State v. Huson

• Decision Date: 25 April 1968
• Docket Number: No. 39707,39707
• Citation: 73 Wn.2d 660,440 P.2d 192
• Parties: The STATE of Washington, Respondent, v. Robert Edward HUSON, Appellant.
• Court: Washington Supreme Court

Page 660

73 Wn.2d 660

440 P.2d 192

The STATE of Washington, Respondent, v. Robert Edward HUSON, Appellant.

No. 39707.

Supreme Court of Washington, Department 1.

April 25, 1968.

Rehearing Denied June 12, 1968.

Egger, Richey & Eikenberry, Jack A. Richey, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Herbert L. Onstad, Deputy Pros. Atty., Seattle, for respondent.

McGOVERN, Judge.

Thirteen-year-old Bonnie Zessin testified that she saw Robert E. Huson put his arm around her mother, take a black object from his pocket, hold it up close to her mother and fire two shots. Mrs. Tapio, Bonnie's mother, slid down along the washing machine and came to rest against the wall. She was dead.

Robert E. Huson was charged by information with the crime of murder in the first degree as follows:

He, the said ROBERT EDWARD HUSON, in the County of King, State of Washington, on or about the 28th day of January, 1967, with a premeditated design to effect the death of one Lorraine E. Tapio, a human being, willfully, unlawfully and feloniously then and there did shoot at, toward and into the body of the said Lorraine E. Tapio, with a certain deadly weapon, pursuant to RCW 9.95.015, to-wit: a pistol, then and there held by the said ROBERT EDWARD HUSON, thereby mortally wounding the said Lorraine E. Tapio, from which mortal wounds the said Lorraine E. Tapio then and there died;

To this charge the defendant entered a plea of not guilty, and not guilty by reason of mental irresponsibility.

A verdict of guilty was returned, but a special finding for the death penalty was not. The defendant was then sentenced to life imprisonment. Post-trial motions were heard, denied, and this appeal taken.

The first assignment of error relates to an alleged plethora of inflammatory and prejudicial statements by the prosecutor. The following excerpts are taken from his closing argument In California it is almost impossible to get a jury that doesn't have sex perverts on it. That is why California has lots of trouble.

* * * (I)f this jury lets down their bars and says a jealous husband, a jealous suitor, can go out and commit cold-blooded murder, you, as members of this City of Seattle are going to be responsible for many, many killings of innocent people.

* * * (A)nd our juries have been entirely too soft. They are made of jelly. * * *

* * * (A)nd he (the defendant) is trying to bamboozle you the same as he has done Judges for the past twenty-five years.

* * * (A)nd this man has been a criminal for twenty-five years. And he has got away with it. * * *

* * * (A)nd this hoodlum here run(s) out upstairs and out through the front door and disappear(s) in the darkness of the night.

I say to you, ladies and gentlemen of the jury, that there is only one thing to do with a man that does what he did in this case, is send him to fantasy land.

And I want you to remember that when you get into the jury room, that any man who takes blood, by man shall his blood take.

As though the foregoing were not enough, this prosecutor then personalized to the jury as follows:

I believe in the laws of the State of Washington. I believe in the Constitution of the State of Washington, have sworn to uphold it. I believe in the Constitution of the United States. I am a church member. I have a family in this community, lost a son in the war in Saigon, or son-in-law in the war in Saigon.

And, without a shred of supporting evidence, when referring to the fact that the defendant had registered in a hotel two nights before the murder under the name of the victim's estranged husband, he said Now, I will give you my version of it. He, at that time, had decided that he was going to get rid of her. And he went to the Seneca Hotel and he registered under the name of Richard Tapio, which is her estranged husband, and that he was going to get her up in that room, and poison her, strangle her, stab her, or whateveryou (sic) have, any way of getting rid of her, and leaving her body there until somebody found her and when the police came in, who is the first man they would have gone out and arrested but Mr. Tapio, her estranged husband? Because why should anybody else want to kill her except her estranged husband? He is the only one who had any interest in her. This man didn't. He was just a boy friend.

Now, isn't that logical, that he started to get ready to dispose of her on the 26th day of January, 1926, (sic) when he registered there under the name of Richard Tapio?

That the foregoing statements of the prosecutor constituted reprehensible conduct is without dissent. We have stated on prior occasions, and we reassert, that a public prosecutor is a quasi-judicial officer. He represents the state, and in the interest of justice must act impartially. His trial behavior must be worthy of the office, for his misconduct may deprive the defendant of a fair trial. Only a fair trial is a constitutional trial. State v. Case, 49 Wash.2d 66, 298 P.2d 500 (1956).

We do not condemn vigor, only its misuse. When the prosecutor is satisfied on the question of guilt, he should use every legitimate honorable weapon in his arsenal to convict. No prejudicial instrument, however, will be permitted. His zealousness should be directed to the introduction of competent evidence. He must seek a verdict free of prejudice and based on reason.

Though reprehensible, an improper jury argument is not of necessity prejudicial. Nor does it necessarily require a new trial. The adverse party may have legitimately waived his objections. City of Seattle v. Harclaon, 56 Wash.2d 596, 354 P.2d 928 (1960).

Testing the referenced statements in the light of the record in this case, we find: (1) that defendant's trial counsel is a highly competent, experienced criminal trial attorney (2) that at no stage of the proceedings did he make objection to the remarks attributed to the prosecutor; (3) that the opportunity for objection was constantly available; (4) that no curative instruction was requested.

In concluding, as we do, that defendant knowingly waived objection to the remarks, we are mindful of his counsel's closing argument:

Your Honor, ladies and gentlemen of the jury. You have just heard an argument whose primary purpose was to inflame you. It was a tirade, and I ask you to accept it for what it was. Mr. Onstad has put on a performance, one that is backed by thirty-five to forty years of experience. Now he says that he has no personal interest in this case. He says that he is paid by the State, and he presents it to you as fairly as possible, and it is up to you to decide.

Now, I will let you decide, after having heard that, just how fair he is; just how fairly he has presented this to you in argument. It was a tirade of the worst sort.

We are satisfied that strategy had stilled the voice of objection. And it may be that such strategy worked. Here the jury could have returned the death verdict, but did not. Defense counsel's method of handling the prosecutor's argument may well have been the reason.

We stand for the rule that learned trial counsel cannot willfully remain silent in the face of inflammatory, personalized remarks, attack the adverse counsel as unfair because of them, and then, upon contrary verdict, allege unfair trial on account of those remarks. If these were errors of judgment, even then they would not establish the violation of a constitutional right. State v. Mode, 57 Wash.2d 829, 360 P.2d 159 (1961).

We do not, by this holding, intend to undermine our decisions as laid down in State v. Case, supra, State v. Reeder, 46 Wash.2d 888, 285 P.2d 884 (1955), and the included cases. In those instances the misconduct was so flagrant that no instruction given by the trial court could have cured it. That is not the case here. See also State v. Miller, 66 Wash.2d 535, 403 P.2d 884 (1965).

Defendant's next assignment of error also relates to a portion of the prosecutor's closing argument, which was:

This man was up before the Superior Court and was given twenty years suspended sentence in July of 1966. Irrespective of the fact that he had been convicted of two felonies prior thereto, had been sent to Monroe, been sent to Walla Walla, had done eight months in the brig in the Navy, and had done also thirty days or fifteen days--whatever this record shows--in the brig at that time. He had been sent to jail I don't know how many innumerable times for drunk and assault and other minor things of which he did not even remember at the time, and if this Court would have had the gumption, in June of this year, to have given him twenty years in the penitentiary, which he deserved, Lorraine Tapio would have been living today.

On this occasion counsel objected and moved for a mistrial on the basis of improper argument. The learned trial court immediately and correctly advised the jury that they should consider that statement only with respect to consideration of credibility and, in the event of first degree murder verdict, to sentence. No error resulted.

Defendant then contends that a new trial should be granted because, before defendant testified, the prosecutor referred to prior crimes by the defendant.

Defendant's witness, Dr. Archibald Ruprecht, testified that defendant did not know the difference between right and wrong on the date of the offense. He based his opinion on a 3-hour conversation with the defendant during which time they discussed the defendant's past life, drinking history and the incidents leading to the arrest. On cross-examination, the prosecutor inquired, among other things, concerning the doctor's knowledge of defendant's prior convictions.

Generally, reference to prior convictions within the above framework is not permitted. However, here the defendant had interposed a defense of not guilty by reason of mental irresponsibility. As we said in State v. Collins,50 Wash.2d 740, 759, 314 P.2d 660 (1957) It is agreed that, when the defense is insanity, general or partial,

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