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2013 DEC 10 AM 9: 55
IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
CITY OF VANCOUVER, I No. 4361
Respondent,
MA
ALBERT MCCLURE, UNPUBLISHED OPINION
HUNT, J — Albert McClure appeals his district court jury trial conviction for stalking,
which the superior court affirmed on direct appeal. He argues that some of the trial court' s
remarks during its case summary for the jury venire were prejudicial unconstitutional comments
on the evidence. Holding that any error was harmless, we affirm.
FACTS
I. -- STALKING - - - - - - - - - - - -
Between April and August 2010, Erika Hamilton worked at a Vancouver, Washington
Subway restaurant, which Albert McClure patronized several times per week. On other
occasions, Hamilton observed McClure drive past the Subway, without coming inside. McClure
would usually come by the restaurant during the late evening, when Hamilton was the sole
employee.
From the outset, McClure was flirtatious with Hamilton: He asked whether she had a
boyfriend, told her that she was attractive, commented that his son would think she was pretty, No. 43682 -5 -II
and asked for her personal cell phone number. She became alarmed when he asked whether she
had ever been " stalked" before. Clerk' s Papers ( CP) at 144. Hamilton felt more alarmed and
frightened as these incidents multiplied, especially when she would find McClure waiting
outside in the parking lot almost an hour after he had finished eating inside the restaurant. She
wrote down McClure' s license plate number and took a photograph of his car. One night she
observed a car of the type that McClure owned follow her from the restaurant; she feared he was
following her home. On another occasion, she was " very shooken up" when she heard someone
walking outside of her house. CP at 150.
Hamilton asked her employer to change her shift permanently so she could avoid
working alone during those periods when McClure usually frequented the restaurant; her
employer refused. So Hamilton began closing the restaurant early; and she asked her grandfather
to come be with her at the restaurant when she was working there alone.
Hamilton feared that her repeated rebuffs of McClure' s overtures would upset him and
that he would become aggressive or hurt her. One day, for example, he became angry when she
refused to go- out on his boat with-him. - And after Hamilton closed the-restaurant on August 9,
she received a call on the restaurant' s business line from an unidentified man, who disguised his
voice and said that he had been thinking about her and would go crazy if he could not have her.
This call caused Hamilton to shake with fear; she was terrified. The next day Hamilton reported
the incident to the police department. Officer Sam Abdhala interviewed Hamilton at the
restaurant and observed that. she was shaking and " genuinely scared." CP at 196.
F) No. 43682 -5 -II
II. PROCEDURE
The City of Vancouver charged McClure with one count of stalking. He requested a jury
trial. Before trial began, the Clark County District Court summarized the case to the jury venire
as follows:
T] o explain why we' re all sort of gathered here together is the City of Vancouver has brought a charge forward against Albert McClure. The charge against Mr. McClure is that of called stalking where it' s alleged in the period of time of April 10th, 2010 to August 10th, 2010 without lawful authority he did intentionally and repeatedly harass or follow a person by the name of Erika Hamilton and so you understand again the nature of the case is that Ms. Hamilton works at a Subway sandwich shop. I think she was of age 17 at the time if I remember correctly and allegations are going to be and obviously get more specific as to the times that maybe as much as dozens of times he went into that particular store, chatted with her, asked her I guess for dating [ purposes] I think if she wanted to go on a date with him and at some point in time maybe even asked her if she' d ever been stalked before. So they' re going to get into a lot more details but that' s sort of what I' ll call the flavor of the case that she obviously felt uncomfortable and eventually notified the police and that ended up being charged with the offense of stalking. Okay? And to that particular charge he' s entered a plea of not guilty.
CP at 28 ( emphasis added). McClure neither objected nor asked the trial court to instruct the
potential jurors to disregard any of this summary. Eventually the court empanelled a jury and
tried the case.-,
Before closing arguments, the trial court instructed the jury that if it appeared he had
commented on the evidence during trial; he had not done so intentionally and that the jurors
should disregard such comments. The trial court also instructed the jurors that ( 1) it was their
duty to decide the facts of the case based only on evidence presented during trial and on their
role as the sole judge of the witnesses' credibility; and ( 2) the City had the burden to prove each
element of the crime of stalking beyond a reasonable doubt, explaining that a reasonable doubt is
one for which a reason exists and may rise from the evidence or lack of evidence. The jury
3 No. 43682 -5 -II
convicted McClure of stalking as charged. McClure appealed to the Clark County Superior
Court under RALJ 1. 1( a).
The superior court affirmed, ruling, in part, that the trial court' s statements were not
comments on the evidence. McClure sought discretionary review of the superior court' s decision
on multiple grounds.
Our court commissioner granted discretionary review on the sole issue that satisfied RAP 1— 2. 3( d) whether two statements he identified from the trial court' s jury venire case summary
constituted prejudicial unconstitutional comments on the evidence: ( 1) that McClure had asked
2 Hamilton to go on a date; and ( 2) that McClure' s actions had made her " obviously "
uncomfortable. As a result, the scope of this discretionary review is very narrow, and we
circumscribe our analysis accordingly.
ANALYSIS
McClure argues that the district court' s oral description of the case for the jury venire
was a prejudicial unconstitutional comment on the evidence because ( 1) some statements implied
the trialcourt believed the - that - stalking- charge against him was true; ( 2) the -court' s- comments - - -
tainted the entire trial; and ( 3) the City' s evidence was insufficient to overcome the resultant
presumed prejudice. These arguments fail.
1 In granting discretionary review, our commissioner noted that if the trial court' s case summary for the jury venire was a comment on the evidence, then the superior court' s decision affirming McClure' s conviction would conflict with the following cases: ( 1) State v. Levy, 156 Wn.2d 709, 719 -20, 723, 132 P. 3d 1076 ( 2006) ( comments on the evidence are presumed prejudicial); and ( 2) State v. Jackman, 156 Wn.2d 736, 743, 132 P. 3d 136 ( 2006) ( once defendant demonstrates that court commented on evidence, burden shifts to State to show lack of prejudice, unless record reflects defendant could not have been prejudiced).
2CPat28. No. 43682 -5 - II
1. TRIAL COURT DID NOT COMMENT ON EVIDENCE
The Washington State Constitution prohibits a judge from commenting on the evidence.
WASH. CONST. art. IV, § 16. A judge' s statement is a comment on the evidence if it conveys or
implies the court' s opinion on the merits or an evaluation of a disputed fact or issue. State v.
Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995). In our view, taken in context, neither of the
two trial court statements that our court commissioner designated for our review were opinions
about the merits of the case or an evaluation of the evidence. Rather, they merely summarized 3 for the jury pool the allegations to give them a " flavor " of what the case would be about.
For example, the trial court did not state as fact that McClure had asked Hamilton to go
on a date; rather, the trial court predicted:
The] allegations are going to be and obviously get more specific as to the times that maybe as much as dozens of times he went into that particular store, chatted with her, asked her I guess for dating [ purposes] I think if she wanted to go on a date with him and at some point in time maybe even asked her if she' d ever been stalked before.
CP at 28 ( emphasis added). Similarly, the trial court did not state as fact that McClure' s actions
had made Hamilton " obviously" uncomfortable. Rather, the trial - court was merely attempting to -
summarize the City' s allegations against McClure:
So they' re going to get into a lot more details but that' s sort of what I' ll call the flavor of the case that she obviously felt uncomfortable and eventually notified the police and that ended up being charged with the offense of stalking. Okay? And
to that particular charge he' s entered a plea of not guilty.
CP at 28 ( emphasis added).
3CPat28.
5 No. 43682 -5 -II
The context of these statements demonstrates that the trial court was not intending to
express its opinion about McClure' s guilt.4 Rather it was explaining what it expected the case to
be about, educating the jury venire for the purpose of ferreting out potential foreknowledge of
the case or other factors that might cause individual members of the venire to be unable to sit as
fair and impartial jurors. We hold, therefore, that, taken in context, these statements by the trial
court were not impermissible comments on the evidence.
II. HARMLESS ERROR
Even if the trial court' s pretrial summary of the case arguably contained improper
comments on the evidence, we hold that they did not create reversible error. For purposes of this
part of our analysis, we presume without deciding that the trial court' s statements about
Hamilton' s obvious discomfort and McClure' s asking her on a date were prejudicial comments
on the evidence. Lane, 125 Wn.2d at 838. The burden then shifts to the State to disprove this
presumption unless the record affirmatively shows the defendant could not have been prejudiced
by these comments. Lane, 125 Wn.2d at 838 -39. We hold that the City has met this burden. A Overwhelming Untainted Evidence----- -
For the record to demonstrate harmless error, overwhelming untainted evidence must
have "` necessarily [ led] to a finding of guilt. "' Lane, 125 Wn.2d at 839 ( quoting State v. Guloy, .
104 Wn.2d 412, 426, 705 P. 2d 1182 ( 1985), cent. denied, 475 U. S. 1020 ( 1986)). McClure
argues that ( 1) the record cannot show overwhelming untainted evidence to support his
4 We note, from the perspective of hindsight on appellate review, that the alleged error here might have been avoided if the trial court had chosen different language to summarize the case for the venire. Additionally, we note that some trial courts ask the parties to prepare an agreed summary of the case that the court presents to the venire before the parties begin their questioning.
RA No. 43682 -5 -II
conviction because the trial court' s opening summary tainted each piece of evidence that
followed at trial; and ( 2) the City' s lack of proof about McClure' s knowledge of Hamilton' s fear
means that the jurors used the trial court' s comment to convict him. This argument fails.
McClure already had full review of his district court trial by the superior court, sitting in
its appellate capacity. His argument to us, however, ignores the narrow scope of our
discretionary review, which is limited to whether the trial court' s introductory comments about
only some evidence expected to be presented at trial were prejudicial. Clearly, we. must review
the sufficiency of that evidence on which the trial court arguably commented to determine
whether the untainted evidence could overcome the presumed prejudice. But none of the trial
court' s introductory comments in any way alluded to McClure' s knowledge that his actions made
Hamilton feel " uncomfortable, " 5 which is the only element of stalking that McClure actually
challenges that falls within the narrow scope of our commissioner' s grant of discretionary 6 review.
5 CP at 28.
6 To convict a person of stalking, a jury must find that ( 1) the defendant intentionally and repeatedly harassed or repeatedly followed another person; ( 2) the person harassed or followed was fearful that the stalker intended to injure the person and a reasonable person would experience such fear under the circumstances; and ( 3) the stalker either intended to frighten, to intimidate, or to harass the person or knew or reasonably should have known that the person was afraid, intimidated, or harassed. RCW 9A.46. 110( 1). McClure contends that the jury must have used the trial court' s comments to convict him to compensate for the alleged lack of trial evidence of the third element of stalking —that he
knew, or reasonably should have known, that Hamilton was afraid of him. Br. of Appellant at 8- 9. But the remarks that our commissioner identified as potentially being comments on the evidence related only to the second element of stalkingthat Hamilton was fearful that McClure intended to injure her. In contrast, neither of these two remarks ( that McClure had asked Hamilton to go on a date or that Hamilton obviously felt uncomfortable) reference the third element, McClure' s knowledge. Because McClure' s argument would thus take us outside the
narrow scope of our discretionary review here, we do not further consider it.
7 No. 43682 -5 -II
Independent of the trial court' s introductory remarks, the record contains overwhelming
uncontroverted evidence ' of the second element of stalking? at issue herethat as McClure' s
comments to Hamilton and McClure' s behavior increased in intensity, she became increasingly
frightened of him. She testified about ( 1) her ongoing fear of McClure based on his repeated
overtures and other actions, especially when she was working alone late at night; ( 2) the
measures .she took to avoid contact with him, including seeking permission to work a different
shift, closing the restaurant early, and asking her grandfather to stay with her while she closed
up; ( 3) his anger when she refused his invitation to go out on his boat with him; ( 4) being afraid
that after she had rebuffed his many requests he would assault her or " take [ her] somewhere" if
she continued to turn him down, CP at 147; ( 5) her belief that he was not " in the same reality"
and " sinking," CP at 147; ( 6) her fear that McClure was following her home from work; and ( 7)
her terror after the late- evening phone call at work that prompted her call to the police. We hold
that this untainted evidence of Hamilton' s fear of McClure was more than sufficient to overcome
any presumed prejudice from the trial court' s comments during its pre -voire dire summary of
what - evidence it-expected the jury would hear - t trial. - - -- a
B. Presumption that Jury Followed Court' s Instructions
McClure' s argument also ignores ( 1) the context in which the trial court made its
comments ( as we previously discussed in part I of this analysis section); and ( 2) the well - settled
presumption that the jury follows the court' s instructions, including here, its instruction to
disregard any statements it made that might be construed as comments on the evidence. Thus,
7 See n.7, above.
even if the above evidence were not sufficient to overcome the presumed prejudice, other
contextual factors also preclude reversal here.
For example, an inadvertent, isolated comment followed by a curative instruction may
not prejudice a party. Dybdahl v. Genesco, Inc., 42 Wn. App. 486, 490 -91, 713 P. 2d 113 ( 1986)
judge' s remark not prejudicial where jury instructed to disregard explicit or implied comments
on merits of evidence). Prejudice against a criminal defendant may also be cured by a jury
instruction that the charges are mere accusations against him or her and that the jurors should
rely only on evidence produced at trial to determine guilt. State v. Sivins, 138 Wn. App. 52, 61, 155 P. 3d 982 ( 2007). Once such a curative instruction is given, we presume the jury followed it.
Dybdahl, 42 Wn. App. at 491. Such is the case here.
The record shows that ( 1) the trial court presented its summary of the case to the entire
venire, before the final jurors were selected and sworn; and ( 2) the focus of this summary was a
broad preliminary overview of the allegations against McClure to acquaint the potential jurors
with the nature, place, and witnesses of the case in preparation for questioning about whether any
J urors had fore- knowledge or reasons- why the could not -serve -impartially. -As we previously - - --
explained, the trial court consistently prefaced its summary statements with qualifying equivocal
phrases like " maybe" and " I think" "[ the] allegations [ will show]." CP at 28. Moreover, the trial
court' s single mention of Hamilton' s fear was not focused on any specific piece of evidence or a
specific jury instruction; rather, it was in the context of explaining the " details" that the City' s
case was likely going to involve, offered merely to show " the flavor of the case" alleged. CP at
28.
9 No. 43682 -5 -II
McClure cites no cases addressing prejudicial court comments made pretrial while
summarizing the case for a pool of potential jurors, as was the situation here. On the contrary,
every case of which we are aware analyzes the potential prejudice of court comments about finite pieces of evidence or a jury instruction made during trial. See, e. g., Dybdahl, 42 Wn. App. at
490 ( court 's comment about "` startling figures "' in witness' s testimony immediately after the
testimony did not convey court' s opinion on credibility); State v. Levy, 156 Wn.2d 709, 726, 132
P. 3d 1076 ( 2006) ( court' s " mere mention of a fact" in a jury instruction did not imply court' s
belief that fact was true).
Furthermore, the trial court here expressly explained to the jury venire that the stalking
charge against McClure was only an allegation and that he had pled not guilty. At the close of
trial, the trial court again instructed the empanelled jury that ( 1) the burden was on the City to
prove the charges beyond a reasonable doubt based on the evidence elicited at trial; (2) they were
to ignore anything the court may have said that could be construed as a comment on the
evidence; and ( 3) the jury was the sole decider of the facts of the case and the witnesses'
credibility. We presume- that the jury followed the court' s instructions- and, therefore; conclude
that in convicting McClure, the jury did not use the trial court' s pretrial remarks about
10 No. 43682 -5 -II
8 Hamilton' s fear and his having asked her for dates. See Dybdahl, 42 Wn. App. at 490.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
Hunt, J. I concur:
J..
8 Under the circumstances of this case, we further decline McClure' s implied invitation to be the first court to find prejudice and reversible error based on the trial court' s educational pretrial summary of the case for the entire venire.
11 No. 43682 -5 -II
WOxswICK, J. ( dissenting) — I disagree with the majority' s decision holding that the
trial judge' s comments were not improper comments on the evidence and that the improper
comments on the evidence are harmless. In my opinion, this case should be reversed and
remanded. Accordingly, I respectfully dissent.
I. JUDICIAL COMMENT ON THE EVIDENCE
The majority holds that the trial judge' s initial instructions to the jury venire are not
improper comments on the evidence because they merely summarized for the jury pool the
allegations to give them a " flavor" of what the case was about. Majority at 5. I cannot agree
that the trial judge' s remarks are not a comment on the evidence.
To constitute an improper comment on the evidence, the court need not have expressly
conveyed to the jury its personal feelings on an element of the offense; it is sufficient if these State Levy, 156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006). " A feelings are merely implied. v.
court' s statement constitutes a comment on the evidence ` if the court' s attitude toward the merits
of the case or the court' s evaluation relative to the disputed issue is inferable from the
statement. "' App.- 52, State -v. -Sivins, -138 Wn. - - 583 155 -P.3d 982 ( 2007) ( emphasis added)
quoting State v. Lane, 125 Wn.2d 825, 838, 889 P. 2d 929 ( 1995)). A trial judge is prohibited
from making even implied comments on the evidence in order " to prevent the jury from being
unduly influenced by the court' s opinion regarding the credibility, weight, or sufficiency of the
evidence." Sivins, 138 Wn. App. at 58 ( citing State v. Eisner, 95 Wn.2d 458, 462, 626 P.2d 10
1981)).
The majority holds that this trial judge did not comment on the evidence because he
qualified his comments as " allegations," or prefaced them by saying, " I think." I cannot agree
12 No. 43682 -5 -II
that by characterizing his comments as allegations, the trial judge avoided making an improper comment on the evidence. Here, the trial judge' s lengthy recitation of the facts went beyond
giving the jury a " flavor" of the case and implied to the jury that certain facts were true and that
Erika Hamilton' s testimony was credible. See Lane, 125 Wn.2d at 837 -38 ( instruction stating
the reason for witness' s sentence being reduced impermissibly -implied that witness' s testimony
as a whole was credible). And the judge' s statements that he " thinks" his comments may be
correct makes these comments more, not less, problematic, in that it directly conveys the judge' s
personal feelings about the case.
The trial judge did not merely read the allegations from the information: Instead, the trial
judge provided the jury with an impromptu summary of the City of Vancouver' s ( City) case
against.Albert McClure which included references to disputed facts. For example, the trial judge
referenced McClure asking Erika Hamilton on a date and McClure asking her if she had ever
been stalked. Hamilton testified that McClure made these comments to her, but McClure
expressly denied ever making such comments. Therefore, the trial judge implied that disputed
facts had been proved and that Hamilton was a credible witness. -
And in an even more egregious comment, the trial judge stated that "[ Hamilton]
obviously felt uncomfortable." Clerk' s Papers ( CP). at 28 ( emphasis added). An essential
element of stalking is that the defendant knew or reasonably should know that the person was
afraid, intimidated, or harassed, and that the feeling of fear experienced by the person allegedly
being stalked " must be one that a reasonable person in the same situation would experience
under all the circumstances." RCW 9A.46. 110( 1)( b), ( c)( ii). By commenting that Hamilton
obviously" felt afraid, the trial judge stated as fact a critical, disputed element that was
13 No. 43682 -5 -II
necessary to prove the State' s case. In my opinion, this comment is also an impermissible
judicial comment on the evidence.
Here, the trial judge referenced several disputed facts, implied that Hamilton was a
credible witness, announced his personal feelings about the case, and stated that an element of
the State' s case was " obviously" true. I am not persuaded that the trial judge has avoided
making improper comments on the evidence by characterizing its comments as " allegations"
establishing the " flavor" of the case. Majority at 5. Accordingly, I would hold that the trial
judge' s comments were improper comments on the evidence which violated article IV, section
16 of the Washington State Constitution.
The majority opinion also holds that even if the trial judge' s comments were improper
comments on the evidence, they were harmless. For purposes of its harmless error analysis, the
majority must presume that the judge' s comments were an improper comment on the evidence
and, additionally, must presume that the improper comments were prejudicial. Levy, 156 Wn.2d
at 723.- The maj ority does not adequately overcome this - quired re presumption. - Accordingly.-I- -
disagree.
This is a " he said she said" case, not, as the majority states, a case with " overwhelming
uncontroverted evidence." Majority at 8. The majority' s opinion essentially . ignores the
presumption of prejudice that applies when determining whether judicial comments on the
evidence are harmless. The majority appears to apply a sufficiency of the evidence standard and
assumes the truth of the City' s evidence. In my opinion, the trial judge' s comments, which
implied Hamilton was a credible witness, tainted Hamilton' s testimony. Because judicial
14 No. 43682 -5 -II
comments on the evidence are presumed to be prejudicial, " overwhelming untainted evidence"
must support the defendant' s conviction. Lane, 125 Wn.2d at 839 -40 ( emphasis added). Many
of the facts proving the .elements of stalking were contested; the jury was required to resolve
conflicts between Hamilton' s and McClure' s testimony. Given the presumption of prejudice, I
cannot consider Hamilton' s testimony to be untainted evidence. Because the City relied on
Hamilton' s tainted testimony to prove several of the essential elements of stalking, there is not
overwhelming, untainted evidence supporting the jury' s verdict.
To prove McClure committed the crime of stalking, the City was required to prove that
1) McClure intentionally and repeatedly harassed or repeatedly followed Hamilton, ( 2)
Hamilton was placed in fear that McClure intended to injure her, ( 3) Hamilton' s fear must have
been " one that a reasonable person in the same situation would experience under all the
circumstances," and ( 4) McClure either ( a) intended to frighten, intimidate, or harass Hamilton;
or ( b) knew or reasonably should have known that Hamilton was afraid, intimidated, or harassed
even if McClure did not intend to frighten, intimidate, or harass Hamilton. RCW 9A.46. 1 I0( 1).
T agree that there was overwhelming, untainted evidence establishing that Hamilton was -
actually afraid. The City presented evidence from Hamilton' s grandfather and the police officer
who responded to her complaint. Both witnesses testified that she appeared afraid. However,
the City relied exclusively on tainted evidence to prove other elements of stalking including ( 1) that McClure repeatedly followed or harassed her, ( 2) Hamilton' s fear was reasonable, and ( 3)
McClure knew or should have known that Hamilton was afraid, intimidated, or harassed.
15 No. 43682 -5 -II
A. Repeatedly Followed or Harassed
The trial judge' s comments affected the City' s evidence proving that McClure repeatedly
harassed or followed Hamilton. Hamilton testified that McClure came into the Subway
restaurant almost every time that she was working and would stay in or around the store for long
periods of time while she was working. She also testified that a car similar to McClure' s
followed her home one night and an unidentified person called her at the Subway making
comments like " I' m going to go crazy if I can' t have you." CP at 150. In contrast, McClure
testified that he never spent more than approximately 15 minutes in the Subway. McClure also
testified that he was not following Hamilton and had never been to her house. There was no
evidence that McClure was the individual who either was walking outside Hamilton' s house, or
who was the " unidentified man" who had called her on the restaurant' s business line.
If the trial judge' s comments did not taint Hamilton' s testimony by implying she was a
credible witness, Hamilton' s testimony would be overwhelming evidence proving that McClure
repeatedly harassed or followed her. And even though the trial judge implied that Hamilton' s
testimony was - credible, _ I- would consider Hamilton' s testimony overwhelming - if - were it
uncontroverted. However, McClure' s testimony contradicted Hamilton' s testimony on every
point required to prove he repeatedly followed or. harassed Hamilton and, as a result, there was
not overwhelming, untainted evidence supporting the essential element of stalking that McClure
repeatedly followed or harassed Hamilton.
B. Reasonable Fear
The City was also required to prove that Hamilton' s fear was fear " that a reasonable
person in the same situation would experience under all the circumstances." RCW
16 No. 43682 -5 - II
9A. 46. 110( 1)( b). When the trial judge commented that Hamilton " obviously felt uncomfortable"
CP at 28), he implied that ( 1) the facts Hamilton would testify to were true and ( 2) those facts
would " obviously" make any person feel afraid. No other witness testified that he or she would
feel afraid under the same circumstances. McClure testified that he visited the Subway for no
more than 15 minutes at a time and his conversations with Hamilton were limited to impersonal,
casual conversation while he ordered food.
Hamilton' s untainted testimony could have been sufficient evidence to allow a reasonable'
to find that be afraid under those circumstances. However, jury a reasonable person would
McClure testified to circumstances under which no reasonable person would be afraid. Without
Hamilton' s testimony, the City could not prove that a reasonable person would feel afraid under
the circumstances. Accordingly, there is not untainted evidence that establishes an essential
element of stalking.
C. Knew or Should Have Known
In addition, the trial judge' s comments tainted the evidence proving that McClure
reasonably should Hamilton was have known -that - afraid, intimidated, - or harassed. - - RCW
9A.46. 1I0( 1)( c)( ii). In addition to her other testimony, Hamilton testified that McClure asked
her if she had ever been stalked before, told her she was pretty, and asked for her personal cell
phone number. Hamilton also testified that McClure had asked her out on a date and invited her
to go on his boat. Like other aspects of Hamilton' s testimony, this testimony was directly
contradicted by McClure' s testimony. McClure testified that he never asked Hamilton on a date.
Although he admitted that he made a passing comment about taking Hamilton on his boat, he did
not wait for a response, and never got angry at her for not accompanying him on his boat.
17 No. 43682 -5 -II
McClure also testified that he engaged in limited casual conversation with Hamilton while she
was serving him. Moreover, Hamilton did not tell McClure to stop coming to .the restaurant.
Hamilton did not tell McClure that he was making her uneasy. McClure denied knowing that
Hamilton was alarmed or frightened.
If the facts to which Hamilton testified were true, a reasonable jury could find that
McClure knew or should have known that he was frightening, intimidating, or harassing 9 Hamilton. But some of the trial judge' s comments directly implied that the facts Hamilton
testified to were true. For example, the trial judge commented that McClure asked Hamilton out
on a date, a fact which was disputed by McClure' s testimony. The City' s argument that McClure
should have known Hamilton felt afraid, intimidated, or harassed must have rested on the
assumption that a person should know that consistently engaging in inappropriate, overly
personal conversation with a stranger would be frightening, intimidating, or harassing. The trial
judge' s comments. implied the existence of disputed facts which established that McClure did
engage in overly personal conversations with Hamilton while she was at work. Therefore, the
City also relied - ntainted evidence to prove that McClure should have known that Hamilton was - o afraid, intimidated, or harassed.
9 It does not appear that the City argued below that McClure intended to frighten, intimidate, or harass Hamilton or that he knew she was afraid, intimidated, or harassed. There is uncontroverted evidence in the record that Hamilton never told McClure he was upsetting her or that she wanted him to leave her' alone. Lack of notice is not a defense to stalking if the alleged
stalker was intending to intimidate or harass, but there is no evidence in the record that McClure intended to frighten, intimidate, or harass Hamilton. RCW 9A.46. 110( 2)( a). And because the uncontroverted evidence in the record establishes that McClure did not know Hamilton was afraid, intimidated, or harassed, I limit my analysis to whether the trial judge' s comments tainted the evidence proving that McClure should have known that Hamilton was afraid, intimidated, or harassed.
18 No. 43682 -5 -II
The majority' s analysis of the effect of the trial judge' s comments is too narrowly applied
to the .evidence required to prove the essential elements of stalking. In my opinion, the trial
judge' s improper comments on the evidence tainted evidence necessary to prove several essential
elements of stalking. Accordingly, the trial judge' s improper comments on the evidence cannot
be considered harmless.
D. Remedial Instruction
Finally, the majority relies on the presumption that the jury followed the trial judge' s
instruction to disregard any implied comments on the evidence. I agree that prejudice resulting
from an isolated or inadvertent judicial comment on the evidence may be cured by an instruction
Sivins, 138 Wn. App. 61 ( citing Eisner, 95 Wn.2d at 463). However, the trial to the jury. at
judge' s comments in this case were neither isolated nor trivial. Therefore, I do not believe they
could be cured by an instruction to the jury.
For the above reasons, I disagree with the majority' s opinion holding that the trial judge' s
comments in this case were not improper judicial comments on the evidence or that the trial
Judge' s comments were-harmless I would reverse McClure' s convictions and remand for further - -
proceedings. Accordingly, I respectfully dissent.
Worswfck. C. J.