State v. Claflin

• Decision Date: 06 November 1984
• Docket Number: No. 6074-4-II,6074-4-II
• Citation: 690 P.2d 1186,38 Wn.App. 847
• Parties: The STATE of Washington, Respondent, v. Bert D. CLAFLIN, Appellant.
• Court: Washington Court of Appeals

Page 847

38 Wn.App. 847

690 P.2d 1186

The STATE of Washington, Respondent, v. Bert D. CLAFLIN, Appellant.

No. 6074-4-II.

Court of Appeals of Washington Division 2.

Nov. 6, 1984.

Steven W. Thayer, Vancouver, for appellant.

James M. Peters, Deputy Pros. Atty., Vancouver, for respondent.

REED, Judge.

Bert Claflin appeals his convictions on multiple counts of rape, assault, and indecent liberties ¹ and one count of tampering with a witness. We reverse and remand for a new trial on all counts.

During the summer of 1981, Clark County Deputy Sheriff Sharon Krause acquired information that Bert Claflin for many years had been sexually molesting minor girls and was in possession of nude photographs of one of the victims. Two complainants told Krause that approximately a month earlier each had been sexually abused in Claflin's car and "wiped off" with rags and paper towels. A warrant was obtained to search Claflin's house and "premises" for the photographs, but a search of his dwelling revealed only ordinary pictures of the girls. Deputy Krause then searched the defendant's car, which was parked on his property, and noticed that its floor was covered with rags. Recalling her conversation with the two victims, the deputy seized several towels and rags. Examination of these items disclosed pubic hair and traces of semen similar to specimens from Claflin, and vaginal secretions similar to samples from the two girls.

After his arrest for rape and indecent liberties, and based on information that Claflin offered another complainant money if she would change her story, a charge of tampering with a witness was added.

At trial the hair, rags, towels and ordinary photographs were introduced. To rebut Claflin's efforts to discredit the complaining witnesses and over his objection, the State introduced the testimony of the father of two of the youngest girls and of a social worker. During closing argument the prosecutor, again over objection, read a poem by an anonymous rape victim to show "most poignantly" how one of Claflin's victims "probably felt." Defendant's motion for a mistrial was denied and the defendant was convicted on all counts.

Claflin first claims that he was denied due process of law by particular instances of juror and prosecutorial misconduct. The facts supporting the alleged wrongdoing are not part of the record but instead appear in affidavits attached to defendant's briefs. Accordingly, they will not be considered on appeal. State v. Murphy, 35 Wash.App. 658, 662, 669 P.2d 891 (1983), review denied, 100 Wash.2d 1034 (1984); State v. Armstead, 13 Wash.App. 59, 65-66, 533 P.2d 147 (1975).

Claflin next argues that the State's closing argument appealed to the prejudice and passions of the jury and assumed facts not in evidence. We agree ². Although reference to the heinous nature of a crime and its effect on the victim can be proper argument, State v. Fleetwood, 75 Wash.2d 80, 84, 448 P.2d 502 (1968); State v. Buttry, 199 Wash. 228, 251, 90 P.2d 1026 (1939), the prosecutor's duty is to ensure a verdict free of prejudice and based on reason. State v. Huson, 73 Wash.2d 660, 662, 440 P.2d 192 (1968), cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969). Here, if the State's charges were true, defendant had engaged in a pattern of repulsive sexual and physical abuse of young girls over a long period of time. In such an emotionally charged trial, the use of a poem utilizing vivid and highly inflammatory imagery in describing rape's emotional effect on its victims was nothing but an appeal to the jury's passion and prejudice ³. See State v. Stacy, 355 S.W.2d 377, 380-81 (Mo.1962). In addition, the poem contained many prejudicial allusions to matters outside the actual evidence against Claflin. ⁴ State v. Rose, 62 Wash.2d 309, 382 P.2d 513 (1963); State v. Ranicke, 3 Wash.App. 892, 897, 479 P.2d 135 (1970); State v. Wilson, 188 Kan. 67, 360 P.2d 1092, 1096-97 (1961). In short, the reading of the poem was so prejudicial that no curative instruction would have sufficed to erase the prejudice it was bound to engender in the minds of the jurors.

With respect to the bounds of proper argument and the use of literary allusions, we can say it no better than it was said in State v. Stacy, 355 S.W.2d at 380-81, quoting in turn from Evans v. Town of Trenton, 112 Mo. 390, 20 S.W. 614, 616 (1892):

"... The largest and most liberal freedom of speech is allowed an attorney in the conduct of his client's cause. 'The range of discussion is wide. * * * In his address to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; * * * His illustrations may be as various as the resources of his genius; his argumentation as full and profound as learning can make it; and he may, if he will, give play to his wit, or wings to his imagination. To this freedom of speech, however, there are some limitations. * * * So, too, what a counsel says or does in the argument of a case must be pertinent to the matter on trial before the jury, and he takes the hazard of its not being so. Now, statements of facts not proved, and comments thereon, are outside of the case. They stand legally irrelevant to the matter in question, and are therefore not pertinent. If not pertinent, they are not within the privilege of counsel.' * * * Attorneys sometimes, with a persistency worthy of a better cause, press, during the trial, into the record, much that is objectionable; and, as soon as they get verdicts, they seem to awake to a realization of the fact that they have performed works of supererogation, and have done more to win their causes than was required of them, or more than was necessary, and, as an excuse for this excess of energy, insist that it had no prejudicial effect, and no harm resulted from it...."

We also agree with defendant that certain opinion evidence was improperly admitted. The defendant attempted to discredit the prosecuting witnesses by emphasizing their delay in reporting the abuse; the State sought to rebut this by a social worker's testimony that late reporting was not unusual among sexually abused children. The admission of an opinion with its statistical support that "delay in reporting is not unusual and that the length of delay correlates with the relationship between the abuser and child" is not an abuse of the trial court's discretion. State v. Petrich, 101 Wash.2d 566, 576, 683 P.2d 173 (1984). However, this witness went on to testify that it was her experience that 43 percent of child molestation cases were reported to have been committed by "father figures." An opinion that the defendant statistically is more likely to have committed the crime because of his membership in a group--in this case, his paternalistic relationship to the victims--is inadmissible. State v. Petrich, 101 Wash.2d at 576, 683 P.2d 173; State v. Maule, 35 Wash.App. 287, 293, 667 P.2d 96 (1983); State v. Steward, 34 Wash.App. 221, 223-24, 660 P.2d 278 (1983). Considering the defendant's characterization at trial as the victims' surrogate father, ⁵ the testimony was extremely prejudicial and should not have been admitted. ER 403.

Although our resolution of the two issues just discussed is dispositive, we will address certain other issues raised by defendant because they are likely to be raised again on retrial.

Claflin contends that the photographs of the girls, the rags, towels and hair were fruits of an unlawful search and should have been excluded because a search of his house, premises and curtilage was all that the warrant authorized, and then only for specific photographs. We do not consider the admissibility of the photographs because defendant's pro se brief does not explain how they were used or how he was prejudiced by their admission. RAP 10.3(a)(4); State v. Brush, 32 Wash.App. 445, 457, 648 P.2d 897 (1982), review denied, 98 Wash.2d 1017 (1983). The towels, rags and hair, however, clearly were admissible under the "plain view" doctrine which deems a seizure "reasonable" where there is a prior justification for the intrusion, inadvertent discovery of an item and immediate knowledge by the officer that it is evidence of a crime. State v. Chrisman, 100 Wash.2d 814, 819, 676 P.2d 419 (1984). Here, the car fell under the warrant's authorization by being parked on the "premises," State v. Huff, 33 Wash.App. 304, 309-10, 654 P.2d 1211 (1982); United States v. Freeman, 685 F.2d 942, 955 (5th Cir.) reh. denied, 689 F.2d 190 (1982); Deputy Krause was not searching for the rags at the time of discovery, State v. Adame, 37 Wash.App. 94, 100, 678 P.2d 1299 (1984); United States v. Anthill, 615 F.2d 648, 649 (5th Cir.), cert. denied, 449 U.S. 866, 101 S.Ct. 200, 66 L.Ed.2d 85 (1980); and her prior knowledge of certain intimate details of the assaults gave her probable cause to believe she was confronted with evidence. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502, 514, (1983); State v. Alger, 31 Wash.App. 244, 248, 640 P.2d 44, review denied, 97 Wash.2d 1018 (1982).

Claflin argues that the deputy could not "know" these items were evidence and that the "staleness" of the deputy's information precludes the existence of "probable cause." However, all that is required for "immediate knowledge" is a reasonable belief that evidence is present. State v. Lair, 95 Wash.2d 706, 716-17, 630 P.2d 427 (1981). Evidence need not be conclusive that a crime has been committed before it is subject to seizure under the plain view doctrine. State v. Nicholas, 34 Wash.App. 775, 663 P.2d 1356 (1983). Any tendency the evidence may have to limit the field of possible perpetrators makes it relevant, State v. Nicholas, supra, and a court's refusal to find it unfairly prejudicial will not be reversed absent an abuse of discretion. State v. Rupe, 101 Wash.2d 664, 683 P.2d 571 (1984). Deputy Krause's information was not "stale" merely because the indecent liberties had taken place over a...