State v. Zimmerman

• Decision Date: 01 November 2005
• Docket Number: No. 31648-0-II.,31648-0-II.
• Parties: STATE of Washington, Respondent, v. Stoney Allen ZIMMERMAN, Appellant.
• Court: Washington Supreme Court

Page 1216

121 P.3d 1216

130 Wn. App. 170

STATE of Washington, Respondent, v. Stoney Allen ZIMMERMAN, Appellant.

No. 31648-0-II.

Court of Appeals of Washington, Division 2.

November 1, 2005.

Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.

Thomas E. Weaver, Attorney at Law, Bremerton, WA, for Appellant.

QUINN-BRINTNALL, C.J.

¶ 1 Stoney Allen Zimmerman appeals his conviction for first degree child molestation. Zimmerman maintains that the trial court improperly commented on the evidence by instructing the jury that the testimony of the alleged victim need not be corroborated in order to find him guilty. He also maintains that under State v. Jackman, 125 Wash.App. 552, 104 P.3d 686 (2004), review granted, 2005 Wash. LEXIS 733 (Wash. Sept. 9, 2005), his conviction must be reversed because the jury instructions included the victim's date of birth.

¶ 2 An instruction stating that a victim's report of sexual violation need not be corroborated is an accurate statement of the law. And while we agree with the recommendation of the Washington Supreme Court Committee on Jury Instructions that such an instruction is unnecessary, the Washington Supreme Court has upheld the instruction and we are bound by its rulings.

¶ 3 And although we adhere to our ruling in Jackman that it is manifest error to include the victim's date of birth in jury instructions when the victim's age is an element of the offense, we decline to follow that portion of Jackman holding that this error is not subject to a constitutional harmless error test. Applying that test here, we conclude that the inclusion of the victim's birth date in the to-convict instruction was harmless beyond a reasonable doubt. We therefore affirm.

FACTS

¶ 4 Zimmerman is the biological father of the victim, J.C. Zimmerman met J.C.'s mom when she was 14, and they began dating. J.C.'s mom was 16 when J.C. was born. Zimmerman and J.C.'s mom ended their relationship when J.C.'s mom was 19.

¶ 5 J.C. testified that she turned 11 on July 8, 2001. That summer, J.C. would often stay with Effie Harvey, a family friend who was also an acquaintance of Zimmerman's mother. One night in July, J.C. and Zimmerman were both staying at Harvey's house. Zimmerman and Harvey spent the night drinking. J.C. was awakened by her father touching her. Zimmerman, who appeared to be drunk, ran his hand up J.C.'s leg and touched her "private part" inside her underwear. 1 Report of Proceedings at 14. J.C. screamed, causing Harvey to come into the room. J.C. did not say anything to Harvey, and Zimmerman left the room. When J.C. awoke the next morning, Zimmerman was gone; Zimmerman would subsequently call J.C.'s mom and tell her that he wanted to disown J.C.

¶ 6 Initially, J.C. did not tell anyone, including Harvey, what had happened. But in 2002, J.C. disclosed the incident to her uncle, who then told J.C.'s mom. She then contacted Zimmerman, who denied the allegation.

¶ 7 J.C. met with her father in 2003 at the urging of Zimmerman's then girlfriend, Jennifer Holcrow. Holcrow was aware of the molestation allegation but she thought that Zimmerman and J.C. could repair their relationship; the meeting was brief and the incident was not discussed. Holcrow would later testify that she ended her relationship with Zimmerman after he admitted, while intoxicated, that he had molested J.C. and that he had thought about performing oral sex on their roommate's seven-year-old daughter.

¶ 8 Zimmerman was eventually charged and convicted for one count of first degree child molestation.¹ One of the jury instructions stated: "In order to convict a person of the crime of child molestation as defined in these instructions, it is not necessary that the testimony of the alleged victim be corroborated." Clerks Paper's (CP) at 33. The to-convict instruction listed J.C.'s birth date.

¶ 9 This appeal followed.

ANALYSIS

BIRTH DATE OF VICTIM

¶ 10 Article IV, section 16 of the Washington Constitution provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Through this provision, "the framers of the constitution could not have more explicitly stated their determination to prevent the judge from influencing the judgment of the jury on what the testimony proved or failed to prove." Bardwell v. Ziegler, 3 Wash. 34, 42, 28 P. 360 (1891); accord State v. Jacobsen, 78 Wash.2d 491, 495, 477 P.2d 1 (1970). A judge comments on the evidence if the comment suggests the judge's attitude toward the merits of the case or the judge's evaluation relative to the disputed issue. State v. Lane, 125 Wash.2d 825, 838, 889 P.2d 929 (1995). It is thus error for a judge to instruct the jury that "matters of fact have been established as a matter of law." State v. Becker, 132 Wash.2d 54, 64, 935 P.2d 1321 (1997).

¶ 11 In Jackman, the defendant challenged the inclusion of the victims' birth dates in the to-convict instructions for counts of sexual exploitation of a minor, patronizing a juvenile prostitute, communication with a minor for immoral purposes, and furnishing liquor to a minor.² On each of those counts, the victim's birth date was a relevant fact for the State to establish in order to prove the victim's age at the time of the crime. See RCW 9.68A.040,.090, .100, 66.44.270. We held that the court's jury instructions were an improper comment on the evidence. Jackman, 125 Wash.App. at 559-60, 104 P.3d 686. We then concluded that such error was not subject to harmless error analysis under Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Jackman, 125 Wash.App. at 560-61, 104 P.3d 686.

¶ 12 We follow Jackman here to conclude that it was manifest constitutional error to include J.C.'s birth date in the to-convict instruction for first degree child molestation;³ the instruction conclusively answered a factual question relevant to the State's burden of proving beyond a reasonable doubt that J.C. was younger than 12 at the time of the alleged sexual contact. See RCW 9A.44.083. But we decline to follow that portion of Jackman holding that such error requires automatic reversal. In so doing, we are not unmindful of the principle of stare decisis, which "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Keene v. Edie, 131 Wash.2d 822, 831, 935 P.2d 588 (1997) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991)). But as discussed below, we believe that Jackman erred by not applying harmless error analysis.⁴

¶ 13 "[M]ost constitutional errors can be harmless." Neder, 527 U.S. at 8, 119 S.Ct. 1827. Only those errors that are "structural" require automatic reversal. Neder, 527 U.S. at 8, 119 S.Ct. 1827. Structural errors are of a very limited class, "affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Neder, 527 U.S. at 8, 119 S.Ct. 1827 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). Put another way, structural errors "infect the entire trial process." Neder, 527 U.S. at 8, 119 S.Ct. 1827 (quoting Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Structural errors are said to "defy" harmless error review because they "deprive defendants of `basic protections' without which `a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.'" Neder, 527 U.S. at 8-9, 119 S.Ct. 1827 (alteration in original) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). Such errors include total denial of counsel, a biased trial judge, racial discrimination in jury selection, denial of self-representation at trial, and denial of a public trial. Neder, 527 U.S. at 8, 119 S.Ct. 1827.

¶ 14 In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Court held that a defective reasonable doubt instruction was a structural error. The Court reasoned that because a defective reasonable doubt instruction "vitiates all the jury's findings," harmless error analysis cannot apply:

The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.

... There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt — not that the jury's actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough. The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the State would be sustainable on appeal; it requires an actual jury finding of guilty.

Sullivan, 508 U.S. at 279-81, 113 S.Ct. 2078 (citations omitted); see also Clark, 478 U.S. at 570, 106 S.Ct. 3101 ("Where [the jury trial] right is altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant's guilt; the error in such a case is that the wrong entity judged the...