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State v. Perez-Cervantes8/24/2000
ment, but this authority is limited in its scope:
It is the duty of the court, in all cases, to restrict the argument of counsel to the facts in evidence, and not to permit the opposite party to be prejudiced by any statement of facts not a part of the evidence. But counsel must be allowed some latitude in the discussion of their causes before the jury, and if they are not permitted to draw inferences or conclusions from the particular facts in evidence it would be impossible for them to make an argument at all. The mere recital of facts already before the jury is not an argument. There must be some reason offered for the purpose of convincing the mind, some inference drawn from the facts established or claimed to exist, in order to constitute an argument. Woolfolk, 95 Wn. App. at 548 (emphasis added) (quoting Sears v. Seattle Consolidated St. Ry. Co., 6 Wash. 227, 233, 33 P. 389, 33 P. 1081 (1893)).
The proper application of the trial judge's discretionary authority over closing argument is illustrated perfectly by the cases cited by the majority. See majority at 7. For example, the majority cites State v. Cecotti, 31 Wn. App. 179, 183, 639 P.2d 243 (1982), a case involving the limitation of defense closing argument to 30 minutes. The majority also relies on State v. Costello, 29 Wash. 366, 371, 69 P. 1099 (1902) and State v. Bokien, 14 Wash. 403, 416, 44 P. 889 (1896). Both these cases involve the trial judge's overruling of defense objections to aspects of the State's closing argument.
Accordingly, while it is within the trial judge's discretion to limit the duration of summation or determine the propriety of the State's mode of argument, a trial judge may not exclude defense arguments unless the arguments misrepresent the evidence or the law, introduce irrelevant or prejudicial matters, or otherwise confuse the jury. Woolfolk, 95 Wn. App. at 549 (citing United States v. DeLoach, 504 F.2d 185, 189 (D.C. Cir. 1974)). As noted this year by the Massachusetts Court of Appeals in an analogous case, '{h}owever broad the discretion of the trial judge may be to limit the scope of closings so as to guard against repetitive, redundant, and otherwise improper arguments to the jury, such power cannot extend to total preclusion of relevant arguments that 'remain within the bounds of the evidence and the fair inferences from the evidence.'' Commonwealth v. Cutty, 47 Mass. App. Ct. 671, 675, 715 N.E.2d 1040 (1999) (citation omitted) (quoting Commonwealth v. Pettie, 363 Mass. 836, 840, 298 N.E.2d 836 (1973)). Put another way, '{t}he court cannot compel counsel to reason logically or draw only those inferences from the given facts which the court believes to be logical.' City of Seattle v. Arensmeyer, 6 Wn. App. 116, 121, 491 P.2d 1305 (1971).
This point is also well illustrated by the Court of Appeals recent decision in Woolfolk. In Woolfolk, the defendant was convicted of possession of a controlled substance with intent to manufacture or deliver while armed with a firearm. Woolfolk, 95 Wn. App. at 543. Defense counsel wished to argue to the jury that Woolfolk had no knowledge of the gun, but was denied the opportunity to do so. The Court of Appeals reversed Woolfolk's conviction, stating the following:
There is evidence in the record from which an inference may be drawn that Woolfolk did not know about the gun . . . . Woolfolk was not prevented from reminding the jury of this evidence but was precluded from driving home the crucial point that if they believed Woolfolk when he said he did not know about the gun, then they should find that he was not armed. Woolfolk should not be precluded from arguing his theory of the case to the jury, and we find t
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