In 2006, Bryce Smiley (hereinafter “Mr. Smiley”) was 15 when his father remarried. The blended family included a stepsister, who was 8 years old at the time the family starting living together. Mr. Smiley joined the military in January, 2011, and was deployed to Afghanistan in December 2012. Very shortly after the deployment, the stepsister disclosed sexual abuse by Mr. Smiley, allegedly occurring since she was in the fourth grade. A police investigation ensued, and charges resulted: one count of rape of a child in the first degree, two counts of child molestation in the first degree, two counts of rape of a child in the second degree, two counts of rape of a child in the third degree. Mr. Smiley went to trial, and was convicted on all counts except rape of a child in the first degree.
Appeal Based on Prosecutor Misconduct
Mr. Smiley appealed. One of his appellate contentions was prosecutorial misconduct in closing arguments. The state’s case rested on the credibility of the stepsister, since there was “no corroborating physical evidence, no confession, and no eyewitness testimony.”
In its closing, the state anticipated the defense would hammer away on the sufficiency of evidence, “repeatedly” asking the “jury to consider how difficult it would be to hold sexual abusers responsible if the victim’s word was not enough.”:
“Can you imagine a system where it was required? It’s not unusual for kids not to discuss to anyone….sometimes years later. If the system worked that way, kids would be told we’re sorry, we can’t prosecute your case….we can’t hold your abuser responsible because all we have is your word, and that’s not enough…Don’t let the defendant get away with committing these acts of abuse…against her just because no one saw it happen, just because he committed it in such a manner that there’s not going to be lasting evidence, because there never really is anyway.”
Smiley’s defense lawyer did not object to this argument, but then argued, as the state anticipated, that the girl’s word alone was not sufficient proof.
In final rebuttal argument, the state iterated that if “the system” required corroborating evidence in sex cases “we’d have to tell the kids, sorry…we can’t hold your abuser responsible … we could never hold so many people responsible for abusing children.”
A recent Division Two case, State v. Thierry, held a similar state’s argument improper and reversed the conviction. However, Mr. Thierry objected at trial that the prosecutor was fueling jury passion and prejudice. Mr. Thierry was overruled by the trial judge. Mr. Thierry was vindicated when the appellate court held such argument was an improper emotional appeal.
However, the Smiley court held that because Mr. Smiley’s lawyer did not object to the improper emotional argument, he waived the issue of improper argument.
A strongly worded dissent by Judge Schindler indicated that a sustained or upheld objection by Smiley’s lawyer could not have neutralized the prejudicial argument: “the prosecutor’s argument in this case was a blatant attempt to appeal to the fear of the jurors and sway the jurors to convict in order to protect children and hold sexual abusers accountable.”
In light of this strong dissenting opinion, Mr. Smiley may be able to get the Washington Supreme Court to accept his discretionary petition to review his conviction. It is hard not to conclude the state’s closing argument was a direct appeal to jurors to decide Mr. Smiley’s case on emotional reasons, instead of the evidence. See, State v. Smiley, 195 Wn.App. 185 (2016)
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