Superior Court County: Pierce. Superior Court Cause No: 09-1-01051-1. Date filed in Superior Court: November 19, 2009. Superior Court Judge Signing: James Cayce.
Stephanie C. Cunningham, for appellant.
Robert W. Ferguson, Attorney General, and John Hillman, Assistant, for respondent.
AUTHOR: Verellen, J. WE CONCUR: Leach, C.J., Becker, J.
[179 Wn.App. 500] ¶ 1 A prosecutor improperly appeals to the passion and prejudice of a jury by using graphics in closing argument that show the defendant's face with the word " GUILTY" superimposed in red. Michael Hecht was convicted of felony harassment and patronizing a prostitute. During closing argument, the prosecutor used multiple slides showing Hecht's photograph with a large red " GUILTY" superimposed over his face. There is no legitimate purpose for such images in a criminal trial. Such [179 Wn.App. 501] misconduct was flagrant and ill intentioned, and the prejudicial impact could not have been cured by a jury instruction. We reverse and remand for a new trial.
¶ 2 In 2008, Hecht was elected to a superior court judge position for Pierce County, defeating incumbent Judge Sergio Armijo. During the campaign, shopkeeper Albert Milliken told Armijo's son Morgan that Hecht patronized Tacoma street prostitutes.
Milliken suspected Hecht patronized Joseph Pfeiffer. Milliken talked to Pfeiffer, then provided Morgan's telephone number to Pfeiffer and Pfeiffer's to Morgan. Morgan contacted Pfeiffer, investigated the rumors surrounding Hecht, and reported his findings to police. Pfeiffer notified Hecht about these exchanges.
¶ 3 Pfeiffer also told Hecht that he suspected Joey Hesketh had spoken about Hecht patronizing prostitutes. Hecht and Pfeiffer found Hesketh and Michael Mundorff walking in an alley. Hecht drove his car quickly toward the two men, stopping inches from Hesketh. Hecht told Hesketh, " You better not be talking about me. If I find out you are talking about me, I am going to kill you."  Hesketh took the threat seriously.
¶ 4 Following the Tacoma Police Department's investigation of the allegations, the State charged Hecht with one count of felony harassment pursuant to RCW 9A.46.020 and one count of patronizing a prostitute pursuant to RCW 9A.88.110.
¶ 5 The case was tried to a jury. At trial, Hesketh and Mundorff testified that Hecht threatened to kill Hesketh. Pfeiffer testified that Hecht had not threatened Hesketh. [179 Wn.App. 502] Pfeiffer, Hesketh, John Marx, and Edward Smith testified about multiple instances when Hecht picked them up in downtown Tacoma, took them to his law office for sex, and then paid them.
¶ 6 Hecht testified that he occasionally picked up transients to give them work in his office or on his campaign. He denied paying anyone for sex. Hecht acknowledged that he knew Pfeiffer and occasionally gave him money or clothing. Hecht acknowledged that he met Hesketh in August of 2008 but denied threatening him. Hecht testified that he had never seen Marx or Smith.
¶ 7 In closing argument, the prosecutor employed a slideshow showing images of trial evidence, quotes from witnesses at trial, and titles and commentary reflecting the prosecutor's argument. Slide 85 was titled " PATRONIZING A PROSTITUTE" and shows Hecht's driver's license photo next to a booking photo of Pfeiffer. The word " GUILTY" appears in red, diagonally across Hecht's face. Slide 65, titled " COUNT I - HARASSMENT" shows Hecht's license photo next to a booking photo of Hesketh. Again, the word " GUILTY" appears in red, diagonally across Hecht's face. Slide 84 bore the title " DEFENDANT'S CREDIBILITY," asked " If he's not truthful about the little things ... [w]hy should you believe him when he denies the big things?" and answered " YOU SHOULDN'T." 
¶ 8 The jury convicted Hecht on both counts. The trial court imposed community service in lieu of jail time for the harassment conviction and suspended the sentence for the solicitation conviction.
¶ 9 Hecht appeals.
[179 Wn.App. 503] ANALYSIS
¶ 10 Hecht first contends that the prosecutor's use of slides in closing argument showing the word " GUILTY" superimposed over a photograph of Hecht's face violated his right to a fair trial. We ...