State Of Washington, V. Douglas Kadyk

• Court: Court of Appeals of Washington
• Decided: May 16, 2022
• Docket: 82707-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 82707-3-I ) Respondent, ) ) v. ) ) DOUGLAS BRUCE KADYK, JR. ) UNPUBLISHED OPINION ) Appellant. ) )

VERELLEN, J. — Douglas Kadyk appeals his reckless driving conviction. He

contends that the trial court impermissibly commented on the evidence in an

evidentiary ruling allowing his expert to testify. Because the court’s explanation of

its ruling was not an improper comment, we affirm.

FACTS

On April 11, 2020, a Washington State Patrol trooper arrested Kadyk for

driving while under the influence (DUI). The State later charged Kadyk with felony

DUI, reckless driving, and third degree driving while license suspended (DWLS).

At trial, Kadyk called expert toxicologist Dr. Kirk Van Ness to offer opinions

regarding alcohol pharmacokinetics and blood-alcohol content based on

consumption. When Van Ness was asked to view the law enforcement’s video of

Kadyk’s arrest and opine on whether the video “would belie someone who was No. 82707-3-I/2

driving under the influence at about a [blood alcohol level of] .27,” the State

objected that this was beyond the scope of Van Ness’s expertise.1

Defense counsel responded that Van Ness was an “expert in toxicology”

and “an expert in the symptoms of consumption of alcohol which include divided

attention tasks as has been established by some of the State’s witnesses, which is

included with driving, Your Honor.”2 In ruling on the objection, the trial court said:

This witness’s expertise is not so much as to what driving looks like when a person is under the influence but it’s more in another, a more academic area involving methodology and processes. However, I will indulge this for this time and allow the witness to view the video and express his opinion. The objection will go to the weight. [3]

Upon viewing the video, Van Ness testified that it showed Kadyk in a state

of excitement and did not show him exhibiting signs of intoxication.

The jury convicted Kadyk of reckless driving and DWLS but could not reach

a verdict on the DUI charge.4

Kadyk appeals.

DISCUSSION

Kadyk alleges the trial court improperly commented on the evidence when it

overruled an objection as to the scope of Van Ness’s testimony. We find no merit

in this allegation.

1 Report of Proceedings (RP) (March 2, 2021) at 1663-64.

2 Id. at 1664.

3 Id.

4 The trial court declared a mistrial as to the DUI charge and dismissed it

without prejudice.

2 No. 82707-3-I/3

“Judges shall not charge juries with respect to matters of fact, nor comment

thereon, but shall declare the law.”5 This provision “forbids only those words or

actions which have the effect of conveying to the jury a personal opinion of the trial

judge regarding the credibility, weight, or sufficiency of some evidence introduced

at the trial.”6 A judge’s statements or actions constitute comments on the

evidence if the jury can reasonably infer the court’s attitude toward the merits of

the case.7 We review the facts and circumstances of the case to determine

whether the trial court’s actions or words amount to a comment on the evidence. 8

When the trial court said Van Ness’s expertise was “a more academic area

involving methodology and processes,” Kadyk claims that “it commented on the

credentials of the defense expert and the quality of his opinions.”9 At this point in

trial, Van Ness had not yet watched the arrest video or offered his opinion on what

he observed in the video. In context, the trial court’s statement was merely an

explanation for its evidentiary ruling allowing Van Ness to testify. Courts are free

to give reasons for their rulings on objections, and such reasons will not be treated

as comments on the evidence so long as they do not reveal the court’s attitude

toward the evidence.10 Here, the statement neither expressed nor implied an

5 W ASH. CONST. art. IV, § 16.

6 State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970).

7 State v. Elmore, 139 Wn.2d 250, 276, 985 P.2d 289 (1999) (citing State v.

Carothers, 84 Wn.2d 56, 267, 525 P.2d 731 (1974)). 8 Jacobsen, 78 Wn.2d at 495.

9 Appellant’s Br. at 9.

10 See State v. Cerny, 78 Wn.2d 845, 855-56, 480 P.2d 199 (1971); State v.

Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557 (1999).

3 No. 82707-3-I/4

opinion about Van Ness’s credentials, the quality of his opinions, or the merits of

Kadyk’s case.

Moreover, the trial court instructed the jury to “not be concerned during your

deliberations about the reasons for my rulings on the evidence” and to “not

speculate whether the evidence would have favored one party or the other.”11 It

also instructed the jury to disregard any perceived comment on the evidence and

said, in pertinent part, “If it appeared to you that I have indicated my personal

opinion in any way, either during trial or in giving these instructions, you must

disregard this entirely.”12 “The jury is presumed to have followed the court's

instructions.”13

Kadyk fails to establish any error here. Therefore, we affirm.

WE CONCUR:

11 RP (Mar. 3, 2021) at 1728.

12 Id. at 1730.

13 Cerny, 78 Wn.2d at 856 (citing State v. Willis, 67 Wn.2d 681, 686, 409

P.2d 669 (1966)).