concluding that the prosecutor's comments referring to the defendant as a "monster," "sexual predator," and "pervert," although "abhorrent and misconduct," did not rise to a prejudicial level and were held to have been very unlikely to have altered the jury's verdict
How later courts described this case
- concluding that the prosecutor's comments referring to the defendant as a "monster," "sexual predator," and "pervert," although "abhorrent and misconduct," did not rise to a prejudicial level and were held to have been very unlikely to have altered the jury's verdict
- finding “[t]he prosecutor’s penchant for making statements meant to inflame the passion of the jury and go outside the realm of admissible evidence, is an example of the unprofessional, ‘win-at-all costs’ attitude that scars the judicial system”
- holding prosecutorial misconduct is prejudicial when it “so infect[s] the trial with unfairness as to make the resulting convictions a denial of due process”
- finding nonprejudicial misconduct where prosecutor repeatedly called defendant a “monster,” “pervert,” “child molester,” “sexual predator,” and a “tyrant”
Written by the judges who cited it.
The opinion
AMUNDSON, Justice
(concurring in part and dissenting in part).
[¶ 64.] I concur on issues one, two and three.
[¶ 65.] On issue four, I agree with the majority’s conclusion that this record discloses prosecutorial misconduct in the closing arguments. However, I disagree that this does not result in reversible error. The majority’s opinion, once again, evinces the position taken in other cases reviewed by this Court that if the evidence is overwhelming, do not worry about appellate review. There comes a time when rhetoric which merely expresses dissatisfaction is inadequate to effectively get the message across.
[¶ 66.] Judge Frank, dissenting in United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2ndCir.1946), expressed exasperation in dealing with improper prose-cutorial argument:
This court has several times used vigorous language in denouncing government counsel for such conduct as that of the United States Attorney here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable .... If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it.... Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court - recalling the bitter tear shed by the Walrus as he ate the oysters - breeds a deplorably cynical attitude towards the judiciary.
[¶ 67.] In my opinion, the verbal spankings of the past have fallen on deaf ears. When a prosecutor steps outside the bounds of the appropriate adversarial role in final argument to the jury, there should be a price to pay.
[¶ 68.] The Eighth Circuit Court of Appeal’s decision in United States v. Cannon, 88 F.3d 1495 , 1502 (8thCir.1996), established the price when it reversed a conviction for improper closing argument. The court held:
Referring to defendants as “bad people” simply does not further the aims of justice or aid in the search for truth, and is likely to influence bias in the jury and to result in a verdict based on something other than evidence. Therefore, the remarks were highly improper.
[¶ 69.] In this case, we have even more outrageous statements than merely claiming defendant to be a bad person. Therefore, I cannot join the “ritualistic verbal spanking” of the majority. To do so ignores the duty incumbent upon a prosecutor “not simply to prosecute, but to obtain justice with a fair trial.” State v. Wiegers, 373 N.W.2d 1, 11 (S.D.1985); State v. Brandenburg, 344 N.W.2d 702, 705 (S.D.1984). Therefore, I would reverse on this issue.