State v. Kalebaugh

• Decision Date: 09 July 2015
• Docket Number: No. 89971–1.,89971–1.
• Citation: 183 Wash.2d 578,355 P.3d 253
• Parties: STATE of Washington, Respondent, v. Chadwick Leonard KALEBAUGH, Petitioner.
• Court: Washington Supreme Court

183 Wash.2d 578

355 P.3d 253

STATE of Washington, Respondent

v.Chadwick Leonard KALEBAUGH, Petitioner.

No. 89971–1.

Supreme Court of Washington, En Banc.

Argued Sept. 18, 2014.

Decided July 9, 2015.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Petitioner.

Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, WA, for Respondent.

Opinion

YU, J.

¶ 1 Chadwick Leonard Kalebaugh appeals his first degree child molestation conviction and claims reversible error based on the trial judge's misstatements regarding the meaning of “reasonable doubt” in his preliminary remarks to the jury venire. Kalebaugh did not object and raises the issue for the first time on appeal. We reach the unpreserved error because it is a manifest constitutional error under RAP 2.5(a)(3), but we affirm because the error was harmless beyond a reasonable doubt.

Facts and Procedural History

¶ 2 On October, 28, 2011, Kristal Strong had a birthday party for her son at their Napavine home. Strong and her children lived there with several other individuals, including Tiffany S., Tiffany's two sons, and Kalebaugh. Tiffany's six-year-old daughter H.S., who typically lived with her grandparents, was also staying at the house that day. The party ended sometime in the evening, and Tiffany put her three children down to sleep in the living room. The two boys settled in on a couch and H.S. on an adjacent love seat. The adults then retreated to the garage.

¶ 3 Jacob Murphy, a friend who had come over earlier to join the gathering in the garage, stayed overnight. Murphy slept in the same room on the couch opposite H.S.'s love seat. During the night, Murphy saw Kalebaugh lay next to the love seat, reach his hand under the blanket covering H.S., and make a rubbing motion in the area between her knees and her belly button. Murphy confronted Kalebaugh and alerted Tiffany, who found the girl's shorts bunched up so that her underwear was exposed. Kalebaugh was charged with first degree child molestation, though he denied touching the girl, and the case proceeded to trial.

¶ 4 On the first day of trial, a panel of potential jurors were brought into the courtroom to begin jury selection. The presiding judge introduced himself and made some preliminary remarks about the trial process and what jurors might expect. The judge read the charge against Kalebaugh and explained how evidence would be presented during trial. The judge further advised prospective jurors that Kalebaugh was presumed innocent and that the State had the burden of proving each and every element beyond a reasonable doubt. The judge also read the pattern instruction on reasonable doubt, including:

A “reasonable doubt” is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If after such consideration you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Verbatim Report of Proceedings (Jan. 3, 2012) (VRP) at 9; cf. 11 Washington Practice: Washington Pattern Jury Instructions:

Criminal 4.01, at 85 (3d ed. 2008) (WPIC). The judge then continued:

If after your deliberations you do not have a doubt for which a reason can be given as to the defendant's guilt, then, you are satisfied beyond a reasonable doubt.

On the other hand, if after your deliberations you do have a doubt for which a reason can be given as to the defendant's guilt, then, you are not satisfied beyond a reasonable doubt.

VRP at 9. Kalebaugh did not object to any of these remarks. After two hours of voir dire, a 12 person jury (plus one alternate) was sworn and empaneled to hear the case.

¶ 5 The judge then read to the jury what he called “preliminary instructions,” which included another explanation that it was the State that bore the burden of proof. He twice told jurors that he would instruct them on the law at the end of the case and would require the jury to follow those instructions. The judge concluded by admonishing jury members to keep their minds open and not to decide any issue in the case until they heard all the evidence. The jury subsequently heard testimony for the next two days.

¶ 6 At the close of evidence, the trial judge orally instructed the jury on the law and provided them with several written copies of the court's instructions. These final instructions were unremarkable in that they were the relevant Washington pattern jury instructions. They included instructions to follow the law as given, to presume Kalebaugh innocent, and to acquit if a reasonable doubt existed as to any element of the crime. More importantly and relevant to our review, the court's instructions included the complete and proper version of WPIC 4.01, the instruction on reasonable doubt. The jury deliberated six hours and returned a guilty verdict.

¶ 7 Kalebaugh challenged the trial judge's opening remark for the first time on appeal, arguing the comment deprived him of a fair trial. In a split decision, the Court of Appeals held the error was not reviewable because Kalebaugh failed to object at trial and affirmed the conviction. State v. Kalebaugh, 179 Wash.App. 414, 420, 318 P.3d 288 (2014). We granted review. State v. Kalebaugh, 180 Wash.2d 1013, 327 P.3d 54 (2014).

Analysis

¶ 8 An established rule of appellate review in Washington is that a party generally waives the right to appeal an error unless there is an objection at trial. RAP 2.5(a). Although this rule insulates some errors from review, it encourages parties to make timely objections, gives the trial judge an opportunity to address an issue before it becomes an error on appeal, and promotes the important policies of economy and finality. State v. O'Hara, 167 Wash.2d 91, 98, 217 P.3d 756 (2009).

¶ 9 But as with many general rules, there are exceptions, and we will review some errors even without an objection below. One exception is for “manifest error[s] affecting a constitutional right.” RAP 2.5(a)(3). This exception strikes a careful policy balance. On the one hand, a procedural rule should not prevent an appellate court from remedying errors that result in serious injustice to an accused. At the same time, if applied too broadly RAP 2.5(a)(3) will devalue objections at trial and deprive judges of the opportunity to correct errors as they happen. State v. Scott, 110 Wash.2d 682, 686–87, 757 P.2d 492 (1988).

¶ 10 So before we review the merits of an unpreserved error under RAP 2.5(a)(3), we ask two questions: (1) Has the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?

O'Hara, 167 Wash.2d at 98, 217 P.3d 756. These gatekeeping questions open meritorious constitutional claims to review without treating RAP 2.5(a)(3) as a method to secure a new trial every time any error is overlooked. State v. Lamar, 180 Wash.2d 576, 582, 327 P.3d 46 (2014) (citing State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) ).

¶ 11 Kalebaugh meets the first part of the RAP 2.5(a)(3) analysis, as his asserted error clearly implicates a constitutional interest. The presumption of innocence “is the bedrock upon which the criminal justice system stands.” State v. Bennett, 161 Wash.2d 303, 315, 165 P.3d 1241 (2007). Instructions that misstate reasonable doubt or shift the burden of proof to the defendant are constitutional errors. State v. McCullum, 98 Wash.2d 484, 488, 656 P.2d 1064 (1983). The error arises from the fundamental constitutional due process requirement that the State bear the burden of proving every element of a crime beyond a reasonable doubt. State v. Camara, 113 Wash.2d 631, 640, 781 P.2d 483 (1989) ; Const. amend. XIV. The State does not dispute that the judge's remarks are of constitutional magnitude.

¶ 12 Kalebaugh also meets the second part of the RAP 2.5(a)(3) because the asserted error is manifest from the record. In O'Hara we held that under RAP 2.5(a)(3), manifestness “ ‘requires a showing of actual prejudice.’ ” 167 Wash.2d at 99, 217 P.3d 756 (quoting State v. Kirkman, 159 Wash.2d 918, 935, 155 P.3d 125 (2007) ). “To demonstrate actual prejudice, there must be a ‘plausible showing by the [appellant] that the asserted error had practical and identifiable consequences in the trial of the case.’ ” Id. (alteration in original) (internal quotation marks omitted) (quoting Kirkman, 159 Wash.2d at 935, 155 P.3d 125 ). Next, “to determine whether an error is practical and identifiable, the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error.” Id. at 100, 217 P.3d 756. The trial judge instructed that a “reasonable doubt” is a doubt for which a reason can be given, rather than the correct jury instruction that a “reasonable doubt” is a doubt for which a reason exists. WPIC 4.01, at 85. The jury instruction given was a misstatement of the law that the trial court should have known, and the mistake is manifest from the record. Thus, Kalebaugh's claim is a manifest constitutional error and can be raised for the first time on appeal.

¶ 13 While the judge gave an erroneous instruction, the error was harmless because it did not lower the State's burden of proof or affect the outcome of the trial. Harmless error analysis occurs after the court determines the error is a manifest constitutional error and is a separate inquiry. O'Hara, 167 Wash.2d at 99, 217 P.3d 756. The judge gave the proper instruction from WPIC 4.01 in his preliminary remarks to prospective jurors before jury selection. He followed the instruction by attempting to further explain reasonable doubt, paraphrasing WPIC 4.01's “a doubt for which a reason exists ” as “a doubt for which a reason can be given. ” VRP at 9 (emphasis added). Kalebaugh is correct that the law does not...