State v. Hecht
State v. Hecht
Opinion of the Court
¶ 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.
FACTS
¶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.”
¶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.
¶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 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.
¶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.
¶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 agree and reverse his convictions.
¶11 The right to a fair trial is a fundamental liberty secured by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution.
¶12 To prevail on a claim of prosecutorial misconduct, a defendant must show that the prosecutor’s conduct was both improper and prejudicial.
At least five slides featured Glasmann’s booking photograph and a caption. In one slide, the booking photo appeared above the caption, “DO YOU BELIEVE HIM?” In another booking photo slide the caption read, “WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?” Near the end of the presentation, the booking photo appeared three more times: first with the word “GUILTY” superimposed diagonally in red letters across Glasmann’s battered face. In the second slide the word “GUILTY” was superimposed in red letters again in the opposite direction, forming an “X” shape across Glasmann’s face. In the third slide, the word “GUILTY,” again in red letters, was superimposed horizontally over the previously superimposed words.[13]
¶14 The court reversed Glasmann’s convictions, finding that the prosecutor’s slides and argument were flagrant and ill-intentioned misconduct. The court noted:
Our courts have repeatedly and unequivocally denounced the type of conduct that occurred in this case. [W]e have held that it is error to submit evidence to the jury that has not been admitted at trial. The “long-standing rule” is that “consideration of any material by a jury not properly admitted as evidence vitiates a verdict when there is a reasonable ground to believe that the defendant may have been prejudiced.”
Here, the prosecutor intentionally presented the jury with copies of Glasmann’s booking photograph altered by the addition of phrases calculated to influence the jury’s assessment of Glasmann’s guilt and veracity. . . . There certainly was no photograph in evidence that asked “DO YOU BELIEVE HIM?” There was nothing that said, “WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?” And there were no sequence of photographs in evidence with “GUILTY” on*505 the face or “GUILTY, GUILTY, GUILTY.” Yet this “evidence” was made a part of the trial by the prosecutor during closing argument.[14]
¶15 The Supreme Court also stressed that existing case law and professional standards for prosecutors preclude the expression of personal opinions of the defendant’s guilt and “clearly warned against” such use of the slides in closing argument.
¶16 The slides of Hecht’s photograph with a large red “GUILTY” printed across his face were at odds with the prosecutor’s duty to ensure a fair trial. No legitimate purpose is served by a prosecutor showing the jury a defendant’s photograph with the word “GUILTY” superimposed over his face. Such images are the graphic equivalent of shouting “GUILTY.”
¶17 The prosecutor argues that the driver’s license photo of Hecht was not equivalent to the booking photo of Glasmann’s battered face. But the prosecutor’s graphics,
¶18 Moreover, the prejudicial impact of the word “GUILTY” was magnified by the fact it was written in capital letters, in red, and on a diagonal, obvious graphic devices for drawing the eye, implying urgency of action, and evoking emotion.
¶19 Individuals retain and process information in different ways.
¶20 As in Glasmann, the use of the multiple slides “may well have affected the jurors’ feelings about the need to strictly observe legal principles and the care it must take in determining [the defendant’s] guilt.”
¶22 None of the remaining issues raised by Hecht merit appellate relief. We address them because they may surface on retrial.
ER 404(b) Evidence
¶23 Over objection, the trial court allowed the State to call Smith and Marx to testify about their sexual encounters with Hecht. The trial court ruled pretrial that Marx could testify that Hecht paid him for sex on 10 to 15 occasions between 2001 and 2002, and that Smith could testify about Hecht paying him for sex on multiple occasions. The court admitted the evidence under ER 404(b) as evidence of a common scheme or plan.
¶24 Hecht contends that the trial court abused its discretion by allowing Smith and Marx to testify about his prior uncharged acts of soliciting prostitutes. His argument is not persuasive.
¶25 ER 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in*508 conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
¶26 To be admissible under ER 404(b) to demonstrate a common scheme or plan, the evidence must be “ ‘(1) proved by a preponderance of the evidence, (2) admitted for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.’ ”
¶27 The common scheme or plan rationale for admitting evidence frequently appears in sex offense cases involving a defendant’s “grooming” behavior, and such cases are helpful here by analogy.
¶28 Here, the State demonstrated a common scheme or plan by providing evidence that Hecht committed markedly
¶29 The trial court’s ruling to admit Smith’s and Marx’s testimony was based on tenable grounds and careful consideration of the evidence. Contrary to Hecht’s assertions, there were marked similarities between his prior misconduct and the charged count of prostitution, demonstrating a common scheme or plan. Moreover, Hecht’s common scheme and plan to solicit prostitutes in downtown Tacoma was probative as to whether Hecht’s payments to Pfeiffer were for prostitution rather than gifts Hecht claimed he gave as a “grandfather figure.” The trial court ensured that the prosecutor used the evidence only for the permissible purpose of arguing against the defense theory by demonstrating a recurring scheme or plan.
¶30 Hecht was not unfairly prejudiced by the admission of Marx’s and Smith’s testimony. The trial court repeatedly cautioned the jury that its consideration of the testimony was limited to the issue of a common scheme or plan. Jurors are presumed to follow the court’s limiting instructions.
¶31 The trial court did not abuse its discretion in admitting Marx’s and Smith’s testimony about their encounters with Hecht.
Jury Instructions
¶32 Hecht contends his conviction must be reversed because the State failed to set forth the element of a true threat in the information and to-convict instruction defining the offense of felony harassment. Consistent with Hecht’s concession at oral argument, this issue is controlled by our Supreme Court’s recent decision in State v. Alien.
¶33 In Allen, the court held that the true threat is not an essential element required in either the information or the to-convict jury instruction.
Sufficiency of Evidence
¶34 Hecht argues that the evidence was insufficient to support his harassment conviction because it failed to
¶35 “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.”
¶36 Taking the evidence of record in the light most favorable to the State, the evidence amply supports the inferences that Hesketh was afraid, that Hecht could foresee that Hesketh would consider the threat to be a true threat, and that the threat was a true threat. Sufficient evidence supports the elements of felony harassment.
Statement of Additional Grounds
¶37 Finally, Hecht argues in his statement of additional grounds that his participation in the ongoing Commission of Judicial Conduct proceedings effected a violation of his right against self-incrimination and his right to prepare a defense and not disclose his attorney’s work product. But evidence outside the trial record is not properly considered in this direct appeal. Typically, such information would be reviewed as part of a personal restraint proceeding.
CONCLUSION
¶39 Because of prosecutorial misconduct, the convictions are reversed and the case is remanded for a new trial.
Reconsideration denied April 11, 2014.
In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 707-10, 286 P.3d 673 (2012).
Detective Bradley Graham recovered telephone records showing calls between Hecht and Pfeiffer between August 2008 and January 2009.
Report of Proceedings (Oct. 15, 2009) at 693.
Clerk’s Papers at 526. Division Two of this court granted appellant’s motion to supplement the record with the slides used during the State’s closing argument, finding they were “visual adjuncts to the verbatim report of closing arguments,” not additional evidence. Clerk’s Papers at 440.
Clerk’s Papers at 506.
Clerk’s Papers at 525.
Glasmann, 175 Wn.2d at 703.
Id. at 704 (alterations in original) (internal quotation marks omitted) (quoting State v. Monday, 171 Wn.2d 667, 677, 257 P.3d 551 (2011)).
Id. at 703-04.
Id. at 704.
13 175 Wn.2d 696, 701-02, 286 P.3d 673 (2012) (citations omitted).
14 Id. at 704-06 (citations omitted) (internal quotation marks omitted) (quoting State v. Pete, 152 Wn.2d 546, 555 n.4, 98 P.3d 803 (2004)).
Id. at 707.
Id. at 704 (quoting State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74 (1991)).
Id. (quoting Am. Bar Ass’n, Standards for Criminal Justice std. 3-5.8(c) (2d ed. 1980)).
Id. at 709-10 (“The prosecutor’s improper visual ‘shouts’ of GUILTY urged the jury to find Glasmann guilty as charged.”).
Id. at 708.
See id.
See id. at 708-09 (“ ‘[Vjisual arguments manipulate audiences by harnessing rapid unconscious or emotional reasoning processes and by exploiting the fact that we do not generally question the rapid conclusions we reach based on visually presented information.’ ” (alteration in original) (quoting Lucille A. Jewel, Through a Glass Darkly: Using Brain and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 289 (2010))).
Id. at 706.
Id. at 712.
The trial court admitted Hesketh’s testimony to establish Hecht’s motive and the reasonableness of Hesketh’s fear Hecht would carry out his threat to kill. Hecht did not contest that Hesketh’s testimony was admissible for these purposes.
State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003) (quoting State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995)).
State v. Carleton, 82 Wn. App. 680, 683, 919 P.2d 128 (1996) (quoting Lough, 125 Wn.2d at 852).
DeVincentis, 150 Wn.2d at 17.
See 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 404.20 n.13, at 541 (5th ed. 2007) (citing State v. Krause, 82 Wn. App. 688, 919 P.2d 123 (1996) (holding the key distinction under Rule 404(b) is between “evidence of a disposition,” barred by the rule, and “evidence of a design,” allowed by the rule)).
150 Wn.2d 11, 17, 74 P.3d 119 (2003).
Lough, 125 Wn.2d at 864.
176 Wn.2d 611, 294 P.3d 679 (2013).
Id. at 627-28. A “true threat” is “ ‘a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life’ of another person.” Id. at 626 (alteration in original) (internal quotation marks omitted) (quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
State v. Bugai, 30 Wn. App. 156, 158, 632 P.2d 917 (1981); State v. King, 24 Wn. App. 495, 505, 601 P.2d 982 (1979).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.