State of Washington v. Cheryl L. Sutton

489 P.3d 268

• Court: Court of Appeals of Washington
• Decided: June 17, 2021
• Docket: 36804-1
• Status: Published

Opinion

FILED JUNE 17, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) No. 36804-1-III ) Respondent, ) ) v. ) ) CHERYL. L. SUTTON, ) ) Appellant, ) PUBLISHED OPINION ) ALVARO GUAJARDO, ) ) Defendant, ) ) COLBY D. VODDER, ) ) Defendant. )

LAWRENCE-BERREY, J. — A jury convicted Cheryl Sutton of first degree felony

murder and of leading organized crime. Her appeal relates only to the latter conviction.

The question we answer today is not new: Whether a trial court abuses its

discretion when, during the jury’s deliberation, the court declines to answer the jury’s

question about the law. The general answer is no, and we affirm the challenged

conviction. No. 36804-1-III State v. Sutton

Nevertheless, a trial court has a responsibility to ensure that the jury understands

the law. We take this opportunity to strongly encourage our trial courts to fulfill this

responsibility and directly answer a jury’s question of law even if it believes its

instructions are correct and complete.

FACTS

The narrow issue on appeal does not require us to recount the evidence linking

Cheryl Sutton to her conviction of the first degree felony murder of Bret Snow. We limit

our discussion of the facts accordingly.

Law enforcement executed a search warrant looking for evidence of drug

trafficking at an address on North Starr Road in Newman Lake, Washington. At the

property, they found Cheryl Sutton, Ken Stone, Alvaro Guajardo, and Colby Vodder. The

ensuing investigation led to Sutton, Guajardo, and Vodder being arrested for the

kidnapping and murder of Bret Snow. Sutton, Guajardo, and Vodder were charged

together, but the prosecutions were later bifurcated.

The State charged Sutton with first degree felony murder predicated on

kidnapping, first degree kidnapping, and leading organized crime. With respect to the

charge of leading organized crime, the State alleged that Sutton

2 No. 36804-1-III State v. Sutton

did intentionally organize, manage, and direct three or more persons to wit: Ken Stone, Alvaro Guajardo, and Colby Vodder, with the intent to engage in a pattern of criminal profiteering activity, to-wit: Delivery of a Controlled Substance, as defined in RCW 69.50.

Clerk’s Papers (CP) at 98.

At trial, the State’s evidence showed that Sutton, Stone, and Guajardo lived at the

Starr Road property and were involved in the distribution of methamphetamine to

numerous people, including Snow. Vodder often was at the property and sold heroin.

Sutton ran the drug operation and was the leader of the group. Stone and Guajardo acted

as Sutton’s enforcers and beat persons who stole from Sutton or did not pay. Nicole

Price, Sutton’s best friend, was Sutton’s driver. She drove Sutton to places where Sutton

sold drugs. Before resting, the State dismissed the kidnapping charge.

Sutton testified in her defense. She admitted she sold drugs, but denied she sold

drugs or directed Stone, Guajardo, or Vodder.

The trial court instructed the jury on the law. Instruction 24 stated, “A person

commits the crime of Leading Organized Crime when he or she intentionally organizes,

manages, directs, supervises, or finances any three or more persons with the intent to

engage in a pattern of criminal profiteering activity.” CP at 169. Instruction 25 stated in

relevant part:

3 No. 36804-1-III State v. Sutton

To convict the defendant of the crime of leading organized crime as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the period between June 1, 2015 and March 1, 2016, the defendant intentionally organized, managed, directed, supervised or financed three or more persons, Ken Stone, Alvaro Guajardo, and Colby Vodder;

CP at 170.

In its closing, the State argued the evidence proved that Sutton directed Stone,

Guajardo, and Vodder. In addition, it noted the evidence showed that Sutton employed

her driver, Price. Defense counsel emphasized Sutton’s denial that she directed anyone

and sought to distance herself from Vodder by arguing they had independent operations—

Vodder sold heroin, while Sutton and the others sold methamphetamine.

During deliberations, the jury forwarded a written question to the judge. The

judge asked counsel for suggestions on how it should respond to the jury’s question: “For

instruction #25, must the defendant have organized (etc.) all three of the listed persons

specifically, or just any 3 or more persons (as instruction #24 states)?” Report of

Proceedings (RP) at 189.

4 No. 36804-1-III State v. Sutton

Both counsel agreed that the answer was yes.1 The deputy prosecutor

recommended that the court either answer the question yes or provide the standard

response that directs the jury to refer back to its instructions. Defense counsel initially

agreed, but then asked the court to answer the question yes or direct the jury to instruction

25, the to-convict instruction.

The court discussed what it considered an ambiguity in the jury’s written question

and did not want to presume it correctly understood the question. It explained that

instructions 24 and 25 were clear. It decided that the best answer was to simply direct the

jury to refer back to its instructions. Defense counsel then, somewhat unclearly, again

requested the court to direct the jury to instruction 25, the to-convict instruction. The

court opted to “take the conservative route” and direct the jury to refer to its instructions.

RP at 854.

Soon after, the jury returned a verdict of guilty on both remaining counts. The

court entered its judgment and sentence, and Sutton timely appealed.

1 The jury’s question had two parts. A yes answer to both parts would make no sense. A fair construction of the parties’ agreement is that the jury was required to focus only on the three persons listed in instruction 25.

5 No. 36804-1-III State v. Sutton

ANALYSIS

Sutton argues the trial court abused its discretion by “declining the proposed

defense instruction that accurately stated the law.” Br. of Appellant at 1. She assigns

error to the trial court “denying a supplemental defense instruction.” Br. of Appellant at

2. But the colloquy and the record do not reflect any proposed defense instruction. We

will construe Sutton’s argument as assigning error to the trial court’s decision not to

direct the jury to instruction 25, the to-convict instruction.

Defendants are guaranteed a fair trial under the Sixth Amendment to the United

States Constitution, which requires jury instructions that accurately inform the jury of the

relevant law. State v. Henderson, 192 Wn.2d 508, 512, 430 P.3d 637 (2018). To ensure a

jury is informed of the relevant law, CrR 6.15(f)(1) permits a trial court to provide the

jury with supplemental written instructions on any point of law after deliberations begin.

This court reviews a trial court’s decisions on whether to give a supplemental

instruction for abuse of discretion. State v. Sublett, 176 Wn.2d 58, 82, 292 P.3d 715

(2012). “Abuse of discretion is found only when the decision is ‘manifestly

unreasonable, or exercised on untenable grounds, or for untenable reasons.’” Ugolini v.

Ugolini, 11 Wn. App. 2d 443, 446, 453 P.3d 1027 (2019) (internal quotation marks

omitted) (quoting State v. McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009)).

6 No. 36804-1-III State v. Sutton

A trial court should ensure that the jury understands the law. State v. Backemeyer,

5 Wn. App. 2d 841, 849, 428 P.3d 366 (2018) (citing Bollenbach v. United States, 326

U.S. 607, 612-13, 66 S. Ct. 402, 90 L. Ed. 350 (1946); United States v. Hayes, 794 F.2d

1348, 1352 (9th Cir. 1986)). When it is apparent the jury does not understand the law, the

trial court may and should issue a supplemental written instruction. A failure to do so is

inconsistent with its responsibility to ensure the jury understands the law and risks the

jury rendering a verdict contrary to the evidence.

Sutton argues that the trial court should have given a supplemental instruction to

clarify the law. In making this argument, she relies on Backemeyer. There, Backemeyer

was in a bar rolling a marijuana joint and drinking a beer he had purchased elsewhere. Id.

at 844. Nicholas Stafford, a bouncer at the bar who blended in with patrons, took

Backemeyer’s beer and told him to leave. Id. According to Backemeyer, Stafford did not

identify himself as a bar employee. Id. at n.1. Backemeyer remained at the bar for

several minutes. Id. Stafford confronted him and a scuffle ensued. Id. The much larger

Stafford pushed Backemeyer to the floor and punched out some of his teeth. Id.

Backemeyer drew a knife, badly cut Stafford’s face, and then fled. Id. at 844-45.

The State charged Backemeyer with first degree assault with a deadly weapon. Id.

at 845. The interplay between a self-defense instruction and a stand-your-ground

7 No. 36804-1-III State v. Sutton

instruction made it unclear whether Backemeyer was entitled to use self-defense if he was

a trespasser or if he was doing something illegal. Id. at 845-46.

During deliberations, the jury submitted a written question that reflected its

confusion. Defense counsel expressed his concern that the jury was “‘trying to get rid of

self-defense’” if Backemeyer was a trespasser. Id. at 847. Nevertheless, he agreed with

the State that the trial court should tell the jury to refer to its instructions. Id. A second

question from the jury implied the jury would negate Backemeyer’s claim of self-defense

if it found that Backemeyer was rolling a marijuana joint or had brought a beer into the

bar. Id. This second question made it clear the jury did not understand the law of self-

defense. Id. Nevertheless, defense counsel agreed with the State that the trial court

should tell the jury to refer to its instructions. Id.

We held that defense counsel performed deficiently and Backemeyer was

prejudiced. We saw no reason why, if asked, the trial court would refuse to clarify the

law, given the jury clearly misunderstood the law of self-defense. We noted if the trial

court had refused, its refusal would have been contrary to its responsibility to ensure that

the jury understood the law. Id. at 849-50.

Backemeyer is distinguishable from this case. There, it was clear that the jury

misunderstood the law. Here, the to-convict instruction was clear. The jury’s question

8 No. 36804-1-III State v. Sutton

confirms it understood that to convict Sutton of leading organized crime, it needed to

focus only on Stone, Guajardo, and Vodder.2

Unless shown otherwise, it is presumed a jury follows the court’s instructions.

State v. Swan, 114 Wn.2d 613, 661-62, 790 P.2d 610 (1990). While the jury did initially

raise a question about the interplay between instructions 24 and 25, it did not ask any

further questions after being told to review the instructions. This single question does not

overcome the presumption the jury followed the court’s instructions.

A case on point is State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988). In Ng, the jury

asked whether the term “duress” applied to all lesser charges. Id. at 36. Ng argued the

trial court should have answered yes because it was an accurate statement of law. Id. at

42-43. Instead, the trial court referred the jury back to the instructions. Id. at 43. The Ng

court concluded that the trial court had not abused its discretion. In so concluding, it

noted “the jury’s question does not create an inference that the entire jury was confused,

or that any confusion was not clarified before a final verdict was reached.” Id. at 43.

Similarly here, the jury’s question did not create an inference that the entire jury

was confused or that any confusion was not clarified before the jury reached its verdict.

2 Because the jury correctly understood the to-convict instruction, we need not address Sutton’s related argument that a comma, rather than a colon, should have preceded the names of the three men in instruction 25.

9 No. 36804-1-III State v. Sutton

The jury's question shows it understood that the to-convict instruction required it to find

that Sutton organized, etc., the three persons named in the instruction-Stone, Guajardo,

and Vodder.

At a minimum, the jury's question showed that some jurors wanted assurance they

need not be concerned about the different wording in instruction 24. And because the

trial court has a responsibility to ensure that the jury understands the law, it should have

answered the jury's question. It could have answered: "To convict Sutton of leading

organized crime, the State must prove the elements of that crime as set forth in Instruction

25 beyond a reasonable doubt." Nevertheless, the trial court's decision not to answer the

jury's question was not an abuse of discretion.

Affirmed.

Lawrence-Berrey, J. \ j WE CONCUR:

Siddoway, A.C.J. Fearing, J.