§ 12.8 Standard of Review Applied to Specific Rulings: Criminal Cases

• Jurisdiction: Washington

§12.8 STANDARD OF REVIEW APPLIED TO SPECIFIC RULINGS: CRIMINAL CASES

This section contains examples of the standard of review applied to various rulings in criminal cases.

(1) Constitutional error

Constitutional error is presumed prejudicial and thus requires reversal unless it is harmless beyond a reasonable doubt. See, e.g., State v. Lamar, 180 Wn.2d 576, 588, 327 P.3d 46 (2014); State v. Franklin, 180 Wn.2d 371, 382-83, 325 P.3d 159 (2014). In considering whether constitutional error is harmless, the appellate court applies the overwhelming untainted evidence test. State v. Damon, 144 Wn.2d 686, 693, 25 P.3d 418, 33 P.3d 735 (2001); State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Under that test, constitutional error is harmless beyond a reasonable doubt if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. State v. Lui, 179 Wn.2d 457, 495, 315 P.3d 493, cert. denied, 134 S. Ct. 2842 (2014); State v. Smith, 148 Wn.2d 122, 138-39, 59 P.3d 74 (2002); Guloy, 104 Wn.2d at 426. In contrast, error of less than constitutional magnitude is harmless unless there is a reasonable probability that the error materially affected the outcome of the trial. State v. Robinson; 153 Wn.2d 689, 697, 107 P.3d 90 (2005); State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632 (2002).

Most constitutional errors can be subjected to a harmless error analysis; only those that are "structural errors" as opposed to "trial errors" require automatic reversal. See, e.g., State v. Frost, 160 Wn.2d 765, 779, 161 P.3d 361 (2007), cert. denied, 552 U.S. 1145 (2008); State v. Mosteller, 162 Wn. App. 418, 429-30, 254 P.3d 201, review denied, 172 Wn.2d 1025 (2011). Errors are structural when they necessarily render the criminal trial "fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Mosteller, 162 Wn. App. at 430 (internal quotation marks omitted). Structural errors, which include denial of right to counsel, defective reasonable doubt instructions, denial of the right to self-representation, denial of right to public trial, discrimination in selection of jury, failure to determine defendant's competence to stand trial, denial of right to appointed counsel, and denial of right to an unbiased adjudicator, "defy harmless error analysis because they undermine the framework of the trial process itself, their effect cannot be ascertained without resort to speculation, or the question of harmlessness is irrelevant based on the nature of the right involved." State v. Watt, 160 Wn.2d 626, 632, 160 P.3d 640 (2007); accord State v. Wise, 176 Wn.2d 1, 13, 16-18, 288 P.3d 1113 (2012). In contrast, "trial errors," or constitutional errors that occur during the presentation of the case to the jury, "are reviewable because their effect may be evaluated in the context of the other evidence presented to determine whether the error was harmless beyond a reasonable doubt." Watt, 160 Wn.2d at 633; see also Arizona v. Fulminante, 499 U.S. 279, 306-07, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (cataloguing trial errors subject to harmless-error review).

(2) Pretrial rulings

Most pretrial rulings in criminal cases are reviewed for abuse of discretion, as evidenced by the following examples. State v. Coley, 180 Wn.2d 543, 551, 326 P.3d 702 (2014) (determination of defendant's competency to stand trial); State v. Ollivier, 178 Wn.2d 813, 822-23, 312 P.3d 1 (2013) (grant or denial of continuance of a criminal trial), cert. denied, 135 S. Ct. 72 (2014); State v. Sublett, 176 Wn.2d 58, 69, 292 P.3d 715 (2012) (decision whether to grant motion to sever defendants); In re Pers. Restraint of Rhome, 172 Wn.2d 654, 667, 260 P.3d 874 (2011) (acceptance of waiver of counsel); State v. Athan, 160 Wn.2d 354, 375-76, 158 P.3d 27 (2007) (denial of motion to dismiss under CrR 8.3(b)); State v. Zhao, 157 Wn.2d 188, 197, 137 P.3d 835 (2006) (denial of motion to withdraw guilty plea); State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003) (ruling on motion for change of venue); State v. Chavez-Romero, 170 Wn. App. 568, 577, 285 P.3d 195 (2012) (decisions related to pretrial release and denial of motion to dismiss for speedy trial purposes), review denied, 176 Wn.2d 1023 (2013); State v. Bolar, 118 Wn. App. 490, 516, 78 P.3d 1012 (2003) (denial of a request to appear pro se), review denied, 151 Wn.2d 1027 (2004); State v. Cotten, 75 Wn. App. 669, 686, 879 P.2d 971 (1994) (decision whether to grant motion to sever offenses), review denied, 126 Wn.2d 1004 (1995); State v. Petrina, 73 Wn. App. 779, 782-83, 871 P.2d 637 (1994) (decisions whether to order disclosure of informant's identity and whether to hold an in camera hearing before ordering such disclosure); State v. Tobias, 53 Wn. App. 635, 769 P.2d 868 (1989) (ruling on motion to order psychiatric exam of complaining witness in a sexual crime); State v. Knapstad, 41 Wn. App. 781, 706 P.2d 238 (1985) (dismissal of information on grounds of insufficient evidence), aff'd, 107 Wn.2d 346, 729 P.2d 48 (1986).

The following cases, however, provide examples of pretrial rulings in criminal cases that are subject to either the substantial evidence or the de novo standard of review. State v. Punsalan, 156 Wn.2d 875, 878, 133 P.3d 934 (2006) (interpretation of a court rule relating to indigent defendant's right to expert assistance is a question of law subject to de novo review); State v. Bisson, 156 Wn.2d 507, 517, 130 P.3d 820 (2006) (issues concerning interpretation of plea agreements are questions of law subject to de novo review); Chavez-Romero, 170 Wn. App. at 577 ("The application of the speedy trial rule to a particular set of facts is a question of law subject to de novo review." (internal quotation marks omitted)); State v. Parris, 163 Wn. App. 110, 116, 259 P.3d 331 (2011) (validity of warrantless search is reviewed de novo; conclusions of law relating to suppression of evidence are also reviewed de novo, but findings of fact are reviewed for substantial evidence), review denied, 173 Wn.2d 1008 (2012); State v. Vasquez, 109 Wn. App. 310, 319, 34 P.3d 1255 (2001) (validity of waiver of right to a jury trial is de novo because such waiver implicates an important constitutional right), aff'd, 148 Wn.2d 303, 59 P.3d 648 (2002); State v. Solomon, 114 Wn. App. 781, 789, 60 P.3d 1215 (2002) (in reviewing a trial court's Miranda custody determination, appellate court applies the substantial evidence standard of review to the trial court's challenged findings of fact, and then determines de novo whether the trial court derived proper conclusions of law from its findings of fact), review denied, 149 Wn.2d 1025 (2003); Tobias, 53 Wn. App. at 637 (when the facts are undisputed, whether the findings establish a compelling reason for examination of the complaining witness is a question of law).

(3) Jury issues

A trial court's ruling on a challenge to a potential juror for cause is reviewed for abuse of discretion, State v. Davis, 175 Wn.2d 287, 312, 290 P.3d 43 (2012), cert. denied, 134 S. Ct. 62 (2013), as "[t]he trial judge is in the best position to evaluate whether a particular potential juror is able to be fair and impartial based on observation of mannerisms, demeanor and the like." State v. Gonzales, 111 Wn. App. 276, 278, 45 P.3d 205 (2002) (footnote omitted), review denied, 148 Wn.2d 1012 (2003). A trial court's ruling on the scope of voir dire is reviewed for abuse of discretion, and the defendant must show substantial prejudice. State v. Yates, 161 Wn.2d 714, 747, 168 P.3d 359 (2007), cert. denied, 554 U.S. 922 (2008); State v. Brady, 116 Wn. App. 143, 146-47, 64 P.3d 1258 (2003), review denied, 150 Wn.2d 1035 (2004). A Batson challenge to the prosecution's exercise of a peremptory strike of a juror is reviewed for clear error, with deference being given to the trial court to the extent its rulings are factual. State v. Saintcalle, 178 Wn.2d 34, 41, 309 P.3d 326, cert. denied, 134 S. Ct. 831 (2013). A decision to sequester or not to sequester the jury is reviewed for abuse of discretion. State v. Ng, 104 Wn.2d 763, 713 P.2d 63 (1985). A decision to dismiss a juror during deliberations is reviewed for abuse of discretion. State v. Depaz, 165 Wn.2d 842, 852, 204 P.3d 217 (2009). When a juror is accused of nullification, refusal to follow the law, or refusal to deliberate, however, to protect a defendant's constitutional rights to a fair and impartial jury, the trial court's discretion is limited such that the trial court cannot dismiss the juror if there is a reasonable possibility that the accusation stems from the juror's view of the evidence. See id. at 853-55 (citing State v. Elmore, 155 Wn.2d 758, 123 P.3d 72 (2005)).

(4) Evidentiary rulings: when constitutional rights are implicated

In reviewing evidentiary rulings implicating constitutional rights, the appellate court independently evaluates the evidence to determine if there is a constitutional violation. State v. Taylor, 50 Wn. App. 481, 485, 749 P.2d 181 (1988). In making this determination, the appellate court affords "great significance" to the trial court's findings. Id.

"[C]onstitutional error is presumed to be prejudicial and the State bears the burden of proving that the error was harmless. A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error."

State v. Franklin, 180 Wn.2d 371, 382-83, 325 P.3d 159 (2014) (quoting State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007)).

Although the appellate court generally reviews the issuance of a search warrant only for abuse of discretion, giving great deference to the issuing judge or magistrate, the trial court's assessment of probable cause at a suppression hearing, which must be based on the four corners of the affidavit of probable cause, is a legal...