relying on our holding in Mercer, 724 A.2d at 1184 , that “evidence concerning a witness’[s] fear tends to be prejudicial” to find prosecutorial error where the government suggested in its closing that the witness had not identified the shooter out of fear of the defendant
How later courts described this case
- relying on our holding in Mercer, 724 A.2d at 1184 , that “evidence concerning a witness’[s] fear tends to be prejudicial” to find prosecutorial error where the government suggested in its closing that the witness had not identified the shooter out of fear of the defendant
- holding that prosecutor’s improper introduction of fact not in evidence was “prosecutorial error”
- “In Griffin, the Supreme Court held that a comment to the jury about the defendant’s refusal to testify at trial violated the defendant’s constitutional rights.”
Written by the judges who cited it.
The opinion
SCHWELB, Associate Judge,
concurring in part and concurring in the judgment.
I agree that Simpson’s conviction should be affirmed, and I therefore concur in the judgment. However, I disagree with the majority’s conclusion that the trial judge abused her discretion by overruling a defense objection to the prosecutor’s statement, made during closing argument, that Hymes, a government witness, “might have been a little afraid.”
According to the majority, there was no factual basis for the challenged comment. In my opinion, this notion is quite unrealistic. Hymes testified that when he was first approached by a defense investigator, he withheld information about the murder *1051 because he “did not want to get involved.” In the courtroom, at trial, Hymes declared that he did not want to be there and that he did not want to be a witness. Hymes consistently exhibited extreme reluctance to have anything to do with criminal proceedings related to the murder to which he was a witness. His reluctance was quite understandable, for as we have recognized, “the instinct for self-preservation” after witnessing a murder “is well-nigh universal.” Outlaw v. United States, 632 A.2d 408 , 409 n. 1 (D.C.1993). Circumstantial evidence can be just as probative as direct evidence, and although a prosecutor may not “rely on evidence that has not been presented,” he or she is “entitled to make reasonable comments on the evidence and to argue all reasonable inferences from the evidence adduced at trial.” Clayborne v. United States, 751 A.2d 956, 969 (D.C.2000).
Although Hymes never explicitly so stated, his testimony that he “did not want to get involved” with this murder trial and his insistence on the witness stand that he did not want to be there permitted the jury to draw the reasonable, if not obvious, inference that his reluctance to testify may have been generated by, or at least related to, his apprehension of the potential consequences. The law “does not require judges to shut their minds to that which all others can see or understand.” Poulnot v. District of Columbia, 608 A.2d 134, 141 (D.C.1992) (citing Child Labor Tax Case, 259 U.S. 20, 37 , 42 S.Ct. 449 , 66 L.Ed. 817 (1922)). Considering the realities of the situation, the prosecutor’s rather mild observation that “maybe [Hymes] might have been a little afraid” was surely a “reasonable comment” on the evidence. The jurors would undoubtedly have recognized the realities on which the remark was based whether the prosecutor had mentioned the matter or not.
My conclusion that the trial judge did not abuse her discretion is buttressed by the deference that we owe to her judgment in light of her superior vantage point “on the spot,” when this court is limited to a cold transcript.
It is peculiarly within the knowledge of the trial judge whether remarks of counsel during the trial tend to prejudice the cause of a party. The courtroom atmosphere, prior remarks which have provoked the questioned statements, and other factors which cannot be appraised by a reviewing court may render remarks of counsel innocuous, although they may appear viciously prejudicial when removed from their setting.
Irick v. United States, 565 A.2d 26, 32 (D.C.1989) (quoting Smith v. United States, 315 A.2d 163, 167 (D.C.), cert. denied, 419 U.S. 896 , 95 S.Ct. 174 , 42 L.Ed.2d 139 (1974)). The trial judge therefore “has latitude in regulating closing argument, and we do not lightly overturn [her] discretionary rulings.” Clayborne, 751 A.2d at 968 . By the time the prosecutor made the challenged remark, the trial had already consumed several days, and the judge was in the best position to assess the character and impact of the prosecutor’s comment in the context in which it was made. In the judge’s view, it was reasonable to infer that “maybe [Hymes] might have been a little afraid,” and she did not abuse her discretion in permitting the prosecutor to say so.
In all other respects, I join the opinion of the court.