IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87349-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
NURBOL ISSATAYEV,
Appellant.
FELDMAN, J. — On May 27, 2024, Nurbol Issatayev punched and stabbed
his roommate, Anton Shoia, and attempted to stab his other roommate, Mykhailo
Skrypnichenko. Based on these events, Issatayev was charged with and
convicted of two counts of second degree assault, both with domestic violence and
deadly weapon aggravating factors, and one count of fourth degree assault with a
domestic violence aggravating factor. Issatayev appeals his convictions and
asserts that improper witness testimony and the presence of custody officers in
the courtroom during his trial prejudiced his right to a fair trial and that the trial court
abused its discretion by denying his second motion for a mistrial based on these
alleged trial irregularities. Because Issatayev has not established a substantial
likelihood that any potential prejudice resulting from these alleged irregularities
affected the jury’s verdict, we affirm. No. 87349-1-I
I
A
In spring 2024, Skrypnichenko lived in an apartment in Lynnwood and
advertised on Facebook for a roommate to share the apartment with for the
remaining two months on the lease. Issatayev responded to the advertisement
and moved into the apartment on May 1, 2024. Soon thereafter, Skrypnichenko
made plans to move into a nearby house at the end of May and Issatayev agreed
to take over the apartment’s lease and to find another roommate. When Issatayev
advertised on Facebook for a new roommate, Shoia responded and moved into
the apartment on May 26, 2024. On May 27, 2024, Shoia prepared dinner for the
roommates and provided beer and vodka. Issatayev’s friend from Kazakhstan also
joined the group for dinner.
At trial, Shoia, Skrypnichenko, and Issatayev provided very different
accounts of the subsequent events that evening. Shoia testified that he, Issatayev,
and Issatayev’s friend had been drinking together before dinner and that Issatayev
and his friend had also been smoking cannabis. The atmosphere in the apartment
was “very friendly,” and after dinner Shoia sat on the couch looking at his phone
while Skrypnichenko and Issatayev’s friend went to the balcony to smoke.
According to Shoia, Issatayev sat next to him on the couch, put his arm around his
shoulder, asked him how he was, and stabbed his left leg with a knife, causing a
cut to his superficial femoral artery that required surgery. Shoia pushed Issatayev
away and saw that he was holding a white knife with a green handle. Shoia ran to
the balcony doorway and told Skrypnichenko and Issatayev’s friend that Issatayev
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had cut him. Issatayev’s friend left the apartment, Skrypnichenko went to his room
to get a phone, and Shoia went to the kitchen.
Once in the kitchen, Shoia realized that he had lost a lot of blood, began to
feel dizzy, and heard noises like yelling or knocking in the apartment. Issatayev
entered the kitchen and apologized to Shoia. When Shoia rejected Issatayev’s
apology and “told him where he should go,” Issatayev punched Shoia on his left
cheek. Shoia punched Issatayev back and the two began to wrestle. Shoia
wrestled Issatayev to the floor and tried to hold him down, but Issatayev ran away
when Shoia began to lose consciousness. Shoia next remembered laying on the
floor with first responders treating him.
Skrypnichenko, in contrast, testified that when he arrived at the apartment
on May 27, 2024, both Shoia and Issatayev appeared intoxicated and Issatayev
was aggressive and quarrelsome, which was not typical behavior for him.
Skrypnichenko did not see Issatayev stab Shoia but did see Issatayev standing in
the living room holding a green kitchen knife when Shoia appeared on the balcony.
After this, Skrypnichenko went to his bedroom to find a bandage for Shoia’s leg.
Issatayev followed him into the bedroom and said, “brother, what have I done,”
and “what should we do.” Skrypnichenko lost his temper and went to the kitchen
to help bandage Shoia’s leg. After helping Shoia, Skrypnichenko decided to call
911. This upset Issatayev who then entered Skrypnichenko’s bedroom and tried
to stab him with the green kitchen knife. Skrypnichenko pushed Issatayev out of
his room and closed his bedroom door. Issatayev then hit the bedroom door with
the knife.
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Lastly, Issatayev provided yet another version of these events. He testified
that he had stabbed Shoia in self-defense. Issatayev testified that he had
commented on Shoia’s cooking, which Shoia did not appreciate and which caused
Shoia to swear at him. Issatayev asked Shoia why he was speaking to him that
way, and Shoia responded with “a stream of expletives, profanities,” including
“Fuck your mother.” Shoia moved toward Issatayev and asked him, “what do you
want.” Issatayev stood up, but Shoia pushed him back into a chair and the two
began to fight. Shoia, who was larger than Issatayev, pushed him to the floor,
punched him twice in the back of the head, and continued to hold him down and
yell at him. To get away, Issatayev grabbed a small silver kitchen knife that Shoia
had previously used while cooking and that was on the floor. He swung the knife
and hit Shoia’s leg, which caused Shoia to scream and grab his leg.
Issatayev testified that after he stabbed Shoia, he was out of breath and
exhausted. When Skrypnichenko entered the kitchen and asked what happened,
Shoia yelled that Issatayev had stabbed him with a knife. Skrypnichenko then
punched or kicked Issatayev in the temple. When Issatayev got up, he heard
Skrypnichenko speaking on the phone and he went to the bathroom and vomited.
Skrypnichenko was watching him and would not let him get his phone or go back
to his bedroom and told him that he was no longer welcome in the apartment.
Issatayev left the apartment and was contacted by Sherrif’s deputies.
Several deputies testified that they investigated and documented the scene
(specifically the kitchen and living room areas) with photos but could not determine
whether Shoia had been stabbed in the living room or the kitchen. Law
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enforcement located outside the apartment on the grass beneath the balcony a
green and white kitchen knife with a five-inch blade that appeared to be covered
with blood. Deputy Jacob Olson with the Snohomish County Sherrif’s Office
detained Issatayev and transported him to the hospital because of his alcohol
consumption. During transport, Issatayev was unruly and pushed on the partition
that separated the front and the back of Deputy Olson’s patrol vehicle causing it to
creak and crack. Eventually, Issatayev was released from the hospital to Deputy
Olson’s custody and booked into jail. He remained in custody during the trial.
B
Issatayev was charged with two counts of second degree assault, both with
domestic violence and deadly weapon aggravating factors, and one count of fourth
degree assault with a domestic violence aggravating factor. Before trial, Issatayev
filed a trial brief containing several motions in limine. Relevant here, motion in
limine 10 requested that the trial court prohibit any mention or reference regarding
Issatayev “attempting to kick a patrol vehicle window out upon arriving at the jail.”
Additionally, motion in limine 13 sought to preclude any mention of or reference to
Issatayev “being booked into the jail and/or the fact that he remains in-custody.”
The trial court granted motion in limine 13 by agreement of the parties, and
reserved its decision regarding motion in limine 10.
The court again addressed motion in limine 10 and issued its ruling
regarding the motion during trial. The court concluded Issatayev’s demeanor while
being transported to the hospital by Deputy Olson was relevant “to show just the
state of mind within a very brief amount of time after the incident itself.”
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Accordingly, the court permitted the State to elicit testimony regarding Issatayev
“screaming and kicking and yelling in the car and the behavior upon immediate
contact,” but excluded “anything about trying to get out of handcuffs or what have
you and anything at the hospital at this time.” The court ruled that the State “can
say this is how he behaved during the ride. He went to the hospital. He didn’t
appear to have any injuries, no injuries, didn’t complain of any, and he was
released.” After defense counsel objected to the State eliciting testimony that
Issatayev was released back to the deputy, the trial court directed the State to
“[j]ust say he was released from the hospital.”
After the court’s ruling, the State began its direct examination of Deputy
Olson. Deputy Olson testified that he drove Issatayev to the hospital and that
Issatayev was behaving unruly while in the back of his patrol vehicle. When asked
to elaborate on why he described Issatayev as unruly, Deputy Olson explained
that
he was pushing on the partition of my car, which separates the front seat from the backseat where prisoners go, hard enough in a way it was starting to creak and crack. And this is made out of like metal and plastic, and all my -- all my prisoners that I have transported or people that are in custody that I have transported, I have never heard someone push on it hard enough to make that kind of noise.
Deputy Olson then testified further that Issatayev appeared intoxicated.
Following this testimony, defense counsel asked to be heard outside the
presence of the jury and moved for a mistrial based on Deputy Olson’s use of the
words “prisoner” and “custody.” The State argued the jury did not hear any
testimony that Issatayev had gone to jail or was in custody and that Deputy Olson
merely spoke in “generalities.” The trial court stated it “did not like the use of the
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word ‘prisoner,’ because that has a whole different connotation,” but concluded
that Deputy Olson’s testimony was insufficient grounds for a mistrial. The court
offered to give a curative instruction directing the jury to disregard Deputy Olson’s
use of the word “prisoner” and “custody,” but defense counsel declined the court’s
offer for a curative instruction.
Deputy Olson’s direct examination continued as follows:
STATE: Why was he going to the hospital?
DEPUTY OLSON: For his alcohol consumption, presumed alcohol consumption.
STATE: And was he checked out by medical staff?
DEPUTY OLSON: Yes. He was seen by a doctor.
STATE: And after that, was he released back to you?
DEPUTY OLSON: Yes.
This concluded the State’s direct examination of Deputy Olson.
When the court asked if the defense had any cross examination for the
deputy, defense counsel again requested to be heard outside the presence of the
jury and made her second motion for a mistrial. This motion for a mistrial was
based on the elicited testimony that violated the court’s ruling that the State was
to “[j]ust say he was released from the hospital.” The prosecutor apologized for
violating the court’s order, stating she “must have been turned around” and that
she “thought that was what we had settled on.” But the State maintained its
position that Deputy Olson’s testimony was not so prejudicial a mistrial was
warranted. The court requested briefing on the motion and deferred its ruling.
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The following morning, the defense filed the requested briefing in support
of its second motion for a mistrial, arguing that Deputy Olson’s use of the word
“prisoner,” other mentions of Issatayev’s in custody status, and “the uniformed
correction officers that have remained in the courtroom for the entirety of the trial”
prejudiced Issatayev’s right to a fair trial. The trial court denied the defense’s
motion, stating,
I'm going to deny the motion for mistrial, as it indicated in the case law that even testimony that a defendant is in jail or has been in jail can be cured by a curative instruction, depending on the circumstances, I suppose.
Here what we have is the deputy talking about prisoners generally in the back of his car, and then he changed that to people in custody, and then we have the prosecutor asking if the defendant was released from the hospital back into his custody. And then as Defense pointed out, we do have custody officers in the courtroom sitting in the back area on each side, and depending on how knowledgeable one is of the justice system, they might assume that the defendant is in custody, although I have certainly had jurors say before that they just assumed that officers were always present during trial. So I think it depends on the juror perhaps.
Obviously there have been no handcuffs or shackles during this trial . . . When the prosecutor asked if Mr. Issatayev was released back to the officer’s custody, I think jurors could have assumed that he was taken back somewhere else, since the officer drove him to the hospital. They didn’t necessarily need to assume that he was being taken to the jail. And on the whole, under the circumstances, with the report from the two witnesses that Mr. Issatayev had stabbed one person and attempted to cut another, most jurors would assume there would be an arrest, if for no other reason than to separate the parties temporarily.
The court concluded that “any potential prejudice is minimal in this case” and
agreed to give a curative jury instruction, which defense counsel drafted and which
became jury instruction 5.
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Issatayev was found guilty of all three charged offenses. At sentencing, the
court imposed concurrent standard-range sentences of 39 months for the two
second degree assaults and no additional time for the fourth degree assault. This
timely appeal followed.
II
Issatayev argues the trial court erred in denying his second motion for
mistrial. He claims that Deputy Olson’s improper testimony and the presence of
custody officers in the courtroom so prejudiced the jury that he was denied his right
to a fair trial. We disagree.
“The trial court should grant a mistrial only when the defendant has been so
prejudiced that nothing short of a new trial can ensure that the defendant will be
fairly tried.” State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012). “We
review the trial court’s denial of a mistrial for abuse of discretion, and we find abuse
only ‘when no reasonable judge would have reached the same conclusion.’” Id.
(quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989)). “‘In
determining the effect of an irregularity, we examine (1) its seriousness;
(2) whether it involved cumulative evidence; and (3) whether the trial court properly
instructed the jury to disregard it.’” Id. (quoting Hopson, 113 Wn.2d at 284).
“These factors are considered with deference to the trial court because the trial
court is in the best position to discern prejudice.” State v. Garcia, 177 Wn. App.
769, 776-77, 313 P.3d 422 (2013) (internal citations omitted).
The first factor—the seriousness of the irregularity—asks whether the
irregularity was “serious enough to materially affect the outcome of the trial.” Id.
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at 777. Here, it was not. As the trial court noted, Deputy Olson’s testimony was
“about prisoners generally in the back of his car, and then he changed that to
people in custody.” At no point did he state that Issatayev was a prisoner or in
custody. Nor did Deputy Olson’s statement that Issatayev was released from the
hospital to him indicate that Issatayev was going to be booked into jail that night
or that he remained in custody during the trial. Instead, the testimony at trial merely
established that Issatayev was transported to the hospital in Deputy Olson’s patrol
vehicle because he had consumed alcohol and that Deputy Olson was with
Issatayev after he was released from the hospital.
Turning to the second factor—whether the alleged trial irregularity involved
cumulative evidence—the jury had already heard testimony that Issatayev had
attacked Shoia, had attempted to attack Skrypnichenko, and had been detained
by law enforcement that evening. Consequently, regardless of the specific
language Deputy Olson used during his direct examination, jurors could
reasonably have assumed that Issatayev would be arrested based on Shoia’s and
Skrypnichenko’s reports to law enforcement. On this record, the trial court
correctly noted “most jurors would assume there would be an arrest, if for no other
reason than to separate the parties temporarily.”
Lastly, as to the third factor—whether the trial court properly instructed the
jury to disregard the alleged irregularity—the trial court here gave a curative jury
instruction. After the court denied the defense’s second motion for a mistrial, it
offered to instruct the jury to completely disregard Deputy Olson’s testimony that
Issatayev was released to him by the hospital. Defense counsel instead requested
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the court provide the curative instruction at the conclusion of the trial along with
the other jury instructions to draw “less attention to the issue.” The court then
permitted defense counsel to draft the curative instruction, which was included in
the court’s final instructions to the jury. That instruction states:
You may consider evidence that the defendant was in handcuffs on the night in question only in considering the origin of any injuries the defendant may have had. You may not consider it for any other purpose.
You may not consider any evidence that the defendant may have been "in custody" on the night in question for any purpose.
Any discussion of the evidence during your deliberations must be consistent with these limitations.
This curative instruction “did not unduly emphasize the testimony,” and we
presume that jurors follow curative instructions and disregard improper evidence
when so instructed. Gamble, 168 Wn.2d at 178.
The trial court’s analysis also is also buttressed by the two cases that
Issatayev cited in response to the trial court’s request for briefing in support of his
second motion for a mistrial and which Issatayev likewise cites in his appellate
briefs: State v. Condon, 72 Wn. App. 638, 865 P.2d 521 (1993), and State v.
Christian, 18 Wn. App. 2d 185, 489 P.3d 657 (2021). In Condon, a witness
testified, in violation of a ruling in limine, that Condon was in jail. 72 Wn. App. at
648. The trial court granted Condon's motion to strike those comments, denied
Condon's motion for a mistrial, and instructed the jury to disregard references that
Condon was in jail. Id. On appeal, we stated the fact Condon had been in jail did
not mean he was convicted of a crime. Id. at 649. We then concluded that even
though the witness’s improper statements had the potential for prejudice, they
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were not serious enough to warrant a mistrial, and the trial court's instruction to the
jury to disregard the statement was sufficient to cure any potential prejudice. Id.
More recently, we reached a similar holding in Chistian. There, similar to
Condon, Christian moved for a mistrial based on the victim’s testimony regarding
his incarceration. 18 Wn. App. 2d at 196. That testimony violated pretrial rulings,
and “[t]he State conceded to failing to instruct [the victim] not to mention Christian's
current or previous incarceration. Id. at 195-96. Applying the test set forth in
Hopson, we held the trial court did not abuse its discretion in denying Christian's
motion for a mistrial because “the trial court below gave a proper curative
instruction” and, even in the absence of the improper testimony, “[t]he jury could
infer Christian was in custody because the officers arrested him at [the victim’s]
apartment.” Id. at 199.
This case is not materially different. Although the trial court correctly noted
that Deputy Olson’s testimony related to persons in custody “generally in the back
of his car,” the testimony nonetheless had the potential for prejudice. And while
the prosecutor represented to the trial court that she “advised Deputy Olson not to
refer to the defendant going into custody or being booked,” she violated the court’s
clear directive that she elicit no more than that Issatayev “was released from the
hospital.” But the trial court here appropriately offered to give a curative instruction
and then gave that instruction at the time and in the manner chosen by the defense.
Applying Chistian and Condon, the two cases cited by the defense in briefing
below, the trial court's response to the irregularity and the instruction to disregard
it were proper.
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We recognize, as Issatayev argues, that some trial errors cannot be cured
by instruction. Examples cited by Issatayev include closing argument that the
defendant is “strong in” a group that the prosecutor describes as “a deadly group
of madmen” and “butchers that kill indiscriminately” (State v. Belgarde, 110 Wn.2d
504, 508, 755 P.2d 174 (1988)), testimony that the defendant had sexually abused
the victim’s sister (State v. Gogo, 29 Wn. App. 2d 107, 115-16, 540 P.3d 150
(2023)), and testimony that the defendant has a criminal record and had stabbed
someone (State v. Escalona, 49 Wn. App. 251, 255-56 742 P.2d 190 (1987)).
Deputy Olson’s use of the words “prisoner” and “in custody” and his testimony that
Issatayev was released back to him are not as serious as the improper argument
and testimony in Belgarde, Gogo, and Escalona. And critical here, Chistian and
Condon establish that a curative instruction can be a sufficient remedy short of a
mistrial based on the potential prejudice of Deputy Olson’s comments. Contrary
to Issatayev’s argument, Christian and Condon are controlling here.
Lastly, Issatayev also claims there is a substantial likelihood Deputy Olson’s
testimony affected the verdict when considered in combination with the presence
of custody officers in the courtroom. While Issatayev does not claim the presence
of custody officers in the courtroom itself amounts to a constitutional violation, he
argues their presence, combined with Deputy Olson’s testimony, prejudiced his
right to a fair trial by portraying him as “incarcerated, dangerous, and guilty.” But
the record reveals only that there were “custody officers in the courtroom sitting in
the back area on each side.” There is no evidence that there was an unusual
number of custody officers, that the custody officers were near Issatayev, or that
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they stood next to him while he was testifying. Moreover, the trial court clarified
that no restraints were used during the trial and that Issatayev was not handcuffed
or shackled. On this record, we cannot conclude that the presence of custody
officers in the courtroom combined with Deputy Olson’s testimony deprived
Issatayev of a fair trial.
III
The alleged irregularity was not so serious that it undermined the fairness
of Issatayev’s trial, and any prejudice resulting from it was cured by the trial court's
instruction. Consequently, Issatayev cannot show he was so prejudiced that
nothing short of a new trial could suffice as a remedy. Because the trial court did
not abuse its discretion when it denied his second motion for a mistrial, we affirm.
WE CONCUR:
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