State v. Torres

• Decision Date: 12 July 1976
• Docket Number: No. 3134--I,3134--I
• Citation: 554 P.2d 1069,16 Wn.App. 254
• Parties: STATE of Washington, Respondent, v. Alexander B. TORRES, Jr., et al., Appellants.
• Court: Washington Court of Appeals

Page 254

16 Wn.App. 254

554 P.2d 1069

STATE of Washington, Respondent, v. Alexander B. TORRES, Jr., et al., Appellants.

No. 3134--I.

Court of Appeals of Washington, Division 1.

July 12, 1976.

Snure, Gorham & Varnell, James L. Varnell, Des Moines, for appellants.

Christopher T. Bayley, King County Pros. Atty., H. Duane Evans, Deputy Pros. Atty., Seattle, for respondent.

CALLOW, Judge.

The defendants Alexander Torres, Ralph Castillo, and Ramon Garza appeal from convictions of rape and first-degree burglary. We reverse the convictions and remand for retrial because of continued prosecutorial misconduct which denied the defendants a fair trial.

The information charged all three defendants with having committed rape on the 19th day of January, 1974. The same information also charged the defendants Torres and Garza with having committed first-degree burglary on the same date. The defendants were tried together and each moved for a mistrial a number of times throughout the trial based on various allegations of misconduct by the prosecutor. These motions were denied. The jury returned a verdict of guilty against each defendant as charged. The claims of prosecutorial misconduct were reasserted in motions for new trials which were denied also.

This appeal presents for consideration whether the conduct of the prosecutor prejudicially violated the defendants' right to a fair trial.

Every prosecutor is a quasi-judicial officer of the court, charged with the duty of insuring that an accused receives a fair trial. State v. Huson, 73 Wash.2d 660, 440 P.2d 192 (1968), Cert. denied, 393 U.S. 1096, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969); State v. Reeder, 46 Wash.2d 888, 285 P.2d 884 (1955); State v. Harold, 45 Wash.2d 505, 275 P.2d 895 (1954); State v. Carr, 160 Wash. 83, 294 P. 1016 (1930). We find that the prosecutor's trial behavior constituted misconduct violative of that duty during the opening statement, the interrogation of witnesses, and the closing argument.

THE OPENING STATEMENT

During the prosecutor's opening statement it was improperly suggested that the defendant Castillo, charged in the information with rape, could also have been charged with burglary. This suggestion was uncalled for and asked the jury to infer that the defendant Castillo was guilty of others crimes not charged in the information. State v. Ranicke, 3 Wash.App. 892, 479 P.2d 135 (1970). In State v. O'Donnell, 191 Wash. 511, 71 P.2d 571 (1937), the prosecutor, in opening, stated that the evidence would show that the defendant had a prior record. The court said that such remarks at the initial stage of the trial were so prejudicial to the defendant that he could not thereafter have had a fair trial. The opinion quoted from an earlier case and continued as follows:

'It may be that the defendant is guilty. On that we express no opinion. It must be remembered, however, that 'though unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained, is unjust and dangerous to the whole community." State v. Pryor, 67 Wash. 216, 121 P. 56; citing Hurd v. People, 25 Mich. 405.

The prosecutor's remarks violated certain principles, basic in our system of criminal procedure. First, he placed the appellants' character in issue in advance of their taking the witness stand to testify in their own behalf; second, he asked the jury to hang the appellants not State v. O'Donnell, supra, at 513--14, 71 P.2d at 573.

alone for the specific offenses with which they were charged, but 'for the other burglaries and the records that will show from the evidence'; and third, by charging the appellants with the commission of collateral crimes, he placed them in a position where they had either to take the witness stand or rest under the imputation of those crimes--this being, in effect, a specie of compulsion to testify in violation of the immunity granted by the Federal and state constitutions. If the court had permitted the state to introduce evidence tending to show the commission by the appellants of other felonies, the error of the procedure would not be questioned, nor would the court hesitate to grant a new trial.

In opening, the defendants were referred to as Mexicans or Mexican-Americans a number of times, a racial reference that the trial judge considered 'fairly close to misconduct.' We do not condone any reference to a person's race which is intended to slur or to disparage either the person or the race. Each citizen could be categorized and described by his or her ethnic background as one type or another American. We have put aside such references in the knowledge and hope that there should be no hyphenated Americans, but only 'Americans.' The remarks of the prosecutor were such that we could not tell from the record whether the remarks were meant to slight the defendants in the eyes of the jury or not. What we can say is that the trial court was concerned about the impact of the statements. He observed that he was bothered by the prosecutor repeatedly referring to the defendants as Mexican-Americans while referring to the complaining witness as 'Ms.' and 'Mrs.' The statements of the prosecutor were unfortunate at best. The record reveals that the references may have been inadvertent, but that, in any event, their effect may have been to impugn the standing of the defendants before the jury and intimate that the defendants would be more likely than those of other races to commit the crime charged. Such an inference is improper and prejudicial. See State v. Cohn, 155 Wash. 644, 285 P. 665 (1930). This is a factor to be weighed in evaluating The prosecutor so phrased the opening statement that much of what was said was stated in the form of testimony and not in the form of an outline of the facts that would be proved. An opening statement should not be argumentative, inflammatory, misstate what will be contained in the evidence, or contain expressions of the personal belief of the prosecutor. State v. Haga, 13 Wash.App. 630, 536 P.2d 648 (1975), Petition for cert. filed,--- U.S. ---, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). Here, to some extent the opening statement became a narrative which recounted the story of the alleged crime in a manner which prompted the trial judge to say 'It does constitute almost testimony by the prosecutor who is not under oath.' This also was improper. See State v. Collins, 50 Wash.2d 740, 314 P.2d 660 (1957); State v. Case, 49 Wash.2d 66, 298 P.2d 500 (1956).

whether the trial was conducted as an impartial quest to discover truth, or permeated with prejudice from its inception.

THE PRESENTATION OF EVIDENCE

During the presentation of evidence, the prosecutor persisted despite warnings in asking leading questions during the examination of the victim. As stated in Locken v. United States, 383 F.2d 340 (9th Cir. 1967):

The prosecution undertook to prove the contrary, principally by oral declarations which government witnesses testified that the appellant and Kidd had made. As these witnesses were examined, the prosecuting attorney repeatedly suggested his desired answers. Time after time, objections to the leading questions were sustained, yet the prosecutor persevered. Ultimately, the court was required to find him contemptuous, stating 'you have constantly and continuously engaged in this leading question business after I have repeatedly warned you and warned you and warned you. You leave me no alternative.'

While the asking of leading questions is not prejudicial error in most instances, the persistent pursuit of such a course of action is a factor to be added in the balance. State During cross-examination of a witness for the defense, the prosecutor asked the witness whether the defendants had testified at the preliminary hearing. The witness answered in the negative, but, nonetheless, this brought to the attention of the jury the fact that the defendants were not testifying. This was a comment upon the defendants' exercise of the privilege against self-incrimination and was improper. State v. Holmes, 110 Ariz. 494, 520 P.2d 1118 (1974); State v. Anderson, 110 Ariz. 238, 517 P.2d 508 (1973).

v. Swanson, 73 Wash.2d 698, 440 P.2d 492 (1968); 5 R. Meisenholder, Wash.Prac. § 261, at 225 (1965).

In State v. Ashby, 77 Wash.2d 33, 459 P.2d 403 (1969), it was held that while a prosecutor may comment upon the fact that certain testimony is undenied, it is error to draw the attention of the jury to a defendant's failure to testify. See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Seattle v. Hawley, 13 Wash.2d 357, 124 P.2d 961 (1942); State v. Pavelich, 150 Wash. 411, 273 P. 182, Aff'd, 153 Wash. 701, 279 P. 1107 (1928); State v. Messinger, 8 Wash.App. 829, 509 P.2d 382 (1973), Cert. denied, 415 U.S. 926, 94 S.Ct. 1433, 39 L.Ed.2d 483 (1974). Further, no cautionary instruction was given to dispel the suggestion implanted in the minds of the jury. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967); State v. Goldstein, 65 Wash.2d 901, 400 P.2d 368, Cert. denied, 382 U.S. 895, 86 S.Ct. 189, 15 L.Ed.2d 152 (1965); State v. Messinger, supra. The comment here was sufficient to alert a jury to the failure of the defendants to take the stand and constitutes another error which, when considered in the light of the complete trial proceedings, added to the aura of unfairness.

THE CLOSING ARGUMENT

In the closing argument, the prosecutor stated:

Now, where is his wife to testify for him? Now, he has exactly the same subpoena powers as the State, and he could have forced her to come in and testify. Now, as you recall, he testified that she has left him over this very incident.

But she is not here to say--there is no corroboration on that. . . . I am sure if that were the case with any one of you, you would have your spouse here to testify to that, even if you were divorced or separated from them, especially in a serious...