WA Legal Roundup
Slow day at the Washington Supreme Court today, two opinions:
In this (extremely boring) contracts case, the court issued a per curiam opinion. For those that don't know, per curiam opinions are generally only issued when the area of law is so cake and set in stone that there's really not much need for a name to write it. The court is speaking as a whole.
In this case, the contract stated that one party could take possession of the situs on the "possession day"."Possession day" was not defined in the contract. One party tried to argue it meant closing day, the other party tried to offer extrinsic evidence. The court held that, since it was not defined anywhere and was ambiguous, extrinsic evidence was proper.
First time I've dealt with the parol evidence rule since law school. Now I must go shower.
Fisher was convicted of four counts of child molestation; he claimed he deserved a new trial based on "improper admission of misconduct evidence under ER 404(b), prosecutorial misconduct, erroneous exclusion of bias evidence, and inadequate jury instructions." As usual in these multiple error cases, I will simply address each assignment separately.
1) Improper admission of misconduct evidence under ER 404(b)
The court allowed admission of evidence that Fisher physically abused his three step-children, and the fear was the reason the eldest daughter did not earlier report. The court "recognized the prejudicial nature of the evidence but reasoned it was relevant if Melanie's delayed reporting became an issue."
Affirmed on this ground, as, though generally inadmissible, victim's state of mind is a proper purpose and the court properly identified this as more probative than prejudicial.
2) Prosecutorial misconduct
During trial, the prosecutor attempted to question the Defense investigator regarding an interview with the Defendant and defense counsel. The prosecutor also made comments accusing Fisher of having been coached. Finally, during trial the prosecutor questioned Fisher about his awareness of possible sentencing consequences.
During closing, the State laid out its theme that the system had failed all three of the step-children, and that the only way to remedy the failure of the system was to convict Fisher. During rebuttal, he conflated the physical and sexual abuse of all three children into one large pattern of abuse by Fisher. Finally, also during closing, the prosecutor made references to balancing the evidence.
During trial and during closing, the prosecutor also plaid the gesture and facial expression game when defense counsel was doing his thing. The court ruled that this was not prejudicial.
First, the supreme court took issue with the fact that defendant never raised failure to report as a defense, thus, there was no reason to use the evidence of abuse at all. In holding that this did improperly influence the jury, the court held:
We hold that there is a substantial likelihood that the prosecuting attorney's misconduct affected the jury, thus meriting Fisher a new trial. Even though defense counsel never made an issue of Melanie's delay in reporting, the prosecuting attorney preemptively presented the physical abuse evidence and then argued that it demonstrated Fisher's propensity to commit abuse. The jury, therefore, was left with the wrong impression that it must convict Fisher to obtain justice for the harm caused to Brett, Brittany, Ashland, and Shelby, in addition to Melanie.
Though this gave a basis for reversal, the supreme court continued in order to avoid issues appearing a second time on appeal. However, the supreme court did refuse to decide on the other bases of prosecutorial misconduct.
3) Witness bias
The court excluded evidence that Fisher's ex-wife was biased against him due to failure to pay the divorce judgment by filing bankruptcy and that she was going to "get" him.
Because the court did allow evidence that she generally still harbored ill will towards him, the supreme court held the limitation was not error.
4) Jury Instructions
The court offered the following instruction:
There are allegations that the defendant committed acts of Child Molestation on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.
In affirming the court's use of this instruction, the supreme court held:
The unanimity instruction required the jury to unanimously agree on the specific act or acts that had been proved beyond a reasonable doubt. The jurors were also instructed that convicting Fisher required them to find that sexual contact occurred on four separate days. Furthermore, the jurors were instructed that their finding on one count did not control their verdict on any other count. Read in conjunction, these instructions sufficiently protected Fisher's right to unanimity.