State v. Fleming

• Decision Date: 26 August 1996
• Docket Number: 33662-2-I,Nos. 33647-9-
• Citation: State v. Fleming, 921 P.2d 1076, 83 Wn.App. 209 (Wash. App. 1996)
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Dwight FLEMING and Derek Lee, Appellants.

Page 209

83 Wn.App. 209

921 P.2d 1076

The STATE of Washington, Respondent, v.Dwight FLEMING and Derek Lee, Appellants.

Nos. 33647-9-I, 33662-2-I.

Court of Appeals of Washington Division 1.

Aug. 26, 1996.

Reconsideration Denied Nov. 6, 1996.

Jeanette Brinster, Todd S. De Groff, Seattle, for Appellant Fleming.

Nielsen & Acosta, Seattle, for Appellant Lee.

Francis D. Zavatsky, Seattle, for Respondent.

KENNEDY, Acting Chief Judge.

Dwight Fleming and Derek Lee appeal their convictions of second degree rape, contending that the prosecutor committed misconduct during closing arguments.¹Although none of the prosecutor's arguments was objected to contemporaneously, we reverse and remand for a new trial because the prosecutor committed misconduct rising to the level of manifest constitutional error which we cannot conclude was harmless beyond a reasonable doubt, in light of the evidence at trial.

FACTS

On the evening of April 23, 1993, D.S., then 17 years old, went dancing with her friends Pam Spokus and Kelly Backstrom at a club in Redmond.Before entering the club, D.S. consumed two to three shots of tequila and drank some beer.After dancing, D.S. and her friends went to Denny's where they met the defendants, Dwight Fleming and Derek Lee.The women invited the defendants and the defendants' friend Brian Tills to come to D.S.'s parents' mobile home with them.

At the trailer, all of the group except Pam Spokus and Brian Tills smoked marijuana and drank tequila, vodka, or beer.D.S. drank between six and eight shots of tequila, and Fleming and Lee each consumed tequila or beer.D.S., who admitted that she was attracted to Fleming, kissed and hugged Fleming, rubbed up against him, and allowed him to put his arms around her in the presence of the others.D.S. invited everyone to come to her bedroom to look at her compact disc collection; only Fleming and Lee followed her to her bedroom.

D.S. testified that once inside the bedroom, she sat on the bed and willingly kissed who she thought to be Fleming on the mouth.D.S. indicated that the kiss was deep and passionate.She stated that somebody kissed her chest, and that somehow she found herself lying on the floor with her legs on the bed while the defendants, who were sitting on the bed, took off her shoes against her will.D.S. testified that after undressing her, although she kicked and protested, the defendants both penetrated her vaginally and that one of the defendants penetrated her orally.D.S. could not remember who did what, nor the sequence of events.She testified that one of the two defendants held her down while the other one raped her, and that they covered her mouth with their hands when she attempted to scream.D.S. testified that because the intercourse was painful, she told the defendants to use Vaseline and told them where they could find it in the bathroom across the hall.

At one point, Pam Spokus entered the bedroom and saw Lee sitting on the bed, naked from the waist down.She did not see D.S., but believed that D.S. was having consensual sexual intercourse.²D.S. testified that she saw Spokus open the bedroom door but could not request help because her mouth was covered.Spokus stated that she heard noises and something that sounded like a "pain scream" coming from the bedroom, but that she believed the noises to be from consensual sex.Spokus testified that at no time did she or the others believe that D.S. needed help.

Shortly after leaving the bedroom, D.S. informed Kelly Backstrom that she had been raped.D.S. was taken to the hospital.An examination revealed that she had engaged in traumatic sexual intercourse, consistent with either forced intercourse or consensual but poorly lubricated intercourse.D.S.'s blood alcohol content was found to be .166, according to a blood sample drawn at 7:45 a.m. Doctors estimated that D.S.'s blood alcohol content at the time of the intercourse would have been between .25 and .31.

Fleming and Lee initially were each charged with third degree rape in violation of RCW 9A.44.060(1)(a).On the first day of trial, the State was permitted to amend the information to add the alternative charge of second degree rape in violation of RCW 9A.44.050(1)(a).Neither defendant testified at trial.The jury found both defendants guilty of second degree rape.A defense motion for a new trial on the ground of prosecutorial misconduct was thereafter denied.

Both defendants were sentenced within the standard range.Both defendants appeal.

DISCUSSION

Appellants first challenge the following statement, made at the beginning of the prosecutor's closing argument:

Ladies and gentlemen of the jury, for you to find the defendants, Derek Lee and Dwight Fleming, not guilty of the crime of rape in the second degree, with which each of them have been charged, based on the unequivocal testimony of [D.S.] as to what occurred to her back in her bedroom that night, you would have to find either that [D.S.] has lied about what occurred in that bedroom or that she was confused; essentially that she fantasized what occurred back in that bedroom.

Verbatim Report of Proceedingsat 668(emphasis ours).

This court has repeatedly held that it is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury must find that the State's witnesses are either lying or mistaken.State v. Casteneda-Perez, 61 Wash.App. 354, 362-63, 810 P.2d 74("it is misleading and unfair to make it appear that an acquittal requires the conclusion that the police officers are lying"), review denied, 118 Wash.2d 1007, 822 P.2d 287(1991);State v. Wright, 76 Wash.App. 811, 826, 888 P.2d 1214, review denied127 Wash.2d 1010, 902 P.2d 163(1995);State v. Barrow, 60 Wash.App. 869, 874-75, 809 P.2d 209, review denied118 Wash.2d 1007, 822 P.2d 288(1991).The prosecutor's argument misstated the law and misrepresented both the role of the jury and the burden of proof.The jury would not have had to find that D.S. was mistaken or lying in order to acquit; instead, it was required to acquit unless it had an abiding conviction in the truth of her testimony.Thus, if the jury were unsure whether D.S. was telling the truth, or unsure of her ability to accurately recall and recount what happened in light of her level of intoxication on the night in question, it was required to acquit.In neither of these instances would the jury also have to find that D.S. was lying or mistaken, in order to acquit.

We note that this improper argument was made over two years after the opinion in Casteneda-Perez, supra.We therefore deem it to be a flagrant and ill-intentioned violation of the rules governing a prosecutor's conduct at trial.We summarily reject the contention by the State raised during oral argument for this appeal that the comments were not misconduct, in that the defendants did not testify at trial.As illustrated by the prosecutor's next point raised during closing argument, the "lying or mistaken" argument can be even more egregious when the defendant does not testify than when he or she does.Misstating the bases upon which a jury can acquit may insidiously lead, as it did here, to burden-shifting and to an invasion of the right to remain silent.First, the prosecutor erred by telling the jury that it could only acquit if it found that the complaining witness lied or was confused.Next, the prosecutor argued that there was no reasonable doubt because there was no evidence that the witness was lying or confused, and if there had been any such evidence, the defendants would have presented it:

[T]here is absolutely no evidence ... that [D.S.] has fabricated any of this or that in any way she's confused about the fundamental acts that occurred upon her back in that bedroom.And because there is no evidence to reasonably support either of those theories, the defendants are guilty as charged of rape in the second degree.

Verbatim Report of Proceedingsat 668-669(emphasis ours).These statements improperly shifted the burden to the defendants to disprove the State's case.The comments also infringed upon the defendants' election to remain silent, when viewed in conjunction with the...