In re Flook
| Decision Date | 09 March 2023 |
| Docket Number | 38328-8-III |
| Parties | In the Matter of the Personal Restraint of ROGER W. FLOOK, Petitioner. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
After this court affirmed Roger Flook's conviction for first degree child molestation on direct appeal, he filed this timely personal restraint petition (PRP). He raises four issues, and argues that his conviction should be reversed because: (1) his due process right to a fair trial was violated when the judge presiding over his trial was later convicted of crimes related to sexual misconduct, (2) the judge's conduct violated the non-constitutional appearance of fairness doctrine, (3) the trial court abused its discretion in excluding impeachment evidence, and (4) the trial court abused its discretion in admitting evidence of Flook's lustful disposition toward the victim.
While we agree that the trial court erred in admitting evidence to show lustful disposition, Flook is not entitled to relief because he has failed to show that the error caused a fundamental defect in the proceedings that inherently resulted in a complete miscarriage of justice. We disagree with the remainder of Flook's arguments and deny his petition.
Flook and Martha Montenegro were husband and wife.[1] Montenegro has a daughter (AS) and a son (JS) from a previous marriage.
In June 2014, when AS was 11 years old, the family of four attended a marriage retreat. They stayed in a hotel room with one large bed in which they slept side by side. Montenegro and Flook slept on the outside, and JS slept next to Montenegro and AS next to Flook.
In the middle of the night, AS awakened when Flook put his hand on her upper thigh. Flook removed his hand and replaced it on AS's hip area. Flook then moved his hand under AS's pants and eventually under her underwear, touching her vaginal area. AS turned away from Flook and put her arm between her legs at which point Flook grabbed her arm and whispered "come on." Rep. of Proc. (RP) at 478.
AS later described the incident to a friend. Eventually, the incident was reported to Child Protective Services and the Whitman County Sheriff's Office.
Following the investigation, Flook was arrested and the State charged him with one count of first degree rape of a child and one count of first degree child molestation.
A jury found Flook guilty of both charges, and the trial court sentenced him to 174 months to life for the charge of first degree child molestation. State v. Flook, No 34220-4-III, slip op. at 5 (Wash.Ct.App. Jul. 11, 2017) (unpublished), https://www.courts .wa.gov/opinions/pdf/342204_unp.pdf.
Flook appealed, and this court reversed his convictions and remanded for a new trial, determining that a law enforcement officer had improperly vouched for AS's credibility and Flook's lack of veracity. Id. at 1.
Meanwhile Montenegro sold Flook's truck to an acquaintance. After the first trial concluded, the acquaintance discovered a thumb drive hidden under the truck's dashboard and a cache of pornographic videos stored on the device. Most of the videos were adult pornography, but two of the files were encoded differently. The acquaintance opened the videos and found they were voyeuristic, homemade videos of a young girl bathing. He contacted Montenegro, played the videos for her and at her request, sent the thumb drive to Sheriff Myers who had investigated AS's allegations.
After receiving and reviewing the videos, Sheriff Myers obtained and executed a search warrant for the house where the videos were taken. Sheriff Myers went into the bathroom and confirmed the bathroom tile matched that shown in the video. He also noticed a hole in the bathroom ceiling that matched the angle of where the video was taken. Montenegro later testified that only Flook had access to the attic above the ceiling and he went up there a handful of times while they lived together. She further testified that JS did not have the ability to climb into the attic.[2]
Procedure and Second trial
Following this court's decision in the first appeal, a second trial was held, starting in December 2018. Flook's pretrial proceedings and trial were overseen by Judge Scott Gallina.
Prior to trial, the trial court granted the State's motion to admit evidence of Flook's prior conduct and interactions with AS. Over Flook's objection, the trial court determined that the following evidence was admissible to show Flook's lustful disposition toward AS: (1) testimony about Flook patting AS on the buttocks, (2) testimony about Flook showing AS anime pornography and discussing pornographic items and sex with her, (3) the video recording of AS in the bathtub located on the thumb drive, and (4) testimony that Flook had AS sit on his lap. Although the trial court also determined that all of the evidence, except for the video recording, was relevant because it showed either intent or grooming, the jury was instructed that the evidence "may only be considered . . . to the extent [the jury] find[s] it relevant to issues of whether Mr. Flook had a lustful disposition towards [AS]." Clerk's Papers (CP) at 111.
During voir dire, the trial court explained to the jury that they were required to speak into the microphone because there was no transcriptionist:
We used to have a transcriptionist that would sit down here in the well and type up everything as we went along, but she has since been replaced by this less-attractive piece of machinery down here that records everything digitally.
Additionally while the parties were making their preemptory challenges, the trial court asked the jury trivia questions to distract them. One of the questions related to a law making it illegal to ride an ugly horse. Judge Gallina commented, Pet'rs App'x at 71.
Prior to AS testifying at trial, the State requested that the victim advocate be permitted to sit by her while she testified. Before ruling on the State's request, the trial court questioned the victim advocate about AS's state of mind regarding testifying. The trial court ultimately determined that the victim advocate would sit near AS while she testified.
Montenegro testified at trial. During cross-examination, defense counsel asked her whether she once caught JS and AS playing sex games together. She responded, "Absolutely not true." RP at 585.
AS's friend also testified. During cross-examination, defense counsel asked the friend whether AS ever talked to her about "sexual contact she was having with her boyfriend." RP at 630. The State objected. The trial court excused the jury, heard argument, and ruled that the testimony was inadmissible under the rape shield statute.
Flook elected to testify. Defense counsel asked Flook about the incident involving AS and JS, and the State objected. The State noted Montenegro had denied that her two children were playing sex games. Defense counsel responded:
[T]he State is trying to portray A.S. as an innocent waif, we have-the jury should have an opportunity to hear all of the evidence.
RP at 761. Defense counsel then made an offer of proof, stating that Flook would testify that he had heard Montenegro and AS screaming and yelling in the bathroom. Montenegro then came out upset and said she had caught AS and JS experimenting sexually and had disciplined AS. The State objected based on the rape shield statute and additionally objected on the basis of hearsay and ER 404. Defense counsel did not respond to these additional objections. The court excluded the testimony.[3]
During the testimony of AS's therapist, the trial court twice made comments to the State regarding how to phrase questions following Flook's objection to the State's questions. Additionally, after the parties briefly discussed an objection from Flook, Judge Gallina directed the State to continue its questioning:
I'm going to hold up all the talking for a moment. You can continue to ask the question about what actions she took in response to information she was given, if any.
The jury found Flook guilty of first degree child molestation but acquitted him of the first degree child rape charge.
At sentencing, the State argued that, although the trial court had previously sentenced Flook to a mid-range sentence for the first degree child molestation conviction, the videos taken by Flook of AS and found by the State since the first trial justified a longer sentence. The State maintained that the video evidence "demonstrate[d] [Flook's] danger to future victims and militate[d] for a sentence at the high end of the range." CP at 135.
Because Flook was convicted of first degree child molestation, he was subject to an indeterminate sentence with a maximum term of life in prison. The trial court entered a judgment of 186 months to life incarceration, which was 12 months longer than the sentence imposed for the same charge following Flook's first trial, but still within the standard range.
Flook appealed, arguing that the trial court abused its discretion in excluding his testimony regarding Montenegro's prior statements about AS and JS playing sex games. This court affirmed Flook's conviction. In doing so, we concluded that the trial court did not abuse its discretion in excluding this evidence.
In response to multiple reports from Asotin County courthouse staff that Judge Gallina, the judge who oversaw Flook's trial and related proceedings, had harassed, assaulted, and raped courthouse employees, the county's private insurance and risk management firm conducted an internal investigation. Two...
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