Opinion
No. 64731-8-I.
Filed: March 7, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-1-02308-1, Anita L. Farris, J., entered December 9, 2010.
Affirmed by unpublished opinion per Lau, J., concurred in by Grosse and Ellington, JJ.
A party who raises no objection to questions posed to potential jurors during voir dire may not argue for the first time on appeal that the questioning was improper. Because the record shows that Justin Binns made no such objection here, we affirm his convictions on three counts of first degree child molestation.
FACTS
Kimberly Dodd lived with her boyfriend, Justin Binns. Dodd's two daughters, E.D. and K.D., shared a bunk bed downstairs. In December 2007, E.D. reported an incident to her mother. According to E.D., Binns touched her between her legs on the outside of her clothes for about 10 to 15 minutes. E.D. was taking a nap in Dodd and Binns's bed, and the touching woke her up. Dodd spoke to E.D. and Binns about the incident and concluded, "[I]f anything had happened, it had been accidental." Report of Proceeding (Oct. 7, 2009) at 28-29.
Later, in March 2008, Binns inappropriately touched E.D. underneath her clothes on several different occasions. E.D. testified about three specific incidents that occurred in March 2008. E.D. testified that there were other occasions as well. E.D. told her coach, who reported the abuse to Child Protective Services. Binns was charged with four counts of first degree child molestation. A jury convicted Binns on three of the counts and acquitted him on one of the counts.
At the start of jury selection, the court read the four count information to the prospective jurors. The court then instructed the prospective jurors:
Keep in mind that these charges are only accusations. The filing of a charge is not evidence that the charge is true. Your eventual decision as jurors must be made solely upon the evidence presented during these proceedings. To these charges, the Defendant has entered pleas of not guilty. These pleas mean that you, the jury, must decide whether the State has proved every element of the crimes charged. The State has the burden of proving each element of crimes charged beyond a reasonable doubt. The Defendant has no burden of proving that a reasonable doubt exists. The Defendant has no duty to call witnesses, produce evidence, or testify.
The Defendant is presumed innocent. The presumption of innocence continues throughout the entire trial. The presumption means that you must find the Defendant not guilty unless you conclude, at the end of your deliberations, that the evidence has established the Defendant's guilt beyond a reasonable doubt. A reasonable doubt is one for which a reason exists. It may arise from the evidence or lack of evidence. A reasonable doubt is a doubt that would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence.
Ladies and gentlemen, we are now going to be proceeding to the voir dire or jury selection process.
Report of Proceedings (Oct. 5, 2009) (RP) at 19-20.
The clerk then swore in the prospective jurors and the court read an instruction regarding the jury selection process that stated in part:
In order that this case be tried before an impartial jury, the lawyers and I will ask you questions, not to embarrass you or to pry into your private affairs, but to determine if you are unbiased and without preconceived ideas which might effect this case.
. . . It is presumed that when the jury has been selected and accepted by both sides, each of you will keep an open mind until the case is finally submitted, will accept the instructions of the Court and base any decision upon the law and the facts, uninfluenced by any other considerations. The purpose of the questions on voir dire is to determine if you have that frame of mind.
RP at 21-22.
The court then asked the prospective jurors some preliminary questions. The court asked, "Have any of you, yourselves, or do you have any close friends or family who have been involved with a personal experience similar to that in this case?" Seven jurors responded in the affirmative. Counsel questioned these jurors individually about their experience. RP at 23.
Jury selection was conducted by both the "struck" method, where each counsel is allotted a block of time to question the venire members as a group, and by individual questioning of jurors who revealed that they personally, or a close friend or family member, had involvement in a situation similar to this case.
At the start of the State's voir dire questioning of the venire as a group the prosecutor stated,
The goal here is to have a fair trial. What we want to do, both [defense counsel] and I, in the next little while, is find out if there's something in this case or in your own life experience that would prevent you from being fair or impartial to either side in this case. I'd like to talk to you now to find out what that thing or experience might be.
RP at 29-30.
The prosecutor later asked the jury,
Well, as you know when the judge read the charges, in this case Mr. Binns is charged with sexually touching an 11-year-old girl, and you'll hear in this case it was the daughter of his girl[]friend at the time. Could anybody think why a 30-year-old man might want to touch an 11-year-old girl in a sexual way? Can anyone wrap their brain around that, why that might happen?
RP 1 (Oct. 5, 2009) at 39.
Several jurors responded that they did not know why. The prosecutor also asked,
And this may sound like a silly question, but does anybody think it's okay for a man of that age to be touching a child of that age in a sexual way? Because there are some folks out there that think that's okay. Anyone in this room think along those lines?
RP at 40-41.
The record shows no response. The prosecutor later continued his questioning:
The young girl in this case — her name is [E.D.]. You heard the judge read that name a little while ago — is now 13 years old. Who here has ever been 13 years old before? Do you think it's easy for a 13-year-old girl to communicate in a room full of adults that she doesn't know? I see some heads shaking no. Juror No. 6, what do you think?
JUROR NO. 6: I think it would be very hard, very intimidating to come forth and talk about especially this subject matter.
[The State]: Okay. Even if the subject matter wasn't what it is in this case, do you think when you were 13, sitting in a room full of strange adults, it would be easy for you to talk to them?
JUROR NO. 16: Depends on the 13-year-old. I have a niece who is very comfortable with it.
[The State]: Okay. What about you when you were that age?
JUROR NO. 16: I wouldn't have been comfortable with it.
[The State]: Juror No. 12, sir, what do you think?
JUROR NO. 12: It's hard enough just being here right now talking in front of people. So yeah, that would be awful. That would just be hard to share something like that.
[The State]: Who here hates public speaking? A lot of hands. There was a study done once that said — they asked people to rank their greatest fears and surprisingly public speaking was No. 1 and death was No. 2. It's true. It's actual research. Would you agree that that sounds right, Juror No. 11?
JUROR NO. 11: I mean, I think it's one of those things that if you practice, you can overcome the fear. If you realize that what you have to say is something valid, your fear will just — your voice will become heard.
[The State]: Okay. Well, let's talk a little bit about 13-year-olds. Does anyone think that a 13-year-old is any less credible or any less believable than an adult in general? We're just talking in general here. Juror No. 15, ma'am, what do you think?
JUROR NO. 15: I think that when you're that age, you're pretty honest. At least I was. I don't know about other 13-year-olds.
RP at 43-45. Other jurors gave varied responses. The following exchange also occurred:
[The State]: Let's focus a little narrower. Let's talk about a 13-year-old talking about something that was sexually done to her by a grownup in her life. Juror No. 1, sir, do you think that would be difficult for a child of that age to talk about, generally speaking?
JUROR NO. 1: Very definitely, yes.
[The State]: And why do you say that?
JUROR NO. 1: Well, it's out of the ordinary. It's something very personal and private and embarrassing to talk about.
[The State]: Juror No. 7, ma'am, what do you think?
JUROR NO. 7: I think it's difficult for adults to talk about when they've been sexually violated, so I think it would be worse for a 13-year-old who has no experience with that.
[The State]: Okay. Juror No. 20, ma'am, what do you think?
JUROR NO. 20: Well, honestly, I think that a 13-year-old girl is exposed to a lot of explicit stuff from media and commercials and I think that these girls grow up really fast. They're exposed to having boyfriends and some of them might be older than they are and a lot might not know about it. It's kind of hard to say whether the situation is bad, but sometimes, at the same time, like they do things that people don't know or maybe they're just growing up too fast and it's just the way things are.
[The State]: Juror No. 26, ma'am, what do you think, a 13-year-old talking about a sexual subject involving a grownup?
JUROR NO. 26: I think, generally speaking, that would be the most difficult. She's still maturing, her body is maturing, and usually you find that very, very difficult.
[The State]: Juror No. 27, ma'am, what do you think?
JUROR NO. 27: I think it would be very humiliating.
RP at 47-48.
Defense counsel began his voir dire stating,
I listened very carefully to the questions [the prosecutor] asked and to answers. The good part about it is, I don't have to redo it all. [The prosecutor] is right, we're here trying to determine whether we can get an unbiased jury. . . .
Can everyone here promise me that they can listen to all of the evidence, both what the State introduces and what I introduce for Mr. Binns, prior to making up your mind whether Mr. Binns is not guilty or guilty of the crime that he is charged with? Can everybody here make that promise?
[The prosecutor] was asking people very good questions trying to get at your inner workings, about if you absolutely won't do that, we need to know about it right now. . . .
. . . Well, as you've heard before, this is a case about an accusation of child molestation. I can tell from your answers that everyone here takes that kind of serious. Is there anyone here who feels that their passion in this case would override their ability to remain impartial throughout the trial?
RP (Oct. 5, 2009) at 51-52.
Defense counsel continued questioning the prospective jurors. After voir dire, the court excused 10 jurors for cause or hardship. The State used six of its seven available peremptory challenges. Defendant used only two of his seven peremptory challenges.
After the jury was selected and sworn, the court instructed the jury regarding the procedure during the trial. Those instructions included the following:
It is your duty as a juror to decide the facts in the case based upon the evidence presented to you during the trial. . . .
The only evidence you are to consider consists of testimony of witnesses and exhibits admitted into evidence. . . . The lawyers' remarks, statements and arguments are intended to help you understand the evidence and apply the law. However, the lawyers' statements are not evidence or the law. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard anything the lawyers say that is at odds with the evidence or the law in my instructions. . . .
. . . You must not form any firm and fixed opinion about any issue in the case until the entire case has been submitted to you for deliberation. As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.
RP at 106-111.
ANALYSIS
Binns first argues that the prosecutor's questions during jury selection were improper, including questions about the credibility generally of 13-year-olds, questions regarding whether "there was any reason for an adult man to have sexual contact with a child," questions that elicited sympathy for the victim, and questions that assumed the crime was actually completed. The State counters that Binns waived these arguments by not objecting and can show no prejudice because he did not exercise all of his peremptory challenges. The State also argues that the questions were proper.
We agree Binns waived his arguments by failing to object to the questioning. State v. Elmore, 139 Wn.2d 250, 277, 985 P.2d 289 (1998). Jury selection involves compliance with a procedural court rule rather than a constitutional issue, and therefore, a party may not raise such a challenge for the first time on appeal. State v. Gentry, 125 Wn.2d 570, 615-16, 888 P.2d 1105 (1995).
Binns next argues prosecutorial misconduct from the same jury selection questioning and that this questioning denied him due process and a fair trial. The State counters that there was no improper questioning and no prejudice.
To prove prosecutorial misconduct, Binns must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). The absence of an objection "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial." State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Where the defense fails to object to alleged misconduct during trial, the error will not be reviewed "unless the comment is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury." State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Even assuming, without deciding, that some of the questions were improper, courts have found worse statements curable. State v. Bautista-Caldera, 56 Wn. App. 186, 783 P.2d 116 (1989) (jury asked to send a message to society about the general problem of child sex abuse); State v. Jones, 71 Wn. App. 798, 805-06, 863 P.2d 85 (1993) (prosecutor discussed society's concern for children but then criticized the requirement that children must "walk in through those two big doors as a very, very small person and walk up here in front of twelve people, twelve grownups whom they don't know, and sit in this chair in a courtroom such as this, with the defendant sitting right there, staring at them").
Here, counsel for Binns complimented the prosecutor's questions, stating, "[The prosecutor] is right, we're here trying to determine whether we can get an unbiased jury" and "[The prosecutor] was asking people very good questions trying to get at your inner workings. . . ." RP at 52. When viewed in context of the record as a whole, the questions were not so flagrant and ill intentioned that they caused an enduring prejudice. Most of the comments were in relation to attitudes about children generally and not about the abuser. And the fact that Binns's counsel made no objection strongly suggests the absence of prejudice. Because any improper questions here were curable, Binns demonstrates no prejudice.
Binns next argues that the trial court erred by failing to limit, sua sponte, the State's questions during voir dire. He cites cases holding that a trial court may raise a Batson issue sua sponte. E.g., State v. Evans, 100 Wn. App. 757, 998 P.2d 373 (2000). But Binns cites no cases requiring the trial court to cut off improper questioning during voir dire. "`Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.'" State v. Logan, 102 Wn. App. 907, 911, 10 P.3d 504 (2000) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). And the trial court has broad discretion in determining the scope and extent of voir dire. CrR 6.4(b); State v. Brady, 116 Wn. App. 143, 146-47, 64 P.3d 1258 (2003). The questions here were generally related to selecting an unbiased jury, as Binns's counsel stated during the jury selection process. We conclude the trial court did not abuse its discretion.
Batson v. Kentucky, 476 U.S. 79, 84, 106 S. Ct. 1712, 90 L.Ed. 2d 69 (1986) (reaffirming principle that "`purposeful or deliberate denial to [minorities] on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause'" (quoting Swain v. Alabama, 380 U.S. 202, 203-04, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965))).
Finding no prejudicial error, we affirm.
WE CONCUR: