State v. Warren

165 Wash. 2d 17
CourtWashington Supreme Court
DecidedNovember 20, 2008
DocketNo. 79356-5
StatusPublished
Cited by485 cases

This text of 165 Wash. 2d 17 (State v. Warren) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Warren, 165 Wash. 2d 17 (Wash. 2008).

Opinions

Chambers, J.

¶1 — Richard Warren was convicted of one count of first degree child molestation of his 8-year-old stepdaughter, S.S., and, in a separate trial, three counts of second degree child rape of his 14-year-old stepdaughter, N.S. In the first trial, Warren was convicted only of offenses relating to S.S., and in the second trial, he was convicted only of offenses relating to N.S.1 The Court of Appeals affirmed his convictions in a consolidated appeal. We accepted review primarily to consider two issues: whether the prosecutor committed misconduct during closing arguments and whether the State may lawfully prohibit contact between Warren and his wife. We affirm.

¶2 The facts surrounding Warren’s offenses are ably described by the Court of Appeals.2 We find it largely unnecessary to review the facts again.

PROSECUTORIAL MISCONDUCT

¶3 Warren argues that the prosecutor committed misconduct by repeatedly misstating the burden of proof during closing argument in the first trial. The trial judge [24]*24overruled Warren’s first objection, but after the third time the prosecutor used substantially the same language and Warren made substantially the same objection, the trial judge gave a lengthy curative instruction. During this curative instruction, the trial judge also stated that essentially, counsel was “playing with words.” Report of Proceedings (RP) (Feb. 20, 2003) at 105. Warren argues that the judge’s comment undercuts the seriousness of the misconduct and the effectiveness of the curative instruction. The State properly concedes the prosecutor’s language was improper but contends that any error was cured by the trial judge’s thorough curative instruction and, in the alternative, that the error was harmless.

¶4 The prosecutor’s argument was clearly improper, and we set forth the pertinent portion of the verbatim report of proceedings for clarity and future guidance. During her rebuttal closing, this exchange occurred:

MS. SNOW [prosecutor]: We also are not clear about the size of the defendant’s penis. We have no idea. And for them to ask you to infer everything to the benefit of the defendant is not reasonable.
MR. CARNEY [defense counsel]: Objection, your Honor. Misstates the burden of proof and presumption of innocence.
THE COURT: Counsel, the objection is overruled. Do you want to talk about it? Come here.
(At this time an off-the-record discussion was held.)
THE COURT: Let’s move on, Counsel.
MS. SNOW: Reasonable doubt does not mean give the defendant the benefit of the doubt, and that is clear when you read the definition.
Defense counsel calls [S.SJ’s description of what happened a rambling eight-year-old’s description. And the bottom line for you is, it has been uncontroverted.

RP (Feb. 20, 2003) at 98-99. The prosecutor continued with an appropriate argument that the jury should not confuse a child’s memory with credibility and discussed child testimony concerning penis pumps, pornographic video [25]*25covers, bathing, and sexual touching. Then the following transpired:

MS. SNOW: Finally, in this case I want to point out that this entire trial has been a search for the truth. And it is not a search for doubt. I talked to you about the fact that you must find the defendant guilty beyond a reasonable doubt. That is the standard to be applied in the defendant’s case, the same as any other case. But reasonable doubt does not mean beyond all doubt and it doesn’t mean, as the defense wants you to believe, that you give the defendant the benefit of the doubt.
MR. CARNEY: Again, your Honor —
THE COURT: Counsel, just a second. There has been an objection to the statements made by the State as to the definition of reasonable doubt. The definition of reasonable doubt is provided in your jury instructions. I don’t have the number in front of me, but I think it is the third instruction. I want you to read that instruction very carefully, particularly the last paragraph of the instruction. The second sentence of that reads, “it is such a doubt as would exist in the mind of a reasonable person after fully, fairly and carefully considering all of the evidence or lack of evidence.”
Now, my statement on that is, after you have done that, after you have reviewed all of the evidence or lack of evidence, and you continue to have a reasonable doubt then you must find the defendant not guilty. And if in still having a reasonable doubt that is a benefit to the defendant, then in a sense you are giving the benefit of the doubt to the defendant.
So I don’t want you to misconstrue the language that somehow there is no benefit here. Indeed there is, because the benefit of the doubt is if you still have a doubt after having heard all of the evidence and lack of evidence, if you still have a doubt, then the benefit of that doubt goes to the defendant, and the defendant is not guilty.
So we are playing with words here in a sense. The instruction is here in the package. I commend it to you for your reading.
Ultimately you will determine whether, at the conclusion of your deliberations, you have a reasonable doubt or not. You may complete your argument, Counsel.

RP (Feb. 20, 2003) at 104-05.

[26]*26¶5 The prosecutor concluded her closing argument briefly without suggesting, again, that the defendant did not enjoy the benefit of any reasonable doubt. Warren did not seek any additional instructions or a mistrial.

¶6 To prevail on a claim of prosecutorial misconduct, a defendant must show first that the prosecutor’s comments were improper and second that the comments were prejudicial. See, e.g., State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007), cert, denied, 128 S. Ct. 2964 (2008); State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).3 In this case, the prosecutor’s argument was improper because it undermined the presumption of innocence. As we have said recently:

The presumption of innocence is the bedrock upon which the criminal justice system stands .... The presumption of innocence can be diluted and even washed away if reasonable doubt is defined so as to be illusive or too difficult to achieve. This court, as guardians of all constitutional protections, is vigilant to protect the presumption of innocence.

State v. Bennett, 161 Wn.2d 303, 315-16, 165 P.3d 1241 (2007). Due process requires that the State bear the burden of proving every element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Cantu, 156 Wn.2d 819, 825, 132 P.3d 725 (2006). A defendant is entitled to the benefit of a reasonable doubt. Whether a doubt exists and, if so, whether that doubt is reasonable may be subject to debate in a particular case. However, it is an unassailable principle [27]*27that the burden is on the State to prove every element and that the defendant is entitled to the benefit of any reasonable doubt.

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Cite This Page — Counsel Stack

Bluebook (online)
165 Wash. 2d 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-warren-wash-2008.