State v. Zwald
Joel Duane Zwald was convicted after jury trial of 3rd Degree Child Molestation, 2nd Degree Child Molestation, and 2nd Degree Rape of a child. On appeal, he argued the trial prosecutor committed reversible misconduct during closing argument and the court improperly commented on trial evidence by instructing the jury that to convict him, the jury need not corroborate the victim’s story. Mr. Zwald’s challenge on the trial court’s ‘comment’ bucked more than 100 years of appellate cases holding corroboration of the prosecuting witness in sex cases is unnecessary. State v. Morden, 87 Wash, 465, 468 (1915)
Zwald dated the victim’s mother, who eventually moved in with him. He began sexually assaulting the victim on a “daily basis” when she was 11. The victim disclosed the abuse to a high school counselor many years later after encouragement from her boyfriend. Defense counsel at trial tried to impeach the victim’s credibility by confronting her “acting out behaviors”, including running away, stealing money from her mom, and sneaking out to be with her boyfriend. Mr. Zwald testified, denying he ever touched the victim in an inappropriate manner. Over Mr.Zwald’s objection, the court gave the following jury instruction:
“In order to convict a person of child molestation in the second degree or rape of a child in the second degree it is not necessary that the testimony of the alleged victim be corroborated”
It’s weird that the third degree child molest charge was not in the instruction. This caused problems during the jury’s deliberations, as they asked the trial judge if the instruction also applied to the third degree charge as well. The trial judge responded by telling the jury to “consider the instructions as a whole.”
Washington’s constitution provides that “Judges shall not charge juries with respect to matters of fact, nor comment there on, but shall declare the law”. ART IV, 16. A judge must not convey “the court’s opinion of the evidence submitted.” State v. Elmore. 139 Wn 2n 250, 275 (1999). The appeals court in Zwald held “a jury instruction that does no more than accurately state the law pertaining to an issue does not amount to an impermissible comment on the evidence,” citing State v. Woods. 143 Wn 2d 561, 591 (2001). The trial judge, when responding to Mr. Zwald’s objection, stated he “[must] give that instruction” because it was the “current law”. Zwald did not challenge this ruling (which he could have). Mr. Zwald could have objected that particular jury instruction “need not be given if the subject matter is adequately covered elsewhere in the instructions.” State v. Ng, 110 Wn 2d 32, 41 (1988). The appeals court in Zwald recognized, in a footnote, “indeed, the Washington Supreme Court Committee on Jury Instruction recommends against giving the no- corroboration instruction.
Corroboration of a prosecuting witness in sex cases has not been required by case law, State v Thomas 52 Wn 2d 255, 256 (1958) and was codified into RCW 9A. 44.020 (1) in 1975. The “no-corroboration jury instruction” was challenged as a ‘comment on the evidence’ 75 years ago in State v. Clayton 32 Wn 2d 571, 573-574 (1949). The Clayton court held such an instruction
“Expressed no opinion as to the truth or falsity of the testimony of the [victim], or as to the weight which the court attached to her testimony, but submitted all questions involving the credibility and weight of the evidence to the jury for its decision.”
This jury instruction has been recognized by the court as appropriate because sex crimes “are rarely if ever committed under circumstances permitting knowledge and observation by persons other than the accused and the complaining witness”. State v Chenoweth 188 Wn. App. 521, 537 (2015). The instruction in Mr. Zwald’s matter informed the jury only that it need not corroborate the alleged victim’s testimony to convict him.
Intriguingly, the court hints that Mr. Zwald could have made a constitutional argument that the instruction violates due process because it highlights a victims testimony over other witnesses (including Mr. Zwalds) and there by “suggests that the victims testimony is subject to a different test for credibility.” Zwald cited several out-of-state cases, but did not object to the instruction as “manifest constitutional error.”
As a result of Mr. Zwald not claiming manifest error his due process argument was “not addressed.”
While it appears a no-corroboration instruction is a correct statement of the law, such an instruction may also be pointing out the law in such an outspoken way that it could be constitutionally challenged, since other jury instructions also cover the area. Mr. Zwald may take his matter up before the Washington Supreme Court and reframe his argument.