State v. McKenzie

¶26

Sanders, J.

(dissenting) — The majority concedes the Snohomish County prosecutor’s “improper” statements “went too far.” Majority at 60. Thirteen times, she called David McKenzie a “rapist.” Seven times, she called McKenzie “guilty.” Five times, she called McKenzie a “liar.” Four times, she claimed McKenzie tried to bribe his alleged victim. Seven times, she referred to C.T.’s “innocence.” Thirteen times, she gratuitously disparaged witnesses supporting McKenzie. And twice, she personally vouched for C.T.’s credibility.

¶27 But still, the majority denies McKenzie a new trial. It claims a jury instruction could have “mitigated” the prosecutor’s egregious misconduct. Majority at 60-61. I disagree. A criminal defendant is entitled to “ ‘a fair and impartial trial.’ ” State v. Reeder, 46 Wn.2d 888, 893 , 285 P.2d 884 (1955) (quoting State v. Devlin, 145 Wash. 44, 51 , *62 258 P. 826 (1927)). And McKenzie’s trial was neither fair nor impartial. No instruction can cure comments likely to affect the verdict. State v. Belgarde, 110 Wn.2d 504, 508 , 755 P.2d 174 (1988). McKenzie is entitled to a new trial.

¶28 Unquestionably, prejudicial prosecutorial misconduct must result in a mistrial, whether or not defense counsel objected. “ ‘The best rule for determining whether remarks made by counsel in criminal cases are so objectionable as to cause a reversal of the case is, Do the remarks call to the attention of the jurors matters which they would not be justified in considering in determining their verdict, and were they, under the circumstances of the particular case, probably influenced by these remarks.’ ” State v. Rose, 62 Wn.2d 309, 312 , 382 P.2d 513 (1963) (internal quotation marks omitted) (quoting State v. Buttry, 199 Wash. 228, 251 , 90 P.2d 1026 (1939)). Accordingly, “the question to be asked is whether there was a ‘substantial likelihood’ the prosecutor’s comments affected the verdict.” Belgarde, 110 Wn.2d at 508 .

¶29 I believe so. A prosecutor may never assert her personal opinion as to the “ ‘credibility of a witness’ ” or the “ ‘guilt or innocence of an accused.’ ” State v. Reed, 102 Wn.2d 140, 145 , 684 P.2d 699 (1984) (quoting Wash. Code of Professional Responsibility, DR 7-106(C)(4)). See also RPC 3.4(f). An expression of “personal belief in the defendant’s guilt” is “not only unethical but extremely prejudicial.” State v. Case, 49 Wn.2d 66, 68 , 298 P.2d 500 (1956). A prosecutor may never introduce “ ‘evidence of any matter immaterial or irrelevant to the single issue to be determined.’ ” Devlin, 145 Wash. at 49 (quoting State v. Ferrone, 96 Conn. 160, 174 , 113 A. 452 (1921)). “This court will not allow such testimony, in the guise of argument, whether or not defense counsel objected or sought a curative instruction.” Belgarde, 110 Wn.2d at 508 . Here, the prosecutor’s improper and prejudicial statements were legion. And they were inexcusable.

¶30 The prosecutor flagrantly and egregiously violated her duty to provide McKenzie a “fair trial.” Reeder, 46 *63 Wn.2d at 892 . Her “inflammatory comments were a deliberate appeal to the jury’s passion and prejudice” and therefore “highly prejudicial.” Belgarde, 110 Wn.2d at 507-08 . Such misconduct “is so flagrant that no instruction can cure it.” Case, 49 Wn.2d at 74 . See also Reeder, 46 Wn.2d at 893 (holding “the harm had already been done, and it could not have been cured by instructions to disregard the statements so flagrantly made”). The only appropriate remedy is a new trial.

¶31 I dissent.

Madsen and Chambers, JJ., concur with Sanders, J.