Wilson v. People

VOLLACK, Justice,

dissenting:

I disagree with the majority’s formulation of the plain-error review standard: “whether an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Maj. op. at 420. Prior cases decided by this court set forth a formulation of the plain-error rule which, in my opinion, supports the affirmance of the defendant’s conviction. Therefore, I respectfully dissent.

The issue before us is not whether the prosecutor’s references to the defendant as a liar were improper, but whether it was plain error necessitating a new trial. I do not contest that a prosecutor’s expression of personal opinion should not be condoned. Guidelines promulgated by the American Bar Association, cited by the majority and the United States Supreme Court in United States v. Young, 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985), state:

(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

ABA Standards for Criminal Justice 3-5.8 (2d ed. 1980).

In United States v. Young, the Supreme Court considered whether a prosecutor’s misconduct constituted plain error. The Court stated that “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone.” 470 U.S. at 11 , 105 S.Ct. at 1044 . “To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.” Id. at 16 , 105 S.Ct. 1047 (quoting Johnson v. United States, 318 U.S. 189, 202 , 63 S.Ct. 549, 555 , 87 L.Ed. 704 (1943) (Frankfurter, J., concurring)).

While it is true that the plain-error doctrine of Crim.P. 52(b) tempers the rigid application of the contemporaneous-objection requirement, see Maj. op. at 420; United States v. Young, 470 U.S. at 15 , 105 S.Ct. at 1046 , the plain-error doctrine should not be a means by which appellate review of trial court errors absent timely objection becomes commonplace. Although an appellate court can examine the entire trial court record, it cannot gauge the impact on the jury of certain remarks or arguments.

I agree with the test set forth in prior case law: “The focus of inquiry under the plain error standard is whether the asserted error substantially influenced the verdict or affected the fairness of the trial proceedings.” People v. Aalbu, 696 P.2d 796, 810 (Colo.1985). “The proper inquiry in determining whether a claimed error amounts to ‘plain error’ or instead may be considered harmless is whether the error substantially influenced the verdict or affected the fairness of the trial proceed *422 ings. People v. Romero, 694 P.2d 1256, 1268 (Colo.1985). In my view, the test set forth in Aalbu and Romero better articulates the limited circumstances in which an appellate court can address an error where no objection was made.

While I do not condone the prosecutor’s calling the defendant a “liar,” I do not believe it rises to the level of plain error. In People v. Swanson, 638 P.2d 45 (Colo.1981), we considered whether a prosecutor’s reference to a witness as a “liar” constituted plain error. We recognized that expressions of a prosecutor’s personal belief in the truth or falsity of testimony are improper. However, we stated that the trial court was in the best position to determine the impact on the jury of those expressions and that the prosecutorial misconduct was not so egregious as to constitute plain error. Id. at 51 . In my opinion, the same may be said in the instant case. Here, the prosecutor attacked the credibility of the defendant and defense witnesses throughout their cross-examination. His stance regarding their testimony was obvious throughout the trial. In his closing argument, the prosecutor reviewed the state of the evidence. He did not allude to facts not presented during the trial, but rather, in presenting instances in which witnesses may have been inconsistent, characterized the inconsistencies as “lies.” In this, the prosecutor may have been overzealous. However, we have stated that “a prosecutor may draw reasonable inferences as to the demeanor and credibility of witnesses.” People v. Constant, 645 P.2d 843, 846 (Colo.1982); see also ABA Standards for Criminal Justice 3-5.8(a) (2d ed. 1980). In Constant we also noted that “prosecutorial misconduct in closing arguments rarely, if ever, is so egregious as to constitute plain error.” 645 P.2d at 847 (quoting People v. Sepeda, 196 Colo. 13, 25 , 581 P.2d 723 (1978)).

I do not believe that, in reviewing the entire record, we can determine that the prosecutor’s comments during his closing argument “substantially influenced the verdict.” Romero, 694 P.2d at 1268 . The fact that the jury had trouble reaching a unanimous verdict does not support the majority’s contention that this somehow proves that the prosecutor’s comments swung the verdict to guilty. I do not believe we can make this assumption.

Because I believe the prosecutor’s comments, although improper, did not constitute plain error, I would affirm the defendant’s convictions.