State v. Sargent

• Decision Date: 22 April 1985
• Docket Number: No. 14103-1,14103-1
• Citation: 698 P.2d 598,40 Wn.App. 340
• Parties: STATE of Washington, Respondent, v. Joseph Sherman SARGENT, Appellant. /1.
• Court: Washington Court of Appeals

Page 340

40 Wn.App. 340

698 P.2d 598

STATE of Washington, Respondent, v. Joseph Sherman SARGENT, Appellant.

No. 14103-1/1.

Court of Appeals of Washington Division 1.

April 22, 1985.

Rehearing Denied May 16, 1985.

Washington Appellate Defenders, James E. Lobsenz, Seattle (Appointed), for appellant.

Norman K. Maleng, King County Pros. Atty., Michael Schwartz, Deputy Pros. Atty., Seattle, for respondent.

RINGOLD, Judge.

Joseph Sherman Sargent was found guilty by a jury of murder in the first degree and arson in the At 5:38 a.m. on July 11, 1983, the Seattle Fire Department was called to a house fire in West Seattle. All doors and windows to the house were secure, and the firemen had to break in through a side door. A paramedic entered the house and found a body lying on the waterbed, later identified as Lori Sargent. She had two massive head wounds, caused by two severe blows to the head with a blunt instrument. The blows resulted in severe skull fracturing, which was determined to be the cause of death. Arson investigators opined that the fire was intentionally set and originated in the bedroom.

                second degree.   Sargent appeals the judgment and sentence, arguing prosecutorial misconduct deprived him of a fair trial.   He also contends the trial court made three evidentiary errors and that the evidence is insufficient to prove premeditation.   We reverse
                

Following the discovery of the victim the police attempted to locate Sargent. On July 11 the defendant did not appear for work as scheduled at a restaurant in Seattle, where he had started working 5 days before. Police eventually discovered that Sargent was staying with relatives in Hillsborough, Oregon, and he was contacted by the police on July 16, 1983. Sargent was released after being interviewed, but on July 19, 1983, he was formally arrested and charged with the murder of his wife and with arson in the first degree.

PROSECUTING ATTORNEY'S CLOSING ARGUMENT

Sargent asserts that two separate instances of prosecutorial misconduct occurred in closing argument. First, he contends that the prosecutor deprived him of a fair trial by personally vouching for the credibility of a key state witness. Second, he contends that the prosecutor violated his Fifth Amendment privilege against self-incrimination by indirectly commenting on his failure to testify. ¹

Vouching for Credibility.

Jerry Lee Brown, Sargent's cellmate in Oregon, testified that Sargent told him that during an argument with his wife, Sargent had hit her repeatedly with a weapon while he was either drunk or on drugs. Brown stated that Sargent didn't remember anything about a fire.

Brown gave four separate statements prior to trial that contained several inconsistencies. Brown admitted he hoped to help himself by testifying. The prosecution agreed that Brown was a "flake," but argued he should be believed.

In final argument the deputy prosecutor stated to the jury:

Ms. Levy in her remarks told you that there is--she wondered out loud why Mr. Schwartz, why I didn't mention Mr. Brown in my opening statement, why I referred to him only briefly in my closing remarks. Somehow that's an issue. Somehow that affects the guilt or innocence of that man. The inference of those remarks being that I didn't believe Jerry Lee Brown or I didn't ascribe to what he had to say or I didn't put any faith in his testimony, I didn't vouch for him somehow. Well, that's wrong.

I believe Jerry Lee Brown. I believe him when he tells us that he talked to the defendant, that the defendant told him that he had beaten his wife in the past and had gone into counseling, just like Mr. VanderVelden said. I believe him when he said that his wife was once beaten, Mr. Sargent once beat his wife, and his attitude towards it was she had it coming, just as another witness testified, Chris Giles. When he said that Joe Sargent killed his wife, that he, Joe Sargent, told him that he killed his wife, he was believed. There was no other reason he would be testifying other than the fact that the people that called him as a witness believed what he has to say.

(Emphasis added.)

It is improper for a prosecutor to express his personal The State contends that defense counsel's argument to the jury opened up the issue of the prosecutor's personal beliefs, and thus the response is proper rebuttal. ² In State v. Wright, 97 Wash. 304, 307, 166 P. 645 (1917), the defendant insinuated that the prosecutor did not have the courage to dismiss the action, and the court held it was not error for the prosecutor to state his belief that the defendant was guilty in rebuttal.

                opinion about the credibility of a witness and the guilt or innocence of the accused in jury argument.   State v. Reed, 102 Wash.2d 140, 684 P.2d 699 (1984).  "Prejudicial error does not occur until such time as it is clear and unmistakable that counsel is not arguing an inference from the evidence, but is expressing a personal opinion."   State v. Papadopoulos, 34 Wash.App. 397, 400, 662 P.2d 59, rev. denied, 100 Wash.2d 1003 (1983).   In the case at bench, the prosecutor's remarks directly place the integrity of the prosecution on the side of Brown's credibility and are improper.   Reed
                

The general rule is that remarks of the prosecutor, that would otherwise be improper, are not grounds for reversal where they are invited or provoked by defense counsel, or in reply to defense counsel's statements, unless the remarks are so prejudicial that an instruction would not cure them. State v. Davenport, 100 Wash.2d 757, 761, 675 P.2d 1213 (1984).

In United States v. Young, --- U.S. ----, ----, 105 S.Ct. 1038, 1045, 84 L.Ed.2d 1 (1985), the Supreme Court reevaluated the rule, stating:

"In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were "invited," and did no more than respond substantially in The Court criticized the practice of responding in kind to improper argument by defense counsel, and made it clear that the State's appropriate response is to request a curative instruction at trial. The Court held that the test is not whether the prosecutor's remarks were invited, but whether, taken in context, the remarks unfairly prejudiced the defendant.

order to "right the scale," such comments would not warrant reversing a conviction."

Sargent failed to object to the prosecutor's statements about Brown's credibility. This constitutes a waiver of the error unless the prosecutor's comments are deemed flagrant and ill-intentioned and the resulting prejudice so enduring that jury admonitions could not neutralize its effect. State v. Brown, 29 Wash.App. 770, 774, 630 P.2d 1378, rev. denied, 96 Wash.2d 1013 (1981).

In State v. Reed, supra, the Supreme Court remanded for a new trial because of prosecutorial misconduct, even though the trial court sustained defense objections to the offending remarks during trial. The prosecutor not only expressed his personal opinion that the defendant was a liar, but also impugned the defense witnesses as being unbelievable because they were from out of town and drove fancy cars. Reed, 102 Wash.2d at 143-45, 684 P.2d 699.

Although the prosecutor's comments here were not as egregious as those in Reed, they bolstered the credibility of the only witness directly linking Sargent to the crime. All of the other evidence against Sargent is circumstantial. The court in Reed considered that the State's case was not overwhelming in reaching its decision. As in Reed, the evidence against Sargent is not overwhelming. There is evidence of motive and opportunity, but the State's case is weak without Sargent's confession to Brown. The prosecutor's remarks could not have been cured with an appropriate instruction, and the remarks were so prejudicial as to deprive Sargent of a fair trial. Reed.

Fifth Amendment

In closing argument the deputy prosecutor stated, over objection, that if the defendant had known of any other possible suspects, the jury would have heard of them. Sargent contends that the prosecutor's remark indirectly commented on his failure to testify, violating his Fifth Amendment privilege against self-incrimination. United States v. Buege, 578 F.2d 187, 188 (7th Cir.1978), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978).

"The test employed to determine if defendant's Fifth Amendment rights have been violated is whether prosecutor's statement was of such character that the jury would naturally and necessarily accept it as a comment on the defendant's failure to testify." State v. Crawford, 21 Wash.App. 146, 152, 584 P.2d 442 (1978). The prosecutor may state that certain testimony is undenied, without reference to who could have denied it. State v. Ashby, 77 Wash.2d 33, 459 P.2d 403 (1969). In Crawford, the court held that the prosecutor may comment that evidence is undisputed. Accord, State v. Sutherland, 24 Wash.App. 719, 604 P.2d 957.

In the case sub judice, the prosecutor stated:

Now, if there is someone else in this world who Lori Sargent was a target for, you better believe you would have heard about it. If someone else had the kind of motive that this man had to kill her, you better believe the defense would have found out about it, tried to find out about it,--

MS. LEVY: Objection, your Honor.

THE COURT: Overruled, it's closing argument.

MR. SCHWARTZ: --and said something about it.

The burden never shifts from the state to prove that the defendant is guilty, don't get me wrong. But if you are on trial for murder and you know that someone else has a motive as strong as yours to have killed that person in the way that this was done, your'e going to tell somebody about that.

(Emphasis supplied.)

The prosecutor directly commented on the defendant's failure to tell about others with possible motives to...