Prosecutor's Closing Arg Upheld in Child Rape Case

The Washington Supreme Court held that a deputy proseuctor's remarks in rebuttal closing argument did not amount to prejudicial prosecutorial misconduct. State v. McKenzie, --- P.3d --- 2006 WL 1360883 (Wash. May 18, 2006), Westlaw, Washington Courts (majority), Washington Courts (dissent).

The defendant was convicted of three counts of rape of a child in the second degree. The alleged abuse was of his stepdaughter when she was in the sixth and seventh grades.

Moving for a new trial, the defendant

argued that the deputy prosecutor committed prejudicial misconduct by expressing her personal opinion as to [his] guilt, by referring to [him] as a "rapist," and by suggesting that [he] had attempted to buy [the stepdaughter's] silence. [On appeal he added] the claims that the deputy prosecutor had improperly and prejudicially described [him] as "lying" and [the girl] as "innocent."

The Court, in an opinion by Justice Owens, found that the comments were not prejudicial.

• Terming the defendant a "rapist" was a reasonable inference from the evidence.
• The word "guilty" was used in response to remarks defense counsel made.
• "Because both [the defendant] and [the alleged victim's sister] testified that [the alleged victim] had a reputation for untruthfulness and, moreover, because the theory of the defense's case was that [the girl] had made up the allegations so that she could live with her father, the case presented offsetting claims of untruthfulness, entitling the deputy prosecutor to argue from the evidence that [the defendant] himself was lying.
• "We find the deputy prosecutor's argument that [the defendant] hoped to quiet [the girl] by means of a mediated monetary settlement a weak inference from the evidence; nevertheless, we cannot say that the trial court's decision on this close issue was a clear abuse of discretion. In any event, were we to find the argument improper, we could not conclude that the implication, which drew no objection from defense counsel, was so prejudicial as to warrant a new trial.
• "in drawing attention to [the girl's] lost innocence, the deputy prosecutor went too far in her effort to exploit defense counsel's theme that [the defendant] had to be content with the phrase 'not guilty,' instead of the word 'innocent.' Although we conclude that the prosecutor's references were improper, we hold that they were not 'so flagrant and ill-intentioned' that their prejudicial effect could not have been cured by the trial court's instruction to the jury."

Justice Sanders dissented, joined by Justices Chambers and Madsen:

The majority concedes the . . . prosecutor's "improper" statements "went too far." . . . Thirteen times, she called [the defendant] a "rapist." Seven times, she called [him] "guilty." Five times, she called [him]a "liar." Four times, she claimed [he] tried to bribe his alleged victim. Seven times, she referred to [the girl's] "innocence." Thirteen times, she gratuitously disparaged witnesses supporting [the defendant]. And twice, she personally vouched for [the alleged victim's] credibility.

But still, the majority denies [him] a new trial. It claims a jury instruction could have "mitigated" the prosecutor's egregious misconduct. . . . I disagree. A criminal defendant is entitled to " 'a fair and impartial trial.' " . . . 826 (1927)). And [the defendant's] trial was neither fair nor impartial. No instruction can cure comments likely to affect the verdict. . . . [He] is entitled to a new trial.

Justice Owens's response to that vigorous opening is in a footnote:

FN2. The dissent opens with its own tabulation of the prosecutor's allegedly improper remarks, but what the dissent neglects to acknowledge is that, assuming these remarks were improper, an objection from defense counsel would have prevented any repetition of the five remarks that [the defendant] has challenged on appeal. As this court has previously acknowledged, the absence of an objection by defense counsel "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial."

Filed in: cases, closing-arguments, prosecutorial-misconduct, Owens, Sanders