State v. Reed
| Decision Date | 28 June 1984 |
| Docket Number | No. 49832-6,49832-6 |
| Citation | 102 Wn.2d 140,684 P.2d 699 |
| Parties | The STATE of Washington, Respondent, v. Gordon James REED, Petitioner. |
| Court | Washington Supreme Court |
Don W. Taylor, Olympia, for petitioner.
Jeff Campiche, Pacific County Prosecutor, Jeremy Randolph, Sp. Appeals Deputy Pros. Atty., South Bend, for respondent.
Once again this court confronts the difficult task of evaluating the effect that misconduct on the part of a young, zealous prosecutor has upon the rights of the defendant. Here, highly emotional appeals to jury prejudice, as well as improper expressions of personal belief, force us to reverse petitioner's conviction so that petitioner's unconditional right to a fair trial is preserved.
Petitioner, Gordon James Reed, stands convicted of first degree murder for the slaying of his wife. He has never denied committing the act but asserts that extreme intoxication, combined with borderline personality disorders, prevented him from forming a premeditated intent to kill his wife.
The basic facts of the crime are relatively undisputed. Petitioner and his wife, Anola Reed, led a semi-nomadic life for most of the time they were together. One, or both of them, drank frequently and worked less so. During these years, the couple had four children, the oldest of whom was five at the time of Anola's death.
At the time of the killing, the family was living in Raymond, Washington. Both Gordon and Anola were out of work. The record established that on at least two occasions, petitioner beat his wife. The last incident occurred on February 19, 1981. As a result of this incident, petitioner was charged with simple assault and ordered to stay away from the Reed residence. Anola commenced dissolution proceedings, and a male friend, Bill Templet, moved into the house. Anola and petitioner then reconciled and petitioner returned to the home. Prior to the reconciliation, however petitioner repeatedly made statements about killing Anola.
On April 23, 1981, Anola and her youngest child went to Aberdeen, met Bill Templet, and went to a minister. The three other children remained with petitioner, who spent the greater portion of that day drinking and playing pool. He testified that he expected Anola to return around 3 p.m. Anola returned home around 6 p.m.
Petitioner was seen leaving the home at 6:30 p.m. and arrived at the downtown Seattle police station early the next morning, where he instructed his daughter, then 4 years old, to tell the police that he had killed her mother. After a confirming call to the Raymond police, petitioner was arrested. A blood alcohol test done at 3:10 a.m. on the 24th showed a blood alcohol reading of .05.
At trial, petitioner testified that immediately before the incident, his wife had told him that the minister advised her to "go to Bill." Petitioner testified that the next thing he remembered after her telling him this was his son screaming "killed Mommy." Petitioner testified that when he came to, he was covered with blood and his wife was dead.
Regarding his intent, petitioner insisted that he at no time intended to kill or harm Anola.
At trial, a defense witness testified that petitioner would have to have had a minimum blood alcohol content of between .17 and .21 at the time of the crime, in order to have a .05 reading at 3:10 a.m. This testimony was consistent with the State's witness, who observed petitioner at 5:45 p.m. and noted that he was Report of Proceedings, at 244-45.
The defense also called two psychiatrists who, having examined petitioner, concluded that the combined effects of alcohol and petitioner's borderline personality disorders indicated that the petitioner did not plan to kill his wife. The State's rebuttal witness denied that petitioner had a personality disorder and denied that the consumption of alcohol "in any way interfere[s] with your ability to intend to do something". Report of Proceedings, at 894.
During closing arguments, the prosecutor, Jeff Campiche, attacked directly the diminished capacity defense. Among his comments are the following:
* * *
... They're telling you what they thought, but based on the lies of Gordon Reed....
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... How many times in 15 minutes did Gordon Reed form the intent to kill her? Premeditated. It says that any time, however long or short, that you form an intent to kill. If he had stopped stabbing her after he had stabbed her in the back, she'd be alive. How long is 5 minutes. Give him the complete benefit of doubt. I'm going to kill you, Anola. I want to kill you. I'm going to kill you. I'm going to punish you and kill you.
* * *
... Then, the final--the final insult to Anola Reed came from the eloquence of Don Taylor. The final insult to that poor woman, because Gordon Reed doesn't have her around any more, it should be manslaughter. Whew! That is like out of Captain Marvel.... The kids told you he hit her with the chair, and then he stabbed her. He knowingly assaulted her with a weapon or instrument likely to cause harm. He's a cold murder two. It's cold. There is no question about murder two.
Report of Proceedings, at 979-88.
Defense counsel repeatedly objected, moved to strike and for a mistrial. Each of the objections (except the one referring to "I'm going to kill you") were sustained but the motions for mistrial were denied.
The jury returned a verdict of first degree murder and petitioner appealed, alleging prosecutorial misconduct. In an unpublished opinion, Division Two agreed that the prosecutor had exceeded the proper bounds of argument, but concluded that the comments did not deny petitioner a fair trial. We granted review, and reverse. State v. Reed, 35 Wash.App. 1036 (July 29, 1983), petition for review granted, 100 Wash.2d 1017 (1983).
The sole issue in this case is whether the comments of the prosecuting attorney denied petitioner a fair trial.
To answer this question, we must first determine that the comments are in fact improper. If they are improper, we must consider whether there was a "substantial likelihood" that the comments affected the jury; for, although the Sixth Amendment and Const. art. 1, § 22 grant defendants the right to trial by an "impartial jury", the right does not include a right to an error-free trial. State v. Latham, 100 Wash.2d 59, 66, 667 P.2d 56 (1983).
No one, not even the prosecutor, questions the impropriety of these comments. The Code of Professional Responsibility, DR 7-106(C)(4), states unequivocably that an attorney shall not
[a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
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..."prejudicial effect" means that there was a "substantial likelihood" that the challenged comments affected the verdict. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). [30] We have addressed whether statements in immunity agreements should be redacted before admitting the agreements......
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....... In determining whether a prosecutor's comments denied the defendant a fair trial, the reviewing court must decide whether the comments are in fact improper and, if . Page 562 . so, whether a substantial likelihood exists that the comments affected the jury. State v. Reed, 102 Wash.2d 140, 145, 684 P.2d 699 (1984). Failing to request a curative instruction or to object to a prosecutor's allegedly improper remark constitutes a waiver of the error unless the statement is deemed to be so flagrant and ill-intentioned that the resulting prejudice could not have been ......
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