State v. Noltie, 22699-1-I

• Decision Date: 20 February 1990
• Docket Number: No. 22699-1-I,22699-1-I
• Citation: 786 P.2d 332,57 Wn.App. 21
• Parties: STATE of Washington, Respondent, v. Frederic NOLTIE, Appellant.
• Court: Washington Court of Appeals

Page 21

57 Wn.App. 21

786 P.2d 332

STATE of Washington, Respondent, v. Frederic NOLTIE, Appellant.

No. 22699-1-I.

Court of Appeals of Washington Division 1.

Feb. 20, 1990.

Charles K. Wiggins, John W. Hathaway, Edwards & Barbieri, Seattle, for appellant.

Jeffrey Baird, Deputy Pros. Atty., Seattle, for respondent.

SWANSON, Judge.

Frederic Noltie appeals from the judgment and sentence entered following his conviction on one count of first degree statutory rape and one count of indecent liberties. ¹ Noltie contends, among other things, that the trial court erred in refusing to excuse two jurors for cause, in admitting evidence of a colposcopic examination, and in refusing to order a bill of particulars.

Appellant Noltie was charged by information with two counts of first degree statutory rape (Counts I and II) and one count of indecent liberties (Count III). The complaining witness was M, Noltie's stepdaughter, who was 9 at the time of trial.

Noltie married Joanne, M's mother, in February 1984; the marriage was the second for both. At trial, M testified to a series of sexual contacts with Noltie that began shortly after the marriage, i cluding at least one incident of oral intercourse and one incident of vaginal intercourse. M also related an incident, observed by her mother, in which Noltie had her touch his penis.

In addition to describing the incident of sexual touching that she observed on May 13, 1987, Joanne, M's mother, acknowledged that she and Noltie had frequently showered together with M, but that Noltie had never expressed concern about this. Joanne never saw M grab for Noltie's genitals.

Dr. Kathryn Mikesell, a pediatrician, testified that she examined M on June 11, 1987, and found a "gaping vagina without hymenal tissue." According to Dr. Mikesell, this was an abnormal condition for a girl of M's age.

Dr. Carol Jenny, a pediatrician, performed a colposcopic examination of M on November 13, 1987. During the examination, Dr. Jenny also used the colposcope to take a series of photographic slides, which she utilized to illustrate her testimony. Three of the slides were eventually admitted into evidence.

Dr. Jenny testified that M's hymenal opening was "greater than normal" and twice what she would expect. Dr. Jenny referred to two studies that correlate this size of hymenal opening to a history of sexual abuse. Dr. Jenny found some scarring in the hymenal area, but was unable to say when the scarring, which was well healed, might have occurred. Dr. Jenny found no evidence of scarring from the hymen outwards and stated that it would be virtually impossible for a "straddle injury" to lacerate the hymen without also affecting the external structures.

Frederic Noltie took the stand and denied M's allegations. He stated that shortly after his marriage, Joanne began to experience rapid and severe "mood changes," during which she would become a "demon," falling into a rage, using foul language, and physically abusing M. Noltie testified that Joanne, in the presence of others, would frequently approach him, unzip his pants, and begin to fondle him or perform oral sex, an allegation that Joanne had denied. Noltie was troubled by the fact that M would frequently grab at his genitals and that Joanne insisted the three shower together. Noltie stated that he expressed his concerns regarding these activities to Joanne's family and to friends.

Noltie gave a different account of some of the incidents described by M, including the incident of sexual touching. According to Noltie, M had grabbed his genitals while he was tucking her into bed.

Noltie's son from his first marriage testified that he had frequently observed Joanne reach for and fondle his father's "sexual areas" with no regard for his or M's presence. Other witnesses testified that Noltie had expressed to them his concerns regarding the family showering together and M's grabbing of his genitals.

Dr. David Miller, a gynecologist from the University of California, testified on behalf of the defense. Dr. Miller reviewed the colposcopic evidence and concluded that he could see "no evidence of penile penetration." Dr. Miller challenged the accuracy of Dr. Jenny's measurements and noted that to preserve a photographic record of a colposcopic examination, it is necessary to distort, to some extent, the sexual organs.

The jury returned a verdict finding Noltie guilty of one count of first degree statutory rape and of indecent liberties (Counts I and III). Count II was dismissed by the court, a decision that has not been appealed.

Noltie first contends that the trial court erred in refusing to excuse jurors Evelyn Sun and Sondra Rhodes for cause. Noltie maintains that both demonstrated actual bias during voir dire testimony.

Granting or denying a challenge for cause lies within the discretion of the trial court, and an appellate court will not reverse absent a manifest abuse of discretion. State v. Gilcrist, 91 Wash.2d 603, 611, 590 P.2d 809 (1979); Cheney v. Grunewald, 55 Wash.App. 807, 810, 780 P.2d 1332 (1989); State v. Bernson, 40 Wash.App. 729, 740, 700 P.2d 758, review denied, 104 Wash.2d 1016 (1985). Noltie suggests that this court has an obligation to review independently the trial court's decision with "heightened scrutiny." The cases cited for this proposition, however, reinforce the abuse of discretion standard. See, e.g., Miles v. F.E.R.M. Enters., Inc., 29 Wash.App. 61, 65, 627 P.2d 564 (1981). Moreover, a reviewing court must, of necessity, defer to the trial court's decision on a challenge for cause. As this court has quoted with approval:

A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror.

State v. Gosser, 33 Wash.App. 428, 434, 656 P.2d 514 (1982) (quoting State v. Cuckovich, 485 S.W.2d 16, 23 (Mo.1972)); see also State v. Rupe, 108 Wash.2d 734, 749, 743 P.2d 210 (1987).

A prospective juror must be excused for cause if the trial court concludes that he or she is actually biased. State v. Gosser, supra 33 Wash.App. at 433, 656 P.2d 514. Actual bias is statutorily defined as:

the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging ...

RCW 4.44.170(2).

In extensive voir dire testimony, juror Evelyn Sun stated that in the previous year she had been the victim of domestic violence and was in the process of obtaining a divorce. Sun also was "on the board for King County for the prevention of child abuse and neglect," an organization that "basically works on education and prevention." Sun explained that her work on the board did not involve any contact with those who investigate child sexual abuse or programs that assist the victims of child abuse. Actual bias is not presumed simply from a potential juror's association with a particular organization. See Cheney v. Grunewald, supra.

Moreover, while Sun conceded that she had initially indicated that she thought she could not be fair, she explained that this was no longer the case. When asked by defense counsel whether, in light of her background and experience, she might not have a predisposition towards one side in the case or give more credence to a child witness, Sun stated that she would listen to the evidence and make her decision based on the evidence. We find no abuse of discretion in the trial court's denial of Noltie's challenge for cause.

In addition, appellant exercised a peremptory challenge to excuse Sun. The use of a peremptory challenge to excuse Sun " 'cures' the error unless defendant can show the use of the peremptory challenge actually prejudiced his case." State v. Bernson, supra, 40 Wash.App. at 741, 700 P.2d 758; State v. Rupe, supra; State v. Latham, 100 Wash.2d 59, 667 P.2d 56 (1983). Here, Noltie has failed to identify any actual prejudice resulting from the use of the peremptory challenge on juror Sun. Cf. State v. Latham, supra (declining to address contention that defendant was prejudiced because use of peremptory challenges denied him opportunity to exclude other jurors with strong opinions about drug use).

Noltie maintains that he was prejudiced because he subsequently exhausted all peremptory challenges, relying on the following statement:

A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury.

State v. Parnell, 77 Wash.2d 503, 508, 463 P.2d 134 (1969) (quoting State v. Stentz, 30 Wash. 134, 70 P. 241 (1902)). In State v. Gilcrist, supra, however, our supreme court declined to apply Parnell to a situation in which the trial court had denied three of appellants' challenges for cause and appellants exhausted their peremptory challenges before they could remove the third challenged juror. Gilcrist, 91 Wash.2d at 610, 590 P.2d 809. In distinguishing Parnell, the Gilcrist court noted the unusual facts in that case, where the juror had sat through the defendant's preliminary hearing. In addition, the juror in Parnell had essentially dared defense counsel to exercise the peremptory challenge, and the trial court refused a request by counsel for an additional peremptory challenge to replace the one used on the challenged juror. The circumstances here do not remotely resemble those in Parnell.

The voir dire testimony of Sondra Rhodes, who eventually sat on the jury, presents a closer question. In extensive testimony, Rhodes repeatedly stated...