IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84404-1-I Respondent, DIVISION ONE v. PUBLISHED OPINION SERGEY ANDREEVICH KOVALENKO,
Appellant.
MANN, J. — Sergey Kovalenko was convicted by a jury of multiple counts of child
molestation and rape of a child. Kovalenko appeals his conviction and argues that (1)
the trial court abused its discretion in failing to dismiss a juror for cause and not sua
sponte dismissing a juror who expressed actual bias, (2) the court erred when portions
of the trial were not interpreted for Kovalenko, (3) the court violated the Washington
Constitution when it gave the jury a no-corroboration instruction, and (4) the prosecutor
committed misconduct. We affirm.
I
A
Kovalenko was born in the USSR and immigrated to the United States with his
wife in 1987. Kovalenko has 17 children, 12 sons and 5 daughters. The family built and
lived in a home on five acres in Whatcom County. No. 84404-1-I/2
The children’s daily lives included going to school, doing chores, and attending
church twice per week. The older children often helped take care of the younger
children. The girls were responsible for chores inside the home, including cleaning,
laundry, and preparing food. The boys were responsible for projects outside the home
including tending to animals.
While they attended public school, the girls felt that they stood out because of the
clothing they wore and because their family did different things from other families. The
children were expected to speak only Russian at home. The transition to speaking and
learning English in school was challenging for them. The children were not involved in
after school events provided at the school. The children’s friends were rarely allowed to
come to the house and the girls were not allowed to go to friends’ houses or attend
sleepovers.
The girls were taught that pants were for boys, not girls, and that it was not
Christian for girls to wear pants. The girls were not allowed to cut their hair or wear
makeup. To move out of the home, the girls had to get married. They were not allowed
to tell their father “no.”
The oldest daughter, L.K., moved out of the family home after she got married at
nineteen. L.K. later disclosed to her husband that Kovalenko had abused her during her
childhood. L.K. presumed that she had been the only daughter Kovalenko abused. But
when L.K. received a call from her sister K.K., who was crying and very upset, L.K.
became concerned for her sisters. L.K. confronted Kovalenko in front of her mother and
asked if he was touching her sisters, Kovalenko denied it. L.K. told Kovalenko that if
she found out he was abusing her sisters, she would go to law enforcement.
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L.K. then spoke with her aunts about the abuse she experienced and one aunt
reported it to the Whatcom County Sheriff’s Office. L.K. spoke with Detective Kevin
Bowhay and gave a written statement about Kovalenko’s abuse.
Detective Bowhay began an investigation and spoke with daughters C.K., E.K.,
and K.K. at the family home. Both C.K. and E.K. disclosed that Kovalenko had
molested them repeatedly for several years.
Kovalenko was charged with multiple counts of child molestation and rape of a
child.
B
Three of Kovalenko’s daughters testified against him at trial: L.K., C.K., and E.K.
Because of health issues, the parties agreed to take E.K.’s testimony by video
deposition. They also agreed that the testimony would be played and admissible at
trial.
After E.K.’s recorded testimony was played for the jury, jurors reported trouble
hearing it. The agreed upon solution was to prepare a transcript of the testimony and
reenact it with an “actor” reading E.K.’s responses.
Following Kovalenko’s direct testimony, jurors reported issues hearing the
testimony. Defense counsel suggested the same remedy as with E.K.’s testimony:
providing a transcript and reading it. The parties agreed to reenact Kovalenko’s direct
testimony with an “actor” the next morning before his cross-examination.
The jury found Kovalenko guilty of rape of a child in the first degree, two counts
of child molestation in the first degree, five counts of child molestation in the second
degree, and three counts of child molestation in the third degree. Kovalenko was
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sentenced to standard range indeterminate sentences for the rape and child molestation
in the first degree counts, and standard range sentences for the remaining counts.
Kovalenko appeals.
II
Kovalenko contends that juror 9 was biased and the trial court erred in allowing
juror 9 to sit on the jury panel. The Sixth Amendment of the United States Constitution
and article I, section 22 of the Washington Constitution both guarantee criminal
defendants the right to trial by an impartial jury. U.S. CONST. amend VI; W ASH. CONST.
art., I § 22. But “the burden of preventing trial errors rests squarely upon counsel for
both sides.” State v. Farley, 48 Wn.2d 11, 15, 290 P.2d 987 (1955). Even defense
counsel in a criminal case must attempt to correct errors at trial, rather than saving them
for appeal “in case the verdict goes against [them].” Farley, 48 Wn.2d at 15.
Kovalenko first argues that the trial court erred by denying his motion to strike
juror 9 for cause. Because Kovalenko could have removed juror 9 using one of his
peremptory challenges, but did not, we conclude that Kovalenko waived his right to
appeal the trial court’s decision denying his motion to excuse juror 9 for cause.
In State v. Talbott, 200 Wn.2d 731, 521 P.3d 948 (2022), our Supreme Court
considered whether a party who declines to remove a prospective juror with an
available peremptory challenge has the right to appeal the seating of that juror. 1 The
1 While Talbott was cited and discussed briefly in the opening brief and oral argument, because of
its importance to our analysis, the parties were asked to submit supplemental briefing addressing whether Kovalenko waived his right to challenge juror 9 on appeal.
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trial court denied Talbott’s motion to excuse a prospective juror for cause and Talbott
failed to remove the juror with a peremptory challenge, affirmatively accepting the jury
panel with at least two peremptory challenges still available to him. Talbott, 200 Wn.2d
at 732. Talbott appealed the judge’s decision denying his motion to excuse the juror.
Talbott, 200 Wn.2d at 732.
To determine whether Talbott’s challenge was proper on appeal, the Talbott
court clarified the distinction between two lines of cases: those based on State v. Clark,
143 Wn.2d 731, 24 P.3d 1006 (2001) and those based on State v. Fire, 145 Wn.2d 152,
34 P.3d 1218 (2001). Talbott, 200 Wn.2d at 732.
The Clark line of cases addressed parties who did not try to use their peremptory
challenges to cure an alleged jury-selection error. “Cases in the Clark line hold that if a
party ‘accepted the jury as ultimately empaneled and did not exercise all of [their]
peremptory challenges,’ then they do not have the right to appeal ‘based on the jury’s
composition.’” Talbott, 200 Wn.2d at 738 (quoting Clark, 143 Wn.2d at 762). This line
of cases “thus encourages parties to cure jury-selection errors with their peremptory
challenges.” Talbott, 200 Wn.2d at 738. “This ensures that peremptory challenges are
properly used to promote a defendant’s right to ‘an impartial jury and a fair trial’ in the
first instance.” Talbott, 200 Wn.2d at 738 (quoting State v. Lupastean, 200 Wn.2d 26,
48, 513 P.3d 781 (2022), and Georgia v. McCollum, 505 U.S. 42, 57, 112 S. Ct. 2348,
120 L. Ed. 2d 33 (1992)).
In contrast, the Fire line of cases “addresses parties who did use their
peremptory challenges to cure jury-selection errors and subsequently exhausted their
peremptory challenges.” Talbott, 200 Wn.2d at 739. Fire held that a “‘defendant’s
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rights [are] not violated simply because [they] had to use peremptory challenges to
achieve an impartial jury.’” Talbott, 200 Wn.2d at 739 (quoting Fire, 145 Wn.2d at 165).
“Thus, unlike Clark, Fire did not ask whether a party must use their peremptory
challenges to cure an alleged jury-selection error. Instead, Fire asked whether a party
who does curatively use their peremptory challenges is entitled to reversal on appeal.”
Talbott, 200 Wn.2d at 739.
In reaching its decision, the Talbott court rejected as dicta language in Fire that
suggested that if a defendant believed a juror should have been excused for cause, the
defendant could elect not to use a peremptory challenge, allow the jury to be seated
with the objected to juror, and then win reversal on appeal if they showed the trial court
abused its discretion in not dismissing the juror for cause. Talbott, 200 Wn.2d at 739.
In doing so, the court explained, “there are good reasons to require parties to use their
available peremptory challenges to cure jury-selection errors. Doing so promotes a
defendant’s right to receive a fair trial in the first instance and prevents unnecessary
retrials.” Talbott, 200 Wn.2d at 746 (citing Ross v. Oklahoma, 487 U.S. 81, 90, 108 S.
Ct. 2273, 101 L. Ed. 2d 80 (1988)). “This helps to ensure that peremptory challenges
are used to ‘promote, rather than inhibit, the exercise of fundamental constitutional
rights.’” Talbott, 200 Wn.2d at 746 (quoting Lupastean, 200 Wn.2d at 52). The court
also explained, that allowing defendants not to use available peremptory challenges,
“could improperly discourage counsel from curing potential jury-selection errors with
peremptory challenges in order to obtain reversal on appeal.” Talbott, 200 Wn.2d at
746-47.
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The Talbott court concluded that “if a party allows a juror to be seated and does
not exhaust their peremptory challenges, then they cannot appeal on the basis that the
juror should have been excused for cause.” 200 Wn.2d at 747-48. Because Talbott did
not seek to strike the contested juror with an available peremptory challenge, did not
exhaust his peremptory challenges on other jurors, and accepted the jury panel as
presented—including the challenged juror—he was not entitled to have his for-cause
challenge considered on appeal. Talbott, 200 Wn.2d at 747-48.
Kovalenko correctly asserts that his case is unlike Talbott because he exhausted
his peremptory challenges. 2 But Kovalenko did not exhaust his peremptory challenges
before he had a chance to strike juror 9. Kovalenko had only two for-cause challenges
denied by the trial court: his challenges to jurors 9 and 52. Kovalenko had six
peremptory challenges available to him. 3 After his for-cause challenge to juror 9 was
denied, it was clear that Kovalenko would have to use a peremptory challenge to strike
juror 9 based on the juror’s low juror number in the jury venire. While Kovalenko had six
opportunities to do so, he instead exhausted his peremptory challenges on jurors 34,
21, 13, 25, 22, and 1—none of whom he challenged for cause. 4 Juror 52 was excused
with all the remaining jurors who were not seated.
Kovalenko argues that if we were to expand Talbott to apply to this situation,
“such a rule would usurp counsel’s autonomy to exercise peremptory challenges in a
way that counsel believes would be most conducive to seating a fair and impartial jury.”
2 The Talbott court expressly declined to consider the situation before us: “Our holding is limited
to the facts in this case, and we express no opinion on the analysis that applies where a party exhausts their peremptory challenge and objects to the jury panel.” 200 Wn.2d at 733. 3 Both parties had additional peremptory challenges for the alternate jurors. 4 Kovalenko used a seventh peremptory to remove juror 39 as a potential alternate juror.
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But counsel had only two for-cause challenges denied by the trial court and if counsel
had been concerned that the seating of juror 9 would not result in a fair and impartial
jury, counsel had six opportunities to strike juror 9. Instead, counsel did not strike juror
9 and accepted the jury panel. As in Talbott, Kovalenko’s approach could improperly
discourage counsel from curing potential jury-selection errors with peremptory
challenges in order to obtain reversal on appeal. 200 Wn.2d at 746-47. Such an
approach fails to ensure peremptory challenges are properly used to promote a
defendant’s right to an impartial jury and a fair trial. Talbott, 200 Wn.2d at 738 (citing
Lupastean, 200 Wn.2d. at 48). 5
This reasoning tracks Division Three’s decision in State v. Munzanreder, 199
Wn. App. 162, 398 P.3d 1160 (2017). In Munzanreder, the defendant had six
peremptory challenges and there were only two venire jurors that he had unsuccessfully
challenged for cause that could have been seated. While Munzanreder used all six
peremptory challenges, he did not use them on the jurors he challenged for cause.
Division Three of this court held that Munzanreder waived any error as to the jurors
unsuccessfully challenged for cause.
Here, Munzanreder used one challenge to remove venire juror 49, but elected not to use any of his several other peremptory challenges to remove venire juror 51. He also elected not to request additional peremptory challenges. If the trial court erred in denying Munzanreder’s for cause challenge of venire juror 51 with his allotted peremptory
5 Kovalenko also argues that because his trial predated Talbott, his counsel did everything
required to preserve the for-cause challenge under the dicta in Talbott. But Talbott not only held the statement in Fire was dicta, it also expressly overruled “opinions that have relied on Fire’s dicta to hold that a party need not cure jury-selection errors with their available peremptory challenges.” 200 Wn.2d at 744.
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challenges or by requesting additional challenges, Munzanreder waived that error.
Munzanreder, 199 Wn. App. at 179-180.
We hold, consistent with Munzanreder, and the policy outlined in Talbott, that a
party that unsuccessfully challenges a potential juror for cause, and then does not use
any of their peremptory challenges to remove the challenged juror, and instead accepts
the jury panel with the challenged juror, waives the right to have the for-cause challenge
considered on appeal.
Kovalenko therefore waived the right to challenge the trial court’s decision
denying his motion to excuse juror 9 for cause.
Kovalenko next argues that the trial court erred when it failed to sua sponte
dismiss juror 9 after juror 9 expressed actual bias in relation to Kovalenko’s national
origin and use of an interpreter. We disagree.
Even when a party does not move to strike a juror, “a trial court must do so on its
own motion where grounds for a challenge for cause are apparent in the record.” State
v. Gutierrez, 22 Wn. App. 2d 815, 820, 513 P.3d 812 (2022). Under RCW 2.36.110, the
trial court has a duty “to excuse from further jury service any juror, who in the opinion of
the judge, has manifested unfitness as a juror by reason of bias [or] prejudice.”
Gutierrez, 22 Wn. App. 2d at 820. But a trial court should exercise caution before
injecting itself into the jury selection process. State v. Lawler, 194 Wn. App. 275, 284,
374 P.3d 278 (2016). “Trial counsel may have legitimate, tactical reasons not to
challenge a juror who may have given responses that suggest some bias.” Lawler, 194
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Wn. App. at 285. We review a trial judge’s failure “to inquire further or excuse [a] juror
sua sponte” for abuse of discretion. Gutierrez, 22 Wn. App. 2d at 822.
In Gutierrez, a potential juror stated several times he was concerned that
Hispanic and Latinx defendants were not asked if they were U.S. citizens. 22 Wn. App.
2d at 818. The juror later expressly asked if the defendant was a U.S. citizen.
Gutierrez, 22 Wn. App. 2d at 818. When asked if not knowing citizenship status would
impact his ability to be fair to the defendant, the juror responded, “[i]f he’s not a U.S.
citizen he’s already guilty. He shouldn’t be here.” Gutierrez, 22 Wn. App. 2d at 818.
Defense counsel did not move to strike the juror for cause or exercise a peremptory
challenge to remove the juror and he was seated on the jury. Gutierrez, 22 Wn. App. 2d
at 818. On appeal, the appellate court held that these comments expressed actual bias
by presuming that Hispanic or Latinx defendants were not citizens and were most likely
committing an immigration crime and the trial court abused its discretion by failing to
inquire more. Gutierrez, 22 Wn. App. 2d at 818-19.
During group questioning, Kovalenko’s defense counsel asked if any of the jurors
had thoughts or feelings about the use of interpreters. Juror 21 responded, “I have lived
in other countries and learned their language, and, . . . I feel more respect towards
someone who makes an effort. It sounds like he has been here a long time.” Juror 9
raised her hand in response and said, “I thought the same thing, how long, how long do
you have to be here before you learn the general language to just live the life here
pretty much.”
Juror 22 responded, “I think regardless of how well he speaks English, if it’s not
his first language he has a right to an interpreter if he thinks he will understand the
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proceedings better with an interpreter.” Defense counsel responded “[so] you all can’t
see yourselves but I’m getting nods on the 21 and 9, you should learn the language you
have been here, and I’m getting also nods on 16 and 22 from different parts of the
room.” Several other jurors responded. Defense counsel then asked if the jurors had
feelings about Kovalenko specifically requiring Russian language interpretation. One
prospective juror responded, “I don’t have any feelings. I just think if somebody is in a
country they should know the language.” Defense counsel did not move to strike either
juror 21 or 9 and switched to a separate topic afterward. 6
While the juror in Gutierrez expressed actual bias against the defendant based
on presumptions about nationality and citizenship status, juror 9 did not. Juror 9 did not
ask about or express an opinion on Kovalenko’s nationality or immigration status. And
she did not presume that Kovalenko was committing an immigration crime. Juror 9 did,
however, express an opinion about individuals who do not speak English and live in the
United States. At most, juror 9 demonstrated a mere possibility of prejudice. State v.
Noltie, 116 Wn.2d 831, 840, 809 P.2d 190 (1991).
We conclude that the trial court did not abuse its discretion in failing to sua
sponte dismiss juror 9.
III
Kovalenko argues that the trial court violated his right to confront witnesses and
participate in his own trial under the Sixth Amendment, his right to testify under the Fifth
6 Defense later used a peremptory challenge to remove juror 21.
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Amendment, and his statutory right to an interpreter when portions of the trial were not
interpreted. We disagree.
In Washington, “‘the right of a defendant in a criminal case to have 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. Ramirez-
Dominguez, 140 Wn. App. 233, 243, 165 P.3d 391 (2007) (quoting State v. Gonzales-
Morales, 138 Wn.2d 374, 379, 979 P.2d (1999)). The legislature has also recognized
this right and declared it to be a public policy “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.” RCW 2.43.010.
As “‘long as the defendant’s ability to understand the proceedings and
communicate with counsel is unimpaired, the appropriate use of interpreters in the
courtroom is a matter within the discretion of the [trial] court.’” Gonzales-Morales, 138
Wn.2d at 382 (quoting United States v. Lim, 794 F.2d 469 (9th Cir. 1986)).
Starting with voir dire, Kovalenko was provided with two Russian interpreters.
Even so, Kovalenko challenges two reenactments of testimony that occurred: the
reenactments of E.K.’s prerecorded testimony and Kovalenko’s direct testimony.
Before E.K.’s testimony was played for the jury, defense counsel told the trial
court, “I believe it would be appropriate for the court to let the jury know that [the
testimony] was translated at real time so the translators are not going to translate it
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again.” Based on defense counsel’s request, the trial court so informed the jury. 7 And
when the testimony was reenacted with an “actor” reading E.K.’s responses from the
transcript, defense counsel made the same request and the trial court notified the jury. 8
Similarly, before Kovalenko’s direct testimony was reenacted, the trial court said,
“the interpreters will not need to interpret this at this time since it has been interpreted
once.” Defense counsel did not object and the trial judge notified the jury.
Kovalenko argues that he had a right to have all the proceedings interpreted live.
The State responds that Kovalenko waived these claims by failing to raise them below.
We agree with the State.
For a confrontation clause challenge, a defendant must raise an objection at trial
or waive the right of confrontation. State v. Burns, 193 Wn.2d 190, 210-11, 438 P.3d
1183 (2019). Relying on In re Personal Restraint of Khan, 184 Wn.2d 679, 690, 363
P.3d 577 (2015) (plurality opinion), Kovalenko responds that an attorney cannot waive a
defendant’s right to an interpreter. Kovalenko contends that the interpreter could not be
withdrawn absent a knowing, intelligent, and voluntary waiver from Kovalenko on the
record.
Kovalenko’s reliance on Khan is misplaced. Khan was never provided an
interpreter and on appeal argued that counsel was ineffective for failing to obtain an
interpreter for him. Khan, 184 Wn.2d at 688. The Supreme Court remanded for a
7 The trial court informed the jury: “I would just reflect for the jurors that during the course of this
video testimony, the interpreters are not going to be continuously interpreting because when this particular hearing took place, that was already done. Obviously, they will stand ready to interpret if something happens in the course of this presentation.” 8 The trial court informed the jury, “[o]ne thing I want you to know is that because this testimony
has already been translated for Mr. Kovalenko once, the interpreters are not going to be translating for this particular session.”
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reference hearing on whether Khan’s English fluency at the time of trial demanded an
interpreter and, if so, his counsel was ineffective for failing to provide one. Khan, 184
Wn.2d at 694. The Khan court also concluded that the State’s argument that the
decision not to obtain an interpreter may have been a strategic trial tactic was
unpersuasive. 184 Wn.2d at 690.
Kovalenko has not asserted that counsel was ineffective for failing to obtain an
interpreter, and Kovalenko was provided with interpreters throughout trial. The record is
clear that Kovalenko’s counsel was concerned with the effect of replaying E.K.’s
testimony for the jury. The agreed upon solution of having an actor read her testimony
into the record absolved those concerns.
There was no reason for the trial judge to sua sponte disagree with defense
counsel and insist that the reenactments be reinterpreted. See State v. Woo Won Choi,
55 Wn. App. 895, 902, 781 P.2d 505 (1989) (“we find no error in the court’s relying on
counsel’s representation in concluding that Choi did not need an interpreter”). Further,
because the interpreters were interpreting everything else that occurred during trial,
defense counsel’s statements to the court that the testimony did not need to be
reinterpreted were interpreted for Kovalenko. Kovalenko did not object, ask to confer
with counsel, or in any way notify the court that he wanted those portions reinterpreted. 9
We conclude that Kovalenko waived any challenge to use of the interpreters at
9 The record abounds in evidence that the trial judge was monitoring Kovalenko’s interpretation
needs. For instance, the trial judge interrupted the direct examination of Kovalenko’s wife saying, “[j]ust a moment. Mr. Kovalenko is indicating—is he unable to hear?” And the trial judge repeatedly asked for parties to speak slowly and clearly to aid the interpreters.
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IV
Kovalenko argues the trial court improperly commented on the evidence when it
instructed the jury that the testimony of the alleged victims need not be corroborated.
We disagree.
Article IV, section 16 of the Washington Constitution provides that “[j]udges shall
not charge juries with respect to matters of fact, nor comment thereon, but shall declare
the law.” This constitutional provision prohibits a judge “from ‘conveying to the jury his
or her personal attitudes toward the merits of the case’ or instructing a jury that ‘matters
of fact have been established as a matter of law.’” State v. Levy, 156 Wn.2d 709, 721,
132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321
(1997)).
We apply a two-step analysis to determine whether a judicial comment requires
reversal of a conviction. Levy, 156 Wn.2d at 723. First, we examine the facts and
circumstances of the case to determine whether a court’s conduct or remark rises to a
comment on the evidence. State v. Sivins, 138 Wn. App. 52, 58, 155 P.3d 982 (2007).
If we conclude the court made an improper comment on the evidence, we presume the
comment is prejudicial, “and the burden is on the State to show that the defendant was
not prejudiced, unless the record affirmatively shows that no prejudice could have
resulted.” Levy, 156 Wn.2d at 723.
The trial court instructed the jury that “to convict a person of rape of a child or
child molestation, it shall not be necessary that the testimony of the alleged victims be
corroborated. The jury is to decide all questions of witness credibility.”
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This instruction accurately reflects Washington law, which states that “it shall not
be necessary that the testimony of the alleged victim be corroborated” in order to
convict a defendant of a sex offense. RCW 9A.44.020(1). A jury instruction that does
no more than accurately state the law pertaining to an issue does not constitute an
impermissible comment on the evidence by the trial judge. State v. Brush, 183 Wn.2d
550, 557, 353 P.3d 213 (2015) (citing State v. Woods, 143 Wn.2d 561, 591, 23 P.3d
1046 (2001)).
Washington courts have repeatedly held that no-corroboration jury instructions
do not constitute a comment on the evidence. Our Supreme Court addressed this issue
in State v. Clayton, 32 Wn.2d 571, 202 P.2d 922 (1949). There, the court held that it
was not a judicial comment on the evidence to instruct the jury that:
You are instructed that it is the law of this State that a person charged with attempting to carnally know a female child under the age of eighteen years may be convicted upon the uncorroborated testimony of the prosecutrix alone. That is, the question is distinctly one for the jury, and if you believe from the evidence and are satisfied beyond a reasonable doubt as to the guilt of the defendant, you will return a verdict of guilty, notwithstanding that there be no direct corroboration of her testimony as to the commission of the act.
Clayton, 32 Wn.2d at 572; see State v. Malone, 20 Wn. App. 712, 714-15, 582 P.2d 883
(1978) (concluding a no-corroboration instruction was not a comment on the evidence).
In State v. Zimmerman, 130 Wn. App. 170, 121 P.3d 1216 (2005), Division Two
of this court addressed the same issue. The court noted that the no-corroboration
instruction is not included within the Washington Pattern Criminal Jury Instructions and
the Washington Supreme Court Committee on Jury Instructions recommends against
using the instruction. Zimmerman, 130 Wn. App. at 182. The court, though, concluded
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“[a]lthough we share the Committee’s misgivings, we are bound by Clayton to hold that
the giving of such an instruction is not reversible error.” Zimmerman, 130 Wn. App. at
182-83.
While we agree with Zimmerman that a better practice would be to not use a no-
corroboration instruction, we are still bound by Clayton to hold that this no-corroboration
instruction is constitutional.
V
Kovalenko contends that his right to freedom of religion under article I, section 11
of our state constitution, his right to an impartial jury under article I, section 22 and the
Sixth Amendment, and his right to due process under the Fourteenth Amendment were
violated when the prosecutor raised his religious beliefs throughout trial and closing
arguments. We disagree.
To prevail on a claim of prosecutorial misconduct, the defendant must establish
“‘that the prosecutor’s conduct was both improper and prejudicial in the context of the
entire record and the circumstances at trial.’” State v. Thorgerson, 172 Wn.2d 438, 442,
258 P.3d 43 (2011) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126
(2008)). Any allegedly improper statements should be viewed within the context of the
prosecutor’s entire argument, the issues in the case, the evidence discussed in the
argument, and the jury instructions. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546
(1997).
When there is a failure to object to improper statements, it constitutes a waiver
unless the statement 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
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jury.” Brown, 132 Wn.2d at 561. If the prejudice could have been cured by a jury
instruction, but the defense did not request one, reversal is not required. State v.
Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). 10
“Our state constitution does not prohibit all questions pertaining to one’s religion.”
In re Pers. Restraint of Lui, 188 Wn.2d 525, 563, 397 P.3d 90 (2017); see also State v.
Dhaliwal, 150 Wn.2d 559, 579-80, 79 P.3d 432 (2003) (permissible for prosecutor in an
assault case to question witness about the importance of respect in Sikh culture to
establish a possible motive for that assault). It guarantees only that no person “shall . . .
be incompetent as a witness or juror, in consequence of his opinion on matters of
religion, nor be questioned in any court of justice teaching his religious belief to affect
the weight of his testimony.” W ASH. CONST. art. I, § 11.
Kovalenko asserts that the prosecutor committed misconduct by focusing on his
religion. And that the prosecutor sought to attack Kovalenko and inflame the passions
of the jury by portraying him as a religious radical. We disagree.
During direct examination of Kovalenko’s wife, the prosecutor asked whether the
family was religious. After Ms. Kovalenko responded that they were “believers,” the
10 Kovalenko asks this court to apply the heightened test outlined in State v. Monday, 171 Wn.2d
667, 257 P.3d 551 (2011). In Monday, the Supreme Court held that “when a prosecutor flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” the conviction will be vacated unless it appears beyond a reasonable doubt that the misconduct did not affect the jury’s verdict. Monday, 171 Wn.2d at 680 (emphasis added). “[A]fter Monday, prosecutorial misconduct claims involving racial bias are controlled by the ‘flagrant or apparently intentional’ standard.’” State v. Bagby, 200 Wn.2d 777, 789-90, 522 P.3d 982 (2023) (citing Monday, 171 Wn.2d at 680). Kovalenko’s claim does not involve racial bias, thus, the heightened test in Monday does not apply.
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prosecutor followed up by asking “what religion do you practice?” Without objection,
Ms. Kovalenko responded “Pentecostal.”
This prosecutor’s inquiry was error; questioning the family’s religion, and
particularly what religion, was both irrelevant and unnecessary. The State relied on the
Kovalenko’s religion to support its argument that the strict and isolating lifestyle
explained why the girls did not expose the abuse earlier. But the State concedes that it
was unnecessary to inquire into the family’s religion, explaining that its “argument would
have been the same if the origin of the strict rules would not have been based on
Kovalenko’s religion.”
The Defense’s lack of objection was not surprising: Kovalenko’s theory of the
case was that his daughters fabricated the claims against him because of his rules and
how strict he was in the home. When he testified about his rules he explained, “I didn’t
cho[o]se that model. And I wouldn’t even call it Russian model. Because it’s the Bible
teaches us so. And the Bible tells us how the same should dress.”
Viewed within the context of the prosecutor’s entire argument, the issues in the
case, the evidence discussed in the argument, and the jury instructions, we conclude
that the inquiry, while improper, was not so flagrant and ill-intentioned that it caused “an
enduring and resulting prejudice that could not have been neutralized by a curative
instruction to the jury.” Brown, 132 Wn.2d at 561.
Kovalenko next asserts that the prosecutor appealed to divine authority and
religious principles in closing argument. We disagree.
-19- No. 84404-1-I/20
In closing argument, “counsel are permitted latitude to argue the facts in
evidence and reasonable inferences.” State v. Smith, 104 Wn.2d 497, 510, 707 P.2d
1306 (1985); see also State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281 (1983).
They may not, however, make prejudicial statements that are not sustained by the
record. State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963).
Kovalenko points to these statements the prosecutor gave in closing argument:
This case is also about isolation. The girls were raised in a home of isolation. They were taught to talk to only their parents or to God. [L.K.] wasn’t being protected by anyone that was around her and she was not being protected by God. She had to find someone outside the home to help her and her last resort was reporting to the police. This went against every rule that she was trying to follow. At this point, she was desperate. The defendant’s words, [L.K.] was not getting help from God so she looked for help from the other side. These words were chilling. Chilling to hear. They were chilling because it was true. Kind of sad.
“Help will come from somewhere else. The defendant told you that [L.K.] said this when
she was confronting him with abuse. Help did come from somewhere else. It was in
the form of Kevin Bowhay and Ken Gates.” 11
Kovalenko asserts that no curative instruction could have remedied the
statements made by the prosecutor in closing and in support cites State v. Belgarde,
110 Wn.2d 504, 755 P.2d 174 (1998). In Belgarde, our Supreme Court held that a
prosecutor’s comments could not have been neutralized by a curative instruction, even
if there had been an objection at trial. 110 Wn.2d at 507-08. The prosecutor described
members of the American Indian Movement as “a deadly group of madmen,” “militant,”
11 Gates is a detective with the Whatcom County Sheriff’s Office who assisted Detective Bowhay
with the investigation into Kovalenko.
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and “butchers, that killed indiscriminately Whites and their own.” Belgrade,110 Wn.2d
at 506-07.
Kovalenko also cites Sandoval v. Calderon, 241 F.3d 765, 775, 780 (9th Cir.
2000), and State v. Ceballos, 266 Conn. 364, 383, 832 A.2d 14 (2003), overruled on
other grounds by State v. Douglas C., 345 Conn. 421, 285 A.3d 1067 (2022). In
Sandoval, the court reversed a death sentence because the prosecutor’s closing
argument invoked a passage from the New Testament of the Bible, told the jury that
God sanctioned the death penalty for people like Sandoval and that by sentencing
Sandoval to death, the jury would be doing what God says. 241 F.3d at 779. Defense
counsel objected to the argument but the objection was overruled and no curative
instruction was given. Sandoval, 241 F.3d at 779. In Ceballos, the Connecticut
Supreme Court reversed a conviction because the prosecutor referenced religious
characters and divine punishment in their closing argument. In both cases, the
prosecutors’ statements invaded the province of the jury by casting doubt upon the
ultimate issue before the jury: the guilt or innocence of the defendant. Ceballos, 266
Conn. at 393; Sandoval, 241 F.3d at 779.
The prosecutor’s closing argument was a direct response to Kovalenko’s own
testimony. Twice during direct examination, Kovalenko described L.K. confronting him
about abusing her sisters. Kovalenko testified that L.K. told him, “the help will come
from the other side and she got mad and left. And approximately in three or four
months I was arrested.” Later, Kovalenko testified that he knew L.K. instigated the
accusations against him and repeated, “[s]he said help will come from somewhere else
and that’s where help came from, but certainly not from God.”
-21- No. 84404-1-I/22
Defense counsel did not object during the prosecutor’s closing argument. Unlike
in Ceballos and Sandoval, the prosecutor’s statements did not invade the province of
the jury. The statements were supported by the trial testimony and within the wide
latitude given to attorneys during closing arguments. Smith, 104 Wn.2d at 510. The
statements were nothing like the inflammatory or blatantly prejudicial statements made
in Belgarde. In any event, any possibly inappropriate aspect of these comments would
easily have been cured by a timely objection and curative instruction.
We conclude that the prosecutor’s questioning of witnesses and closing
argument do not constitute misconduct.
We affirm.
WE CONCUR:
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