STATE v. KYLLO, 141 Wn. App. 1037 (2007)

Affirmed in part, reversed in part, andremandedby unpublished opinion per Quinn-Brintnali, J., concurred in by Houghton, C.J., and Van Deren, J.

Kenneth Lee Kyllo and Robert W. Mickens were both incarcerated in the Cowlitz County Jail when they had a fight during which Kyllo bit and "ripp[ed] away" Mickens's left ear. Clerk's Papers (CP) at 47. The State charged Kyllo with second degree assault. At trial, Kyllo claimed that he had acted in self-defense, but the jury disagreed and convicted him. For this "third strike," Kyllo was sentenced as a persistent offender to life in prison without the possibility of release under the Persistent Offender Accountability Act (POAA).¹He appeals his conviction and sentence raising numerous issues. We affirm the conviction, but vacate Kyllo's POAA finding and remand for a new POAA sentencing hearing before a visiting judge. On June 12, 2004, at about 2:00 am, Kyllo was housed in the Cowlitz County Jail on felony charges unrelated to this appeal when he and another inmate, Mickens, fought. The fight took place in a unit at the rear of the jail out of range of the security cameras and none of the jail staff witnessed the altercation. Inmate accounts of the fight were inconsistent, many, and varied. In one account, Kyllo was bullying everyone in the unit and had attacked Mickens when he attempted to call staff on the call box. Others claimed that Mickens started the fight. At Kyllo's request, jail staff took photographs of Kyllo's injuries including a "swollen" knee and bite marks on his left shoulder. According to the treating nurse, Kyllo's wounds appeared to have been inflicted hours after the fight and the bite mark could have been self-inflicted.

The State charged Kyllo with one count of second degree assault, alleging that Kyllo "recklessly inflicted substantial bodily harm" to Mickens when he tore off Mickens's ear with his teeth. CP at 47. Kyllo stated that he did not know how Mickens's ear had been torn and claimed that he had acted in self-defense.

Following numerous pretrial motions and a three-day trial, a jury convicted Kyllo as charged. The trial court sentenced Kyllo to life without the possibility of parole under the POAA.

On appeal, Kyllo challenges his conviction claiming that he was denied his right to a timely trial, and that the trial court erred by giving the jury an aggressor instruction. He raises additional issues in his statement of additional grounds (SAG),²including that he is entitled to a new trial under the doctrine of cumulative error, and because his counsel was ineffective. Speedy Trial and Disqualification of Counsel

Kyllo contends that the trial court violated his right to a timely trial under CrR 3.3(b) which requires that a defendant not released from jail be brought to trial on the charges for which he is confined within 60 days of his arraignment and that a defendant who is not so detained be brought to trial within 90 days. But that rule also requires that any objection to the setting of a trial date must be filed within 10 days of notice of the trial date and provides that the motion "shall be promptly noted for hearing by the moving party. . . . A party who fails,for any reason, to make such a motion shall lose the right to object that a trial commenced on such a date is not within the time limits prescribed by this rule." CrR 3.3(d)(3). Kyllo did not comply with the preservation requirements of this rule and has therefore waived any challenge to the timeliness of his trial.³

Government Misconduct

Kyllo argues that the trial court erred when it permitted a witness, Kenny Stevens, to be released from jail and transported to the Department of Corrections facility in Shelton. As a result of the transport, the State was unable to produce Stevens in time for trial on September 27. Although Kyllo's trial attorney initially objected to the State's request for a continuance to secure Stevens's presence, he later admitted that the defense could not proceed to trial without Stevens's testimony.

Even if we address Kyllo's unpreserved timely trial objection, good cause supported the continuance to secure Stevens's presence at trial and insured that Kyllo was not prejudiced in the presentation of his defense. CrR 3.3(b)(2)(i);State v.Bernhard,45 Wn. App. 590,594,726 P.2d 991(1986),review denied,107 Wn.2d 1023(1987). Kyllo's timely trial rights were not violated. Jury Instructions

Kyllo challenges the trial court's jury instructions. "Jury instructions are sufficient when they allow counsel to argue their theory of the case, are not misleading, and when read as a whole properly inform the trier of fact of the applicable law."Bodin v. City of Stanwood,130 Wn.2d 726,732,927 P.2d 240(1996);State v. Bowerman,115 Wn.2d 794,809,802 P.2d 116(1990). We review a trial court's decision to give or not give a jury instruction for an abuse of discretion.Tennant v. Roys,44 Wn. App. 305,308,722 P.2d 848(1986). Each party is entitled to have the court instruct the jury on its theory of the case if evidence supports that theory.State v. Williams,132 Wn.2d 248,259-60,937 P.2d 1052(1997). In evaluating whether the evidence supports a defendant's requested instruction, the trial court must interpret the evidence most strongly in the defendant's favor and may not weigh the proof, since that is an exclusive function of the jury.State v. Williams,93 Wn. App. 340,348,969 P.2d 106(1998),review denied,138 Wn.2d 1002(1999).

For the first time on appeal, Kyllo challenges the trial court's Instruction No. 14, which limited the right of one who is the first aggressor in an altercation to claim self-defense. The instruction read:

No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.

CP at 100. Generally, the failure to object precludes appellate review of jury instructions. RAP 2.5(a);State v.Scott,110 Wn.2d 682,685-86,757 P.2d 492(1988).

Moreover, jury Instruction No. 14 accurately states the law⁴and, although who started the fight was disputed, on this record there is evidence the jury could have found credible that Kyllo provoked the use of force by blocking Mickens's access to the call box to call for help. An aggressor instruction is appropriate even if there is conflicting evidence as to whether the defendant's conduct provoked the attack and thereby necessitated the use of force in self-defense.Statev. Riley,137 Wn.2d 904,910,976 P.2d 624(1999) (citingState v. Davis,119 Wn.2d 657,666,835 P.2d 1039(1992)),cert. denied,543 U.S. 917(2004). With conflicting evidence regarding the identity of the aggressor, an aggressor instruction is "particularly appropriate."Statev. Cyrus,66 Wn. App. 502,508-09,832 P.2d 142(1992),review denied,120 Wn.2d 1031(1993). The trial court's aggressor instruction was proper.

POAA

Kyllo next contends that his Sixth Amendment right to a jury trial was violated when the trial court found that he was the same person previously convicted of two prior most serious offenses. At Kyllo's POAA sentencing hearing, the State presented the following evidence: (1) a jail booking sheet dated May 20, 2004 (Ex. 1); (2) testimony from Corrections Officer Paul Curtis related to the booking sheet; (3) a fingerprint card from the May 20, 2004 jail booking (Ex. 2), as well as the testimony from the State's fingerprint expert, Edward Reeves, a former Cowlitz County Sheriff's Deputy; (4) a certified copy of a judgment and sentence dated March 10, 1988 (Ex. 3), for second degree assault, the first strike offense; (5) a copy of a fingerprint card (Ex. 4) which Reeves compared to those prints from Exhibit 2 and determined that they were made by the same person; (6) a certified copy of a judgment and sentence dated August 7, 1997, for indecent liberties, the second strike offense which Reeves also compared to prints from Exhibits 2 and 4, determining that they were all made by the same person; and (7) a copy of an inked fingerprint card (Ex. 6) which Reeves also compared to the other prints in the exhibits and determined it was made by the same person. Kyllo objected to all the exhibits, especially Exhibit 3, arguing that the State did not meet its burden of proof because a majority of the exhibits could not be linked to him.

Notably, no fingerprint or other documentary evidence of perpetrator identity was presented for one of the strike offenses, second degree assault (Ex. 3). Reeves, the State's fingerprint expert, was unable to identify or evaluate prints from Exhibit 3 due to the poor quality of the prints. Additionally, the document was not signed by the defendant named in it. The sole supporting evidence of Kyllo's identity as the person previously convicted for this strike offense was provided by his former defense counsel, now a Cowlitz County Superior Court judge.⁵And the sole determiner of the evidence was another Cowlitz County Superior Court judge. Although we do not doubt the integrity of either the witness or the sentencing trier of fact, we agree with Kyllo that this procedure violates the appearance of fairness doctrine.State v. Bilal,77 Wn. App. 720,722,893 P.2d 674("`Under the appearance of fairness doctrine, a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing.'") (quotingState v. Ladenburg,67 Wn. App. 749,754-55,840 P.2d 228(1992)),review denied,127 Wn.2d 1013(1995).See also Diimmel v. Campbell,68 Wn.2d 697,699,414 P.2d 1022(1966) ("It is incumbent upon members of the judiciary to avoid even a cause for suspicion of irregularity in the discharge of their duties").

Here, a disinterested observer could question the neutrality of a proceeding in which a judge who presided over preliminary matters later provided the sole evidence of the defendant's identity as the perpetrator of a previous strike offense for purposes of sentencing the defendant as a persistent offender to a term of life without possibility of parole. Accordingly, we reverse Kyllo's sentence of life without possibility of parole and remand for resentencing before a visiting judge to determine whether Kyllo is a persistent offender. SAG Issues

A. "Great Bodily Harm" Self-Defense Jury Instruction No. 13

For the first time on appeal, Kyllo objects to the trial court's Instruction No. 13 regarding "great bodily harm," which is the same language as 11Washington Practice: WashingtonPattern Jury Instructions17.04, at 203 (2d ed. 1994). Jury Instruction No. 13 provides:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

CP at 99.

Kyllo did not take exception to this instruction and had requested that the trial court give an identical instruction, defendant's proposed Instruction No. 11. The failure to object precludes appellate review of jury instructions. RAP 2.5(a);Scott,110 Wn.2d at 685-86. "A party may not request an instruction and later complain on appeal that the requested instruction was given."State v. Henderson,114 Wn.2d 867,870,792 P.2d 514(1990) (emphasis omitted) (quotingState v. Boyer,91 Wn.2d 342,345,588 P.2d 1151(1979)). Kyllo invited any error in the trial court's jury instructions which, on the facts of this case, did not relieve the State of its burden of proof or prejudice his defense in any event.⁶

B. Instructions Defining Intent

Kyllo also argues that the trial court erred by not giving his proposed jury instruction on "specific intent." Kyllo's proposed Instruction No. 7 read: "[a] person acts with intent or intentionally when acting with the objective or purpose to accomplish a result which constitutes a crime." CP at 75. Contrary to Kyllo's assertion, the trial court did provide this proposed instruction. The trial court's Instruction No. 16 was identical to Kyllo's proposed Instruction No. 7.

C. Cumulative Error

Kyllo contends that he is entitled to a new trial under the cumulative error doctrine.

The cumulative error doctrine applies when several trial errors occurred but none alone warrants reversal, but the combined errors effectively denied the defendant a fair trial.Statev. Hodges,118 Wn. App. 668,673,77 P.3d 375(2003),review denied,151 Wn.2d 1031(2004). Here, however, there are no errors to accumulate regarding the second degree assault conviction appealed. Accordingly, the doctrine does not apply.

We affirm the conviction, but vacate Kyllo's POAA finding and remand for a new POAA sentencing hearing before a visiting judge.

We concur:

HOUGHTON, C.J.

VAN DEREN, J.Page 1038