State v. Case

Ott, J.

(dissenting) — I dissent for two reasons, (1) the majority disregard the laws of this state, our rules governing appeals, our decisions interpreting those laws and rules, and have determined de novo the issue of misconduct meriting a new trial, and (2), assuming that error or misconduct was established by the record, it did not constitute reversible error and did not merit the granting of a new trial.

Do the majority disregard our decisions and decide de novo the issue of misconduct meriting a new trial?

It is admitted that the alleged error is raised for the first time on appeal. This court has said:

“Appellants did not call the oversight to the trial court’s attention and cannot raise it upon appeal for the first time. Appellants have not done their part in saving the lower court from error. [Citing case.]” (Italics mine.) Bloom-quist v. Buffelen Manufacturing Co., 47 Wn. (2d) 828, 831, 289 P. (2d) 1041 (1955).

The determination of an issue raised for the first time in this court is a determination de novo.

Do the majority disregard our rules of court and statutes governing appeals?

Rule on Appeal 17, 34A Wn. (2d) 24, provides:

“Upon an appeal from a judgment, the supreme court will review any intermediate order or determination of the superior court which involves the merits and materially affects the judgment, appearing upon the record sent from the superior court.”

Since the record indicates that the superior court was not given an opportunity to enter any intermediate order or determination . . . which involves the merits and materially affects the judgment,” there is nothing for this court to review. The majority have reviewed the record in disregard of this rule.

Do the majority disregard the statutes?

RCW 4.76.010 [cf. Rem. Rev. Stat., § 398] provides:

*78 “A new trial is a reexamination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”

RCW 4.76.020 [cf. Rem. Rev. Stat. (Sup.), § 399] provides, in part:

“The former verdict or other decision may be vacated and a new trial granted, on the motion of the party aggrieved, for any of the following causes materially affecting the substantial rights of such party: . . .

“(2) Misconduct of prevailing party . . .

“(8) Error in law occurring at the trial and excepted to at the time by the party making the application.”

The office of a motion for a new trial is to present to the trial court errors alleged to have occurred, or questions not raised, during the progress of the trial, so that the court may have an opportunity to correct or rule upon them. Dubcich v. Grand Lodge Ancient Order of United Workmen, 33 Wash. 651 , 74 Pac. 832 (1903).

We have held that a motion for a new trial is not necessary to obtain a review on appeal, where the error has been presented otherwise to the court for a ruling. Tullis v. Shannon, 3 Wash. 716 , 29 Pac. 449 (1892); Birch v. Abercrombie, 74 Wash. 486 , 133 Pac. 1020 (1913); Pacific Coast Coal Co. v. District No. 10, United Mine Workers of America, 122 Wash. 423 , 210 Pac. 953 (1922); Keilhamer v. West Coast Telephone Co., 11 Wn. (2d) 24, 118 P. (2d) 173 (1941). However, a motion for a new trial is necessary to preserve for review errors or questions not presented to the trial court for ruling during the trial or before judgment is entered. Dubcich v. Grand Lodge Ancient Order of United Workmen, supra; Papoutsikis v. Spokane, Portland & Seattle R. Co., 89 Wash. 1 , 153 Pac. 1053 (1915); Pacific Coast Coal Co. v. District No. 10, United Mine Workers of America, supra; In re Corneliusen’s Estate, 182 Wash. 488 , 47 P. (2d) 843 (1935); Unemployment Compensation Department v. Hunt, 17 Wn. (2d) 228, 135 P. (2d) 89 (1943); State v. Davis, 41 Wn. (2d) 535, 250 P. (2d) 548 (1952); Lee & Eastes v. Continental Carriers, 44 Wn. (2d) 28, 265 P. (2d) 257 (1953).

*79 In State v. Davis, supra, the appellant failed to make concomitant objection to the error of the trial court in commenting upon the evidence, and made no motion for a new trial. This court ruled upon the assignment of error with respect to the comments on the evidence as follows:

“Appellant is correct in saying that where the error relied upon is an asserted comment on the evidence by the trial judge, it is not necessary for the aggrieved party to make an objection in order to reserve the question for appellate review. [Citing cases.] . . .

“We do not agree with appellant, however, that the fact that he was excused from making an objection at the time the incident arose, also excused him from raising the question on a motion for a new trial.

“The office of the motion for a new trial is to give the trial court an opportunity to pass upon questions not before submitted for its ruling. Dubcich v. Grand Lodge A. O. U. W., 33 Wash. 651 , 74 Pac. 832 . Hence, those errors which could only have been raised on motion for new trial will not be considered on appeal, if not raised by this motion. [Citing cases.]

“This is but a corollary to the rule that questions which are not raised in any manner before the lower court will not be considered on appeal. [Citing cases.]” (Italics mine.)

In Papoutsikis v. Spokane, Portland & Seattle R. Co., supra, this court ruled upon an assignment of error relating to misconduct of counsel, stating:

“The second assignment of error is laid in misconduct of counsel for the company in remarks to the jury, but no exceptions appear to have been taken to these remarks when he uttered them. We have held, indeed (Cranford v. O’Shea, 75 Wash. 33 , 134 Pac. 486 ), that, even without concomitant objection, abuses of that kind may be raised in the trial court upon motion for new trial, and thus be saved for consideration here.” (Italics mine.)

See, also State v. Hart, 26 Wn. (2d) 776, 175 P. (2d) 944 (1946).

The majority disregard the statutes authorizing the granting of new trials by the trial court, and the fact that appellant here did not avail himself of the remedy provided therein.

*80 Do the majority disregard the constitution of the state of Washington?

Art. IV, § 4, provides, in part:

“The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers, and appellate jurisdiction in all actions and proceedings.”

The issue of whether the defendant received a “fair trial” must be raised in the first instance at the trial court level. The supreme court is an appellate court. It does not have original jurisdiction to determine this issue. In the instant case, the majority are reversing the trial court in a matter upon which it never had an opportunity to exercise its discretion or make a ruling that can be reviewed here.

A determination de novo of the issue of new trial is not within the original jurisdiction of this court, as set out in the constitution.

I conclude that, as to the first contention raised by this dissent, the majority disregard the rules of court, the laws governing appeals, and our constitution, when they grant a new trial upon the record before us.

Secondly, assuming that this court has jurisdiction to review the error complained of, the alleged misconduct was not such as would merit a new trial for the reasons that (a) the statements were reasonable deductions based upon the evidence, (b) the questioned statements were in answer to arguments made by defense counsel, and (c), if the statements did constitute misconduct, they were not so prejudicial as to be incurable by an instruction.

The majority quote from Canon of Professional Ethics 15, 34A Wn. (2d) 131: “It is improper for a lawyer to assert in argument his personal belief in his client’s innocence . . . ” (Italics mine.) The canon does not forbid an attorney to base his opinion of guilt or innocence upon the evidence. State v. Buttry, 199 Wash. 228 , 90 P. (2d) 1026 (1939); State v. Brown, 35 Wn. (2d) 379, 213 P. (2d) 305 (1949). The canon was not violated by the statement upon which the majority rely, which was as follows:

*81 “. . . I mean, that is my opinion about what this evidence shows and how clearly this evidence indicates that this girl has been violated. This girl has been sexually attacked ... by her father. . . . This girl has been raped by her own father.” (Italics mine.)

The majority say that “such language, prefaced with at least an implied ‘The evidence establishes that,’ would be excused if not approved. State v. Brown (1949), 35 Wn. (2d) 379, 213 P. (2d) 305 , and cases therein cited.”

In other words, the majority say that the statement should have been made as follows:

“The evidence establishes that, I mean, that is my opinion about what this evidence shows and how clearly this evidence indicates that this girl has been violated, etc.”

The statement which the majority say would not be improper adds hut a third reference to the evidence. In my opinion, the difference between the approved and the disapproved statement is a classic example of the proverbial “distinction without a difference.”

The second statement relied upon by the majority is, “ . . . I did it because in my good judgment these people were going to protect Joyce against this man.”

We have held that, while intemperate assertions of opinion, which are not based upon evidence, will not be tolerated, prosecuting officers will be permitted a reasonable latitude in argumentative deduction from the evidence. State v. Peeples, 71 Wash. 451 , 129 Pac. 108 (1912); State v. Evans, 145 Wash. 4 , 258 Pac. 845 (1927); State v. Buttry, supra; State v. Brown, supra.

Was this statement beyond the bounds of reasonable latitude in making argumentative deduction from the evidence? The statement inferred that the complaining witness needed protection from her father. She stated in her testimony that she feared him, and that he had violently molested her in the past. The deputy prosecutor’s statement was a reasonable deduction from this evidence. Defense counsel objected upon the ground that it expressed an opinion not based upon the record. The trial court undoubtedly having in *82 mind the testimony of the complaining witness, properly ruled, “Proceed.”

The majority next rely upon the statement of the deputy prosecutor to the effect that sex crimes are not limited to any one segment of society and that they occur among the most respected members of society.

The court sustained an objection to this line of argument, and the prosecutor did not pursue it further. Defense counsel did not move that the jury be instructed to disregard the statement, and, in my opinion, the statement was not so prejudicial that an instruction would not have cured it. In such case, the error, if any, was not preserved for review. State v. Taylor, 47 Wn. (2d) 213, 287 P. (2d) 298 (1955).

As a further basis for the holding that there was prejudicial misconduct, the majority state that “Within a minute or two he [the deputy prosecutor] was discussing the war record of Jehovah’s Witnesses as litter-bearers.”

This statement was solicited by the defense counsel’s argument to the jury, in which he strongly inferred that the people with whom the prosecutrix stayed after she left home were not to be believed because they were Jehovah’s Witnesses, and because they refused to salute the flag.

In State v. Wright, 97 Wash. 304, 308 , 166 Pac. 645 (1917), this court adopted the following rule:

“ ‘Remarks of the prosecuting attorney which ordinarily would be improper are not ground for exception if they are provoked by defendant’s counsel and are in reply to his statements.’ 12 Cyc. 582.”

The rule has been followed consistently by this court. State v. Van Luven, 24 Wn. (2d) 241, 163 P. (2d) 600 (1945); State v. Taylor, supra.

The defendant’s counsel having questioned the credibility of the witnesses, the deputy prosecutor was within the bounds of “reasonable latitude in argumentative deduction,” in refuting the argument of defense counsel in the manner criticized by the majority.

The majority, in concluding their consideration of the state’s closing argument, referred to a statement .made by *83 the deputy prosecutor which he labeled, “my honest opinion.”

There is only one such remark in the closing argument. The statement, in so far as it is material here, is as follows:

“ . . . it is my honest opinion, although the court has instructed you your minds are to be kept open until you get inside that jury room, I certainly think it is not humanly possible in this case that you haven’t decided as to whether or not that little eighteen year old girl is telling a lie or telling the absolute truth, and whether this man here, who is her father, is telling a lie or is telling the truth.”

This statement is not an expression of opinion as to the guilt or innocence of the accused, in violation of Canon of Professional Ethics 15, and could not have prejudiced the jury against the defendant.

The final instance of alleged misconduct to which the majority refers, and which they say could not be erased from the minds of the jurors and increased the adverse effect of the misconduct in closing argument, was a statement made by the prosecutor, after two of the defense character witnesses had testified and volunteered unsolicited answers. While the court was admonishing the character witness then on the stand, the following occurred:

“Mr Regal: Well, I can anticipate problems with his entire herd that will be called in here. Mr. Hudson: I consider that highly prejudicial, your honor. The Court: Just a minute. I have ruled. Counsel’s remarks will also be stricken and disregarded by the jury. We subpoena witnesses both for the State and for the defendant. Mr. Regal: Yes, your honor. The Court: And I try to conduct this case fair both to the State and to the defendant. It is a question for the jury to decide, the guilt or innocence of the defendant, but when we issue subpoenas which is a process of our court of record, the witnesses who appear in response to an order of the court, even if the number is large, are not to be designated by an attorney who is an officer of the court, as a herd. Mr. Regal: I apologize to the court and to the people that I referred to in that manner. The Court: Very well. Mr. Regal: Crowd, I meant to say.”

Here the court instructed the jury to disregard the deputy prosecutor’s statements. The court’s admonition was followed by the attorney’s apology. The court’s admonition *84 was detrimental to the state’s case, and completely erased any possible prejudice to defendant which may have resulted from the deputy prosecutor’s statement.

With reference to this remark, juries are presumed to follow the court’s instructions. State v. Kelsey, 46 Wn. (2d) 617, 283 P. (2d) 982 (1955). Applying the rule to the instant case, the court having instructed the jury to disregard the statement, the presumption is that they did so.

The majority admit that the trial court must be affirmed, unless the misconduct of the deputy prosecuting attorney was so flagrant as to have denied the defendant a fair trial as guaranteed by the constitution. A fair trial means a trial conducted according to the laws of the state and established rules of practice and procedure. Such a trial was afforded this defendant, and either he failed to avail himself of his statutory rights or the alleged abuses were so minor that even his counsel did not deem them objectionable.

An analysis of the points raised by the majority indicates that none of them, individually or collectively, establishes error meriting the granting of a new trial by this court (were that issue properly before us), and that they fall far short of the test, “ ‘. . . unless the misconduct be so flagrant that no instruction would cure it,’ ” announced in State v. Lane, 37 Wn. (2d) 145, 151, 222 P. (2d) 394 (1950).

If trials de novo are to be granted in this court, and judgments reversed upon the basis of misconduct of a prosecuting attorney in his closing argument, then the error meriting the granting of a new trial should at least he predicated upon misconduct affecting a material issue of the offense charged.

Finally, the framers of our constitution never intended that the supreme court should have original jurisdiction in criminal cases, nor was it intended that this appellate court should reverse a trial judge upon alleged errors which were never called to his attention and upon which he had no opportunity to rule.

For the reasons stated, the judgment of the trial court should be affirmed.

Mallery, J., concurs with Ott, J.