State v. MacMaster , 51 Wash. App. 231 ( 1988 )

McInturff, C.J.

(dissenting) — I respectfully dissent. The judge's comments, made in the instruction conference,⁴ persuade me that the judge misconstrued RCW 46.61.520. Particularly, the court did not believe the State was required to prove an essential element of the crime, i.e., a causal connection between the intoxication and the resultant death. The majority and I agree that such a causal connection must be shown. The judge's misunderstanding was conveyed to counsel and influenced the jury instructions given. Although the majority and I agree the instructions proposed by Mr. MacMaster on the causal connection, particularly K(2)(a), are succinct and we agree the court's instruction 5 departs from even WPIC 90.02, we disagree on whether instruction 5 was adequate to allow Mr. Mac-Master to argue his theory of the case. This is particularly so where the causal connection was in issue and the judge found that causal connection element to be unnecessary and conveyed that interpretation to counsel, thus misleading counsel.

The court's instruction 5, as set out by the majority, is ambiguous because it could be read to find Mr. MacMaster guilty if it is proven he drove while intoxicated and a fatal injury resulted from an accident, without proof of the causal connection discussed above. The court's instruction 5 leaves out critical language found in WPIC 90.02(2): "That at the time the defendant (a) was under the influence of [intoxicating liquor] [or] [drugs] and that condition was a proximate cause of injury to another person, ..." (Italics mine.) The court's instruction 5 requires only a showing that Mr. MacMaster "operated the motor vehicle and was under the influence of, or affected by intoxicating liquor, and thereby proximately caused injury ..." In other words, the jury could decide proof that Mr. MacMaster operated a motor vehicle and was under the influence was sufficient to find him guilty if driving the vehicle was a proximate cause of Mrs. Raber's death. Because it is not clear whether the phrase "and thereby proximately caused" refers to only the operation of the motor vehicle, the danger is that the instruction would be interpreted not to require proof that Mr. MacMaster's operation of the vehicle was affected by the intoxication. Certainly Mr. MacMaster's driving of the vehicle was a proximate cause of Mrs. Raber's death, but it also must be shown that the condition of intoxication caused Mr. MacMaster's driving to be impaired. Given the above analysis and the judge's erroneous interpretation of RCW 46.61.520, I find the instruction given was ambiguous.

Having found instruction 5 was ambiguous because it did not clearly state the essential causation element between the impaired driving and the accident, the next question is whether the error was harmless. The right to closing argument is axiomatic in our system of justice. This right is the last opportunity to persuade the jury there may be reasonable doubt of the defendant's guilt. State v. Fateley, 18 Wn. App. 99, 108, 566 P.2d 959 (1977). The constitutional right to be represented by counsel includes the right of counsel to argue the case to the jury. Seattle v. Erickson, 55 Wash. 675, 677, 104 P. 1128 (1909); Annot., Prejudicial Effect of Trial Court's Denial, or Equivalent, of Counsel's Right To Argue Case, 38 A.L.R.2d 1396 (1954).

To appear and defend in person and by counsel is a right guaranteed to one accused of crime by the constitution of this state, as well as by the Federal constitution, and it is not to be denied that a part of that right is the right to address the jury on the questions of fact the issues present for determination. This right, too, has always been regarded as one of the greatest value, not only to the accused, but to the due administration of justice, and any limitation of it which has seemed to deprive the accused of a full and fair hearing has generally been held error entitling the defendant to a new trial.

State v. Mayo, 42 Wash. 540, 548-49, 85 P. 251 (1906).

Effective denial of the right to argue to the jury may occur where the trial court's action so emasculates counsel's argument as to be tantamount to denial of that argument. Foster v. State, 102 Tex. Crim. 602, 279 S.W. 270 (1926) (trial court erroneously excluded argument on element of gross negligence required to convict defendant of assault with an automobile). Civil cases have also recognized the value of closing argument. Heard, Leverette & Adams, P.C. v. Stone, 167 Ga. App. 113, 306 S.E.2d 72 (1983) (denial of the right to have more experienced counsel present closing arguments was not harmless error where evidence would have supported a verdict for either party).⁵

Here, because the trial judge mistakenly interpreted the mandatory elements of the crime of vehicular homicide and clearly made his interpretation of the statute known to counsel, the effect was to mislead counsel and deprive Mr. MacMaster of the opportunity to argue his causal connection theory to the jury. In the face of the trial judge's stated opinion (in essence that it makes no difference whether Mr. MacMaster's intoxication caused erratic driving which caused the death of Mrs. Raber) it is understandable that Mr. MacMaster's counsel did not proceed with that portion of closing arguments which would have focused on the absence of the State's proof of the causation element. Mr. MacMaster's objection to the court's failure to instruct on this element adequately preserved the error for review on appeal; under these facts it was unnecessary to specifically object to the restriction concerning the scope of closing argument. Preclusion of argument on an element of a crime, in this instance the element of causation, was not harmless error. I cannot say that the evidence, not tainted by the error, is by itself so overwhelming that it necessarily leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).⁶

Accordingly, I would reverse Mr. MacMaster's conviction and remand for a new trial with proper instructions.

Review granted by Supreme Court September 1, 1988.

4 See majority, at 234, where the judge's comments upon the State's objection to instructions 17, 18, and 19 are set out. These comments precede Mr. MacMaster's objections to the court's instructions 5 and 9.

5 Some courts have held denying an accused the right to argue to the jury was reversible error without citing a specific constitutional violation, apparently deeming such denial so prejudicial as to deprive the accused of a fair trial. Annot., Prejudicial Effect of Trial Court's Denial, or Equivalent, of Counsel's Right To Argue Case, 38 A.L.R.2d 1396, 1403 (1954).

6 Since it is impossible to determine from the verdict form under which prong of RCW 46.61.520(1) the jury found Mr. MacMaster guilty, it was not harmless error. The jury verdict form A simply stated: "We, the jury, find the defendant, Michael MacMaster Guilty of the crime of vehicular homicide, RCW 46.61.520(1), as charged." RCW 46.61.520(1) provides three alternate means to commit vehicular homicide. Unanimous agreement on the particular alternate means was not required to convict Mr. MacMaster. State v. Rangitsch, 40 Wn. App. 771, 777, 700 P.2d. 382 (1985).