I took time off from writing case updates for “Seattle Sex Offense Lawyer” due to my wife’s battle with pancreatic cancer. She is now with God. I hope these updates are helpful to readers. J.O.
State v. Gogo, Division One, #84083-5-I, was decided December 26, 2023. Mr. Gogo was charged with three counts of Rape of a Child in the First Degree (“ROC 1”)regarding one of his girlfriend’s children, and a fourth count of Child Molestation in the First Degree (“CM 1”) against his girlfriends other child. Mr. Gogo successfully severed the ROC 1 counts involving the first child from the CM 1 count. The trial court hearing the ROC 1 charges excluded any statements or disclosure that Mr. Gogo allegedly took liberties against the second child. The ROC 1 trial ended in a mistrial after the jury deadlocked.
The State chose to retry Mr. Gogo. A “key difference” which the appellate court viewed as outcome determinative, was trial testimony of girlfriend’s mother, who improperly referred to Mr. Gogo’s alleged sexual abuse of the other child. She testified that Mr. Gogo “had been fooling around with those kids.”
Defense counsel did not immediately object to the improper testimony. The appellate court considered this to be a mistake, not a tactical maneuver, as the prosecutors asked five more questions before the defense objected to a tendered question, and the mother’s earlier response about “those kids”. The Court sustained the objection, but did not excuse the jury as requested or hear the defense’s motions. The mother was excused by the Court [!] and the Court requested the State call its next witness. At the lunch recess, the defense moved for mistrial. The Court heard argument on the motion after lunch, but waited to formally deny the defense motion and propose a curative instruction for two full trial days.
The trial court held a specific instruction to disregard the improper testimony – after two days – would emphasize the mother’s improper remark. The Court proposed striking the mother’s testimony and having her retestify. Neither the State or defense found this satisfactory. The parties agreed to a written stipulation of the facts that would have been elicited from the mother absent the improper statement. The stipulation was read two days after the improper testimony.
The Division One appellate court found the trial judge abused his discretion in not granting the defense motion for mistrial. The improper testimony was a “serious irregularity,” not “cumulative of other evidence,” and could not be cured by an instruction to disregard the remark, particularly after two more days of testimony. The Appellate Court noted that the evidence in the second trial, which resulted in Mr. Gogo’s conviction, was particularly serious given the lack of corroborative evidence (i.e., the same evidence, minus the improper remark, earlier resulted in hung jury).
The curative “instruction” (given in the form of a stipulation what was admissible evidence by the mother) did not eliminate the prejudice, as the jury was allowed to go home and consider improper testimony overnight without first being instructed to disregard it. Additionally, the “improper” nature of the mother’s testimony was never clarified; the jury simply was told the mother’s testimony, absent the stipulation, would be stricken. The multi-day delay left the opportunity for the improper testimony to leave “such an indelible impression on the jury that no instruction to disregard it could mitigate its prejudicial effect.” The appellate court held the trial judge abused his discretion, and Mr. Gogo was awarded a new trial.
A trial pointer for the defense is that the State claimed the defense caused the problem by not objecting immediately upon the mother’s utterance. Fortunately, the appellate court held the “real delay” was caused by the trial court’s decision to wait two days to formally deny the mistrial motion and then discuss how to cure the mother’s statement. The trial court did not act immediately when the defense protested. The defense did move for mistrial as soon as the jury was excused, and the trial judge compounded error by excusing the mother without allowing the defense to cross examine her.
Defense lawyers will read the Gogo opinion and realize they must demand an opportunity to meaningfully make a motion for mistrial. They can’t wait for more questions to be tendered, or for a judge to excuse the jury, which often proves to be very difficult.