Washington v. State: Kidnapping, Armed Robbery Conviction Reversed for Improper Closing Argument by Prosecutor

In Washington v. State, the SC Court of Appeals reversed convictions for kidnapping, armed robbery, and possession of a weapon during the commission of a violent crime based on the prosecutor’s improper closing argument.

“Who among us is safe?”

When a prosecutor is permitted to lie to jurors, to appeal to the passion or prejudice of jurors, and to base their arguments on facts that were never introduced as evidence, and when trial judges provide cover for prosecutors’ unethical conduct during criminal prosecutions, any one of us could be convicted of a crime we did not commit.

In Washington v. State, the SC Court of Appeals never reached the petitioner’s claim that the prosecutor’s improper closing argument, “Who among us is safe?” warranted the reversal of his conviction.

Instead, the appellate court reversed the conviction based on the prosecutor’s improper closing argument that the defendant had engaged in “a pattern of robbing old folks, intimidating old folks, kidnapping, old folks, holding them up,” when the evidence introduced at trial was of a single incident of kidnapping and robbery.

Improper Closing Argument: Falsely Implying that a Defendant Has Prior Convictions for the Same Offense

Washington was charged with kidnapping, armed robbery, and possession of a weapon during a violent crime, accused of robbing two people at a motel in Walterboro, SC.

At his trial, during her closing argument, the Colleton County solicitor told the jurors that Washington had “a pattern of robbing old folks, intimidating old folks, kidnapping old folks, holding them up.”

“Who among us is safe?” the prosecutor asked the jurors, then, “I beseech you now, to find [petitioner] guilty… because then and then only, ladies and gentlemen, then and then only will [Petitioner] cease from trouble. And the weary traveler finally be at rest.”

What makes this an improper closing argument?

First, it’s a lie – as far as we know, Washington has never been accused of, much less convicted of, kidnapping or armed robbery apart from the accusations for which he was on trial. No evidence of another kidnapping or robbery conviction was introduced at trial.

Even if it was true, it would most likely be inadmissible evidence of prior bad acts/ prior convictions, and it would still be grounds for reversal. If it’s not true, it’s even worse, because the State was lying to the jury about prior convictions that didn’t exist…

Although the Court of Appeals decided to ignore the rest of the problems in the prosecutor’s closing argument, the question, “Who among us is safe?” implying that, unless the jurors convict Washington, he will continue to rob and kidnap “weary travelers” and possibly even the jurors, was an impermissible appeal to the conscience of the community and possibly a “golden rule” violation.

The Improper Closing Argument was not Preserved for Appeal

How should the objection have been handled?

First of all, object.

Immediately, contemporaneously, during the closing argument when the prosecutor says the inadmissible thing. Make sure the grounds for the objection are placed on the record – outside the presence of the jury, if possible. Move for a mistrial. Accept the curative instruction and then renew your motion for a mistrial because the curative instruction is insufficient.

Washington’s trial attorney moved for a mistrial, but not until after the closing argument and after the jurors had been sent to the jury room. The judge denied the motion for a mistrial and offered to instead give a “curative instruction,” which the defense attorney refused.

At the PCR hearing, the defense attorney testified that:

…he knew an attorney could object during closing argument but noted he was not an appellate attorney and had never handled an appeal. He testified he declined the trial court’s offer to give a curative instruction because he did not want to call further attention to the comments. Trial counsel referred to his decision as “a trial strategy decision.” Trial counsel stated he would have asked for a curative instruction had he objected during closing argument because he would have already drawn attention to the statement. He explained he moved for a mistrial because he did not believe the jury would actually disregard the improper comments based on a curative instruction.

According to the defense lawyer, the solicitor may have “skirted the edge a little bit” when she asked the jury, “Who among us is safe?” But he explained that sometimes you don’t object during closing argument because the judge might “castigate and fuss” at you…

The defense attorney also explained that his decision was a “valid trial strategy” – which, if true, would ensure that his client’s conviction was not overturned.

The Prosecutor’s Defense

“Who among us is safe?”

When a prosecutor is permitted to lie to jurors, to appeal to the passion or prejudice of jurors, and to base their arguments on facts that were never introduced as evidence, and when trial judges provide cover for prosecutors’ misconduct during criminal prosecutions, any one of us could be convicted of a crime we did not commit.

At trial, the prosecutor did not acknowledge the problem with her argument. Instead, she defended her comments, insisting that her statement that Washington had “a pattern of robbing old folks, intimidating old folks, kidnapping old folks, holding them up,” along with her suggestion that he would continue robbing and kidnapping people unless the jurors convicted him, did not refer to prior robberies or kidnappings.

The Trial Judges’ Defense of the Prosecutor

The trial judge defended the prosecutor’s argument, denying the motion for a mistrial and explaining that 1) the solicitor didn’t say the word “record” in her argument and 2) there were two alleged victims in the case; therefore, it was appropriate for the prosecutor to use the word pattern.

He then offered to give a curative instruction and tell the jurors to “disregard the use of the term ‘pattern’ from an argument by an attorney…”

The PCR Judge’s Defense of the Prosecutor

The PCR court below signed an order prepared by the Attorney General that stated found that the defense attorney was not ineffective, he had a valid trial strategy for not objecting, the solicitor’s use of the word “pattern” did not refer to Washington’s criminal history, and there was no prejudice because “the jury had no reason to believe he had a prior criminal history from the solicitor’s comments.”

Washington v. State: SC Court of Appeals Opinion

The SC Court of Appeals reversed the PCR court, finding that:

• There was zero probative evidence to support the PCR judge’s conclusions,
• Failing to contemporaneously object to the inflammatory statements by the prosecutor because the attorney doesn’t want to make the judge angry is not a valid trial strategy,
• “Pattern” means “a series of acts…,” and “frequent or widespread incidence,”
• There was no evidence presented to the jury of conduct towards older people other than the single case for which Washington was on trial, and
• “The improper argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”

What Happens to Washington Now?

Washington’s case was remanded to the circuit court for a new trial. He will have the opportunity to retain a new attorney for the new trial and try his case again without the unfair hijinks from his first trial – or, at least, with a defense lawyer who will call out the unfair hijinks and “hold the prosecutor’s feet to the fire.”

Got Axelrod?

If you have been charged with a crime in SC, if you have been convicted of a crime and need help filing your appeal or PCR action, or if you won an appeal or PCR and need help retrying your case, call now at 843-353-3449 or email us online to speak with a Myrtle Beach criminal defense lawyer on the Axelrod team today.