Harris v. People

Justice VOLLACK

concurring in part and dissenting in part:

The majority holds that the prosecutor’s repeated references to the Persian Gulf War, the President, and Saddam Hussein’s character during closing argument at the trial of LaShawn Harris for first-degree assault constituted plain error depriving the defendant of a fair trial. Maj. op. at 266. I agree that the prosecutor’s remarks constituted improper closing argument. I disagree, however, that these statements rose to the level of plain error entitling Harris to a new trial. Because I conclude that the prosecutor’s comments were not so prejudicial as to undermine the fundamental fairness of the trial and to cast serious doubt on the reliability of the verdict, I would affirm the court of appeals’ judgment.

I.

The majority’s statement of the facts accurately sets forth the facts and the prosecutor’s remarks during closing argument.

II.

Because the defendant did not contemporaneously object to all of the prosecutor’s references to the Persian Gulf War, the President, and Saddam Hussein in closing argument, the majority correctly evaluates these statements under a plain error standard of review. See Crim.P. 62(b). Under this standard, we must determine whether the statements of counsel so undermined the fundamental fairness of the trial itself as to cast serious doubt upon the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415, 419-20 (Colo.1987). Improper remarks warrant reversal when they are “pronounced and persistent, with a probable cumulative effect on the jury which cannot be disregarded as inconsequential.” People v. Trujillo, 624 P.2d 924, 926 (Colo.App.1980) (quoting Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935) (added emphasis omitted)). “Unless a prosecutor’s misconduct is flagrant or ‘glaringly or tremendously’ improper, it is not plain er-ror_” People v. Constant, 645 P.2d 843, 847 (Colo.), cert. denied, 459 U.S. 832 , 103 S.Ct. 73 , 74 L.Ed.2d 72 (1982). In considering whether prosecutorial misconduct mandates a new trial, appellate courts must evaluate the magnitude of the prejudicial effect of the statements, any curative measures taken to mitigate the misconduct, and the likelihood that the misconduct constituted a material factor leading to defendant’s conviction. People v. Jones, 832 P.2d 1036, 1040 (Colo.App.1991). To warrant a new trial, the nature of the prosecutorial misconduct must have affected the trial process itself. People v. McKay, 191 Colo. 381, 384 , 553 P.2d 380, 382 (1976). This court has found plain error where guilt turned on the veracity of the defendant and the prosecution stated numerous times that the defendant had lied. Wilson, 743 P.2d at 420-21 .

The United States Supreme Court has held that, absent “consistent and repeated misrepresentation” to influence a jury, “isolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion!,] not of evidence, do not reach the same proportions.” Donnelly v. DeChristoforo, 416 U.S. 637, 646 , 94 S.Ct. 1868 /1873, 40 L.Ed.2d 431 (1974). In contrast, improper closing arguments that follow prosecutorial misconduct during the course of the trial is the type of impropriety that more likely justifies reversing a conviction. See Berger v. United States, 295 U.S. 78, 84-89 , 55 S.Ct. 629, 631-33 , 79 L.Ed. 1314 (1935).

*270 With these principles in .mind, I cannot agree with the majority that the nature of the prosecutor’s comments during closing argument affected the fundamental fairness of the proceedings or the integrity of the jury’s verdict. My review of the record convinces me that the prosecutor’s references to the Persian Gulf War, the President, and Saddam Hussein’s character did not sway the jury by inhibiting the jury from weighing the evidence objectively and that, absent the prosecutor’s remarks, the verdict would not have been different. See United States v. Hasting, 461 U.S. 499, 510-11 , 103 S.Ct. 1974, 1981-82 , 76 L.Ed.2d 96 (1983).

m.

The role of the trial judge is to administer justice, control courtroom decorum, and ensure that the ease is decided on the basis of relevant evidence and the proper inferences therefrom. State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993). The trial court is responsible for controlling the scope of closing argument. Wilson, 743 P.2d at 419 . In United States v. Modica, 663 F.2d 1173 (2d Cir.1981), cert. denied, 456 U.S. 989 , 102 S.Ct. 2269 , 73 L.Ed.2d 1284 (1982), the Second Circuit highlighted the role of the trial court:

The district judge is in an especially well-suited position to control the overall tenor of the trial. He can order the offending statements to cease and can instruct the jury in such a manner as to erase the taint of improper remarks that are made. The ABA Standards for Criminal Justice recognize that “[i]t is the responsibility of the [trial] court to ensure that final argument to the jury is kept within proper, accepted bounds.” ABA Standard 3-5.8. The trial judge can interrupt to anticipate and cut off an improper line of argument. Once the offending remarks are made, the judge can strike them and forcefully instruct the jury as to their inappropriateness. If persuaded in a rare case that irreparable prejudice has occurred, the court retains the option of granting a motion for a mistrial.

Beyond these traditional trial-conduct remedies, the court has a range of remedies that may, in appropriate circumstances, be directed specifically at the attorney.

Id. at 1184-85 (brackets in original).

Here, the trial judge was in the best position to gauge the impact of the prosecutor’s remarks during closing arguments to the jury. The trial judge overruled defense counsel’s objection and did not feel that an admonishment to the jury was needed. 1 The trial record strongly indicates that the jury would have convicted appellant even if the improper statements had not been made.

Although the prosecutor’s references to the Gulf War and Saddam Hussein were inappropriate social commentary that was best left unsaid, in light of the overwhelming evidence, I do not consider the conviction to be the product of the jury’s emotion rather than reflective judgment. When the prosecutor’s comments are viewed within the context of the trial as a whole and the evidence presented, they did not distort the law or obscure the state’s burden of proof. Both the judge and the prosecutor told the jury that the prosecutor was not comparing Harris’s criminal conduct with Hussein’s acts of violence against Kuwait. Rather, the prosecutor used Saddam Hussein to illustrate the notion of an unprovoked aggressor using an excessive degree of force in light of the conflict. The prosecutor’s remarks did not prod the jury to disregard the evidence but highlighted the implausibility of Harris’s self-defense claim.

While I do not condone the prosecutor’s improper closing remarks, on balance, I conclude that they neither constituted a material factor in Harris’s conviction nor were they so prejudicial as to divert the jurors from properly deciding the case based on judging the evidence before them. My conclusion that the jury verdict was premised upon the overwhelming evidence and the law is supported by a complete review of the prosecutor’s comments in the context of the evidence presented, the defense counsel’s remarks to the jury, and the court’s instructions to the jury.

*271 Harris was charged with first-degree assault. Immediately after the assault, Tracy Rudisel, the victim, Christopher Jackson, a friend of Harris, and David LeMoine, Rudi-sel’s friend and co-worker, heard Harris say, “Welcome to the Terrordome.” 2 Further, Harris fled from the scene and reencoun-tered Jackson. Harris admitted to Jackson that he shot Rudisel. Jackson testified that he asked Harris why he shot Rudisel and Harris responded, “Man, I’m just tired of [Crips, Bloods, skinheads] messing with me. I mean, they shot my brother, and I’m just really tired of all the stuff that’s going on around me.” Harris did not reveal to Jackson or any of his cohorts that Rudisel had a knife on his person.

The police found Harris near the Civic Center Station and discovered the gun in his fanny pack. A spent shell casing, recovered from the scene, matched the gun seized from Harris’s fanny pack. Harris conceded that he shot Rudisel but raised the affirmative defenses of intoxication and self-defense to negate his legal responsibility. 3 Harris maintained that he was not the aggressor, but that he shot in self defense. A security guard for the World Trade Center, who had observed the confrontation and the shooting, and Jackson both testified that they did not see the victim with a knife. Rudisel additionally testified that he did not have any weapons on his person and that he made no aggressive moves toward Harris. The testimony of Hoover James, Harris’s best friend, that Rudisel moved towards Harris and that he saw a “glint” of silver in Rudisel’s hand that he believed was a knife, paled in comparison to the strength of the government’s case — three witnesses testifying that they did not see Rudisel with a knife. Even if the jury believed that Rudisel made a movement towards Harris with a knife in his hand, despite the fact that no knife was ever discovered, the jury could have reasonably determined that the degree of force used by Harris was excessive.

During closing argument, the prosecutor referred to Saddam Hussein and the Persian Gulf War to emphasize that Harris’s actions constituted unprovoked aggression and to counteract Harris’s self-defense claim. Defense counsel immediately objected to the prosecutor’s initial comparison of Harris’s use of a deadly weapon with Saddam Hussein’s unwarranted violence, asserting that the remarks were not relevant. 4 The trial court overruled the objection and instructed the prosecutor to continue. The trial judge responded, “I trust this jury is sophisticated enough to see that there’s no association whatsoever.”

The prosecutor continued his closing argument and stated as follows:

This was a very intentional act, made clear not only by the words right after the shooting, but by the words uttered by this Defendant right before the shooting: “I’m going to teach you a lesson, white boy.” That’s more or less the same thing that Saddam Hussein said to the United States last night; he’s still saying he’s going to teach us a lesson.

[[Image here]]

... And, no, this Defendant is not Saddam Hussein, but a lot of the same principles apply. This violence was not on the same level as the violence used by Saddam Hussein, but you can’t let unwarranted violence go unchecked. Justice over there and here in this courtroom requires courage. Please have the courage to find this Defendant guilty of what he did, first-degree assault.

*272 Harris elected not to make further objections to these additional references to Saddam Hussein and the Persian Gulf War. Had Harris perceived a substantial prejudicial impact from these comments, Harris could have requested either the court to tender a curative instruction or to grant a mistrial. Harris, however, did not do so.

During his closing argument, defense counsel stated:

Saddam Hussein is not on trial here. Because of what is going on in the Middle East, that should not result in your deciding that LaShawn Harris is guilty of this charge.

In the prosecutor’s rebuttal, the prosecutor reaffirmed that he was not comparing the two:

Ladies and gentlemen, again, let me make clear that which I stated in my first closing argument, that, no, this Defendant is not Saddam Hussein. The amount of violence is grossly different. The location of the violence is grossly different. One act is halfway around the world; the other act is less than a quai’ter of a mile from where you now sit right in the heart of our city of Denver. They both have been involved in naked, unwarranted aggression against defenseless human beings, and they both need to be held responsible.

Harris neither objected to these statements nor requested a mistrial.

In determining whether the evidence sustained the charge of first-degree assault in light of Harris’s affirmative defenses of self-defense and intoxication, the credibility of the prosecution and defense witnesses was the primary issue for the jury to determine. Further, the trial judge properly instructed the jury to decide the case based upon the evidence introduced at trial, the law, the credibility of the witnesses, and not the arguments of counsel in closing argument. The jury apparently rejected Harris’s defenses of intoxication and self defense.

Assessing the prosecutor’s closing remarks within the context of the trial as a whole and all of the evidence presented, I cannot conclude that a new trial is required. In my view, these comments were not so prejudicial as to undermine the fundamental fairness of the trial itself and to inhibit the jurors from rendering a fair verdict.

IV.

My conclusion is also consistent with the results reached by other jurisdictions which have considered similar prosecutorial references to public figures or world events during closing argument without finding plain error. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986) (“Counsel may be allowed some latitude in illustrating their arguments by reference to notorious or historical events without being automatically found to have committed irreparable prejudice.”); United States v. Doe, 860 F.2d 488, 492-94 (1st Cir.1988) (holding that prosecutor’s inflammatory statements during closing argument which were not relevant to the defendant’s guilt or innocence constituted a fundamental violation of the tenets of ethics, but did not rise to the level of plain error), cert. denied, 490 U.S. 1049 , 109 S.Ct. 1961 , 104 L.Ed.2d 430 (1989).

In People v. Peterson, 248 Ill.App.3d 28 , 187 Ill.Dec. 797 , 618 N.E.2d 388 (Ill.App.Ct.1993), the defendant asserted that he was denied a fair trial because the prosecutor’s closing arguments compared the “war on drugs” to the war in Iraq and invited the jury to speculate as to the distribution of drugs to children. Defendant alleged that these comments improperly invited the jury to convict him on the basis of patriotism. Defendant additionally maintained that these comments were especially damaging in that the argument was made within weeks of the conclusion of the Iraqi war. The Illinois Appellate Court concluded that the remarks did not result in substantial prejudice or affect the outcome of trial so as to deprive the defendant of a fair trial:

The prosecutor did not mistake [sic] evidence or implicate other specific rights of [the] defendant.... The circuit judge told the jury that closing arguments were not evidence and written instructions to that effect were given to the jury when it began its deliberations. We find no error.

Id. at 805, 618 N.E.2d at 396 .

In reviewing similar improprieties in the prosecutor’s closing argument, the New York *273 State Supreme Court, Appellate Division, in People v. Graves, 194 A.D.2d 925 , 598 N.Y.S.2d 855 (N.Y.1993), stated that resolution of contentions regarding the improprieties required only limited discussion. The court opined:

Even assuming, arguendo, that defense counsel’s general objection and posttrial arguments were sufficient to preserve for review certain improprieties in the prosecutor’s summation, namely, his analogizing the war on drugs to the Persian Gulf War, the police officers to “foot soldiers in [the] war on drugs” and asking the jurors to put themselves “into the position of the Detectives who are out there on the street ... [flighting the war”, in view of the overwhelming evidence of defendant’s guilt we are convinced that these comments, while improper, were harmless.

Id. at 927 , 598 N.Y.S.2d at 857 (brackets in original).

Further, in United States v. North, 910 F.2d 843, 895 (D.C.Cir.), opinion withdraum on other grounds and superseded in part on reh’g, 920 F.2d 940 (D.C.Cir.1990), the United States Court of Appeals held that the argument by the special prosecutor in which he linked the defendant’s strategy favorably to Adolf Hitler’s strategy was “[u]nquestion-ably inflammatory.” In North , the prosecutor stated during closing argument that

[s]o far in this drama in August and September of 1985, North and McFarlane are following Adolf Hitler’s old strategy. He was the one who said, the victor will never be asked if he told the truth. And the idea here was if the lies work, Congress will stop asking questions.

Id. at 895 .

Immediately after this remark, North moved for a mistrial. The district court denied North’s motion, concluding that the prosecutor’s statement caused no substantial prejudice to North. 5 On review, the Court of Appeals for the District of Columbia held that “[t]o suspect that the reference to Hitler swayed the jury on a close and critical issue would underestimate the common sense that we properly attribute to the jury.” Id. The court therefore declined to reverse any of North’s convictions on this ground.

The Supreme Court of Pennsylvania in Commonwealth v. Whitney, 511 Pa. 232 , 512 A.2d 1152 (1986), correspondingly deemed the prosecutor’s references to the Prince of Darkness and Hitler acceptable as examples of individuals whose horrible deeds are manifestations of evil dispositions rather than mental deficiencies which diminished their capacity to restrain their behavior. The supreme court reasoned as follows:

Appellant complains of the injection of certain notorious, evil figures into the prosecutor’s argument. However, the prosecutor did not attempt to equate appellant’s deed with theirs. Rather he referred to them as examples of those whose horrible deeds were manifestations of evil and not the result of some exculpatory deficiency. The injection of such names as the Prince of Darkness and Adolph Hitler may tend to arouse the passions of the jurors, but considering the context in which the names were used, we do not find that those references were so inflammatory to have caused the jury’s sentencing verdict to be the product of passion, prejudice or other arbitrary factor.

Id. 512 A.2d at 1160 .

In contrast, in United States v. Payne, 2 F.3d 706 (6th Cir.1993), the defendant was found guilty of obstructing and deserting mail. On appeal, the defendant argued that he did not receive a fair trial because of prosecutorial misconduct. In evaluating the *274 prosecutorial misconduct, the United States Court of Appeals reviewed the “ ‘degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they were isolated or extensive; whether they were [made] deliberately or accidentally ... and the strength of the [case against the defendant].’ ” Id. at 711-12 (quoting United States v. Leon, 534 F.2d 667, 679 (6th Cir.1976)). The court examined the prosecutor’s continual references to the plight of poor children, comments about people’s thoughts and feelings at Christmastime, comments about the layoffs by General Motors, and the closing of plants during opening statement, examination of witnesses, and closing argument. The prosecutor made these comments despite admonitions from the trial judge. The court concluded that the comments had the ability to mislead the jury and ignite sympathetic passion for the victims and against the defendant.

Payne highlights the circumstances where a prosecutor’s comments so inflame and im-passion the jury that a new trial is warranted. The circumstances surrounding the present case are distinguishable from Payne . The remarks at issue here did not permeate the entire trial; rather, they were isolated comments made during closing argument only. Further, the trial judge overruled defense counsel’s objection and allowed the prosecutor to proceed with closing argument. Moreover, defense counsel neither made additional objections nor did the trial judge admonish the prosecutor at any time during the remainder of the prosecutor’s closing argument.

In sum, the prosecutor’s remarks during closing argument were improper but they did not result in substantial prejudice to Harris or deprive him of a fair trial. Because I believe that the prosecutor’s comments did not rise to the level of plain error, I would affirm the defendant’s conviction.

I am authorized to say that Chief Justice ROVIRA joins in this concurrence and dissent.

. Defense counsel objected to the prosecutor’s initial reference to Saddam Hussein and the Persian Gulf War. No further objections were made by defense counsel.

. Rudisel testified that he did not make any racial slurs to Harris or any of the other individuals present prior to the shooting. In contrast, Hoover James, Harris’s best friend, testified that he heard an exchange of racial slurs between Rudisel and Harris.

. Neither Jackson nor James concluded that Harris was intoxicated immediately prior to the shooting, although they agreed that during the course of the night he had drunk approximately one forty-ounce bottle of malt liquor.

.In response to defense counsel's objection, the prosecutor asserted that he was not comparing Harris to Saddam Hussein but rather he was analogizing this country's reaction in holding Saddam Hussein responsible for his unwarranted acts of violence to the reaction the prosecutor desired the jury to have to Harris, who, as a bully and thug, also deserved to be punished for his unprovoked aggression.

. In his closing argument, North's counsel stated:

But worst still and beyond anything I have heard in a courtroom, and outrageous to the extent that it should send a course of rage through everybody in this room, is the reference to Adolf Hitler.

This marine, retired, was linked in this courtroom to Adolf Hitler. Some in this room have fought Adolf Hitler. They know what Adolf Hitler was. And this man is not Adolf Hitler and he doesn't do things like Adolf Hitler, and to suggest it indicates the extraordinary drive, the force, the power of this government to put its might on top of Colonel North, to see what they can say is a crime. You should be offended by it. And you should judge everything they say, because anyone that will link Colonel North to Adolf Hitler is not credible and should not be believed.

North, 910 F.2d at 895 n. 32.