195 P.3d 940 (Wash. 2008), 79356-5, State v. Warren

Docket Nº:79356-5.
Citation:195 P.3d 940, 165 Wn.2d 17
Opinion Judge:CHAMBERS, J.
Party Name:STATE of Washington, Respondent, v. Richard Headen WARREN, Petitioner.
Attorney:Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent. Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Petitioner. Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.
Judge Panel:I CONCUR: CHARLES W. JOHNSON, Justice.
Case Date:November 20, 2008
Court:Supreme Court of Washington

Page 940

195 P.3d 940 (Wash. 2008)

165 Wn.2d 17

STATE of Washington, Respondent,


Richard Headen WARREN, Petitioner.

No. 79356-5.

Supreme Court of Washington, En Banc.

November 20, 2008

         Argued Nov. 6, 2007.

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[Copyrighted Material Omitted]

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          Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Petitioner.

          Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

          CHAMBERS, J.

         [165 Wn.2d 23] ¶ 1 Richard Warren was convicted of one count of first degree child molestation of his eight-year-old stepdaughter, S.S., and, in a separate trial, three counts of second degree child rape of his fourteen-year-old stepdaughter, N.S. In the first trial, Warren was convicted only of offenses relating to S.S., and in the second trial, he was convicted only of offenses relating to N.S.1 The Court of Appeals affirmed his convictions in a consolidated appeal. We accepted review primarily to consider two issues: whether the prosecutor committed misconduct during closing arguments and whether the State may lawfully prohibit contact between Warren and his wife. We affirm.

         ¶ 2 The facts surrounding Warren's offenses are ably described by the Court of Appeals.2 We find it largely unnecessary to review the facts again.

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         ¶ 3 Warren argues that the prosecutor committed misconduct by repeatedly misstating the burden of proof during closing argument in the first trial. The trial judge [165 Wn.2d 24] overruled Warren's first objection, but after the third time the prosecutor used substantially the same language and Warren made substantially the same objection, the trial judge gave a lengthy curative instruction. During this curative instruction, the trial judge also stated that essentially counsel were " playing with words." Report of Proceedings (RP) (Feb. 20, 2003) at 105. Warren argues that the judge's comment undercuts the seriousness of the misconduct and the effectiveness of the curative instruction. The State properly concedes the prosecutor's language was improper but contends that any error was cured by the trial judge's thorough curative instruction and, in the alternative, that the error was harmless.

          ¶ 4 The prosecutor's argument was clearly improper and we set forth the pertinent portion of the verbatim report of proceedings for clarity and future guidance. During her rebuttal closing, this exchange occurred:

MS. SNOW [prosecutor]: We also are not clear about the size of the defendant's penis. We have no idea. And for them to ask you to infer everything to the benefit of the defendant is not reasonable.

MR. CARNEY [defense counsel]: Objection, your Honor. Misstates the burden of proof and presumption of innocence.

THE COURT: Counsel, the objection is overruled. Do you want to talk about it? Come here.

(At this time an off-the-record discussion was held.)

THE COURT: Let's move on, Counsel.

MS. SNOW: Reasonable doubt does not mean give the defendant the benefit of the doubt, and that is clear when you read the definition.

Defense counsel calls [S.S.]'s description of what happened a rambling eight-year-old's description. And the bottom line for you is, it has been uncontroverted.

         RP (Feb. 20, 2003) at 98-99. The prosecutor continued with an appropriate argument that the jury should not confuse a child's memory with credibility and discussed child testimony concerning penis pumps, pornographic video [165 Wn.2d 25] covers, bathing, and sexual touching. Then the following transpired:

MS. SNOW: Finally, in this case I want to point out that this entire trial has been a search for the truth. And it is not a search for doubt. I talked to you about the fact that you must find the defendant guilty beyond a reasonable doubt. That is the standard to be applied in the defendant's case, the same as any other case. But reasonable doubt does not mean beyond all doubt and it doesn't mean, as the defense wants you to believe, that you give the defendant the benefit of the doubt.

MR. CARNEY: Again, your Honor-

THE COURT: Counsel, just a second. There has been an objection to the statements made by the State as to the definition of reasonable doubt. The definition of reasonable doubt is provided in your jury instructions. I don't have the number in front of me, but I think it is the third instruction. I want you to read that instruction very carefully, particularly the last paragraph of the instruction. The second sentence of that reads, " it is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence."

Now, my statement on that is, after you have done that, after you have reviewed all of the evidence or lack of evidence, and you continue to have a reasonable doubt then you must find the defendant not guilty. And if in still having a reasonable doubt that is a benefit to the defendant, then in a sense you are giving the benefit of the doubt to the defendant.

So I don't want you to misconstrue the language that somehow there is no benefit here. Indeed there is, because the benefit of the doubt is if you still have a doubt after having heard all of the evidence and lack of evidence, if you still have a doubt, then the benefit of that doubt goes to the defendant, and the defendant is not guilty.

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So we are playing with words here in a sense. The instruction is here in the package. I commend it to you for your reading.

Ultimately you will determine whether, at the conclusion of your deliberations, you have a reasonable doubt or not. You may complete your argument, Counsel.

         RP (Feb. 20, 2003) at 104-05.

         [165 Wn.2d 26] ¶ 5 The prosecutor concluded her closing argument briefly without suggesting, again, that the defendant did not enjoy the benefit of any reasonable doubt. Warren did not seek any additional instructions or a mistrial.

          ¶ 6 To prevail on a claim of prosecutorial misconduct, a defendant must show first that the prosecutor's comments were improper and second that the comments were prejudicial. See, e.g., State v. Yates, 161 Wash.2d 714, 774, 168 P.3d 359, cert. denied, __ U.S. __, 128 S.Ct. 2964, 171 L.Ed.2d 893 (2008); State v. Russell, 125 Wash.2d 24, 85, 882 P.2d 747 (1994).3 In this case, the prosecutor's argument was improper because it undermined the presumption of innocence. As we have said recently:

The presumption of innocence is the bedrock upon which the criminal justice system stands.... The presumption of innocence can be diluted and even washed away if reasonable doubt is defined so as to be illusive or too difficult to achieve. This court, as guardians of all constitutional protections, is vigilant to protect the presumption of innocence.

State v. Bennett, 161 Wash.2d 303, 315-16, 165 P.3d 1241 (2007). Due process requires that the State bear the burden of proving every element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Cantu, 156 Wash.2d 819, 825, 132 P.3d 725 (2006). A defendant is entitled to the benefit of a reasonable doubt. Whether a doubt exists and, if so, whether that doubt is reasonable may be subject to debate in a particular case. However, it is an unassailable principle [165 Wn.2d 27] that the burden is on the State to prove every element and that the defendant is entitled to the benefit of any reasonable doubt. It is error for the State to suggest otherwise.

          ¶ 7 But this prosecutor did more than merely suggest otherwise. She sought to undermine the State's burden of proof beyond a reasonable doubt. Telling the jury, " it doesn't mean, as the defense wants you to believe, that you give the defendant the benefit of the doubt," was simply improper. RP (Feb. 20, 2003) at 104. As a quasi-judicial officer representing the people of the State, a prosecutor has a duty to act impartially in the interest only of justice. See State v. Reed, 102 Wash.2d 140, 147, 684 P.2d 699 (1984). The jury knows that the prosecutor is an officer of the State. It is, therefore, particularly grievous that this officer would so mislead the jury regarding the bedrock principle of the presumption of innocence, the foundation of our criminal justice system.4

          ¶ 8 Here, the prosecutor made the same or similar incorrect statement three times and Warren made prompt objections. The prosecutor's conduct was certainly flagrant. This

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court's pronouncement of many years ago bears repeating in this instance:

" It is not our purpose to condemn the zeal manifested by the prosecuting attorney in this case. We know that such officers meet with many surprises and disappointments in the discharge of their official duties. They have to deal with all that is selfish and malicious, knavish and criminal, coarse and brutal in human life. But the safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope [165 Wn.2d 28] for. Their devotion to duty is not measured, like the prowess of the savage, by the number of their victims."

State v. Charlton, 90 Wash.2d 657, 665, 585 P.2d 142 (1978) (quoting State v. Montgomery, 56 Wash. 443, 447-48, 105 P. 1035 (1909)).

          ¶ 9 In analyzing prejudice, we do not look at the comments in isolation, but in the context of the total argument, the issues in the case, the evidence, and the instructions given to the jury. Yates, 161 Wash.2d at 774, 168 P.3d 359. Had the trial judge not intervened to give an appropriate and effective curative instruction, we would not hesitate...

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