360 P.3d 940
Wash. Ct. App.2015Background
- Alfred Thierry was tried for four counts of first-degree child rape and two counts of first-degree child molestation based on allegations by his son, JT.
- JT disclosed the abuse to his caregiver, a nurse practitioner, a child forensic interviewer (video recorded), and a counselor; the State admitted those out-of-court statements under child hearsay exceptions.
- JT testified at trial with some inconsistencies as to timing; defense impeached credibility by highlighting inconsistencies and potential motives (e.g., anger at not living with Thierry, suggestive counseling methods).
- Thierry testified and denied the allegations, offering limited admissions of conduct (an instance of JT touching Thierry and a possible incidental contact) and suggesting motives for false accusation.
- In closing, the prosecutor repeatedly argued that the jury could convict based on the child’s testimony alone and suggested that failing to believe JT would undermine prosecution of child-abuse cases generally; Thierry objected during rebuttal but was overruled.
- The jury convicted on all counts; the Court of Appeals (Division II) reversed, holding the prosecutor’s closing argument was improper and likely affected the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s closing argument constituted improper appeal to passion/prejudice | State: Comments answered defense attack on child-victim credibility and were permissible rebuttal; did not expressly ask jury to send a message | Thierry: Prosecutor urged conviction to avoid chilling future child reports and mischaracterized defense as saying children are never believable, inflaming jury | Held: Prosecutor’s statements were improper appeal to passion/prejudice and misrepresented defense; reversal required |
| Whether misconduct was invited or cured by trial posture/instruction | State: Remarks were rebuttal to defense closing and thus responsive; no explicit request to send a message | Thierry: Defense did not argue juries should disbelieve children because of age; rebuttal created straw man and could not be cured | Held: Remarks were not provoked by counsel’s argument and were prejudicial; timely objection made reversal appropriate |
| Whether the misconduct was prejudicial enough to require reversal | State: Prosecutorial latitude in argument; jury instructions guide jurors | Thierry: Case rested largely on JT’s credibility with inconsistencies; improper argument risked deciding case on emotion not evidence | Held: There was a substantial likelihood the misconduct affected the verdict; convictions reversed |
| Whether other issues (community custody conditions, miscellaneous evidentiary claims) merit review | State largely concedes some custody provision issues; evidentiary claims often unpreserved or outside record | Thierry: Raised multiple additional claims pro se (witness exclusion, trauma evidence) | Held: Court declined to resolve remaining claims on appeal given reversal; some claims unpreserved or outside record |
Key Cases Cited
- State v. Thorgerson, 172 Wn.2d 438 (prosecutor must refrain from impugning defense; prejudice analysis hinges on likelihood of affecting outcome)
- In re Pers. Restraint of Glasmann, 175 Wn.2d 696 (prosecutor must seek convictions based on probative evidence; standard for reviewing alleged prosecutorial misconduct)
- State v. Monday, 171 Wn.2d 667 (prosecutor’s duty to ensure defendant’s right to fair trial)
- State v. Casteneda-Perez, 61 Wn. App. 354 (prosecutor’s obligation to base arguments on probative evidence and sound reason)
- State v. Russell, 125 Wn.2d 24 (review of improper argument in context of total argument and instructions)
- State v. Powell, 62 Wn. App. 914 (similar ‘‘send a message’’ argument in child-sex-abuse case held incurably prejudicial)
- State v. Bautista-Caldera, 56 Wn. App. 186 (improper exhortation to convict to address societal problem of child sexual abuse)
- State v. Ramos, 164 Wn. App. 327 (prosecutor improperly appealed to protect community; emotional appeals inappropriate)
- United States v. Solivan, 937 F.2d 1146 (prosecutor’s insinuations carry heightened weight; admonitions against appeals to passion)
- State v. Hamilton, 179 Wn. App. 870 (issue preservation requirement for appellate review of evidentiary rulings)
- State v. Kirkman, 159 Wn.2d 918 (specificity required to preserve evidentiary objections)
- State v. McFarland, 127 Wn.2d 322 (appellate limits on addressing matters outside the trial record)