New Trial after Prosecutorial Misconduct

[CASE] Prosecutorial misconduct in opening and closing statements leads to a new trial in a child molestation case. In the unpublished opinion, Division 2 also addresses a jury instruction question. State v. Mackey, 2005 WL 3541568 (Wash. App. Dec. 28, 2005), Find Result - 2005 WL 3541568.

The defendant was charged with molesting his neighbor, S.B., when she was 11 to 14 years old. The defendant's former step-daughter testimony about similar conduct years before, when she was a minor, was allowed under Rule 404(b) as "proof of a common scheme or plan, absence of mistake or accident."

In oral argument, the state conceded prosecutorial misconduct in two of the three instances the defendant raised and that the misconduct prejudiced the defendant's right to a fair trial. The court found all three instances to be misconduct.

• In the opening statement the prosecutor said that the because the defendant "damaged 2 young lives" he should be held accountable at least for the molestation to the neighbor. This use of the step-daughter's testimony went beyond what was allowed under 404(b).
• In closing argument the defense said that the neighbor girl was not credible because of her delay in reporting the abuse. The prosecutor then recounted a story about a Russian figure skater who had been sexually abused an beaten by her coach -- presumably the story was meant to show that victims of abuse often do not report it. This was improper, both because it was meant to "arouse the jury's passion" and because it was extrinsic evidence.
• During closing argument the prosecutor said that this was not the first time the neighbor girl had had to testify about the defendant's conduct. This, too, was misconduct.

After ordering a new trial, the court of appeals also discussed a jury instruction that had been given:

Evidence has been introduced in this case on the subject of the child molestation of [the former step-daughter] for the limited purpose of proof of a common scheme or plan, absence of mistake or accident. You must not consider this evidence for any other purpose.

This was error because it appeared to indicate that the judge believed the molestation had occurred. Since the defendant contested that the instruction should be "Evidence has been introduced . . . on the subject of the alleged child molestation. . . ."

Categories: opening-statements, closing-arguments, new-trials, 404(b), prosecutorial-misconductcases