State v. Kalebaugh

355 P.3d 253, 183 Wash. 2d 578
Washington Supreme Court·Decided July 9, 2015·No. No. 89971-1·Published·Cited by 193 cases

Opinions

Yu, J.

¶1 Chadwick Leonard Kalebaugh appeals his first degree child molestation conviction and claims reversible error based on the trial judge’s misstatements regarding the meaning of “reasonable doubt” in his preliminary remarks to the jury venire. Kalebaugh did not object and raises the issue for the first time on appeal. We reach the unpreserved error because it is a manifest constitutional error under RAP 2.5(a)(3), but we affirm because the error was harmless beyond a reasonable doubt.

Facts and Procedural History

¶2 On October 28, 2011, Kristal Strong had a birthday party for her son at their Napavine home. Strong and her children lived there with several other individuals, including Tiffany S.,1 Tiffany’s two sons, and Kalebaugh. Tiffany’s six-year-old daughter, H.S., who typically lived with her grand[581] parents, was also staying at the house that day. The party ended sometime in the evening, and Tiffany put her three children down to sleep in the living room. The two boys settled in on a couch and H.S. on an adjacent love seat. The adults then retreated to the garage.

¶3 Jacob Murphy, a friend who had come over earlier to join the gathering in the garage, stayed overnight. Murphy slept in the same room on the couch opposite H.S.’s love seat. During the night, Murphy saw Kalebaugh lay next to the love seat, reach his hand under the blanket covering H.S., and make a rubbing motion in the area between her knees and her belly button. Murphy confronted Kalebaugh and alerted Tiffany, who found the girl’s shorts bunched up so that her underwear was exposed. Kalebaugh was charged with first degree child molestation, though he denied touching the girl, and the case proceeded to trial.

¶4 On the first day of trial, a panel of potential jurors were brought into the courtroom to begin jury selection. The presiding judge introduced himself and made some preliminary remarks about the trial process and what jurors might expect. The judge read the charge against Kalebaugh and explained how evidence would be presented during trial. The judge further advised prospective jurors that Kale-baugh was presumed innocent and that the State had the burden of proving each and every element beyond a reasonable doubt. The judge also read the pattern instruction on reasonable doubt, including:

A “reasonable doubt” is one for which a reason exists and may arise from the evidence or lack of evidence. It is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence. If after such consideration you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Verbatim Report of Proceedings (Jan. 3,2012) (VRP) at 9; cf. 11 Washington Practice: Washington Pattern Jury Instruc[582] tions: Criminal 4.01, at 85 (3d ed. 2008) (WPIC). The judge then continued:

If after your deliberations you do not have a doubt for which a reason can be given as to the defendant’s guilt, then, you are satisfied beyond a reasonable doubt.
On the other hand, if after your deliberations you do have a doubt for which a reason can be given as to the defendant’s guilt, then, you are not satisfied beyond a reasonable doubt.

VRP at 9. Kalebaugh did not object to any of these remarks. After two hours of voir dire, a 12 person jury (plus one alternate) was sworn and empaneled to hear the case.

¶5 The judge then read to the jury what he called “preliminary instructions,” which included another explanation that it was the State that bore the burden of proof. He twice told jurors that he would instruct them on the law at the end of the case and would require the jury to follow those instructions. The judge concluded by admonishing jury members to keep their minds open and not to decide any issue in the case until they heard all the evidence. The jury subsequently heard testimony for the next two days.

¶6 At the close of evidence, the trial judge orally instructed the jury on the law and provided them with several written copies of the court’s instructions. These final instructions were unremarkable in that they were the relevant Washington pattern jury instructions. They included instructions to follow the law as given, to presume Kale-baugh innocent, and to acquit if a reasonable doubt existed as to any element of the crime. More importantly and relevant to our review, the court’s instructions included the complete and proper version of WPIC 4.01, the instruction on reasonable doubt. The jury deliberated six hours and returned a guilty verdict.

¶7 Kalebaugh challenged the trial judge’s opening remark for the first time on appeal, arguing the comment deprived him of a fair trial. In a split decision, the Court of Appeals held the error was not reviewable because [583] Kalebaugh failed to object at trial, and affirmed the conviction. State v. Kalebaugh, 179 Wn. App. 414, 420, 318 P.3d 288 (2014). We granted review. State v. Kalebaugh, 180 Wn.2d 1013, 327 P.3d 54 (2014).

Analysis

¶8 An established rule of appellate review in Washington is that a party generally waives the right to appeal an error unless there is an objection at trial. RAP 2.5(a). Although this rule insulates some errors from review, it encourages parties to make timely objections, gives the trial judge an opportunity to address an issue before it becomes an error on appeal, and promotes the important policies of economy and finality. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).

¶9 But as with many general rules, there are exceptions, and we will review some errors even without an objection below. One exception is for “manifest error[s] affecting a constitutional right.” RAP 2.5(a)(3). This exception strikes a careful policy balance. On the one hand, a procedural rule should not prevent an appellate court from remedying errors that result in serious injustice to an accused. At the same time, if applied too broadly RAP 2.5(a)(3) will devalue objections at trial and deprive judges of the opportunity to correct errors as they happen. State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).

¶10 So before we review the merits of an unpreserved error under RAP 2.5(a)(3), we ask two questions: (1) Has the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest? O’Hara, 167 Wn.2d at 98. These gatekeeping questions open meritorious constitutional claims to review without treating RAP 2.5(a)(3) as a method to secure a new trial every time any error is overlooked. State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d 46 (2014) (citing State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995)).

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State v. Kalebaugh, 355 P.3d 253, 183 Wash. 2d 578 (Wash. 2015).

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