State v. Russell
171 Wash. 2d 118
Wash.2011Background
- CR, the youngest of Marilou Russell’s five children, reported abuse by Russell around age 13–14 after a pattern of escalating sexual misconduct across multiple states and foreign postings.
- The State charged Russell with first degree rape of a child (domestic violence) for alleged abuse in Washington.
- Before trial, the State sought to admit ER 404(b) evidence of Russell’s prior and subsequent abuse in Japan, Hawaii, Florida, and Indiana to corroborate lustful disposition toward CR.
- The trial court excluded Japan evidence; admitted Hawaii and Florida evidence as not more prejudicial than probative; and admitted the evidence without a sua sponte limiting instruction.
- The jury convicted Russell; the Court of Appeals reversed on the ER 404(b) issue for lack of a limiting instruction; this Court granted review and held no sua sponte limiting instruction was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RAP 2.5(a) requires review of the limiting instruction issue. | Russell's claim was reviewable despite not raising it in trial court. | Appellate review is unavailable when not raised in trial court. | Review allowed under RAP 2.5(a). |
| Whether trial court must sua sponte give a limiting instruction for ER 404(b) evidence. | Exception exists for ER 404(b) evidence; limiting instruction required sua sponte. | No duty to sua sponte give a limiting instruction absent request. | No, not required sua sponte absent a request. |
Key Cases Cited
- State v. Noyes, 69 Wn.2d 441 (Washington Supreme Court 1966) (limited instruction not required absent request; appellate review of failure to instruct requires request)
- State v. Athan, 160 Wn.2d 354 (Washington Supreme Court 2007) (omission of limiting instruction not reversible error without request)
- State v. Myers, 133 Wn.2d 26 (Washington Supreme Court 1997) (failure to give cautionary instruction not reversible without request)
- State v. Hess, 86 Wn.2d 51 (Washington Supreme Court 1975) (no reversible error without requesting instruction)
- State v. Goebel, 36 Wn.2d 367 (Washington Supreme Court 1950) (early articulation on limiting instruction context)
- State v. Saltarelli, 98 Wn.2d 358 (Washington Supreme Court 1982) (ER 404(b) limiting instruction considerations)
- State v. Lough, 125 Wn.2d 847 (Washington Supreme Court 1995) (ER 404(b) evidence and limiting instruction framework)
- State v. Brown, 113 Wn.2d 520 (Washington Supreme Court 1989) (limiting instruction jurisprudence on ER 404(b))
- State v. Foxhoven, 161 Wn.2d 168 (Washington Supreme Court 2007) (discussed in context of limiting instruction rule)