Opinion
No. 26293-6-III.
July 24, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-2-01010-5, Cameron Mitchell, J., entered June 20, 2007.
Affirmed by unpublished opinion per Korsmo, J., concurred in by Schultheis, C.J., and Sweeney, J.
UNPUBLISHED OPINION
The State sought to commit Jason M. Bubb as a sexually violent predator. After presiding over pretrial motions and jury selection, the original trial judge stepped down because of a family emergency. Prior to leaving, he told the jury "I'm sorry I can't see it through with you, because I think it's an important case." Mr. Bubb contends this statement was an impermissible judicial comment on the evidence. We hold it is not. Accordingly, we affirm.
A jury trial on the petition began June 11, 2007. Judge Craig Matheson presided over the pretrial motions and jury selection. After swearing in the jury and giving introductory comments, Judge Matheson informed the jurors:
Another announcement I need to make to you is I will not be the trial judge from this point forward. I've had an unexpected development in my family,
so I need to leave, and Judge Cameron Mitchell is going to take the case over. And this is an appropriate time to do that. And so I appreciate working with you so far and wish you the best of luck on the balance of the case. And I'm sorry I can't see it through with you, because I think it's an important case, but I don't see any problem in changing at this time.
Judge Cameron Mitchell presided over the remainder of the trial.
Among other witnesses, psychologist Dr. Harry Hoberman testified as an expert witness on behalf of the State, and psychologist Dr. Robert Halon testified as an expert witness on behalf of Mr. Bubb. The jury found Mr. Bubb to be a sexually violent predator. Accordingly, the court ordered Mr. Bubb committed to the Special Commitment Center in Steilacoom, Washington. He then appealed to this court.
The issue is whether the statement, "I think it's an important case," was an impermissible judicial comment on the evidence in violation of article IV, section 16 of the Washington Constitution. Raising this issue for the first time on appeal, Mr. Bubb contends because the outcome of the case turned on which expert the jury chose to believe, the comments tipped the scales in favor of the jury believing the State's expert, Dr. Hoberman, over his expert, Dr. Halon. Because an alleged judicial comment on the evidence involves a manifest constitutional error, this court will consider it for the first time on appeal. State v. Levy, 156 Wn.2d 709, 719-720, 132 P.3d 1076 (2006).
Our constitution provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Wash. Const. art. IV, § 16. This provision "prohibits a judge from conveying to the jury his or her personal attitudes toward the merits of the case." State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). The purpose of this provision "is to prevent the jury from being unduly influenced by the court's opinion regarding the credibility, weight, or sufficiency of the evidence." State v. Sivins, 138 Wn. App. 52, 58, 155 P.3d 982 (2007) (citing State v. Eisner, 95 Wn.2d 458, 462, 626 P.2d 10 (1981)). Furthermore: "A statement by the court constitutes a comment on the evidence if the court's attitude toward the merits of the case or the court's evaluation relative to the disputed issue is inferable from the statement." State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). In determining whether a statement by the court amounts to a comment on the evidence, a reviewing court looks to the facts and circumstances of the case. State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970).
In State v. Sivins, the defendant argued the disclosure of suppressed evidence by the trial court judge to the jury venire was an impermissible judicial comment on the evidence. Sivins, 138 Wn. App. at 58. The judge disclosed the suppressed evidence while reading the charges to the venire. Id. at 57. The court held this disclosure was not a judicial comment on the evidence. Id. at 58-60. The court reasoned "the constitutional prohibition applies only to those words or actions that convey the judge's opinion of the evidence." Id. at 60. "In this case, there was no danger the jury would attach undue importance to the trial court's words: the trial judge did nothing to convey his personal opinion of the facts or merits of the case during his inadvertent disclosure of the suppressed items." Id. Additionally, the court reasoned "the disclosure did not establish disputed facts, prove the State's case, or bear on the credibility of the witnesses." Id.
Here, the statement, "I think it's an important case," did not convey the judge's opinion of the evidence. As stated above, the purpose of article IV, section 16 "is to prevent the jury from being unduly influenced by the court's opinion regarding the credibility, weight, or sufficiency of the evidence." Sivins, 138 Wn. App. at 58 (citing Eisner, 95 Wn.2d at 462). Here, akin to State v. Sivins, the statement did not address the evidence to be presented at trial. It is too attenuated to conclude that the statement tipped the scales in favor of the jury believing Dr. Hoberman over Dr. Halon. The court's attitude toward the merits of the case was not inferable from the judge's remark. Accordingly, no violation of article IV, section 16 occurred.
The cases cited by Mr. Bubb are distinguishable from the case here in that each one involved either a comment on a witness's credibility, the court eliciting testimony on the legal issues, or the inclusion of a contested fact in a jury instruction. See State v. Jackman, 156 Wn.2d 736, 742-744, 132 P.3d 136 (2006) (inclusion of victims' birth dates in "to convict" jury instructions, where crimes required victims to be minors, was an impermissible comment on the evidence); Levy, 156 Wn.2d at 716, 718-723 (jury instructions defining "building" as the apartment at issue and "deadly weapon" as a crowbar were impermissible comments on the evidence); Lane, 125 Wn.2d at 835-839 (judge's comment regarding the reason for the early release of a prosecution witness from jail was an impermissible comment on the evidence); Eisner, 95 Wn.2d at 460-463 (judge's questioning of prosecution witness, which elicited elements of the charged crime, was an impermissible comment on the evidence); State v. Lampshire, 74 Wn.2d 888, 891-893, 447 P.2d 727 (1968) (judge's comment when ruling on objection made by the prosecution during direct examination of the defendant was an impermissible comment on the evidence); Risley v. Moberg, 69 Wn.2d 560, 561-565, 419 P.2d 151 (1966) (judge's questioning of personal injury plaintiff's physician regarding the cause of her injuries was an impermissible comment on the evidence).
The statement in this case does not rise to the level of suggesting the trial judge believed one side of the case or the other. Accordingly, appellant has not established error. The commitment order is therefore affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, C. J., Sweeney, J., concur.