State v. Worthen

HOWE, Associate Chief Justice

(concurring and dissenting):

I concur, except I dissent as to that portion of part III of the lead opinion which holds that the prosecutor’s statements in his letter to Judge Roth are admissible as representative admissions against the 'State. The statements do not concern a material fact and are not relevant to the jury’s inquiry. Further, the lead opinion would allow the jury to give a strained and distorted interpretation to the statements.

Although the letter was imprecisely worded, its fair import was that the prosecutor had no direct but only some circumstantial evidence that the defendant could have committed the abuse. As such, the prosecutor’s statements were simply his honest appraisal of his case at that point. The lead opinion agrees that “the prosecutor’s letter did little more than refer to some of the evidence against the defendant.” It did not rise to an admission since it did not concern a material fact which the prosecutor had to prove and on which the defendant had to produce evidence. Whether the evidence against the defendant was direct or circumstantial was not an issue at trial. This case had been previously tried, and counsel for both sides knew that the State’s evidence was only circumstantial. At trial, the State did not produce any direct evidence and the defendant’s counsel did not claim any surprise. There are statements which a prosecutor could make prior to trial which would amount to an admission of a material fact, but his frank and professional appraisal of the evidence he expects to produce certainly is not one.

Case law does not support the lead opinion’s conclusion that the prosecutor’s statement in his letter was erroneously excluded. The cases dealing with the admissibility of an admission made prior to trial by an *852 attorney for a party outside the courtroom are in some conflict. Wenner v. Gulf Oil Corp., 264 N.W.2d 374 (Minn.1978); Gibson v. Metropolitan Life Ins. Co., 147 S.W.2d 193 (Mo.Ct.App., St. Louis 1941). However, they are unanimous in requiring that the admission be one of fact material to the dispute of the parties. Thus, courts have held admissible an acknowledgment of indebtedness by an attorney for a debtor, Suntken v. Suntken, 223. Iowa 347, 272 N.W. 132 (1937); Brown v. Hebb, 167 Md. 535 , 175 A. 602 , 97 A.L.R. 366 (1934), and a statement in a letter written by an attorney for a plaintiff that the defendant’s employee (not the defendant) assaulted him. Noel v. Roberts, 449 S.W.2d 572 (Mo.1970). Similarly, a statement in a letter of claim written by an attorney for the plaintiff setting forth the basis of the claim which presented a theory of liability entirely different from the theory presented by the claimant in a subsequent action was held admissible. Gibson v. Metropolitan Life Ins. Co., supra. On the other hand, it was held in Hogenson v. Service Armament Co., 77 Wash.2d 209 , 461 P.2d 311 (1969), that a statement by a plaintiffs attorney in a letter of claim to the defendant as to how the plaintiffs injury occurred which was inconsistent with the plaintiffs later theory presented at trial was inadmissible.

The cases are also unanimous that legal conclusions, matters of law, and opinions expressed by attorneys are not admissible against their clients. Thus, in Kansas City v. Martin, 391 S.W.2d 608, 615 (Mo.Ct.App.1965), the attorney for the plaintiff in a tort action stated that the plaintiff was liable for his hospital bills. In a subsequent action brought against the plaintiff to recover the hospital bills, his attorney’s statement was held inadmissible. Said the court:

[T]he authority of an attorney is limited to statements or admissions of fact, and neither the client nor the court is bound by the attorney’s statements or admissions as to matters of law or legal conclusions. 7 C.J.S. Attorney and Client § 100, p. 922. It is also recognized that improvident or erroneous statements or admissions resulting from unguarded expressions or mistake should not be binding on the client. 7 C.J.S. Attorney and Client § 100, p. 922; Couch v. Landers, 316 S.W.2d 588 (Mo.1958).

(Emphasis added.)

Two cases cited by but not relied on in the lead opinion support the rule that legal conclusions, matters of law, and opinions expressed by attorneys are not admissible against their clients. Thus, in People v. Kinder, 122 Cal.App.2d 457 , 265 P.2d 24 (1954), the court held that it was error for the trial court to allow a deputy district attorney to read into evidence a remark made by the defendant’s counsel in his opening statement to the jury at a former trial which allegedly conflicted with counsel’s opening statement in the second trial. Said the court: “The mere argument of counsel is not evidence and is not admissible as such unless made as a factual admission formally made and entered in the course of a trial.” Kinder, 265 P.2d at 28 . That case was relied upon in State v. Nichols, 236 Or. 521 , 388 P.2d 739 (1964), a case very close in its facts to the instant case. There, the defendant called the district attorney as a witness and attempted to force him to admit that during oral argument concerning the sufficiency of an earlier indictment which had been dismissed by the court, the district attorney had said: “The State cannot honestly say that this defendant aimed that rifle at his wife and pulled the trigger intending to kill her.” The court held that the exclusion of that statement from evidence was proper, stating:

The opinion expressed by the attorney during the earlier proceeding while arguing a matter of law was no more relevant to prove the facts in the subsequent trial than it would have been if the attorney instead had expressed his enthusiastic personal belief in the guilt of the accused and the state were trying to place that opinion before the jury.

Nichols, 388 P.2d at 746 .

The lead opinion dismisses Kinder and Nichols as being “earlier” cases (they were decided in 1954 and 1964) which are not in accord with more recent case law. While my research and reading reveal that a *853 more liberal approach to the admissibility of admissions of attorneys is being proposed by the lead opinion today than in past years, there has been no liberalizing of the rule against admitting statements of attorneys which are legal conclusions, matters of law, or an attorney’s opinion or characterization of the evidence he expects to produce at trial. The lead opinion cites State v. Stiltner, 61 Wash.2d 102 , 377 P.2d 252 (1962), with apparent approval, but in that case, defense counsel attempted to call the prosecutor as a witness for a purpose far different than in the instant case. There, the credibility of the State’s main witness was an issue, and the court held that the prosecutor could be called to testify as to the State’s treatment of him before trial and whether that treatment amounted to coercion or intimidation and thus affected his testimony. That case did not involve calling the prosecutor to testify as to the weakness of his case or the quality of his evidence, as was attempted here.

The prosecutor’s assessment or characterization of his evidence made by him before trial is not relevant at trial. The jury should not decide the case on the basis of either the prosecutor’s or defense counsel’s personal opinion or judgment. Indeed, the jury is instructed to decide the case on the evidence and not on statements of counsel. The defendant’s right not to have a case submitted to the jury when there is no evidence of his guilt is protected by a motion to dismiss made by the defendant at the close of the State’s case. This was done here. The motion was denied. The lead opinion agrees that the motion was properly denied. Yet the lead opinion sanctions the highly incongruous result of the trial court’s allowing into evidence the prosecutor’s letter to prove that the State had “no evidence” against the defendant when the court had just ruled at the close of the State’s case that, as a matter of law, there was sufficient evidence of his guilt for the jury to convict him. The lead opinion asserts that “at the time the trial judge had to make his ruling [on the admissibility of the prosecutor’s statements], he could not have known that statement would prove to be erroneous.” This is not true. The trial judge had just ruled at the close of the State’s case in chief that there was sufficient evidence as a matter of law to take the case to the jury. It completely eludes me why at that point in the trial it was relevant and material for the jury to hear that before the trial the prosecutor had stated that his evidence against the defendant was circumstantial. Curiously, the lead opinion states that the prosecutor’s statement “may have been based in part on the out-of-court statements of some fifty witnesses he interviewed.” But its footnote 2 points out that there is no record support for this allegation, and part IV of the opinion reiterates that there is nothing in the record on appeal to support that supposition, not even an affidavit of counsel. I therefore do not think that the reference to such phantom evidence can be properly relied upon as a basis for the admission of the prosecutor’s letter into evidence.

Furthermore, it requires a strained interpretation of the letter to conclude that the prosecutor meant he had “no evidence.” The fair import was that he had no direct evidence, only circumstantial. See Huntsville Irrigation Association v. Rollo, 56 Utah 442 , 191 P. 423 (1920), where this Court refused to give a strained interpretation to a statement made by the plaintiff’s attorney while conducting cross-examination which would have conceded the very right which the action was commenced to enforce. The same is true in the instant case. The prosecutor’s language should not be unfairly interpreted to concede the very basis of the State’s case. I do not agree with the lead opinion wherein it states that the prosecutor’s letter should be given to the jury for them to make out of it anything they wish.

Statements of the nature made here by the prosecutor are commonly made in pretrial exchanges and many times form the basis for reaching a plea agreement. This openness and frankness by prosecutors should be encouraged. We have on many occasions reminded prosecutors that their principal objective should be to see that justice is served and not to obtain convic *854 tions at all cost. Prosecutors generally open their files to defense counsel for discovery. The lead opinion would have the prosecutor’s pretrial statement of the type of evidence he expects to produce used as an admission against the State, chilling our efforts to promote that openness. Justice Durham and Justice Zimmerman join my opinion. Otherwise, prosecutors would be well advised to guard their every statement to the trial judge and defense counsel lest it later be used as an admission against the State and the prosecutor is called to testify for the defendant.

DURHAM and ZIMMERMAN, JJ„ concur in Associate C.J. HOWE’s concurring and dissenting opinion.