State v. Simmons, No. 35937

CourtUnited States State Supreme Court of Washington
Writing for the CourtWm. H. Simmons; HILL; FINLEY; OTT; MALLERY
Citation59 Wn.2d 381,368 P.2d 378
PartiesThe STATE of Washington, Respondent, v. William H. SIMMONS, Appellant.
Decision Date12 January 1962
Docket NumberNo. 35937

Page 381

59 Wn.2d 381
368 P.2d 378
The STATE of Washington, Respondent,
v.
William H. SIMMONS, Appellant.
No. 35937.
Supreme Court of Washington, En Banc.
Jan. 12, 1962.
As Revised and Amended Jan. 18, 1962.

Page 382

Wm. H. Simmons, J. Lael Simmons, Philip R. McIntosh, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., Anthony Savage, Jr., Asst. Chief Criminal Deputy, Seattle, for respondent.

HILL, Judge.

The issue here is whether a defendant convicted of assault with intent to commit rape had a fair trial.

Our conclusion is that he did not. The accumulation of prejudicial incidents and misconduct, in a case where the factual issue was a very close one, tipped the scale so

Page 383

heavily against the defendant that any semblance of a fair trial was lost.

At least half of the twenty assignments of error on this appeal have some merit. Some of these relate to the conduct of the deputy prosecuting attoneys, and we have from time to time regretted, but condoned, similar conduct where the proof of guilt was clear. We cannot, in this case, avail ourselves of the usual apologia for overzealous[368 P.2d 379] prosecutors: that, in any, event, it would not have changed the result.

That the result was susceptible of change, on the issue of intent to rape, is made clear by a brief recital of the facts divorced from the personalities involved. A man and a married woman, who have just met, have some drinks together in a cocktail lounge; sexual matters come into the conversation. She testified that he kept bringing up the subject and that she avoided it; he testified that she introduced the subject. She testified to intimacies while they were in the cocktail lounge, which he denied. If we accept her version, the fact remains that she did continue in his company. They drove in the man's car to an apartment house, and the man had a key to one of the apartments. The explanation of how they happened to go into the apartment is divergent. He testified that while in the cocktail lounge she expressed a desire to be alone with him; he showed her the key to the apartment; and she indicated a willingness to accompany him. She denied seeing the key, but testified that when they arrived at the apartment house he told her he was going into a friend's apartment and insisted that she accompany him.

Not only what happened in the apartment, but the man's intent, was what the jury had to determine.

The man, admittedly, was taking the woman to the apartment with the intention of having intercourse with her; however, he denies any intent to commit an assault or a rape, and contends that he believed it was her desire to have intercourse with him and that when she said she 'couldn't go through with it,' he stopped his advances and they left the apartment.

Just why she entered the apartment, after she saw the

Page 384

man unlock the door and when she was immediately aware that there was no one else there, is far from clear; but there can be no doubt that she testified to conduct by the man which would constitute an assault (if she did not invite it and consent to it), and from which the jury could infer an intent not to be diverted from his purpose.

In any event, it is agreed that if he had such an intent he abandoned it, and that there was no act of intercourse; that they left the apartment together; and that she rode in his car from the apartment to the downtown business section of the city where she left the car.

Now the man's own testimony establishes that he was not an admirable character; he freely admits an intent to commit adultery. When you translate this anonymous man into a municipal judge presiding over the state's busiest traffic court and add the further fact that the woman came to see him in his official capacity about a traffic ticket, which he admits he 'fixed' for her after the incidents to which we have referred, the picture worsens. But it was not because of any of these derelictions that he was being tried; the charge was assault with intent to commit rape.

Evidence on the issue of intent, while sufficient to sustain a conviction, way by no means so overwhelming as to preclude the possibility of an acquittal.

The defense was that he was 'framed' by a police officer, who induced the woman to lead him on, and, no matter how willing he was to be led, there never was any intent on his part to overcome a forceful resistance.

We shall not attempt a full-scale review of all the assignments of error, but shall content ourselves with enough instances of obviously prejudicial error to make it clear that a new trial is necessary.

The implications and innuendoes inherent in many questions asked the defendant on cross-examination are completely inexcusable and can have no conceivable justification. We quote a few:

'Now, do you usually take women who are involved in your court in some way to lunch?'

Page 385

'Have you ever taken any other women----'

[368 P.2d 380] '* * * Is this a usual place for taking women?'

'Had you ever asked anybody else that was in your court to--a witness or a victim, or something of that nature, to go up to an apartment with you?'

'Have you ever been asked to leave any establishment where liquor has been sold?'

'Have you been arrested for drunk driving?'

'Have you ever been arrested for anything besides this particular case?'

'Now, is this particular ticket you fixed for her----'

'This ticket you cancelled for her----'

'This warning ticket, or this ticket you crossed off as a warning * * *'

'Tell me, Judge Simmons, did you take your oath in the court room here today as seriously as you took your oath of marriage vows?'

The state, capitalizing on the concept that a judge--like Caesar's wife--should be above suspicion, lost no opportunity to make it clear to the jury that this particular judge was not only not above suspicion, but that he was dragging his judicial robes in the gutter. The following questions, asked the witness Tedzak (a bartender) on crossexamination, make clear the modus operandi.

'Do you know that Judge Simmons is a married man with three children, Mr. Tedzak?'

'Mr. Tedzak, is it your testimony that Judge Simmons takes off his black robes and comes down----'

'And goes into a public place----'

'Is it your testimony, Mr. Tedzak, that Judge Simmons, a well-known person in this community----'

'And would you feel that it was somewhat strange for a Judge to be kissing a person----'

'Did you not think it was strange----'

'What was your feeling when you saw that Judge?'

'* * * Can you recall, was Mr. Simmons ever there before with a woman?'

The state followed this up with the following statement, made at the very end of its closing argument to the jury:

'I submit to you that there should be no room for sympathy in your hearts for this man. He has violated every trust that anyone ever put in him.

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'I went to high school in this city, Ladies and Gentlemen, I went to Cleveland High School, and I remember in our civic's class we studied our high school's namesake, Grover Cleveland, who has been in the news of late because he is apparently the only president to have a son born while in the White House, I read the other day. But the thing I remember most from 10 or 11 years ago was his motto that made him famous as a corruption buster, 'Public office is a public trust,' and I submit to you that a public office is a public trust and that this man has violated this trust in every way that man has ever heard of, and I submit to you further that we have proved beyond a reasonable doubt that this defendant is guilty of the crime of assault in the second degree, and I ask you to return a verdict on this evidence of that crime.'

The state's naive answer to the assignments of error relating to improper crossexamination is that of twenty-five questions complained of, objections to twenty-two were sustained and, hence, there could be no prejudice. The cross-examiner must have known that objections would be sustained to the questions, which were obviously designed to prejudice the defendant and to put the defense in the unfavorable position of having to make constant objections.

Recent critical comments on this procedure by counsel will be found in Swanson v. Evans Oil, Inc. (1961), 12 App.Div.2d 875, 209 N.Y.S.2d 860; Houston v. Pettigrew (1960) Okl., 353 P.2d 489; Brooks v. Gilbert (1959), 250 Iowa 1164, 98 N.E.2d [368 P.2d 381] 309; McCrae v. McCoy (1949), 214 S.C. 343, 52 S.E.2d 403.

The usual excuse for improper argument (i. e., it was in answer to something equally improper that the defense had said) is quite inadequate to explain why the theme of betrayal of a public trust is the last thing which the jury heard from the prosecution as it closed its case on a charge of assault with intent to commit rape. Our views on improper argument have been expressed at some length in State v. Case (1956), 49 Wash.2d 66, 298 P.2d 500; and State v. Reeder (1955), 46 Whsh.2d 888, 285 P.2d 884.

We shall make no detailed mention of the further claims of misconduct by counsel. Deputy proseuctors vouched for

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the veracity and integrity of certain witnesses and expressed unwillingness to believe another; they called a witness in disregard of the trial court's prior determination that his testimony concerned a collateral matter and would...

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30 practice notes
  • Krogh, In re, No. CD
    • United States
    • United States State Supreme Court of Washington
    • June 6, 1975
    ...had been convicted of assault with intent to rape, but his conviction was reversed on appeal. See State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962). Although there is nothing in the disciplinary rules which differentiates between felony convictions which are reversed on appeal and those......
  • Smith v. State, No. 1210
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1986
    ...purpose of the evidence is highly relevant to other issues which may arise in prosecutions of rape. See State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); State v. Geer, supra [13 Wash.App. 71, 533 P.2d 389]. The case at bench affords an Page 186 Where the defendant denies any sexual co......
  • State v. Lupastean, 99850-7
    • United States
    • United States State Supreme Court of Washington
    • July 28, 2022
    ...requires a new trial, and no showing of prejudice is required to obtain relief on appeal. State v. Simmons , 59 Wash.2d 381, 390-92, 368 P.2d 378 (1962) ; see also Robinson v. Safeway Stores, Inc. , 113 Wash.2d 154, 160, 776 P.2d 676 (1989). However, our more recent precedent states that th......
  • Marshall v. United States, No. 19383.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 10, 1966
    ...knowledge or indication of what factual situations he was required to relate. We agree with the court in State v. Simmons, 59 Wash.2d 381, 368 P.2d 378, 384 (1962), that "where a person serves on a jury who, if not excused for cause, would certainly have been peremptorily challenged if cert......
  • Request a trial to view additional results
29 cases
  • Krogh, In re, No. CD
    • United States
    • United States State Supreme Court of Washington
    • June 6, 1975
    ...had been convicted of assault with intent to rape, but his conviction was reversed on appeal. See State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962). Although there is nothing in the disciplinary rules which differentiates between felony convictions which are reversed on appeal and those......
  • Smith v. State, No. 1210
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1986
    ...purpose of the evidence is highly relevant to other issues which may arise in prosecutions of rape. See State v. Simmons, 59 Wash.2d 381, 368 P.2d 378 (1962); State v. Geer, supra [13 Wash.App. 71, 533 P.2d 389]. The case at bench affords an Page 186 Where the defendant denies any sexual co......
  • Marshall v. United States, No. 19383.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 10, 1966
    ...knowledge or indication of what factual situations he was required to relate. We agree with the court in State v. Simmons, 59 Wash.2d 381, 368 P.2d 378, 384 (1962), that "where a person serves on a jury who, if not excused for cause, would certainly have been peremptorily challenged if cert......
  • Bachner v. Pearson, Nos. 1043
    • United States
    • Supreme Court of Alaska (US)
    • December 31, 1970
    ...90 L.Ed. 1181, 1187 (1946). 32 See, e. g., State v. Taylor, 9 Ariz.App. 290, 451 P.2d 648, 652 (1969); State v. Simmons, 59 Wash.2d 381, 368 P.2d 378, 382 (1962). 33 Washington v. People, 455 P.2d 656, 658 (Colo.1969); State v. Robinson, 75 Wash.2d 230, 450 P.2d 180, 181 (1969). 1 Patrick v......
  • Request a trial to view additional results

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