State v. Butler
| Decision Date | 22 December 2022 |
| Docket Number | 100276-9 |
| Parties | STATE of Washington, Respondent, v. Chaz Robert BUTLER, Petitioner. |
| Court | Washington Supreme Court |
Travis Stearns, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Petitioner.
Ian Ith, King County Pros. Attorney's Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent.
Anton Robinson, Innocence Project, Inc., 40 Worth Street, Suite 701, New York, NY, 11213, Lara Zarowsky, Washington Innocence Project, P. O. Box 85869, Seattle, WA, 98145-1869, for Amicus Curiae on behalf of Washington Innocence Project.
Lara Zarowsky, Washington Innocence Project, P. O. Box 85869, Seattle, WA, 98145-1869, Anton Robinson, Innocence Project, Inc., 40 Worth Street, Suite 701, New York, NY, 11213, for Amicus Curiae on behalf of the Innocence Project, Inc.
¶1 Chaz Butler, a Black man, was convicted of assaulting two security officers in separate incidents at two Seattle light rail stations. One of the victims, who appears to be white, identified Butler as his assailant at trial. The victim had not made an out-of-court identification. Butler asked the trial court to instruct the jury according to the pattern jury instruction on eyewitness identifications, which includes optional bracketed language that the jury may consider "[t]he witness's familiarity or lack of familiarity with people of the [perceived] race or ethnicity of the perpetrator of the act." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6.52, at 218 (5th ed. 2021) (WPIC) (second alteration in original). The trial court agreed to give the pattern jury instruction, but—finding no evidence in the record regarding either the fallibility of cross-racial identification in general or the witness's familiarity or lack of familiarity with people of Butler's race in particular—declined to include that optional language. Butler did not challenge the admissibility of the witness's identification testimony. On appeal, Butler argued that the trial court denied his right to present a defense by failing to give the cross-racial identification portion of the pattern instruction. The Court of Appeals concluded that the trial court did not abuse its discretion because there was insufficient evidence supporting the instruction, and it upheld Butler's conviction.
¶2 We affirm. While Butler and supporting amici1 ask the court to take this opportunity to adopt a model jury instruction on cross-racial eyewitness identifications and to require that instruction be given whenever the defendant requests it, we decline to announce a new rule in this case. Butler did not ask the trial court to give any instruction on cross-racial identification other than the optional language in WPIC 6.52, and he was able to present his defense under the jury instructions given. We adhere to our holding in State v. Allen , 176 Wash.2d 611, 294 P.3d 679 (2013) (plurality opinion), recognizing that a trial court's decision of when and how to instruct a jury concerning cross-racial eyewitness identification testimony is reviewed for an abuse of discretion. The trial court did not abuse its discretion in declining Butler's request to give the bracketed portion of WPIC 6.52 because no evidence was presented supporting the language of that instruction. We leave for another day broader questions about what steps courts should take to mitigate the significant risk that eyewitness identifications are unreliable in the cross-racial context.
¶3 The State charged Butler with two assaults that occurred on consecutive days against two different security officers working at light rail stations in the Seattle area. Both assaults were caught on camera, and it appeared to police that the assaults were committed by the same person. A primary issue at trial was the identity of the assailant. The State sought to prove Butler was the person in the videos by showing that Butler was of the same build and race as the assailant and that he wore the same clothes and carried the same items—including the same shoes, skateboard, and backpack. At issue on appeal is the testimony of one of the victims, Michael Bilodeau, who identified Butler in court as the person who assaulted him.
¶4 The first assault occurred on November 2, 2018, against transit security officer, Michael Bilodeau, who was employed by a private security firm, Securitas. The entire incident was captured on video. Bilodeau was working at the Beacon Hill light rail station when he received a report that someone was skateboarding on the light rail platform, which is prohibited as a safety hazard. Bilodeau went to the platform to investigate and "saw a [B]lack male on a skateboard[,] doing tricks." 4 Verbatim Rep. of Proc. (VRP) at 471. When Bilodeau asked the person to stop skateboarding, the person responded by saying, " ‘F— you.’ " 4 VRP at 472.
¶5 Bilodeau asked the skateboarder to leave the platform, but he refused. At that time, an unidentified passerby called the skateboarder a " ‘jackass,’ " and the skateboarder became angry and told the passerby, " ‘I'll kick your ass, old man.’ " 4 VRP at 474. Bilodeau attempted to deescalate the situation by telling the skateboarder to leave and that it was not worth a fight. The skateboarder then came directly at Bilodeau and punched him multiple times with a closed fist. Bilodeau's glasses fell off, and his vision blacked out for a few seconds. Bilodeau testified that his interaction with his assailant lasted approximately five minutes. Bilodeau sustained injuries to his lip
and jaw, making it difficult to eat for a few days after the incident. He had to take a few weeks off work.
¶6 The next day, November 3, 2018, another assault occurred at the Pioneer Square light rail station. Security officer Kurtis Mays reported an assault by a skateboarder at the light rail station. Again, the assault was captured on video. The skateboarder approached Mays, punched him in the face, dropped Mays to the ground, and broke Mays's bottom denture.
¶7 Although police detectives investigated the assaults separately, they watched the videos of both incidents as part of both investigations. The detectives believed that the assaults were committed by the same person. They noted that the assailant appeared to have the same distinctive shoes, skateboard, and backpack in both incidents. They also noticed that the assailant in both videos had some type of facial hair. The detective investigating the Beacon Hill incident stated that the assailant in both assaults appeared to be a Black male. And the detective investigating the Pioneer Square incident stated that the assailant in both videos had a similar build and appeared to be wearing the same shoes, with duct tape on the left shoe.
¶8 The detective investigating the Beacon Hill incident took still shots from various videos and distributed these photos to police in an effort to identify the suspect. That detective then created a photomontage of six people, which included a photo of a person the detectives believed was a possible suspect. The photomontage included only Black males, and it did not include Butler. The police showed the montage to Bilodeau, and Bilodeau did not identify any of the men as his assailant. Bilodeau was never shown a new photomontage with Butler in it, and Bilodeau did not otherwise make any out-of-court identification.2
¶9 On November 10, 2018, a police officer responding to another call on Capitol Hill made contact with Butler after viewing a photograph of the assailant involved in the two assaults. According to the deputy, Butler appeared to be the same race, gender, and build as the assailant, and had the same skateboard, backpack, and shoes. The deputy described Butler as a Black male, in his mid-20s, over six feet tall, and weighing approximately 200 pounds. The deputy noticed duct tape on one of Butler's shoes, the backpack, and distinctive stickers on the skateboard. The deputy arrested Butler and took him into custody. Based on the two incidents, the State charged Butler with two counts of third degree assault against a security officer under RCW 9A.36.031(1)(b).
¶10 No witness identified Butler as the assailant before he was charged. Bilodeau identified Butler in court for the first time at a pretrial hearing. We give some background on the trial court's ruling admitting that in-court identification to provide context in understanding that the admissibility of Bilodeau's identification is not before this court.
¶11 At a pretrial hearing under CrR 3.5 to determine whether some of Butler's statements could be used at trial, the State called Bilodeau and asked him to identify Butler. After Bilodeau identified Butler at that hearing, Butler moved to exclude the use of Bilodeau's identification of him at trial. Counsel argued that the identification was questionable because Bilodeau had identified Butler for the first time at the hearing over a year after the assault and because Butler was the only person of color in the courtroom.
¶12 The trial court denied Butler's motion to exclude the in-court identification. The court explained its understanding of the fallibility of eyewitness identifications and concluded that the factors normally bringing those identifications into question—especially suggestive police procedures in out-of-court identifications—were not present for in-court identifications generally. While the trial court allowed Bilodeau to testify to his identification at trial, the judge also underscored that defense counsel could cross-examine Bilodeau about the problems with his identification, including that "Mr. Butler is the only person of color who's seated at one of the counsel tables here." 2 VRP at 118. Butler has not assigned error to that ruling,...
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