holding that prosecutor’s emphasis in closing argument that jury’s sentence of death was only recommendation was improper for it conveyed message that jurors’ awesome responsibility was lessened by fact that their decision was not final one
How later courts described this case
- holding that prosecutor’s emphasis in closing argument that jury’s sentence of death was only recommendation was improper for it conveyed message that jurors’ awesome responsibility was lessened by fact that their decision was not final one
- judge allowed numerous acts of prosecutorial misconduct, including permitting the state to call a minister to testify in rebuttal that the death penalty was approved by biblical teaching and that jurors would be condemned by God if they failed to recommend defendant’s execution
- prosecutor introduced multiple photographs of victim through testimony of victim’s mother, interspersed with questions regarding her great love for the victim and her terrible loss
- "[T]he introduction of proof of insanity by defendant does not place a burden on the Commonwealth to prove him sane.”
Written by the judges who cited it.
The opinion
*684 STEPHENSON, Justice,
dissenting.
I dissent from the majority opinion at the same time recognizing the seriousness of the question raised by the polygraph evidence.
The questioning of a minister as to a biblical basis for the death penalty was in response to Ice’s introduction of testimony by a minister that the Bible taught that the death penalty was wrong. This seems eminently reasonable to me, Ice opened the door on this subject.
The opinion here unfairly characterizes the closing argument as prosecutorial misconduct. What is wrong with asking the jury that Ice not be “turned loose to kill again”? This does not violate Payne (which I believe should be overruled) as it does not address the consequence of a verdict. Insofar as the criminal justice system is concerned, a not guilty verdict “turns him loose.”
As to the polygraph evidence, I agree that it was error to admit that testimony. It was irrelevant. It was never an issue, only a smoke screen. Insanity was the defense from the beginning. The testimony of Ice’s psychiatrist that he had no recollection of events, that he could not bear to remember what he had done etc., clearly shows there was no pretense that anyone other than Ice did the killing.
Had Ice taken the stand and testified he did not do the killing or that Mayberry did, then the polygraph evidence would have been relevant and reversible error. Here it was irrelevant and did not prejudice Ice’s defense.
I would affirm the conviction and accordingly dissent.
WINTERSHEIMER, J., joins in this dissent.