.3d 125 (2014). But a defendant suffers prejudice from this misconduct
only where there is a substantial likelihood that it affected the jury’s verdict. In re
Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012).
During closing argument, the prosecutor reminded the jury that Butler was
entitled to a presumption of innocence. He reiterated that the State had the burden
of proving Butler’s guilt beyond a reasonable doubt. He then went on to say “But
what I want to ask you about may be a subconscious bias you might have. Why
does this matter?” Defense objected. When the court overruled the objection, the
prosecutor continued, “Why does this matter? Are these men worthy of the same
protection of the law as Mr. Butler is?” Again, defense counsel objected, arguing
the comments were improper. The court sustained this objection and explained to
the jury that the State was required to prove its case beyond a reasonable doubt.
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The prosecutor returned again to this line of argument and said “I want to
ask you if you have a subconscious bias that maybe these men are not worthy.”
Defense counsel objected for a third time. The court sustained the objection and
struck the argument from the record. The court explained during a sidebar
conference that the way in which the prosecutor phrased his comment “felt like
burden shifting to me. It felt like telling the jury that rather than focusing on whether
the State proved its case beyond a reasonable doubt and overcame the
presumption of innocence, he was asking the jurors to turn to what would be the
best outcome or the most desirable outcome for the victims which is never the
inquiry that the jury is supposed to engage in.”
Butler argues the prosecutor’s comments did, as the trial court concluded,
lessen the State’s burden to proof. While we agree that the jury could have drawn
an improper inference from the prosecutor’s comments, Butler has not
demonstrated that the comments had a substantial likelihood of affecting the jury’s
verdict. Prejudice resulting from a prosecutor’s improper remarks can be remedied
by a curative instruction from the trial court. See State v. Warren, 165 Wn.2d 17,
28, 195 P.3d 940 (2008) (trial court instruction on reasonable doubt cured
prejudice resulting from the prosecutor’s improper argument that the jury was not
required to give the defendant the “benefit of the doubt.”).
Here, the trial court sustained Butler’s objection to the prosecutor’s improper
argument and struck it from the record. The jury was instructed that “If evidence
was not admitted or was stricken from the record, then you are not to consider it in
reaching your verdict(s).” The jury is presumed to follow the court’s instructions to
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disregard closing remarks. State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610(1990). Any potential prejudice was cured.
Butler contends he does not need to prove prejudice because there were
racial undertones to the prosecutor’s statements and the statements were
designed to appeal to the passions and prejudices of the jury. Relying on State v.
Monday, 171 Wn.2d 667, 257 P.3d 551 (2011), he argues we should presume
prejudice and require the State to prove that the error was harmless beyond a
reasonable doubt. But the prosecutor’s comments here are in no way analogous
to the comments the Supreme Court addressed in Monday.
In Monday, a prosecutor made repeated overt derogatory comments to
reinforce racial stereotypes. Our Supreme Court reversed Monday’s conviction,
holding that “when a prosecutor flagrantly or apparently intentionally appeals to
racial bias in a way that undermines the defendant’s credibility or the presumption
of innocence, we will vacate the conviction unless it appears beyond a reasonable
doubt that the misconduct did not affect the jury’s verdict.” Id. at 680.
Monday is distinguishable. Here, there is no basis for arguing the
prosecutor deliberately appealed to the jury’s racial bias. The trial court made it
clear that it did not believe the prosecutor was intentionally trying to shift the burden
of proof to Butler. The prosecutor referred to a “subconscious bias” jurors might
have against security officers, not against persons of color. There were no
comments reflecting racial stereotypes. And neither Butler nor the court suggested
the prosecutor’s comments were racially motivated. Because the record does not
support the argument that the prosecutor was trying to appeal to racial bias, the
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constitutional harmless error standard does not apply. See State v. Emery, 174
Wn.2d 741, 757-59, 278 P.3d 653 (2012) (constitutional harmless error review
does not apply where a prosecutor misstates the burden of proof but there is no
deliberate injection of racial bias.).
We therefore affirm.
WE CONCUR:
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