State v. Kitchen
| Citation | 756 P.2d 105,110 Wn.2d 403 |
| Decision Date | 05 May 1988 |
| Docket Number | No. 53497-7,53637-6 and 53638-4,53497-7 |
| Parties | STATE of Washington, Petitioner, v. James A. KITCHEN, Respondent. In the Matter of the Personal Restraint Petition of Samuel K. CHILDRESS, STATE of Washington, Respondent, v. Albert COBURN, Appellant. |
| Court | United States State Supreme Court of Washington |
Patrick D. Sutherland, Thurston County Prosecutor, John S. Bumford, Deputy, Olympia, for petitioner State.
Griffin & Enslow, P.S., F.G. Enslow, Tacoma, for respondent Kitchen.
Barton L. Jones, Walla Walla, for petitioner Childress and appellant Coburn.
Seth R. Dawson, Snohomish County Prosecutor, Seth Aaron Fine, Deputy, Everett, John Ladenburg, Pierce County Prosecutor, Barbara L. Corey-Boulet, Deputy, Tacoma, for respondent State.
On March 4, 1987, this court consolidated three matters. Petition for review was granted in State v. Kitchen, 46 Wash.App. 232, 730 P.2d 103 (1986), certification was accepted in In the Matter of the Personal Restraint Petition of Samuel K. Childress, and State v. Albert Coburn was transferred from the Court of Appeals. The question posed in all three cases is the proper standard of review when an appellate court cannot be assured that all jurors agreed that one of several acts placed in evidence constituted the crime charged.
We previously invalidated a guilty verdict in a "multiple acts" case because we could not be assured of jury unanimity regarding the act or incidents constituting the crime. State v. Petrich, 101 Wash.2d 566, 573, 683 P.2d 173 (1984). However, in doing so we used a standard for harmless error which has later been clarified. That standard was "[t]he error is harmless only if a rational trier of fact could have found each incident proved beyond a reasonable doubt." Petrich, at 573, 683 P.2d 173. The proper standard of review for constitutional error is "harmless beyond a reasonable doubt". State v. Guloy, 104 Wash.2d 412, 426, 705 P.2d 1182 (1985); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Thus, in multiple acts cases, when the State fails to elect which incident it relies upon for the conviction or the trial court fails to instruct the jury that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, the error will be deemed harmless only if no rational trier of fact could have entertained a reasonable doubt that each incident established the crime beyond a reasonable doubt. See State v. Loehner, 42 Wash.App. 408, 411-412, 711 P.2d 377 (1985) (Scholfield, J., concurring), review denied, 105 Wash.2d 1011 (1986); see also State v. Gitchel, 41 Wash.App. 820, 823, 706 P.2d 1091, review denied, 105 Wash.2d 1003 (1985). Petrich is clarified accordingly. 1
Applying the correct standard of review, we affirm the Court of Appeals decision to reverse and remand the Kitchen conviction. We also reverse and remand the Coburn conviction. In these cases, failure to ensure a unanimous verdict could not be harmless error. However, Mr. Childress fails to meet the requirement that a personal restraint petition must show that it is more likely than not that the trial court error actually and substantially prejudiced his right to a fair trial. Therefore, his personal restraint petition is denied.
James Kitchen was charged with one count of second degree statutory rape of his daughter, allegedly occurring between the fall of 1980 and December 1981. The victim described in detail the place and circumstances surrounding several incidents that could constitute the crime charged, but was not always certain as to exact dates. The defense introduced evidence of several past contradictory statements made by the victim, in which she stated that the allegations against her father were fabricated. The jury also heard testimony from witnesses testifying generally to Mr Kitchen's and his daughter's character and reputation, and to circumstances and conversations surrounding and following the alleged acts.
The jury was not instructed that it must unanimously agree on which of the several acts testified to actually occurred. The Court of Appeals reversed and remanded the jury's conviction, holding that Mr. Kitchen was denied his right to a unanimous verdict and that error was not harmless. State v. Kitchen, 46 Wash.App. 232, 730 P.2d 103 (1986). This court accepted review of the harmless error issue.
Albert Coburn was charged with three counts of indecent liberties; each count arose out of incidents involving a different child.
The complaining witness in count 1 testified that Mr. Coburn touched her "private spot" with his hands and tongue on 5 to 10 separate occasions. Other witnesses testified to circumstances surrounding several of the alleged incidents. For example, a cousin refuted the victim's testimony that Mr. Coburn also tried to touch the cousin.
The complaining witness in count 3 testified that Mr. Coburn touched her "private spot" on more than one occasion. Her testimony was impeached by statements made in a prior interview wherein she asserted that Mr. Coburn only touched the outside of her clothing and her breasts. Other witnesses offered alternative reasons why the victim was upset at those times Mr. Coburn allegedly touched her; for example, one witness explained that the victim was upset because she feared that her grandfather would fall from a footstool.
Mr. Coburn denied both victims' allegations, and the jury heard testimony pertaining to his reputation in the community for truth, veracity and good morals.
The jury was instructed that in order to convict under count 1, they must find that "during the period between July 1983, and October 30, 1983, the defendant knowingly caused [the child] to have sexual contact with the defendant". Report of Proceedings, at 252. The court gave a similar instruction for count 3 encompassing the period of November 1982 to May 1983. On March 12, 1984, a jury found Mr. Coburn guilty of counts 1 and 3. We transferred Mr. Coburn's appeal in its entirety from the Court of Appeals.
Samuel K. Childress was charged with one count of indecent liberties, committed between October 18, 1979, and December 1979. The complaining witness testified to two incidents. In the first incident, Mr. Childress allegedly "felt around" the victim's "crotch area" while showing her a pornographic movie with another woman. In the second incident, Mr. Childress allegedly touched the victim's "crotch" with his hands and mouth while another woman was present. The only testimony heard at trial was that of the victim and her father, who observed her disturbed demeanor during the period these incidents allegedly occurred. The defendant did not present a case-in-chief.
The complaining witness could not pinpoint the exact date of these occurrences, but was certain that the first occurred around her birthday in October 1979 and the second occurred in December 1979. The trial court instructed the jury that they must agree Mr. Childress committed the crime of indecent liberties "between the dates of ... October 18, 1979, and through December, 1979". Report of Proceedings, at 101.
Mr. Childress appealed his conviction, arguing that it was the result of an illegal search. The Court of Appeals rejected that argument. State v. Childress, 35 Wash.App. 314, 666 P.2d 941 (1983). This court accepted certification of Mr. Childress' personal restraint petition.
and State v. Coburn
In Washington, a defendant may be convicted only when a unanimous jury concludes that the criminal act charged in the information has been committed. State v. Stephens, 93 Wash.2d 186, 190, 607 P.2d 304 (1980). When the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act. State v. Petrich, 101 Wash.2d 566, 570, 572, 683 P.2d 173 (1984); State v. Workman, 66 Wash. 292, 294-95, 119 P. 751 (1911). No party disputes that failure to follow one of these options is error, violative of a defendant's state constitutional right to a unanimous jury verdict and United States constitutional right to a jury trial. State v. Badda, 63 Wash.2d 176, 182, 385 P.2d 859 (1963); Const. art. 1, § 22; U.S. Const. amend. 6. The central issue is under what circumstances that error is "harmless".
The harmless error rule preserves an accused's right to a fair trial without sacrificing judicial economy in the inevitable presence of immaterial error. Delaware v. Van Arsdall, 475 U.S. 673, 680-82, 106 S.Ct. 1431, 1436-47, 89 L.Ed.2d 674, 684-85 (1986). See Comment, The Harmless Constitutional Error Rule in Washington: What It Was, What It Is, And What It Should Be, 20 Gonz.L.Rev. 429, 470 (1984-85). Neither the United States Supreme Court nor this court will forsake a defendant's fundamental right to a fair trial when constitutional error is prejudicial. Rose v. Clark, 478 U.S. 570, ---, 106 S.Ct. 3101, 3105-06, 92 L.Ed.2d 460, 470 (1986); State v. Guloy, 104 Wash.2d 412, 426, 705 P.2d 1182 (1985). In general, when trial error abridges a right guaranteed to the defendant by the United States Constitution, the jury verdict will be affirmed only if that error was "harmless beyond a reasonable doubt". Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
Given the confusion that has surrounded the harmless error test applicable to multiple acts cases, and the distinction between such cases and alternative means cases, we take the opportunity here to clarify the correct standards of review.
We first addressed the harmless error analysis applicable to a multiple acts case in State v. Stephens, supra. In Stephens, the...
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