State v. Kovalenko

546 P.3d 514

STATE of Washington, Respondent,

v.Sergey Andreevich KOVALENKO, Appellant.

No. 84404-1-I

Court of Appeals of Washington, Division 1, DIVISION ONE.

Filed April 15, 2024

Appeal from Whatcom County Superior Court, Docket No: 16-1-00835-9, Honorable Robert E. Olson, Judge

Teymur Gasanovich Askerov, Black & Askerov, PLLC, 705 2nd Ave. Ste. 1111, Seattle, WA, 98104-1720, for Appellant.

Whatcom County Prosecutor’s Office, Appellate Division, Eric John Richey, Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave. Ste. 201, Bellingham, WA, 98225-4038, for Respondent.

PUBLISHED OPINION

Mann, J.

¶1 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

¶2 Kovalenko was bom 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.

¶3 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.

¶4 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.

¶5 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 them 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."

¶6 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.

¶7 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.

¶8 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.

¶9 Kovalenko was charged with multiple counts of child molestation and rape of a child.

B

¶10 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.

¶11 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.

¶12 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.

¶13 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 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.

¶14 Kovalenko appeals.

II

[1, 2] ¶15 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; Wash. Const. art., I § 22. But "the burden of preventing trial errors rests squarely upon counsel for both sides." State v. Farley, 48 Wash.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 Wash.2d at 15, 290 P.2d 987.

A

[3] ¶16 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.

¶17 In State v. Talbott, 200 Wash.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 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 Wash.2d at 732, 521 P.3d 948. Talbott appealed the judge’s decision denying his motion to excuse the juror. Talbott, 200 Wash.2d at 732, 521 P.3d 948.

¶18 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 Wash.2d 731, 24 P.3d 1006 (2001) and those based on State v. Fire, 145 Wash.2d 152, 34 P.3d 1218 (2001). Talbott, 200 Wash.2d at 732, 521 P.3d 948.

¶19 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 Wash.2d at 738, 521 P.3d 948 (quoting Clark, 143 Wash.2d at 762, 24 P.3d 1006). This line of cases "thus encourages parties to cure jury-selection errors with their peremptory challenges." Talbott, 200 Wash.2d at 738, 521 P.3d 948. "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 Wash.2d at 738, 521 P.3d 948 (quoting State v. Lupastean, 200 Wash.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)).

¶20 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 Wash.2d at 739, 521 P.3d 948. Fire held that a " ‘defendant’s rights [are] not violated simply because [they] had to use peremptory challenges to achieve an impartial jury.’ " Talbott, 200 Wash.2d at 739, 521 P.3d 948 (quoting Fire, 145 Wash.2d at 165, 34 P.3d 1218). "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 Wash.2d at 739, 521 P.3d 948.

¶21 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 Wash.2d at 739, 521 P.3d 948. 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 Wash.2d at 746, 521 P.3d 948 (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 Wash.2d at 746, 521 P.3d 948 (quoting Lupastean, 200 Wash.2d at 52, 513 P.3d 781). 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...