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Improper closing argument earns prosecutor an OLR referral, but doesn’t get defendant a new trial

State v. Jacob G. Mayer, 2013AP2758-CR, District 2, 9/24/14 (not recommended for publication); case activity

The trial court’s refusal to instruct the jury on the defense of voluntary intoxication and the prosecutor’s improper closing argument were harmless, but the latter is egregious enough to cause the court of appeals to refer the prosecutor to OLR.

Mayer’s defense to a charge of attempted burglary and criminal damage to property was that he was drunk, hungry, and frustrated when he threw a brick at a BP station window and damaged the rear door of a McDonald’s restaurant. (¶¶2-5). Even if the trial court erred in refusing to instruct on voluntary intoxication, the error was harmless because the court allowed Mayer to argue to the jury exactly what the instruction provides—that he lacked the intent necessary to commit the crimes charged:

¶14   The jury was instructed to find intent “from all the facts and circumstances in this case bearing upon intent.” The jury heard undisputed testimony regarding Mayer’s heavy level of intoxication, and Mayer argued to the jury that his intoxication clouded his judgment such that his actions represented his frustration at his failure to get into the McDonald’s and BP rather than an intent to perform criminal acts. The jury also had plenty of evidence from which to infer Mayer’s intent. Mayer’s intent was demonstrated by four separate attempts to get into the BP and McDonald’s through doors and windows that were locked and closed and by his having “to travel a ways to get the block that he attempted to throw through the [BP] window.” The witnesses’s testimony as well as video surveillance evidence of Mayer’s actions—which showed him pushing at McDonald’s drive-through windows and throwing a brick at BP’s glass door—was strong evidence that Mayer intended to enter the property and steal. It is clear beyond a reasonable doubt given the physical evidence presented, the surveillance video, and witnesses’ testimony that a rational jury would have convicted Mayer if given the voluntary intoxication instruction.

The court says the voluntary intoxication defense, § 939.42(2) (2011-12), has been eliminated effective April 18, 2014. (¶10 n.2). But while the statute has been changed, the defense itself can’t really be eliminated in this situation, for reasons the court itself explains:

12      Voluntary intoxication is a “failure of proof” defense that acknowledges that evidence of intoxication should be considered in determining whether a defendant acted with the required state of mind for a criminal act. See Wayne R. LaFave, Substantive Criminal Law § 9.1(b) at 11 (2d ed. 2003). State of mind, however, is always an issue for the jury where it is an element of the crime; intoxication will always be relevant when it goes to an element of the charged crime; and juries can naturally be expected to consider the effect of a defendant’s intoxication on his or her state of mind. … The voluntary intoxication instruction [Wis. JI-Criminal 765] thus simply emphasizes that the defendant’s mental state is the ultimate issue to which the jury must direct its attention.

The closing argument issue arose our of Mayer’s testimony that he didn’t remember his actions or motivations that night. (¶6). Believing this testimony to be inconsistent with defense counsel’s opening statement that Mayer was frustrated and hungry, the prosecutor moved for a mistrial, arguing defense counsel engaged in “blatant, intentional misconduct.” (¶7). The trial court denied the motion, finding defense counsel’s opening fairly presented what he thought the evidence would show. (¶7). Having lost this gambit, the prosecutor attacked defense counsel in closing argument, calling his opening statement “a whole-hearted fabrication” and saying either defense counsel “flat out lied to you” in opening or Mayer lied on the stand: “Either way, I wouldn’t believe either of them as far as I can throw them.” (¶8).

This argument was improper, violating SCR 62.02(1)(c) (lawyers shall “[a]bstain from making disparaging, demeaning or sarcastic remarks or comments about one another)” and going “beyond reasoning from the evidence and suggest[ing] that the jury should arrive at a verdict by considering factors other than the evidence,” State v. Neuser, 191 Wis. 2d 131, 136, 528 N.W.2d 49 (Ct. App. 1995). (¶15). The prosecutor’s “unprofessionalism” was compounded by the fact he made the comments after the circuit court told him he was wrong about what defense counsel had said in opening. (¶16).

Defense counsel didn’t object to the prosecutor’s closing, so the issue is reviewed as plain error, which requires the defendant to show the unobjected-to error is “fundamental, obvious, and substantial,” after which the burden shifts to the state to show the error was harmless, State v. Jorgensen, 2008 WI 60, ¶45, 310 Wis. 2d 138, 754 N.W.2d  77. The prosecutor’s remarks were fundamentally, obviously, and substantially improper, but were harmless given the evidence and the instructions to the jury that the remarks of the lawyers are not evidence, instructions the jury is presumed to follow, State v. Truax151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App. 1989). (¶¶17-18). Even so, the prosecutor’s conduct warrants review by OLR:

¶19      We are bound by the code of judicial conduct, which requires that “[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the rules of professional conduct for attorneys should take appropriate action.” SCR 60.04(3)(b). Therefore, we direct the clerk of this court to send a copy of this opinion to the Office of Lawyer Regulation for any action it deems appropriate. 

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