State v. Rose, 36044

• Decision Date: 13 June 1963
• Docket Number: No. 36044,36044
• Citation: 382 P.2d 513,62 Wn.2d 309
• Parties: STATE of Washington, Respondent, v. Edward R. ROSE, Appellant.
• Court: Washington Supreme Court

Page 309

62 Wn.2d 309

382 P.2d 513

STATE of Washington, Respondent, v. Edward R. ROSE, Appellant.

No. 36044.

Supreme Court of Washington, En Banc.

June 13, 1963.

Filis L. Otto, Tacoma, for appellant.

John G. McCutcheon, Pros. Atty., schuyler J. Witt, Deputy Pros. Atty., Tacoma, for respondent.

DONWORTH, Judge.

Appellant was tried and convicted of the criminal offense of sodomy. The only question presented by this appeal is whether prejudicial error was committed by the trial court in denying appellant's motion for a mistrial when the deputy prosecuting attorney, in his closing argument to the jury, referred to appellant as a 'drunken homosexual.' ¹

Whether the use of this characterization of appellant by the deputy prosecutor in his closing argument constituted prejudicial error depends upon the context in which it was used and the effect which it was likely to have upon the jury. This concept was well expressed in State v. Navone, 186 Wash. 532, 538, 58 P.2d 1208 (1936), where the court said:

'Misconduct is to be judged not so much by what was said or done as by the effect which is likely to flow therefrom. What would be misconduct in one case might very well be held not to be misconduct in another. Each situation involving the question of misconduct must stand by itself and must be considered in the light of all of its facts and circumstances to the end that verdicts properly arrived at shall not be disturbed and that those verdicts which may have been induced by prejudice, or by something beyond the issues, shall not be allowed to stand. * * *'

The testimony presented by the state and by appellant as to exactly what happened on the night during which the offense charged was alleged to have been committed was in direct conflict. If the jury believed the state's evidence, they were justified in finding him guilty. On the other hand, if they disbelieved it and believed appellant's evidence, they could have acquitted him. Crucial to the state's case was the testimony of a merchant patrolman, who testified that he parked his car behind that of appellant's car and left his lights shining on it. The witness then testified that he left his own car and walked over to appellant's car, where he observed appellant and another man engaged in an act of sodomy. Appellant's evidence contradicted in all material respects the patrolman's version as to what happened.

During his argument to the jury, counsel for appellant argued to the jury as follows:

'* * * Do you think that they would not cease doing an act of this type, if a car came up behind them with the lights shining in their own car? Yet they would have you believe they could continue an act of this type while Mr. Richardson had time enough to stop his car, open the door, get out, either walk around the door, or shut the door, and walk a car length up there. If I remember correctly, all but one of you had children, and children are just like adults, only they show it a little bit more. If they're doing something that they shouldn't be doing, the minute they're interrupted, they turn their head, they run, they hide, stand there with an innocent expression on their faces, or something like that, and people do the same thing. In a case like this, if Mr. Bengston had been doing what they--what Mr. Richardson--remember Mr. Richardson is the only one who said that Mr. Bengston had been doing what Mr. Richardson says he was doing--All that he had to do was to look up, turn his head, and it would have taken him like that (snap of fingers), and to believe that anything like that would happen and continue to happen up until the time that Mr. Richardson could get to a place where he could make this so-called observation, is fantastic. It's not only not beyond a reasonable doubt, it's fantastic to believe that situation could exist. * * *'

In response, the deputy prosecutor, in his closing argument, said:

'* * * Mr. Potter made a great to do about anybody that was caught doing this unnatural act; that he would immediately stop it, and start acting innocent, or something like that, and he says it's impossible to conceive of an individual, in the position which Mr. Richardson described to you, remaining in that position when the car pulled up, and the door slammed, and so forth, with the lights on. Let me only say this: I submit to you it is entirely possible that a drunken homosexual, lying in the slumped-down position in the seat to remain in just that position----' (Italics ours.)

At this point counsel for appellant interrupted the deputy prosecutor and requested the court to declare a mistrial. The deputy prosecutor argued to the court that the state's evidence could lead to no other conclusion. The court then overruled the motion for a mistrial.

Counsel, in his closing argument to the jury, cannot make prejudicial statements not sustained by the record. State v. Heaton, 149 Wash. 452, 271 P. 89 (1928); Rogers v. Kangley Timber Co., 74 Wash. 48, 132 P. 731 (1913). The particular applicability of this to a prosecutor was pointed out in State v. Reeder, 46 Wash.2d 888, 285 P.2d 884 (1955), where it was emphasized that a prosecuting attorney is a quasi-judicial officer whose duty is to see that a defendant in a criminal prosecution is given a fair trial.

In State v. Buttry, 199 Wash. 228, 251, 90 P.2d 1026 (1939), this court quoted with approval the following statement from Sullivan v. State, 47 Ariz. 224, 55 P.2d 312:

"The best rule for determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case is, Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks."

The deputy prosecutor contends that his remark was a proper inference from the evidence. At the trial, in response to defense counsel's motion for a mistrial and before the jury, he said:

'If your Honor please, I submit that the evidence proposed by the State lead to no other conclusion than that. The defendant himself admitted--he said he had seven or eight drinks and could walk.'

It was apparently on this theory that the remark was a reasonable deduction from the evidence that the trial court allowed the trial to continue after the request for a mistrial. There is a distinction to be drawn between consuming alcoholic liquor and being drunk or intoxicated. This was recognized by the state's own witnesses when the subject was introduced by the deputy prosecutor.

The merchant patrolman Richardson who was the state's principal witness, when asked if he had an opinion as to whether Mr. Rose was intoxicated at the time he made the arrest, replied, 'Oh, he had been drinking. I wouldn't say he was intoxicated.'

A second merchant patrolman, who arrived later on the scence of the arrest, was asked, on cross-examination, in regard to intoxication, 'How about Mr. Rose? Tell us what his condition was?' He answered, 'Well, I don't know. Mr. Rose had been drinking. As far as I know, he knew what he was doing, and could walk, and everything.'

On the subject of intoxication, not only was the distinction drawn between merely drinking and being drunk, but the unmistakable inference from the state's own witnesses was that the appellant was not drunk. Thus, the deputy prosecutor's remark to the jury was not a reasonable deduction, it was not supported by the evidence, and it was clearly prejudicial.

We turn our attention to the word 'homosexual.' Webster's New Twentieth Century Dictionary, Unabridged (2d ed.), defines the word homosexual, 'one whose sexual inclination is toward those of the individual's own sex rather than the opposite sex.' As thus defined, its application in describing appellant might be a permissible deduction from the evidence when arguing to the jury. This court has said that a reasonable latitude in argumentative deduction from the evidence will be allowed. State v. Peeples, 71 Wash. 451, 129 P. 108 (1912). However, it should be borne in mind that the term homosexual was not used in summing up the evidence, but was delivered as a degrading description of the appellant, coupled with the adjective 'drunken' (discussed above). There were no allegations nor proof of any homosexual behavior other than the alleged activity for which he was being prosecuted. We do not now decide that the term 'homosexual' as used here would constitute reversible error if used alone; however, used in the phrase 'a drunken homosexual' in the posture of this case, it constituted prejudicial misconduct because it tended to degrade appellant in the minds of the jury in a case where the evidence did not warrant such a characterization.

Respondent finally contends that the statement was made in response to the closing argument made by appellant's counsel, quoted above, to the effect that it was unbelievable that appellant would be surprised in the commission of such an act under the conditions present. Respondent, in its brief, states:

'* * * Respondent's reply supplied a reasonable explanation for this behavior. The State was entitled to answer this particular argument by Appellant.'

Saying that appellant was a drunken homosexual may well have answered for the jury the argument presented by defense counsel, but it was not a proper consideration for the jury when not supported by the evidence. However, respondent's contention is that the deputy prosecutor had a right to answer the argument of opposing counsel as he did. Respondent cites State v. Van Luven, 24 Wash.2d 241, 163 P.2d 600 (1945).

In the Van Luven case, opposing counsel, during a heated trial, criticized each other sharply. At one point the defense counsel, in his closing argument, said in regard to the prosecutor: "* * * I don't think down in his heart he thinks that this is a case beyond any doubt." The prosecutor,...