State v. Case

• Decision Date: 07 June 1956
• Docket Number: No. 33316,33316
• Citation: 49 Wn.2d 66,298 P.2d 500
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Earl C. CASE, Appellant.

Page 66

49 Wn.2d 66

298 P.2d 500

The STATE of Washington, Respondent, v.Earl C. CASE, Appellant.

No. 33316.

Supreme Court of Washington, En Banc.

June 7, 1956.

Warner, Pierce & Peden, Seattle, for Virginia S. Mueller, Seattle, for respondent.

Charles O. Carroll, Laurence D. Regal, Virginia S. Mueller, Seattle, for respondent.

HILL, Justice.

This appeal is based primarily upon misconduct of a deputy prosecuting attorney in the trial of the case.

There is a canon of ethics, No. 15, which states, in part:

'It is improper for a lawyer to assert in argument his personal belief in his client's innocence or in the justice of his cause.'34A Wash.2d 131.

It should be implicit that it is just as reprehensible for one appearing as a public prosecutor to assert in argument his personal belief in the accused's guilt.

The appeal is from a conviction of carnal knowledge.The prosecuting witness, the daughter of the defendant, was eighteen years of age at the time of trial.

In his closing argument the deputy prosecuting attorney made the following statement, not as a summation of the evidence but immediately following a plea (which takes up almost a page of the statement of facts) to the women jurors to overcome any embarrassment and to be frank in their discussion in the jury room:

'I doubt in my mind that anyone at this point has any question in their mind about the guilt or innocence of this man.I doubt that you haven't already made up your mind.Now, you must have, as human beings.But if you haven't, don't hold it against me, I mean, that is my opinion about what this evidence shows and how clearly this evidence indicates that this girl has been violated.This girl has been sexually attacked by a person; by a man by her father.It is called statutory rape.Carnal knowledge is just a nice name for statutory rape.This girl has been raped by her own father.It is not a nice thing.'(Italics ours.)

If presented as a summation of the evidence, such language, prefaced with at least an implied 'The evidence establishes that,' would be excused if not approved.State v. Brown, 1949, 35 Wash.2d 379, 213 P.2d 305, and cases therein cited.But that is not the situation here.We cannot interpret the quoted statement, taken in context, as anything other than an attempt to impress upon the jury the deputy prosecuting attorney's personal belief in the defendant's guilt.As such, it was not only unethical but extremely prejudicial.

Defense counsel made no objection to this statement.

In an earlier phase of the argument the deputy prosecuting attorney had explained that the prosecuting witness was staying with a couple who were members of Jehovah's Witnesses, and stated that she was there

'* * * because I requested it.It is my doing.So if you are going to condemn anybody, condemn me.I didn't do it because I am a Jehovah's Witness.I didn't do it because I want this girl to follow their religion.I did it because in my good judgment these people were going to protect Joyce against this man'(italics ours);

and defense counsel had interrupted: 'I object, your honor, to counsel interjecting his own personal opinions into this argument.It is not in the record.'However, that objection was, in effect overruled, the trial court's only comment being: 'Proceed.'

The deputy prosecuting attorney adroitly capitalized upon the trial court's error in failing to sustain the objection by saying:

'Thank you, your honor.It is a common experience in trial work to have some attorney jump up and object in the middle of the argument.It kind of throws you off but I am kind of used to it.I've got calluses.I've had them do it before.'

Out of his own experience, the duputy prosecuting attorney advised the jury that 'it is not uncommon in cases of this kind for a complaint to be greatly belated in father-daughter relationships.'He then delivered the following dissertation on sex deviation, which has no support in the record and is entirely extraneous:

'Is it uncommon for a person charged with a sex crime to be a pillar of society?You can't characterise or pigeonhole this sort of crime in any segment of society.You can have the top man, the top man of the nation even.It hasn't happened, I am sure, but it could be.We have had men in the State Department that have been accused of things of that nature.In my own experience it has occurred in the Seattle School District, principals of schools have been accused, charged and convicted of sex deviations.It knows no difference.It is like a disease.It is like polio, it hits all over, it doesn't pay any attention to who the person is, whether you had measles as a child, whether you had rickets or something.It is something in the brain and mind and goes all over the area.'Defense counsel interposed:

'I object, your honor, to counsel making a speech about matters which are not before this court.He is going into the question of psychiatric----.'

The trial court admonished: 'You will discuss the testimony and evidence.'The deputy prosecuting attorney rejoined:

'I was arguing the testimony and evidence and if I am going to be curtailed to just the testimony precisely, without any right to argue, I will limit it to that';

but he did not do so.Within a minute or two he was discussing the war record of Jehovah's Witnesses as litter-bearers.

A further recital of instances in which the deputy prosecuting attorney went outside of the record in his closing argument, and expressed his own opinions, sometimes unlabeled and at least once labeled as his 'honest opinion,' would serve no good purpose.During the course of the trial, he had referred to the defendant's character witnesses, who had not yet taken the stand, as 'his entire herd.'An objection, an instruction to disregard, and an apology probably could not erase from the minds of the jurors the brand thus forcefully applied, particularly when the deputy prosecuting attorney nullified his apology by the comment, 'Crowd, I mean to say.'Such an incident, if not in itself warranting a new trial, would certainly increase the adverse effect of the misconduct in the closing argument.

We have always insisted that the guarantee of a speedy and public trial by an impartial jury, Constitution, Art. I, § 22, both before and after its change by the Tenth Amendment, means a fair trial.As Judge Mitchell put it in State v. Devlin, 1927, 145 Wash. 44, 52, 258 P. 826, 829:

'In the maintenance of government to the extent it is committed to the courts and lawyers in the administration of the criminal law it is just as essential that one accused of crime shall have a fair trial as it is that he be tried at all * * *.'

The responsibility of the prosecutor in the matter of a fair trial is referred to in People v. Fielding, 1899, 158 N.Y. 542, 547, 53 N.E. 497, 498, 46 L.R.A. 641, in these words:

'Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the people of the state, and presumed to act impartially in the interest only of justice.If he lays aside the impartiality that should characterize his official action, to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy, or resentment.'

And in the dissent in that case, it is said:

'The district attorney is a high public officer, representing the state, which seeks equal and impartial justice, and it is as much his duty to see that no innocent man suffers as it is to see that no guilty man escapes.In the discharge of these most important duties, he commands the respect of the people of the county, and usually exercises a great influence upon jurors.In discussing the evidence he is * * * given the widest latitude, within the four corners of the evidence, by way of comment, denunciation or appeal, but he has no right to call to the attention of the jury matters or considerations which the jurors have no right to consider.'

The case of State v. Carr, 1930, 160 Wash. 83, 294 P. 1016, contains an excellent discussion of what constitutes a fair trial.It will not be repeated here inasmuch as it has very recently been quoted at some length in State v. Reeder, 1955, 46 Wash.2d 888, 892, 285 P.2d 884.

'Fair trial' certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office, information from its records, and the expression of his own belief of guilt into the scales against the accused.SeeState v. Susan, 1929, 152 Wash. 365, 278 P. 149.

While the state's opening argument to the jury in the present case was not above criticism, the closing argument destroyed any semblance of a fair trial.

The state quite properly remainds us that we are an appellate court and cannot remand a case for a new trial merely because we are convinced, from the record, that the defendant did not have a fair trial.It is urged that the defendant did not make the proper objections at the proper times, nor did he follow through with the proper motions to strike from the record and to instruct the jury to disregard what had been said or done; and that, consequently, he has waived the right to urge the improper and prejudicial argument as error in this court.

We recognize that, as Judge Steinert said in State v. Perry, 1946, 24 Wash.2d 764, 769, 167 P.2d 173, 175:

'One may not elect voluntarily to submit his case to a jury satisfactory to him, and then, after an adverse verdict, for the first time on appeal claim error which, if it did exist, could have been cured or otherwise redressed by some action on the part of the trial court.'

We have repeatedly stated that misconduct in the form of improper argument cannot be urged...