Opinion
No. 56057-3-I.
May 21, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 03-1-01342-3, Ira Uhrig, J., entered January 11 and April 5, 2005.
Affirmed by unpublished opinion per Appelwick, C.J., concurred in by Agid and Schindler, JJ.
Appellant Ivan Gorun, a 19-year-old Ukrainian immigrant, was charged with second degree assault, second degree rape, and assault with sexual motivation. The alleged events took place at a hot spring near Mount Baker. Testimony from witnesses conflict as to what actually occurred. A jury found him guilty as charged on all counts. He assigns error to the trial court's denial of his motion for a new trial. He also alleges impermissible judicial comment, ineffective assistance of counsel, inadequate interpretation, prosecutorial misconduct, and inconsistent jury instructions. In his statement of additional grounds, he argues that he was denied his right to a public trial under the Sixth Amendment. We affirm the decision of the trial court.
FACTS
Procedural Facts
On April 17, 2003, the Whatcom County prosecutor charged appellant Ivan Gorun with one count of second degree assault and one count of second degree rape. RCW 9A.36.021; RCW 9A.44.050. The information was amended on February 19, 2004, to add an allegation of assault with sexual motivation. RCW 9.94A.835. At trial, a jury found Gorun guilty as charged on all counts. Substitute counsel made a motion for new trial, which was denied. Gorun was sentenced to a minimum term of 102 months of confinement and a maximum term of 20 years/life on the rape conviction. He faces deportation as a result of his conviction.
Substantive Facts
Gorun is a Ukrainian immigrant, who had lived in the United States for three years. He was 19-years-old at the time of the incident. Because Gorun speaks Russian and Ukrainian, and has limited knowledge of English, he was assigned a court-appointed interpreter to assist the defense and another interpreter to interpret testimony during trial.
On October 11, 2003, Gorun and two of his friends, Valeriy Shintar and Leo Datsky, went to a hot spring near Mount Baker. Upon arriving in the parking lot for the trailhead leading to the hot springs, they were met by Heather Elliott and her live-in partner, Todd Elsworth. Elliott and Elsworth had intended to camp overnight. Elliott approached Gorun and his friends in the parking lot in order to determine their character, and she and Shintar exchanged greetings. Gorun and his friends, carrying flashlights and beer, hiked ahead of Elliott and Elsworth, who carried a backpack, lantern, rain gear and a Mason jar with some vodka. It was dark and raining, with minimal moonlight. When Gorun and his friends arrived at the spring, they changed into shorts and swim trunks and began to soak. Shintar and Datsky drank some beers. When Elliott and Elsworth arrived at the spring, they turned their lantern off, stripped naked, entered the spring, and began drinking their vodka from the Mason jar.
The hot spring was a pool of water, 20 by 22 feet across, with a two-to three-foot embankment on one side. Gorun and his friends were on one side of the pool, while Elliott and Elsworth were positioned in the middle. Elliott and Elsworth both testified that they were uncomfortable because Gorun and his friends were speaking to each other in Russian, which neither Elliott nor Elsworth understood. They engaged in polite conversation with Shintar and Datsky, and Elliott offered to share her vodka. At this offer, all three men moved from the perimeter of the pool toward the middle, and Shintar and Datsky took a few sips of the vodka. Gorun did not drink any of the vodka, nor had he consumed any beer. After their drinks, his friends moved back to the perimeter, but Gorun stayed in the middle of the pool and stretched out in the water.
Elliott and Elsworth remained in the middle of the pool. Elliott finished the vodka and also drank a beer. She testified that she was feeling the effects of the alcohol. Elsworth felt Gorun stretched out behind him, and thought that he was much too close. Elliott then whispered to him that Gorun's hand was on her leg. Gorun testified that it may have been his leg that brushed Elliott as he floated in the water. Elsworth testified he grabbed Gorun's hand and moved it away, saying nothing to Gorun. Elsworth said, "let's go," and got out of the pool to urinate. Elliott remained in the pool, and when Elsworth turned around, he saw Gorun back in the middle of the pool, close to Elliott. He re-entered the pool and pushed Gorun's head under the water, holding him there for five seconds. Gorun testified that after Elsworth released him, he got out of the water and was approached by Shintar and Datsky who asked what had happened.
Elliott and Elsworth got out of the pool to leave. At this point, testimony from the witnesses varies. Shintar and Datsky had seen Elsworth push Gorun under water, but did not know why. After talking to Gorun, Datsky got out of the pool and approached Elsworth and Elliott. Elsworth testified that he thought Datsky was coming after him to kill him and "do whatever" to Elliott. He kicked at Datsky, knocking him back into the water, and telling him that his "buddy" had been in the wrong. Datsky was angry, and chased Elsworth in order to fight him. The two men wrestled. Elsworth said that Datsky dragged him into the bushes; Datsky said that they fell and rolled down a slope. At some point in time, Datsky stopped fighting with Elsworth, and appeared to apologize. Elsworth testified that Datsky held his arms open as if he wanted to embrace him, which Elsworth did, despite his fear. Datsky let him go.
While Elsworth and Datsky were fighting, Elliott was standing near a tree trunk just outside the pool, and had put her shirt back on, but remained naked from the waist down. She testified that she saw Gorun walking toward her, and feared that she was going to be raped. Gorun and Shintar testified that Shintar had told Gorun to go see what Datsky was doing. Gorun testified that while he was looking in the woods for Datsky, Elliott approached him and sprayed him with pepper spray. Blinded, Gorun said that he grabbed at Elliott to stop any more spraying. Shintar testified that he then led Gorun to the water to wash out the pepper spray. In contrast, Elliott testified that as Gorun came at her, she put her arm out and said "[w]hat are you doing, [t]hink about what you are doing." She testified that she punched him in the face; he laughed, and punched her back in the face. She then described that as she reached for her pepper spray in her jacket and adjusted the nozzle, Gorun penetrated her vagina with his finger. She testified that he grabbed her from behind and masturbated by rubbing himself against her. She claims that she then sprayed him in the face with the pepper spray, at which point he yelled, grabbed it from her, and threw it to the ground. According to Elliott, she then tried to kick him, and threw him forward, rolling both of them into the water. Shintar testified that throughout the minute-long incident, he only heard Gorun yell that something was in his eyes; he did not hear Elliott say anything.
At this point, Elsworth and Datsky had stopped fighting. Elsworth and Elliott both testified that they gathered their belongings and ran down the trail towards the parking lot. At some point, they stopped long enough for Elsworth to put on his pants, and for Elliott to put on her shoes. When they got to their car, they wrote down the license plate number from Datsky's car, and let the air out of the tires. The remote location of the parking lot did not allow for cell phone reception, so they drove 20 minutes to Concrete. Elliott testified that during the drive, she told Elsworth that Gorun had punched her in the face, had digitally penetrated her, and had masturbated. They called 911 upon arriving in Concrete. Elsworth was treated for his injuries from fighting with Datsky. Elliott testified that she told the doctor that Gorun had put his fingers in her vagina and that she had pepper-sprayed him. She suffered a swollen nose, a chipped tooth and abrasions on her lower back, buttocks and legs. The doctor testified that he conducted a rape test, but that there were no injuries to Elliott's vaginal area. The doctor testified that this lack of injury was consistent with her account of the incident. Gorun points out that Elliott did not report the digital penetration and masturbation in her initial report to the police. In her interview with the lead detective, Elliott amended her statement to include these details.
ANALYSIS
1. Judicial comment
During direct examination, Elliott testified that although she could not see underwater, she believed Gorun's hand touched her as he floated nearby. She testified that "he was floating, lying position sort of [sic]," and that his head was closest to her as he floated. Given the position of his head, she testified that it was more likely that his hand was touching her, rather than his leg. When pressed as to how she knew which part of Gorun's body her boyfriend pushed away from her, she said "I don't know." Later, during cross-examination, defense counsel asked Elliott again if she could tell what had touched her underwater, and she said "[n]o." Counsel then referred to a question he had asked Elliott during a defense interview at the prosecutor's office. "And do you remember when I asked you if the touch within the hot springs could have been a hand or a leg?" This led to the following exchange:
[Elliott] I don't remember when you asked me that, no.
[Defense]: You don't remember that?
[Elliott]: I don't remember you asking me.
[Defense]: Okay, So you don't remember, therefore, saying that you couldn't tell one way or the other?
[State]: I object to referring to the notes simply because a prior statement is only admissible if it's inconsistent and I don't hear the statement being inconsistent with what the testimony is.
The Court: Sustained.
[Defense]: Well, Your Honor, with respect to that she has testified that she couldn't tell if it was a hand or leg but she could tell from the hand but she could tell from the positioning [sic] so it would be inconsistent because when asked previously if she could tell if it was a hand or leg she said she couldn't tell one way or another and didn't reference positioning at all.
[State]: If she wasn't asked that question, she wouldn't have answered it.
[Defense]: She was asked an open-ended question, Your Honor
The Court: She is here today and her responses seem to be clear.
If the question was vague at the previous interview, she certainly has supplemented that with her testimony today. So as far as being a prior inconsistent statement, I will sustain the State's objection. Meaning it is not inconsistent.
(emphasis added).
In his motion for a new trial, Gorun argued that the trial court's statement was an impermissible comment on the evidence because it permitted the jury to infer that the trial court considered Elliott's testimony particularly compelling and not inconsistent. Gorun claims that this inference was prejudicial, and deprived him of a fair trial because witness credibility was key.
Article IV section 16 of the Washington Constitution prohibits a court from commenting on the evidence. State v. Surry, 23 Wash. 655, 659, 63 P. 557 (1900). "Since a comment on the evidence violates a constitutional prohibition, [a] failure to object or move for a mistrial does not foreclose [him or] her from raising this issue on appeal." State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997) (quoting State v. Lampshire, 74 Wn.2d 888, 893, 447 P.2d 727 (1968). The standard of review for a claim of constitutional error such as judicial comment is whether the court can conclude that the error was harmless beyond a reasonable doubt. State v. Levy, 156 Wn.2d 709, 712, 132 P.3d 1076 (2006).
"A statement by the court constitutes a comment on the evidence if . . . the court's evaluation relative to the disputed issue is inferable from the statement." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). This determination is dependent upon the facts and circumstances of each case. State v. Stearns, 61 Wn. App. 224, 231, 810 P.2d 41 (1991). "All remarks and observations as to the facts before the jury are positively prohibited." State v. Bogner, 62 Wn.2d 247, 252, 382 P.2d 254 (1963) (emphasis added).
Judicial comments are presumed to be prejudicial.
Levy, 156 Wn.2d at 723-24. "[T]he burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted." Id. at 723. "The presumption of prejudice test has consistently been applied to oral comments made by a judge during the course of a trial." Id. at 724.
However, an explanation of an evidentiary ruling on an objection is not a prohibited judicial comment. State v. Dykstra, 127 Wn. App. 1, 8, 110 P.3d 758 (2005), review denied 156 Wn.2d 1004 (2006) (citing State v. Cerny, 78 Wn.2d 845, 855-56, 480 P.2d 199 (1971) vacated on other grounds 408 US 939 (1972). "A trial court, in passing upon objections to testimony, has the right to give its reasons therefor and the same will not be treated as a comment on the evidence." Cerny, 78 Wn.2d at 855-56 (concluding that a trial court does not make an impermissible comment on the evidence when, in response to objections, it states, "I think the chain of evidence has been established").
The trial court's statement was not a comment on the evidence. Rather, it was an explanation of the evidentiary ruling that the witness' testimony was not inconsistent with prior statements. The trial court's statement was a response to the defense attorney's questions regarding the evidentiary ruling: an explanation that the defense's attempt to reference Elliott's previous interview did not meet the inconsistent statements exception to the hearsay rule. In making this statement, the trial court did not imply that it believed Elliott or found her particularly compelling nor did it make any observations as to the facts; it only provided reasoning for its evidentiary ruling. Accordingly, because the trial court's statement was not a prohibited comment on the evidence, it is not presumed prejudicial and is not reversible error.
2. Ineffective Assistance of Counsel
In his motion for a new trial, Gorun alleged ineffective assistance of counsel. This allegation was based on his counsel's failure to call to the stand several spectators who provided affidavits in which they attested to witness-coaching on the part of the State. Gorun argues that the testimony of these spectators could have caused the jury to question the credibility of Elliott and Elsworth and changed the outcome of the trial.
Review of a challenge to effective assistance of counsel is de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995). To show ineffective assistance of counsel, Gorun must meet both prongs of a two-part test. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). He must first establish that his counsel's representation was deficient. Gorun must also show that the deficient performance resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996).
To show deficient performance, he bears the "heavy burden of showing that his attorneys `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). In order to meet this burden, he must establish that, given all the facts and circumstances, his attorney's conduct failed to meet an objective standard of reasonableness. State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). Deficient performance is not shown by matters that go to trial strategy or tactics. Hendrickson, 129 Wn.2d at 77-78; State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). A decision not to call a witness is considered a matter of trial tactics that generally will not support a claim of ineffective assistance of counsel. State v. Krause, 82 Wn. App. 688, 697-98, 919 P.2d 123 (1996) (citing State v. Byrd, 30 Wn. App. 794, 799, 638 P.2d 601 (1981)). This Court employs a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335. Gorun points to Byrd to argue that the presumption of counsel's competence
can be overcome by showing, among other things, that counsel failed to conduct appropriate investigations, either factual or legal, to determine what matters of defense were available, or failed to allow himself enough time for reflection and preparation for trial."
In [State v. Jury] the court held that
"the failure of counsel to adequately acquaint himself with the facts of the case by interviewing witnesses, failure to subpoena them, and failure to inform the court of the substance of their testimony, both at the time of argument on the motion for continuance and for a new trial, were omissions which no reasonably competent counsel would have committed."
Byrd, 30 Wn. App. at 799 (quoting State v. Jury, 19 Wn. App. 256, 263-64, 576 P.2d 1302 (1978)). In that case, defense counsel was given the name of a witness who was willing to give testimony that would directly contradict that of the prosecuting witness. Counsel did not investigate or contact the witness.
In the case at hand, defense counsel was approached by spectators that were willing to provide sworn affidavits describing the witness coaching that they had observed. He met with these witnesses, took their affidavits, and submitted a "Motion to Dismiss; Alternative Motion for Mistrial; Alternative Motion for Full Evidentiary Hearing; Offer of Proof." On October 18, 2004, the court held a hearing on this motion, in which defense counsel presented the full affidavits and requested an evidentiary hearing should the affidavits not be sufficient. The court made an oral ruling from the bench, in which it noted that it had not observed any witness coaching and decided to continue with the proceeding. The trial court offered to let the State submit responsive affidavits, and stated that "[i]f, upon reviewing the affidavits submitted by the State, I believe there is a need for an evidentiary hearing, I will call such hearing. So I will note the allegations raised by [defense counsel] and we will proceed in just a couple minutes." Ultimately, the trial court concluded that there was no need for an evidentiary hearing.
Gorun's counsel submitted the full evidentiary hearing request contingent upon the motion on affidavits not being granted. Presenting live testimony was at the discretion of the court. The court denied the motion so there was no hearing at which to call witnesses. He could do nothing further; he did not fall below the reasonableness standard for effective assistance of counsel. We need not consider the second prong.
3. Incompetent Interpretation
Gorun cannot speak English. He relied on a courtroom interpreter to convey his testimony to the jury. He argues that this interpreter was incompetent to the extent that it impacted Gorun's perceived credibility, and violated his constitutional right to a competent interpreter. The State argues that Gorun does not reference any specific errors that significantly affected his testimony, and that his generalized claim is insufficient grounds to warrant a new trial.
In Washington, the right of a criminal defendant to an interpreter is based upon the Sixth Amendment constitutional right to confront witnesses and the "right inherent in a fair trial to be present at one's own trial." State v. Gonzales-Morales, 138 Wn.2d 374, 379, 979 P.2d 826 (1999). "The standard of review for a claim of constitutional error is whether the court can conclude that the error was harmless beyond a reasonable doubt." Levy, 156 Wn.2d at 731; State v. Lougin, 50 Wn. App. 376, 382, 749 P.2d 173 (1988). Any inaccuracies in interpretation must be reviewed to determine whether they made the trial fundamentally unfair, thereby contravening a defendant's constitutional rights. See Valladares v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989).
The Washington legislature has declared that it is the policy of this state under RCW 2.43.010
to secure the rights, constitutional or otherwise, of persons who, because of a non-English speaking cultural background, are unable to readily understand or communicate in the English language, and who consequently cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them.
Gonzales-Morales, 138 Wn.2d at 379 (citing RCW 2.43.010). A right to an interpreter is the right to a competent interpreter. State v. Teshome, 122 Wn. App. 705, 711, 94 P.3d 1004 (2004), review denied 153 Wn.2d 1028 (2005) (citing State v. Pham, 75 Wn. App. 626, 633, 879 P.2d 321 (1994). The Code of Conduct for court interpreters includes the requirement that the
interpreter shall interpret or translate the material thoroughly and precisely, adding or omitting nothing, and stating as nearly as possible what has been stated in the language of the speaker, giving consideration to variations in grammar and syntax for both languages involved. A language interpreter shall use the level of communication that best conveys the meaning of the source, and shall not interject the interpreter's personal moods or attitudes.
Gonzales-Morales, 138 Wn.2d at 380 (citing General Rule 11.1). Because interpreters are provided to non-English speakers to secure their rights in legal proceedings, "the standard for competence should relate to whether the rights of non-English speakers are protected, rather than whether the interpreting is or is not egregiously poor." Teshome, 122 Wn. App. at 712.
In Teshome, the defendant's interpreted plea hearing was re-interpreted from a recorded transcript. According to this re-interpretation, the interpreter in Teshome did not accurately interpret key questions relating to the defendant's charge, added words to the questions, and omitted certain words when describing the defendant's options. Teshome, 122 Wn. App. at 713. However, the defendant did not show the manifest injustice required to withdraw a plea. Id. at 717.
The Ninth Circuit found inadequate interpretation based on direct evidence of incorrectly translated words, unresponsive answers, and the witness's expression of difficulty in understanding what was being said to him. See Perez-Lastor v. I.N.S., 208 F.3d 773, 778 (9th Cir. 2000). In contrast, the Ninth Circuit found adequate translation when the translators were sworn in accordance with the federal interpreter law, the record revealed a complete and adequate translation, neither petitioner indicated difficulty in understanding the questions, and both provided responsive answers. Acewicz v. United States I.N.S., 984 F.2d 1056 (9th Cir. 1993). There, the court noted that the petitioners only provided isolated passages of garbled testimony, and failed to cite instances in which an incorrect or incomplete translation prevented him from providing relevant evidence. Id.
Two different certified interpreters interpreted Gorun's testimony. The first interpreter was replaced, due to scheduling problems. In determining the replacement, the court insisted on a state-certified interpreter. Walter Ilyin, who is fluent in both English and Russian, was present throughout the hearing. He served as an interpreter between Gorun and his defense attorney. Ilyin raised the issue of inadequate interpretation during trial, and also provided an affidavit to the same at Gorun's motion for new trial. Gorun provided evidence of incorrectly translated words.
However, none of Gorun's answers appear to be substantially unresponsive. Occasionally, during his testimony, Gorun asked the interpreter to clarify or reinterpret. Such instances are isolated, and did not prevent him from providing relevant testimony. While the interpretation was not perfect, Gorun's rights were still protected because, as found by the trial court, any inaccuracies had "no perceivable impact, import or significance on the nature of the character of the testimony." Any errors were harmless beyond a reasonable doubt. Gorun was not deprived of his right to a fair trial. His due process rights were not violated.
If Gorun has evidence outside this record to support this argument he may present it in a personal restraint petition.
4. Motion for New Trial
Gorun's motion for new trial was based on the three errors alleged above. He also assigns error to the trial court's denial of his motion for new trial. Unless it concerns an issue of law, an order denying a motion for a new trial is reviewed for an abuse of discretion. Demelash v. Ross Stores, 105 Wn. App. 508, 511, 20 P.3d 447 (2001). "A trial court abuses its discretion if its ruling is `manifestly unreasonable or based upon untenable grounds or reasons.'" Wick v. Clark County, 86 Wn. App. 376, 382, 936 P.2d 1201 (1997) (citations omitted). Our review of the issues above finds either no error or harmless error. It was not manifestly unreasonable for the trial court to deny the motion for new trial. The trial court did not abuse its discretion.
5. Prosecutorial Misconduct
Gorun argues that the prosecutor placed the integrity of her office behind a witness when she elicited testimony from Elsworth that he was never charged with assault by the State, and then made that a part of her rebuttal argument. The State argues that the prosecutor's comment was not misconduct, but made in direct response to an improper argument made by defense counsel.
"A defendant claiming prosecutorial misconduct `bears the burden of establishing the impropriety of the prosecuting attorney's comments and their prejudicial effect.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). In McKenzie, the Washington Supreme Court held:
Comments will be deemed prejudicial only where there is a substantial likelihood the misconduct affected the jury's verdict. The prejudicial effect of a prosecutor's improper comments is not determined by looking at the comments in isolation but by placing the remarks in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury. Where the defense fails to object to an improper comment, the error is considered waived 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.
McKenzie, 157 Wn.2d at 52 (citations omitted). The failure of defense counsel to object to the remarks at the time that they are made "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." Id. at 53 (quoting State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990)). Further, a prosecutor may respond to defense arguments even if these arguments may otherwise be improper. State v. Dykstra, 127 Wn. App. 1, 8, 110 P.3d 758 (2005), review denied 156 Wn.2d 1004 (2006).
This Court has reversed a conviction based on prosecutorial misconduct, even when defense counsel failed to object during trial. State v. Sargent, 40 Wn. App. 340, 345, 698 P.2d 598 (1985). In Sargent, in response to a credibility question that defense raised during closing argument, the prosecutor told the jury that she "believed" the witness, and that "[t]here was no other reason he would be testifying other than the fact that the people that called him as a witness [the State] believed what he has to say." Id. at 343.
The prosecutor's comment in this case does not rise to the level of direct support of the credibility of a witness as did the comment in Sargent. The elicitation of testimony from Elsworth that he was never charged with assault was made in response to the defense's suggestion that he should have been so charged. The prosecutor did not say that she believed Elsworth or that he was testifying because the State believed what he had to say. The fact that Elsworth had not been charged was in the record. We conclude it was not misconduct to repeat this at closing.
6. Jury Instructions
Jury instruction No. 4 states "motive is never an element of a crime and therefore, if motive evidence is allowed in a trial, one's motive need not be proved beyond a reasonable doubt." This instruction was specifically proposed by defense counsel. Jury instruction No. 21 states:
You will also be furnished with a special verdict form as to Count I, Assault in the Second Degree. If you find the defendant not guilty of Count I, Assault in the Second Degree, do not use the special verdict form. If you find the defendant guilty of Count I, Assault in the Second Degree, you will then use the special verdict form and fill in the blank with the answer "yes" or "no" according to the decision you reach. In order to answer the special verdict form "yes", [sic] you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you have a reasonable doubt as to the question, you must answer "no".[sic]
(emphasis added). Jury instruction No. 19 reads "Sexual motivation means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification."
Gorun argues that jury instruction No. 4 was a misstatement of the law that permitted the jury to enter a special finding of sexual motivation without being satisfied beyond a reasonable doubt. The State contends that because the defense proposed the instruction, invited error applies. Gorun must show prejudice, i.e. but for counsel's errors, the outcome of the trial would have been different. The State contends that Gorun cannot show such prejudice because the prosecutor's closing argument remedied any inconsistencies.
Under the invited error doctrine, a party is precluded from requesting an instruction and then complaining about it on appeal. State v. Carpenter, 52 Wn. App. 680, 681, 763 P.2d 455 (1988). When the instructions submitted by the defense are adopted by the trial court, the invited error doctrine precludes review, unless the claim is made in the context of ineffective assistance of counsel. State v. Carter, 127 Wn. App. 713, 716, 112 P.3d 561 (2005) (citing State v. Studd, 137 Wn.2d 533, 550-51, 973 P.2d 1049 (1999). Because Instruction No. 4 was proposed by his attorney, Gorun's inconsistent instructions are invited error. However, Gorun does indicate that the "error was the result of defense counsel's ineffectiveness." Id. at 716. We assume that Gorun makes this claim in order to circumnavigate the invited error doctrine, and to facilitate review under ineffective assistance of counsel.
The standard of review for ineffective assistance of counsel has already been set forth in the section addressing defense counsel's decision not to call witnesses. It will not be repeated here.
The language used in jury instruction No. 4 in the case at hand, while unusual, is not a technical misstatement of the law as applied to the specific crimes with which Gorun was charged. In Washington, motive is not an element of the crime of second degree assault, nor of second degree rape. See e.g. RCW 9A.36.021; State v. Wheeler, 95 Wn.2d 799, 806, 631 P.2d 376 (1981); RCW 9A.44.050. However, it is also not necessary to assert in a jury instruction that motive is never an element of a crime and that it need not be proved beyond a reasonable doubt. Here, the unnecessary inclusion has had the effect of creating an appellate issue jeopardizing the jury's verdict. Such an instruction was improvident and should not have been given. Nonetheless, requesting the instruction is not so significant as to rise to the level deficient performance.
Further, Gorun has not established prejudice, i.e. he did not show that "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." Studd, 137 Wn.2d at 551 (citing McFarland, 127 Wn.2d at 335). The State's burden in proving sexual motivation was not decreased. The instruction for the special verdict for sexual motivation was separate from the instruction for finding the underlying assault and rape charges. The jurors were given the definition of "[s]exual motivation, means that one of the purposes for which the defendant committed the crime was for the purpose of his or her sexual gratification." RCW 13.40.020(26). The special verdict instruction for a finding of sexual motivation explicitly required the jurors that "[i]n order to answer the special verdict form `yes', you must unanimously be satisfied beyond a reasonable doubt that `yes' is the correct answer." Even if the jury understood that motive need not be proved beyond a reasonable doubt when considering the underlying crimes, the special verdict instruction explicitly required them to find beyond a reasonable doubt that "yes," sexual gratification was one of the defendant's purposes in committing the crime. This specific instruction, applicable only to the special verdict, remedied any probability that, except for Instruction No. 4, the outcome would have been different. The jury instructions proposed did not rise to the level of ineffective assistance of counsel.
7. Public Trial
Gorun claims that members of the public were excluded for substantial periods of time during his trial. He argues that the "court did not advance an overriding interest that is likely to be prejudiced, the closure was broader than necessary to protect that interest, the trial court did not consider reasonable alternatives to closing the courtroom, and the court did not make findings adequate to support the closure." "Article I, section 22 of the Washington State Constitution guarantees that [i]n criminal prosecutions the accused shall have the right . . . to have a speedy public trial." In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004). The Sixth Amendment of the United States Constitution also makes the same guarantee.
[T]here can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public. The central aim of a criminal proceeding must be to try the accused fairly, and [our] cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.
Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (quoting Gannett Co. v. De Pasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979)). In both of the cases above, the reviewing courts overturned a trial court's decision to grant a motion to close either a suppression hearing or voir dire.
In this case, neither party made a motion to close trial. In fact, review of the record shows that the trial court made repeated efforts to avoid closing trial, despite numerous disturbances caused by spectators coming and going, ringing cell phones, and watch alarms. Because the courtroom was not closed to the public, but only to those individuals that arrived late after breaks or chose not to obey the trial court's repeated requests to minimize disturbances, Gorun's argument fails. His Sixth Amendment right to a public trial was not violated.
8. Cumulative Error
Gorun argues that although the alleged errors are individually sufficient to justify reversal, their cumulative effect also deprived him of his right to a fair trial.
The application of the cumulative errors doctrine is "limited to instances when there have been several trial errors that standing alone may not be sufficient to justify reversal but when combined may deny a defendant a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000) (citing State v. Badda, 63 Wn.2d 176, 183, 385 P.2d 859 (1963) (three instructional errors and the prosecutor's remarks during voir dire required reversal); State v. Alexander, 64 Wn. App. 147, 158, 822 P.2d 1250 (1992) (reversal required because (1) a witness impermissibly suggested the victim's story was consistent and truthful, (2) the prosecutor impermissibly elicited the defendant's identity from the victim's mother, and (3) the prosecutor repeatedly attempted to introduce inadmissible testimony during the trial and in closing); State v. Whalon, 1 Wn. App. 785, 804, 464 P.2d 730 (1970) (reversing conviction because (1) court's severe rebuke of the defendant's attorney in the presence of the jury, (2) court's refusal of the testimony of the defendant's wife, and (3) jury listening to tape recording of lineup in the absence of court and counsel)). "The combined effect of an accumulation of errors, no one of which, perhaps, standing alone might be of sufficient gravity to constitute grounds for reversal, may well require a new trial." Badda, 63 Wn.2d at 183. However, where errors have little or no effect on the outcome of trial, the doctrine is inapplicable. Greiff, 141 Wn.2d at 929.
In order to apply the cumulative error rule to the case at hand, we would need to conclude that the trial court actually did commit some of the errors alleged by Gorun. We do not. The cumulative error doctrine does not require reversal in this case.
We affirm.