In re Glasmann

• Decision Date: 18 October 2012
• Docket Number: No. 84475–5.,84475–5.
• Citation: 175 Wash.2d 696,286 P.3d 673
• Parties: In the Matter of the Personal Restraint of Edward Michael GLASMANN, Petitioner.
• Court: Washington Supreme Court

175 Wash.2d 696

286 P.3d 673

In the Matter of the Personal Restraint of Edward Michael GLASMANN, Petitioner.

No. 84475–5.

Supreme Court of Washington,

En Banc.

Oct. 18, 2012.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Petitioner.

Thomas Charles Roberts, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

MADSEN, C.J.

[175 Wash.2d 699]¶ 1 Edward M. Glasmann was convicted of second degree assault, attempted second degree robbery, first degree kidnapping, and obstruction arising from incidents that occurred while he was intoxicated. During closing argument, the prosecuting attorney made an electronic presentation to the jury that graphically displayed his personal opinion that Glasmann was “guilty, guilty, guilty” of the crimes charged by the State. The prosecutor's misconduct was flagrant, ill intentioned, and we cannot conclude with any confidence that it did not to have an effect on the outcome of the trial. We reverse the defendant's convictions and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2 In celebration of his October 2004 birthday, Edward Glasmann and his fiancée, Angel Benson, rented a motel room in Lakewood, Washington. Over the course of the evening, the two ingested methamphetamine, ecstasy, and alcohol. Glasmann and Benson had been arguing throughout that day and evening and around midnight, their argument escalated. Glasmann started punching and kicking Benson. He told Benson he wanted to go for a ride and then dragged her out of the motel room. Outside the motel room, another motel guest witnessed Glasmann punch and kick Benson before dragging her to the passenger side of his Corvette. This witness called 911 and provided an account of the events.

¶ 3 From the driver's seat, Glasmann reached over to open the passenger door and attempted to pull Benson into the car by her hair. Benson testified that she was partially in the car and stumbled when Glasmann ran the car up her leg, backed off of her leg, pulled her into the car, and drove out of the parking lot. Benson was then able to get the car into park. She next grabbed the car keys and ran into a minimart adjacent to the motel.

¶ 4 Inside the minimart, she hid on the floor behind the cashier's counter. Police soon arrived and attempted without success to apprehend Glasmann. Shouting at the officers to shoot him and claiming to possess a firearm, Glasmann ran into the convenience store. He ran behind the counter, held Benson in a choke hold, and threatened to kill her. As officers approached, Glasmann held Benson between himself and the officers. Benson was able to wiggle free enough to allow an officer to use a stun gun on Glasmann.

¶ 5 The officers subdued and arrested Glasmann. In the process, Glasmann was held down by one officer while another officer stomped on his head approximately five times. Glasmann continued to struggle as he was dragged out of the minimart. His booking photograph shows extensive facial bruising. The incident inside the minimart was recorded on the store's security camera.

¶ 6 The State charged Glasmann with first degree assault, attempted first degree robbery, first degree kidnapping, and obstruction. Exhibits admitted into evidence included the minimart security video, photographs of Benson's injuries, the 911 recording, recordings of telephone calls between Glasmann and Benson, and Glasmann's booking photo. The defense offered Glasmann's booking photo to display Glasmann's facial injuries sustained during arrest.

¶ 7 At trial, Glasmann did not deny culpability. Rather, he disputed the degree of the crimes charged. He argued the jury should convict only on lesser included offenses. The prosecution sought to establish that Glasmann acted with intent, a necessary element of all the crimes charged.

[175 Wash.2d 701]¶ 8 In closing argument, the State used an extensive PowerPoint ¹ presentation that included numerous slides incorporating the security camera video, audio recordings, photographs of Benson's injuries, and Glasmann's booking photograph. Each of the slides containing a video shot or photograph included a caption consisting of testimony, recorded statements, or the prosecutor's commentary.²

¶ 9 One slide showed Glasmann crouched behind the minimart counter with a choke hold on Benson and a caption reading, “YOU JUST BROKE OUR LOVE.” State's Resp. to Pers. Restraint Pet. (PRP), App. G at 1. Another slide featuring a photograph of Benson's back injuries appeared with the captions, “What was happening right before defendant drove over Angel ...,” and “... you were beating the crap out of me!” Id. at 2. This slide also featured accompanying audio.

¶ 10 In addition, the prosecutor argued that jurors should not believe Glasmann's testimony. He told the jurors that the law required them to “[c]ompare Angel Benson's testimony and the testimony of the remainder of the State's witnesses to the defendant's.” 8 Verbatim Report of Proceedings (VRP) at 458. The prosecutor then told jurors that in order to reach a verdict they must determine: “Did the defendant tell the truth when he testified?” Id.

¶ 11 At least five slides featured Glasmann's booking photograph and a caption. In one slide, the booking photo appeared above the caption, “DO YOU BELIEVE HIM?” State's Resp. to PRP, App. G at 5. In another booking photo slide the caption read, “WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?” Id. Near the end of the presentation, the booking photo appeared three more times: first with the word “GUILTY” superimposed diagonally in red letters across Glasmann's battered face. PRP, App. H at 8. In the second slide the word “GUILTY” was superimposed in red letters again in the opposite direction, forming an “X” shape across Glasmann's face. Id. at 9. In the third slide, the word “GUILTY,” again in red letters, was superimposed horizontally over the previously superimposed words. Id. at 10. As best as we can determine, the prosecutor stated the following while the “GUILTY” slides were being displayed:

You've been provided with a number of lesser crimes if you believe the defendant is not guilty of the crimes for which the State has charged him, but the evidence in this case proves overwhelmingly that he is guilty as charged, and that's what the State asks you to return in this case: Guilty of assault in the first degree; guilty of attempted robbery in the first degree; guilty of kidnapping in the first degree; and guilty of obstructing a police officer. Hold him accountable for what he did on October 23rd, 2004, by finding him guilty as charged. Thank you.

8 VRP at 465–66. Defense counsel did not object to these slides.

¶ 12 In closing argument, defense counsel emphasized the governing standard, proof beyond a reasonable doubt. He asked the jurors to focus on the actual charges, not Glasmann's drug use, reckless driving, or “hitting Angel Benson in the motel room.” Id. at 470. Counsel reviewed the elements of each charge and argued that Glasmann's conduct did not meet the definition of the charged crimes:

The issue for you to decide is[,] is there proof beyond a reasonable doubt that Mike Glasmann committed any crimes that night, and the answer to that is yes, but this case is overcharged.

What do I mean by that? I mean that the charges that the State has leveled against Mr. Glasmann are not reflective of what, in reality, happened that night or reflective of what has been proven beyond a reasonable doubt happened that night. He's charged with Assault 1 when only assault in the third degree or assault in the fourth degree reasonably fit these facts, arguably, beyond a reasonable doubt. He's charged with attempted robbery in the first degree when only attempted robbery in the second degree fits these facts beyond a reasonable doubt. He's charged with kidnapping in the first degree when only unlawful imprisonment fits these facts beyond a reasonable doubt. Obstructing a law enforcement officer is, I said, a proper charge.

Id. at 494.

¶ 13 The jury convicted Glasmann of first degree kidnapping and obstruction, and the lesser included offenses of second degree assault and attempted second degree robbery. Glasmann appealed. He was sentenced to 210 months in prison. The Court of Appeals affirmed in an unpublished decision. State v. Glasmann, noted at 142 Wash.App. 1041, 2008 WL 186783. Thereafter, Glasmann filed a personal restraint petition and we granted review limited to whether the prosecutor's closing argument deprived Glasmann of a fair trial and whether assistance of Glasmann's trial counsel was ineffective.³In re Pers. Restraint of Glasmann, 170 Wash.2d 1009, 245 P.3d 226 (2010).

ANALYSIS

¶ 14 The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution. Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); State v. Finch, 137 Wash.2d 792, 843, 975 P.2d 967 (1999). Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair trial. State v. Davenport, 100 Wash.2d 757, 762, 675 P.2d 1213 (1984). “A ‘ “[f]air trial” certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office ... and the expression of his own belief of guilt into the scales against the accused.’ ” State v. Monday, 171 Wash.2d 667, 677, 257 P.3d 551 (2011) (alteration in original) (quoting State v. Case, 49 Wash.2d 66, 71, 298 P.2d 500 (1956); see State v. Reed, 102 Wash.2d 140, 145–47, 684 P.2d 699 (1984)).

¶ 15 Although a prosecutor has wide latitude to argue reasonable inferences from the evidence, State v. Thorgerson, 172 Wash.2d 438, 448, 258 P.3d 43 (2011), a prosecutor must “seek convictions based only on probative evidence and sound reason,” State v. Casteneda–Perez, 61 Wash.App. 354, 363, 810 P.2d 74 (1991); State v. Huson, 73 Wash.2d 660,...