State v. Perez-Cervantes8/24/2000
. . from which the jury could find a cause of death other than the stabbing, . . . no argument could be made that there was an intervening cause of death.' Supplemental Br. of Pet'r at 12.
In considering the State's argument, we are not unmindful of the importance of closing argument to a defendant in a criminal case. As the United States Supreme Court has noted, it is the defendant's "last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt." Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975). We have observed that counsel must be afforded 'the utmost freedom in the argument of the case' and 'some latitude in the discussion of their causes before the jury.' Sears v. Seattle Consol. St. Ry. Co., 6 Wash. 227, 232, 233, 33 P. 389, 33 P. 1081 (1893).
On the other hand, argument by counsel must be restricted to the facts in evidence and the applicable law, lest the jury be confused or misled. Consequently, the trial judge has discretion to restrict closing arguments. Indeed, no less authority than the United States Supreme Court has written: The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. . . . He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion. Herring, 422 U.S. at 862.
Consistent with that notion, we have long held that the trial court should 'in all cases . . . restrict the argument of counsel to the facts in evidence.' Sears, 6 Wash. at 233; accord State v. Rose, 62 Wn.2d 309, 312, 382 P.2d 513 (1963); State v. Mode, 57 Wn.2d 829, 836, 360 P.2d 159 (1961). Counsel's statements also must be confined to the law as set forth in the instructions to the jury. State v. Estill, 80 Wn.2d 196, 199, 492 P.2d 1037 (1972).
Rulings by a trial court restricting the scope of argument are reviewed with a view toward determining if the trial court abused its discretion. State v. Costello, 29 Wash. 366, 371, 69 P. 1099 (1902); see also Chezum v. Parker, 19 Wash. 645, 651-52, 54 P. 22 (1898); State v. Bokien, 14 Wash. 403, 416, 44 P. 889 (1896); State v. Cecotti, 31 Wn. App. 179, 183, 639 P.2d 243, review denied, 97 Wn.2d 1020 (1982). We can say that a trial court abused its discretion 'only if no reasonable person would take the view adopted by the trial court.' State v. Huelett, 92 Wn.2d 967, 969, 603 P.2d 1258 (1979) (emphasis added) (citing State v. Blight, 89 Wn.2d 38, 41, 569 P.2d 1129 (1977)).
The broad issue before us is whether the trial court abused its discretion in restricting Perez-Cervantes' counsel from making an argument to the jury regarding an alternative cause of death. As noted above, the trial court determined that there was simply no evidence that either Thomas' drug use or his failure to seek medical attention superseded Perez-Cervantes' act of stabbing Thomas was a cause of death. Whether there was such evidence is the narrower question. That question must be viewed in light of the unchallenged jury instruction regarding proximate and intervening cause, which makes it clear that an independent intervening act of the deceased or another does not supersede the defendant's act unless it was the proximate cause of the victim's death or was not reasonably to be anticipated by the defendant.
Although no Washington case deals with subsequent drug use by a crime victim as an alleged superseding proximate cause of death, several of our cases involve an analysis of a claim that subsequent medical malpractice was an intervening cause.
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