                                                                           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IGOR V. SAMOLYUK,                             )         UNPUBLISHED OPINION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Thereafter, he became forgetful, irritable, irrational, and withdrawn.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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