FILED
MAY 28,2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 26918-3-111
)
Respondent, )
)
v. )
)
IGOR V. SAMOLYUK, ) UNPUBLISHED OPINION
)
Appellant. )
BROWN, J. - Igor V. Samolyuk appeals his 2007 second degree murder
conviction for killing his wife, Yana Samolyuk. He contends the trial court erred by (1)
denying his motion for a new jury panel based on possible media exposure, (2) violating
his public trial rights, and (3) admitting prior assault evidence. This court stayed his
appeal pending decisions by our Supreme Court in a series of public trial cases. See In
re Pers. Restraint of Morris, 176 Wn.2d 157,288 P.3d 1140 (2012); State v. Sublett,
176 Wn.2d 58, 292 P.3d 715 (2012); State v. Paumier, 176 Wn.2d 29,288 P.3d 1126
(2012); State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012); State v. Momah, 167 Wn.2d
140,217 P.3d 321 (2009); State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009).
Finding no error, we affirm.
No. 26918-3-111
State v. Samolyuk
FACTS
The Samolyuks married in 2005. They had a tumultuous marriage. In January
2006, Mr. Samolyuk suffered severe head injuries in an automobile accident.
Thereafter, he became forgetful, irritable, irrational, and withdrawn. The parties'
marriage deteriorated further. In late June 2007, Mr. Samolyuk asked his pregnant wife
to leave the family home. The couple's daughter was born soon after.
On the night of July 9,2007, the Samolyuks agreed to meet at a Starbucks so
Mrs. Samolyuk could retrieve some personal items. Mr. Samolyuk became angry with
Mrs. Samolyuk and drove her to the Finley shooting range. The next morning, family
members responded to Mr. Samolyuk's distress calls and there found Mrs. Samolyuk
unconscious and Mr. Samolyuk with cuts to his wrist. Mrs. Samolyuk died as a result of
bleeding to death from multiple stab wounds inflicted by Mr. Samolyuk.
The State charged Mr. Samolyuk with second degree murder, alternatively,
felony murder based upon first or second degree assault. The State alleged three
aggravating factors: (1) the current offense manifested deliberate cruelty to the victim,
(2) the current offense involved domestic violence, and (3) the current offense involved
a destructive and foreseeab'le impact on the couple's infant child. Mr. Samolyuk's
defense theory was diminished capacity as a result of his head injury.
Before trial, the State asked to admit evidence of three prior assaults: (1) in July
2005, Mrs. Samolyuk called her mother and said Mr. Samolyuk beat her, which Mr.
Samolyuk admitted; (2) in October 2005, Mr. Samolyuk pleaded guilty to disorderly
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No. 26918-3-111
State v. Samolyuk
conduct, down from fourth degree assault following another fight; and (3) in November
2005, Mr. Samolyuk grabbed Mrs. Samolyuk around the neck outside her parents'
apartment in the presence of her parents. Over Mr. Samolyuk's objection, the court
admitted evidence of each incident, finding the State had established by a
preponderance of the evidence that the acts occurred, that they were admissible to
show intent and motive, and that the probative value outweighed any prejudice. The
court additionally found the incidents were admissible to prove the aggravating factor of
domestic violence.
During jury selection, a bailiff found two copies of the Tri-City Herald in one of the
jury rooms where the jury pool waited. An article titled, "Jury selection for murder trial
continues today" appeared on page 8-1. Clerk's Papers (CP) at 1206. Mr. Samolyuk
moved to strike the jury panel and impanel a new jury or, alternatively, recall struck
jurors and inquire regarding juror misconduct. The court decided to individually
interview each jury panel member in the apparently open courtroom, apart from the
other jurors. Mr. Samolyuk mistakenly argues the jurors were interviewed in a jury
room. Five jurors admitted they saw the newspaper in the jury room. Juror One
reported she did the puzzles, but did not read the paper. Juror Two said he did the
Soduko puzzle and scanned the front-page headlines. Juror Four saw the paper and
completed the jumbo puzzle. Juror Eight admitted he read an article in the paper
relating to the local irrigation district. Juror Eleven saw the paper, and saw other jurors
looking at the ads, "but not reading the news." Report of Proceedings (RP) at 422. The
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No. 26918-3-111
State v. Samolyuk
court found none of the jurors saw the article relating to the trial, and denied Mr.
Samolyuk's motion to strike the jury panel.
The jury found Mr. Samolyuk guilty of second degree murder and found all three
aggravating factors. The court imposed a 250-month exceptional sentence. Mr.
Samolyuk appealed.
ANALYSIS
A. Jury Bias
The issue is whether the trial court erred by abusing its discretion in denying Mr.
Samolyuk's request for a new jury panel. He contends the court should have analyzed
the newspaper article on the record for its prejudicial effect and inadequately questioned
the jury about their knowledge of the article.
Under the Sixth Amendment to the United States Constitution as well as article I,
section 22 of the Washington State Constitution, '''a defendant is guaranteed the right to
a fair and impartial jury.'" State v. Roberts, 142 Wn.2d 471, 517, 14 P.3d 713 (2000)
(quoting State v. Brett, 126 Wn.2d 136, 157,892 P.2d 29 (1995)). We review a trial
court's denial of a motion to strike a prospective jury panel for abuse of discretion.
Roberts, 142 Wn.2d at 518-19. Discretion is abused when it is exercised on untenable
grounds orfor untenable reasons. State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482
P.2d 775 (1971).
A court should sustain a challenge to the jury panel solely when confronted with
"a material departure from the procedures prescribed by law for their selection." CrR
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No. 26918-3-111
State v. Samolyuk
6.4(a). The court has discretion in conducting jury voir dire to achieve every reasonable
protection for a defendant. State v. Herman, 93 Wn.2d 590, 593, 611 P.2d 748 (1980).
The defendant's right to a fair and impartial jury is the sole limit on the trial court's
exercise of discretion. State v. Frederiksen, 40 Wn. App. 749,700 P.2d 365 (1985).
A jury's consideration of novel or extrinsic evidence constitutes misconduct and
may be grounds for a new trial if the defendant is able to show that the misconduct likely
affected the verdict. State v. Ba/isok, 123 Wn.2d 114, 118,866 P.2d 301 (1994). But,
we presume jurors follow the instructions the trial court gives them. State v. Robinson,
146 Wn. App. 471,483, 191 P.3d 906 (2008). Here, some of the jurors saw the
newspapers in the jury room early in the selection process, before the court
admonished them not to view newspapers. When questioned about the newspapers,
none of the jurors saw the critical article.
Mr. Samolyuk argues the court should have taken the additional step of
analyzing the article's prejudicial effect based on State v. Adamo, 128 Wash. 419, 423,
223 P. 9 (1924). In Adamo, a jury member filed an affidavit at the conclusion of trial,
stating that he saw in the courthouse a newspaper clipping relating to Mr. Adamo during
trial. Id. at 420. The trial court denied Mr. Adamo's request for a new trial. Id. at 423
24. The court noted that even if the jury read the whole article no influence over the
verdict was shown. Id. at 423. Here no influence could be possible because no jurors
saw the article.
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No. 26918-3-111
State v. Samolyuk
Mr. Samolyuk next argues the court insufficiently inquired into the jurors'
exposure to the newspapers. The court and counsel discussed the questioning before
voir dire. The questions posed were acceptable to defense counsel who agreed if the
jurors confirm that none of them looked at the article, "I think that would put this issue to
rest." RP at 361. Additionally, the court permitted counsel to ask questions at the
conclusion of the court's questioning. To now complain that the court's questioning was
improper violates the invited error doctrine. See State v. Henderson, 114 Wn.2d 867,
870-71, 792 P.2d 514 (1990) (the invited error doctrine precludes a party from setting
up an error at trial and then complaining ofit on appeal.). Under these circumstances,
the court was not required to inquire further. Given all, we conclude the trial court did
not abuse its discretion in denying Mr. Samolyuk's request for a new jury.
B. Public Trial
The issue is whether Mr. Samolyuk was denied his constitutional right to a public
trial. He contends interviewing the jury members individually violated his rights. Under
the cases analyzed below, we disagree.
The Sixth Amendment to the United States Constitution provides, "In all criminal
prosecutions, the accused shall enjoy the right to a ... public triaL" Similarly, article I,
section 22 of the Washington Constitution guarantees, "In criminal prosecutions the
accused shall have the right ... to have a ... public triaL" The public trial right is not
absolute, but it is strictly guarded to assure proceedings occur outside the public
courtroom solely in the most unusual circumstances. State v. Strode, 167 Wn.2d 222,
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No. 26918-3-111
State v. Samolyuk
226,217 P.3d 310 (2009) (citing State v. Easterling, 157 Wn.2d 167, 174-75,137 P.3d
825 (2006)). "Whether a defendant's constitutional right to a public trial has been
violated is a question of law, subject to a de novo review on direct appeal." Strode, 167
Wn.2d at 225.
Our Supreme Court has articulated guidelines every trial court must follow before
closing a courtroom to the public. State v. Bone-Club, 128 Wn.2d 254, 258-59, 906
P.2d 325 (1995). Those criteria are:
1. The proponent of closure or sealing must make
some showing [of a compelling interest], and where that
need is based on a right other than an accused's right to a
fair trial, the proponent must show a "serious and imminent
threat" to that right.
2. Anyone present when the closure motion is made
must be given an opportunity to object to the closure.
3. The proposed method for curtailing open access
must be the least restrictive means available for protecting
the threatened interests.
4. The court must weigh the competing interests of
the proponent of closure and the public.
5. The order must be no broader in its application or
duration than necessary to serve its purpose.
Bone-Club, 128 Wn.2d at 258-59 (quoting Allied Daily Newspapers v. Eikenberry, 121
Wn.2d 205, 210-11, 848 P.2d 1258 (1993».
In Strode, a sex-crime case, jury members were brought into the judge's
chambers for questioning regarding sensitive topics, with solely the trial judge,
prosecuting attorney, defense counsel, and the defendant present. 167 Wn.2d at 224.
The purpose was to protect the jurors' privacy interests. Our Supreme Court held that
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No. 26918-3-111
State v. Samolyuk
this amounted to a closure and, because the court did not first conduct a Bone-Club
analysis, the defendant's right to a public trial was violated. Id. at 231. In Wise and
Paumier, the court similarly ruled. Wise, 176 Wn.2d at 15; Paumier, 176 Wn.2d at 37.
The court, however, limited the extent of the right to a public trial in Sublett, by holding
that a Bone-Club analysis is not required when a judge answers a juror question in
chambers with counsel present. 176 Wn.2d at 135.
In Momah, another sex-crime case, the trial court, on the recommendation of
defense counsel, questioned several jurors privately to protect the defendant's right to a
fair trial. 167 Wn.2d at 145-46. The court noted, "due to the publicity of Momah's case,
the defense and the trial COLIrt had legitimate concerns about biased jurors or those with
prior knowledge of Momah's case." Id. at 156. The court held that a partial closure of
voir dire to safeguard the defendant's right to a fair trial was not a structural error and
affirmed the defendant's convictions. Id. at 151-52.
Here, a bailiff found copies of the Tri-City Herald with a trial-related article on the
front page of the local section in a jury room where the jury pool waited. Mr. Samolyuk
requested to inquire regarding juror misconduct. The court decided to individually
interview members of the jury panel. The questioning apparently took place in the
courtroom. 1 Five jurors admitted they saw the newspaper in the jury room. After its
inquiry, the court denied the motion to strike, finding none of the jurors saw the article
relating to the trial.
While the record is unclear where the questioning occurred, the original
1
prosecutor filed a letter with this court, stating that the questioning was in the courtroom.
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No. 26918-3-111
State v. Samolyuk
Our case is similar to Momah. The purpose of the questioning was to protect Mr.
Samolyuk's fair trial rights. Defense counsel acquiesced to the individual jury
questioning. Thus, any closure here was not a structlJral error. The closure occurred to
protect Mr. Samolyuk's rights and did not prejudice him. Both the defense and the trial
court had legitimate concerns about biased jurors. Thus, the underlying facts and
impact of the closure here are significantly different from those cases where our
Supreme Court found public trial errors. Given all, we conclude reversal and remand of
this case is unwarranted. Reversal of Mr. Samolyuk's conviction and remand of his
case is not the remedy under the circumstances presented here.
C. Prior Assault Evidence
The, issue is whether the trial court erred in admitting evidence under ER 404(b)
relating to Mr. Samolyuk's prior assaults against Mrs. Samolyuk. Mr. Samolyuk
contends the court failed to analyze all four factors required to be reviewed prior to
admittance and the evidence lacked probative value.
We review admission of ER 404(b) evidence for abuse of discretion. State v.
Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001). Before a court admits ER
404(b) evidence, it must, on the record: (1) find by a preponderance of the evidence that
the prior act or misconduct occurred, (2) identify the purpose for which the evidence is
sought to be introduced, (3) determine whether the evidence is relevant to prove an
element of the crime charged, and (4) weigh the probative value against the prejudicial
effect. State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
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No. 26918-3-111
State v. Samolyuk
Here, the court thoughtfully analyzed each incident. It found the July 2005
assault was established by a preponderance of evidence, it was admissible to establish
intent, it was relevant because intent was "specifically going to be an issue for this jury"
and the "probative value outweighs any prejudicial impact." RP at 379 .. The court found
the October 2005 assault was established by a preponderance of evidence. The court
further found, "And, clearly, what I believe the defense is raising is the whole issue of
intent and ... it's going to be admissible for intent purposes as well as potentially
motive purposes." RP at 388. The court found the November 2005 assault occurred,
and regarding its probative value: "From this Court's perspective, once again, this
evidence is important on the issues of the defendant's motive and intent. And not only
that but, of course, as has been pointed out previously by the State, of course, the State
has further alleged an aggravating circumstance allegation which involves that the
current offense involved domestic violence." RP at 508. The court found, "[I]n
balancing the probative value versus the prejudicial effect ... the probative value
outweighs the prejudice." RP at 508-09.
Given the above, we conclude the court properly reviewed the Thang factors on
the record. Considering intent was the central issue in the case, the trial court did not
abuse its discretion in admitting evidence of the three prior assaults. Thus, our case is
unlike State v. Powell, 126 Wn.2d 244,262,893 P.2d 615 (1995). holding prior
misconduct was improperly admitted because intent was not a disputed issue.
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No. 26918-3-111
State v. Samolyuk
State v. Hernandez, 99 Wn. App. 312, 997 P.2d 923 (1999) is instructive. There,
the defendant was charged with murdering his girl friend. The court upheld the
admission of evidence regarding the girl friend's numerous prior bruises and strained
relationship with the defendant. Id. at 322. The court held that evidence of misconduct
is generally admissible to show intent and absence of accident when the defendant
admits doing the act, but claims that he did not have the requisite state of mind to
commit the charged offense. Id. Mr. Samolyuk does not contest he stabbed and killed
Mrs. Samolyuk. Instead, he argues that because of the injuries he received in January
2006, he did not have the ability to intend his acts. The three prior assaults, all of which
occurred before the injuries, were relevant to show he had intent to harm Mrs.
Samolyuk. And, they were relevant to the aggravating factor of whether the offense,
"involved domestic violence." CP at 1249.
Mr. Samolyuk argues the court erred in failing to bifurcate the trial from the
aggravating factors proceeding. However, he fails to assign error to this issue;
therefore, we decline review. See RAP 10.3(a)(4) (Appellant must provide, "separate
concise statement of each error a party contends was made by the trial court, together
with the issues pertaining to the assignments of error."). Moreover, he did not request
bifurcation below, thus waiving the issue here.
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No. 26918-3-111
State v. Samolyuk
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.
Brown, J.
WE CONCUR:
Sid~·:r
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