State v. Frost, 77444-7.

• Citation: 160 Wn.2d 765,161 P.3d 361
• Decision Date: 28 June 2007
• Docket Number: No. 77444-7.,77444-7.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Joshua James FROST, Petitioner.

161 P.3d 361

160 Wn.2d 765

STATE of Washington, Respondent, v. Joshua James FROST, Petitioner.

No. 77444-7.

Supreme Court of Washington, En Banc.

Argued February 15, 2007.

Decided June 28, 2007.

Dana M. Lind, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.

Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

J.M. JOHNSON, J.

¶ 1 The Sixth Amendment provides, in relevant part, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense."¹ This right to counsel encompasses the delivery of closing argument.² Although trial courts possess discretion over the scope of closing argument, a limitation that goes too far may infringe upon a defendant's Sixth Amendment right to counsel. When a court's limitation of argument relates to a fact necessary to support a conviction, the defendant's due process rights may also be implicated. Such constitutional infringements occurred in the present case when the trial court precluded petitioner Joshua Frost's counsel from arguing both that the State failed to prove accomplice liability as to Frost's robbery offenses and that Frost participated in these offenses under duress. Therefore, the trial court abused its discretion. However, under the particular circumstances of this case, the trial court's error may be deemed harmless. Accordingly, we affirm the decision of the Court of Appeals, although under a different rationale.

FACTS AND PROCEDURAL HISTORY

¶ 2 Frost's criminal conduct involved five discrete incidents over 11 days. First, on April 8, 2003, Frost, together with accomplices Matthew Williams and Alexander Shelton, robbed and burglarized the home of Lloyd and Verna Gapp. Frost acted as the driver and also entered the home with Williams and Shelton. Firearms were used.

¶ 3 On April 12, 2003, Frost acted as the driver for Shelton and Williams, who robbed a Taco Time restaurant while armed with firearms. Then on April 15, 2003, Frost, Williams, Shelton, and another man participated in the robbery of T and A Video. Frost again acted as the driver and also performed surveillance of the video store prior to the robbery. On April 17, 2003, Frost acted as the driver for Williams and Shelton, who robbed a 7/Eleven store at gunpoint. During this robbery, one accomplice threatened two customers in the store's parking lot with a gun. Immediately following this robbery, Frost drove Williams and Shelton to Ronnie's Market, which they also robbed using firearms. During the course of this robbery, employee Heng Chen was shot in the hand.

¶ 4 Frost, Williams, and Shelton were arrested on April 20, 2003. Several firearms, a cash register, safes, bank bags, and ski masks associated with the above offenses were found inside Frost's home. Frost made multiple confessions to the police regarding the above offenses, recordings of which were introduced at trial. Ultimately, Frost was charged with six counts of robbery, one count of burglary, one count of attempted robbery, and three counts of assault; most charges included firearms enhancements.

¶ 5 Prior to trial, Frost moved to suppress his statements to the police; the court denied his motion and admitted the confessions. Frost testified at trial. He generally admitted participating in the robberies but claimed he acted under duress.

¶ 6 During a discussion of the proposed jury instructions, Frost's counsel indicated he intended to argue both that the State failed to meet its burden as to accomplice liability and that Frost acted under duress in committing the charged robbery offenses. The State objected to this form of argument. The trial court ruled that defense counsel could not argue both theories in closing, citing State v. Riker, 123 Wash.2d 351, 869 P.2d 43 (1994). Verbatim Report of Proceedings (VRP) (Dec. 11, 2003) at 126-28. The court informed defense counsel that if he attempted to argue that the State had failed to meet its burden of proof as to any of the robbery offenses, then the court would not instruct the jury on duress as to those offenses. Id. at 126. Defense counsel objected to the court's ruling. In closing, defense counsel did not argue that the State had failed to meet its burden of proof as to Frost's robbery offenses. Instead, defense counsel limited his argument to the affirmative defense of duress.

¶ 7 In closing, the prosecutor repeatedly mentioned the State's burden of proof as to Frost's robbery offenses. Id. at 148-49, 152, 160. Likewise, the jury was properly instructed on the State's burden of proof in general, as well as the requirements to prove accomplice liability in particular. See Clerk's Papers (CP) at 178, 180. A jury found Frost guilty of all of the charged offenses except one assault. Frost was sentenced to more than 50 years' imprisonment, including the consecutive firearms enhancements.

¶ 8 Frost appealed his convictions to Division One of the Court of Appeals. His claims included (1) prosecutorial vindictiveness, (2) erroneous admission of his statements, and (3) erroneous limitation of defense counsel's argument of inconsistent defenses. In an unpublished decision, the Court of Appeals rejected all of Frost's claims. State v. Frost, noted at 128 Wash.App. 1026, 2005 WL 1579705, 2005 Wash.App. LEXIS 1570. Review by this court was granted only on the issue of the trial court's limitation of defense counsel's closing argument. State v. Frost, 158 Wash.2d 1001, 143 P.3d 828 (2006).

ANALYSIS

A. Standard of Review

¶ 9 This court reviews a trial court's action limiting the scope of closing argument for abuse of discretion. State v. Perez-Cervantes, 141 Wash.2d 468, 475, 6 P.3d 1160 (2000). This court will find that a trial court abused its discretion "`only if no reasonable person would take the view adopted by the trial court.'" Id. (quoting State v. Huelett, 92 Wash.2d 967, 969, 603 P.2d 1258 (1979)).

B. Trial Court Authority to Limit the Scope of Closing Argument

¶ 10 At trial, Frost's counsel sought to argue both that the State failed to prove accomplice liability as to Frost's robbery offenses and that Frost acted under duress in committing these offenses. The trial court ruled, relying on language in this court's decision in Riker, 123 Wash.2d 351, 869 P.2d 43, that defense counsel could not argue these inconsistent theories in closing. Frost now argues that the trial court abused its discretion and violated his constitutional rights by limiting the scope of his counsel's closing argument. The State counters that the trial court acted within its discretion.

¶ 11 We hold that the trial court erroneously interpreted our decision in Riker and, based on that erroneous interpretation, unduly limited the scope of Frost's counsel's closing argument, thus abusing its discretion. However, we ultimately conclude that the trial court's error was harmless.

1. Trial courts possess discretion to limit the scope of closing argument; however, undue limitations may infringe upon defendants' Sixth Amendment and due process rights

¶ 12 It is well established that trial courts possess broad discretionary powers over the scope of counsel's closing arguments. Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Perez-Cervantes, 141 Wash.2d at 474-75, 6 P.3d 1160; City of Seattle v. Erickson, 55 Wash. 675, 677, 104 P. 1128 (1909). As explained by this court:

"The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. . . . He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion."

Perez-Cervantes, 141 Wash.2d at 474-75, 6 P.3d 1160 (quoting Herring, 422 U.S. at 862, 95 S.Ct. 2550). This court has emphasized that "the trial court should `in all cases . . . restrict the argument of counsel to the facts in evidence.'" Id. at 475, 6 P.3d 1160 (alteration in original) (quoting Sears v. Seattle C.S.R. Co., 6 Wash. 227, 233, 33 P. 389, 33 P. 1081 (1893)). "Counsel's statements also must be confined to the law as set forth in the instructions to the jury." Id.

¶ 13 However, despite their broad discretion, trial courts "cannot compel counsel to reason logically or draw only those inferences from the given facts which the court believes to be logical." City of Seattle v. Arensmeyer, 6 Wash.App. 116, 121, 491 P.2d 1305 (1971). Moreover, it is generally permissible for defendants to argue inconsistent defenses so long as they are supported by the evidence. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988); State v. Fernandez-Medina, 141 Wash.2d 448, 458-60, 6 P.3d 1150 (2000); State v. Conklin, 79 Wash.2d 805, 807, 489 P.2d 1130 (1971). Where a trial court goes too far in limiting the scope of closing argument, a defendant's constitutional rights may be implicated.

¶ 14 For instance, the United States Supreme Court has held that the Sixth Amendment right to counsel encompasses the delivery of a closing argument. Herring, 422 U.S. at 858, 95 S.Ct. 2550. The Court explained:

There can be no doubt that closing argument for the defense is the basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.

Id. This court has also held that the constitutional right to be represented by counsel includes the right of counsel to argue the case to the jury. See Erickson, 55 Wash. at 677, 104 P. 1128; State v. Mayo, 42 Wash. 540, 548-49, 85 P. 251 (1906). Likewise, this court has recognized the particular importance of closing argument to the effective exercise of this right. Perez-Cervantes, 141 Wash.2d at 474, 6 P.3d 1160. Thus, where a trial...