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State v. Perez-Cervantes8/24/2000
ctual issue to the jury.
This exact point was made recently by the Ninth Circuit in a case involving alleged instructional error on the issue of cause of death. See Main, 113 F.3d at 1050. In Main, the defendant was charged with involuntary manslaughter stemming from the death of a passenger in an automobile accident. The accident allegedly resulted from the defendant's driving while intoxicated. Main, 113 F.3d at 1047. After the accident, but before the passenger died, a deputy sheriff arrived on the scene, observed the passenger lying in a fetal position, believed the passenger was still breathing and, therefore, elected not to move him. Main, 113 F.3d at 1047.
The passenger's death was later attributed to lack of oxygen, along with alcohol in his bloodstream and head trauma sustained in the crash. Main, 113 F.3d at 1048. In responding to the claim the jury was improperly instructed on causation, the court noted '{w}hether {the passenger's} death was within the risk created by {the defendant's} conduct is a factual question, a question of the kind that a jury is peculiarly qualified to answer.' Main, 113 F.3d at 1049. The court then concluded:
It will be said that a failure to get prompt medical attention is not an unlikely hazard for the victim of an automobile accident. Agreed. But that judgment remains a judgment of fact, a judgment that is in the province of the jury. When the jury is not told that it must find that the victim's death was within the risk created by the defendant's conduct an element of the crime has been erroneously withdrawn from the jury. Main, 113 F.2d at 1050 (citing Harmon v. Marshall, 69 F.3d 963, 965-66 (9th Cir. 1995)).
Although the jury was instructed on proximate cause in the present case, the prosecutor told the jury in its closing argument that cause of death was 'not disputed,' and the defense was prohibited from answering that assertion. Thus, far from being 'told that it must find that the victim's death was within the risk created by the defendant's conduct,' Main, 113 F.3d at 1050, the jury here was misled to believe this inquiry was already completed.
In examining the trial court's refusal to allow the defense to present any argument on cause of death, we must also remember a defendant has a right to ''a meaningful opportunity to present a complete defense.'' Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984)).
{T}he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments. . . .
There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Herring v. New York, 422 U.S. 853, 857-58, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975) (invalidating statute precluding defense from making closing argument).
'Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.' Herring, 422 U.S. at 858; see also Woolfolk, 95 Wn. App. at 547 ('{c}losing argument is perhaps the most important aspect of advocacy in our adversarial criminal justice system.').
The majority correctly states that the trial judge retains discretionary authority over certain aspects of closing argu
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