holding that partial closure of trial was no broader than necessary where the trial court restricted spectators’ entry and exit during testimony of minor victim who was previously distracted by such movement
How later courts described this case
- holding that partial closure of trial was no broader than necessary where the trial court restricted spectators’ entry and exit during testimony of minor victim who was previously distracted by such movement
- noting that a trial court has broad latitude in determining whether a witness is qualified to be an expert witness, and concluding that a therapist who had treated victims of abuse for seventeen years, performed in and attended numerous presentations every year, and testified in court as an expert over twenty-five times was properly qualified
- upholding expert testimony on the “range of behavior demonstrated by child sexual assault victims,” from an expert with similar qualifications to Miller, and noting that the trial court did not abuse its discretion in deeming this testimony helpful
- explaining that the reason for the closure “satisfies either the overriding or substantial interest standards”
Written by the judges who cited it.
The opinion
Judge WEBB
specially concurring.
While in agreement with affirming defendant’s conviction, I write separately to pro.-vide a broader perspective on the factors that, in my view, make reversal for prosecu-torial misconduct an extremely close question.
“The hard fact is that sometimes we must make decisions we do not like.... [E]xcept in the rare ease, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare eases.” Texas v. Johnson, 491 U.S. 397, 420-21 , 109 S.Ct. 2533 , 105 L.Ed.2d 342 (1989) (Kennedy, J., concurring).
No purpose would be served by repeating the law on this issue, which is accurately set forth by the majority. I address three areas of what I consider to have been patently improper argument.
I. Prior Jury Anecdote
Barely two pages into her rebuttal closing, the prosecutor said, “About 10 years ago I tried a sexual assault on a child case.... I noticed several jurors were crying when [the judge] read the [not guilty] verdict. So after the trial, I asked them, ‘Why are you crying?’ ”
The trial court overruled defendant’s objection, explaining, “This is closing argument. It’s not evidence. And as long as the arguments conform to the evidence presented to the jury, that will be their decision to make.”
The prosecutor then continued that the jurors had told her, “[T]hey truly believed that the defendant was guilty. But they felt they had to vote not guilty” because the defense had argued that the police did not collect forensic evidence from cushions on a couch. The prosecutor concluded the anecdote by saying, “So ever since then I have been telling jurors that story, an unfortunate story.”
I believe that this argument was improper not merely because it distracted the jury from deciding the ease based on the evidence presented, as the majority observes, but also because:
• Although the anecdote’s persuasive value, if any, depends on its truth, the prosecutor described events for which no supporting evidence was introduced.
• The absence of evidence cannot be discounted because the anecdote merely conjured up, as a rhetorical device, an experience that most jurors would have shared, such as the consequences of becoming distracted while driving; rather, only a lawyer who tried criminal cases could have had such an experience.
• By the prosecutor’s express admission, use of the anecdote was calculated, and thus cannot be excused as a statement blurted out in the heat of battle. Further, because no evidence supported the anecdote, the trial court’s statement that “as long as the arguments conform to the evidence presented to the jury,” was not responsive to defendant’s objection.
*389 II. The Florida Murder Case
Defendant next objected when the prosecutor said, “Children are gullible and trusting. 11-year old Carly in Florida was led away to her death.... ” The reference was to a rape-murder ease that had received extensive national electronic media attention because video surveillance captured clear images of the victim being escorted from a shopping mall by her killer.
The court overruled defendant’s objection, explaining, “There was testimony [by the prosecution’s expert] so it will be overruled. Again, this is argument.” (The court had earlier denied defendant’s motion that no reference be made to this case in closing arguments.)
The prosecutor continued, “She was led away to her death by a complete stranger with astonishing needs.”
I believe that this argument does far more than “invite[ ] the jurors to make a comparison to an irrelevant and prejudicial case,” as the majority states. It also tells the jury, “Be wary, every perpetrator of sexual assault on a child is a potential murderer.” This warning message strengthens because the prosecutor had already suggested that an acquittal might lead the jurors to feel “buyer's remorse,” which would be especially distressing if the jurors acquitted defendant and next heard about him having killed a child.
The trial court’s statement, “[T]his is argument,” does not resolve the question of whether it is fair argument. I would conclude that it was not, and that the jury should have been so informed.
III. The Screening Process
Defendant’s final unsuccessful objection arose when the prosecutor stated:
In voir dire, [the defense] tried to represent to you that there’s no screening process when we file sexual assault eases. That’s farther from the truth. Of course there’s a screening process.
In overruling the objection, the court reminded the jury, “[T]his is argument. It’s not evidence. And counsel are just reminded to keep their arguments in concert with the evidence that’s been presented here.”
Despite this admonition, the prosecutor continued, “We look at these charges. We don’t file them willy-nilly. These are. serious, serious charges.”
As the majority correctly points out, reference to a screening process suggests both evidence of guilt beyond that presented to the jury and the prosecutor’s opinion of the merit of the charges. In addition:
• Like the jury anecdote, the persuasive value, if any, of this comment depends on its truth, of which there was no evidence, even assuming that such evidence would have been admissible.
• The prosecutor’s disregard of the admonition to stick to the evidence compels the conclusion that the prosecutor intended to drive this point home.
• The trial court abdicated its responsibility to tell the jury that the prosecutor’s argument was improper.
In sum, controlling precedent provides no bright line test to determine when improper argument mandates reversal. Hence, while I accept my colleagues’ conclusion that the foregoing argument was harmless error, such argument should not be condoned, and my acquiescence in affirming defendant’s conviction does not condone it.