State v. Kroll

• Decision Date: 16 December 1976
• Docket Number: No. 44053,44053
• Citation: 87 Wn.2d 829,558 P.2d 173
• Parties: STATE of Washington, Respondent, v. Bernard J. KROLL, Appellant.
• Court: Washington Supreme Court

Page 829

87 Wn.2d 829

558 P.2d 173

STATE of Washington, Respondent, v. Bernard J. KROLL, Appellant.

No. 44053.

Supreme Court of Washington, En Banc.

Dec. 16, 1976.

Rehearing Denied Feb. 4, 1977.

Roethler & McCulloch, Don L. McCulloch, Philip E. Hickey, Longview, for appellant.

Henry R. Dunn, Pros. Atty., James E. Warme, Deputy Pros. Atty., Kelso, for respondent.

BRACHTENBACH, Associate Justice.

Defendant appeals from a judgment and sentence entered upon a jury verdict finding him guilty of first degree murder. We affirm.

Defendant was convicted of murdering a 15-year-old girl after a high school football game. The girl's nearly nude body was discovered in a wooded area near Kalama High School where she had earlier attended a football game. She was found lying on her back with her legs spread apart. Her Levi pants had been torn off, her underpants removed, and her blouse and brassiere had been pushed up over her breasts. Her head had been struck repeatedly upon some object, probably a log or tree. Death was caused by strangulation.

Defendant makes 13 assignments of error, eight of which involve jury instructions. To five of these challenged instructions no exceptions were taken on the record. The only reference in the record to these five assignments of error appears in a stipulated supplemental statement of facts, which provides:

That also at this time (at the close of testimony) there was a preliminary discussion of the Court's proposed instructions and the counsel for the defense objected to instructions having to do with the Counts of rape, leaving the scene of an attempted rape, attempted rape, and instructions which define rape or attempted rape, on the grounds and for the reasons indicated above and discussed at the close of the State's case. (S. 504--511.) Counsel further objected to the Court's proposed instruction on the presumption that an unlawful killing is murder in the second degree (Instruction 10) on the ground and for the reason that the proposed instruction placed an improper burden of proof on the Defendant.

A record in this condition is of little help to this court. Proper appellate review requires a record which contains the specific theories and exceptions advanced to the trial court. Trial judges have weighty responsibilities in conducting a trial which is fair to both sides. They are entitled to the assistance of counsel in directing attention to specific proposed instructions, submitting proposed instructions and making clear the objections and theories relied upon. Lasser v. Grunbaum Bros. Furniture Co., 46 Wash.2d 408, 281 P.2d 832 (1955). In view of the stipulation and the seriousness of the crime involved we have gone as far as we can in evaluating defendant's alleged assignments of error. It should be made clear, however, that such practice does not serve the goal of a fair and just trial and comprehensive appellate review.

I.

Defendant's first assignment of error involves claims of prosecutorial misconduct. Only two of the instances set forth by defendant merit consideration, but they are serious. One concerns the opening statement, the other final argument.

To understand this assignment of error and others that follow, it is necessary to review in some detail the evidence presented at trial. It is important to keep in mind that the State's case against defendant consisted entirely of circumstantial evidence.

The setting for this tragic death was a high school football game. Shortly before the game the defendant, out of the presence of the victim, drank a substantial quantity of wine. During half-time, the defendant was observed asking friends if they had seen the victim, explaining that he and the victim were planning to go drinking after the game. The victim likewise expressed to various witnesses that she intended to go drinking later that evening.

The last time the victim was seen alive, she and defendant were observed leaving the football field, walking toward the high school gymnasium. This probably occurred between 9:45 and 10:00 p.m. The murder scene was a short distance beyond the gymnasium, in a wooded area.

About 10:30 p.m. several of defendant's friends observed him in downtown Kalama. He had blood on his shirt and pants, and smeared blood around his mouth. His pants were unzipped. He told his friends that some out-of-town boys had asked him to go drinking behind the gym, and that they had beaten him and left him unconscious. Defendant claimed he awakened and found a body next to him. He asked that he be taken to the local police to report the matter. The police sent defendant to the fire station for emergency treatment and then went to search for the body.

At the fire station, defendant was examined by a firstaid technician and a fireman. The examination revealed no apparent cuts or wounds to account for the extensive blood on defendant and his clothes. After being cleaned up, defendant was taken to the scene of the crime, whereupon he led officers to the body.

At the scene of the murder, a coat, a watch and a handkerchief were found which either belonged to the defendant or were similar to articles owned by defendant.

Later that night, defendant was examined by a physician. The result of that examination proved inconsistent with defendant's claim that he had been beaten into unconsciousness. The only marks or evidence of damage to defendant were a very small bruise on his neck and a slight cut in his mouth. There were also minor brushtype scratches on his arms. Dirt was found on the front portions of defendant's genital area. Blood was found on his undershorts, pants and shirt. Bloodstains were also discovered under the defendant's fingernails.

An autopsy of the victim revealed that while there had been multiple blows to her head, the actual cause of death was strangulation. The pathologist testified that strangulation would require a minimum of 2 minutes choking pressure. The autopsy further revealed a mark on each of the victim's arms. The pathologist testified that the marks were caused by an object being pressed against the victim's arms. These marks matched metal rings on defendant's boots. It is the State's theory that the defendant, while choking the victim, held her arms by pressing his legs against them, thus causing the marks from his boots.

The blood on the victim's body was blotted or smeared as though someone had lain on top of her. There was no evidence, however, of any sexual penetration. The blood around her mouth was similarly blotted or smeared. The defendant also had blotted or smeared blood around his lips.

Defendant did not testify at trial, but presented evidence on two points. First, several witnesses placed him at the school at a time later than the State's witnesses said the victim and defendant left. Second, there was testimony about defendant's reputation for the lack of sexual aggressiveness. There was also conflicting evidence as to the defendant's intoxication.

In sum, this was the evidence presented at trial. Keeping this evidence in mind, let us return to defendant's first assignment of error involving alleged prosecutorial misconduct during the opening and closing statements.

Prior to the prosecutor's opening statement, the judge cautioned the jury that opening statements are offered merely to show what each party expects to prove and are not to be considered as evidence. The prosecutor gave a similar admonition in his opening statement before proceeding to reconstruct a detailed scenario of how the murder occurred. Defendant objected to the prosecutor's statement of how the murder occurred as argumentative and not supported by the evidence. Although defendant's objections were overruled, the trial court reminded the jurors once again of the nature and purpose of the opening statement and that their verdict was to be based upon the evidence and not what was said in the opening statements. In continuing his opening remarks, the prosecutor hypothesized to the jury that the defendant had become angry when the victim refused his advances; that in a state of rage he beat her head against a tree; that he dragged her to a leafy area and removed most of her clothes; that with the victim still struggling to resist his advances he strangled her; and that he thereupon removed his pants and lay upon the dead body, becoming bloodied in the process.

The purpose of the prosecutor's opening statement is to outline the material evidence the State intends to introduce. Argument and inflammatory remarks have no place in the opening statement. 2 L. Orland, Wash.Prac. § 213 (3d ed. 1972). The opening statement is based upon the anticipated evidence and the reasonable inferences which can be drawn therefrom. State v. Aiken, 72 Wash.2d 306, 351, 434 P.2d 10 (1967). Control of the content of these remarks rests within the sound discretion of the trial court.

Here the prosecutor bordered on the line of an impermissible statement. His reference to the defendant's rage, the victim's resistance while injured and in a panic, and similar comments were unnecessary to an outline of the evidence. Such references, however, do not merit a reversal. The trial court cautioned the jurors on several separate occasions as to the nature and purpose of the opening statement. It is presumed that the jury followed the court's admonitions. State v. Ingle, 64 Wash.2d 491, 392 P.2d 442 (1964). Moreover, the evidence does support, directly and by inference, a brutal crime and an apparent struggle consistent with resistance. In light of these factors we cannot say that the trial court abused its discretion in permitting this opening statement.

In the State's closing rebuttal argument, the following statement was made by the prosecutor.

Ladies and gentlemen of the jury, I am done now, and I am just going to say one more word about reasonable doubt. As I have indicated to you, and as Mr. McCulloch has indicated to you, a reasonable doubt is a...