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Prosecutorial Misconduct – Closing Argument – Harmless Error

State v. Richard K. Numrich, 2010AP1544-CR, District 2, 8/3/11

court of appeals decision (1-judge, not for publication); for Numrich: Chad A. Lanning; case activity

Instances of prosecutorial misconduct (objecting in the jury’s presence to a line of questioning that implied the existence of inadmissible evidence; stating in closing argument that it is defense counsel’s “job to create doubt”) warranted neither mistrial, ¶¶15-16 (especially in light of curative instruction); nor new trial:

¶21      Numrich correctly points out that we can consider the cumulative effect of several errors in deciding whether to grant a new trial.  See State v. Harris, 2008 WI 15, ¶110, 307 Wis. 2d 555, 745 N.W.2d 397.  Although we hold that the prosecutor did comment inappropriately three times, they do not warrant a new trial when considered together.  A new trial is only warranted based on improper remarks by the prosecutor if the statements were so prejudicial as to “make the resulting conviction a denial of due process.”  State v. Mayo, 2007 WI 78, ¶43, 301 Wis. 2d 642, 734 N.W.2d 115 (citation omitted).  In determining whether to overturn a conviction, we must look at these statements “in the context of the entire trial.”  See id.

¶22      In the present case, although the prosecutor’s trial conduct was somewhat imprudent at times, there is simply no substantial probability that a new trial would have a different result.  See id., ¶65.  Numrich showed all of the signs of intoxication in the one road-side test that he was able to complete.  His blood test revealed a blood alcohol content of 0.25, well over the legal limit, and while Numrich raised the specter of sample contamination during cross-examination of the State’s witness, when he completed his defense, he had not shown any evidence of actual contamination of his sample.  Thus, during closing arguments, the prosecutor was finally on solid ground in commenting that there was no evidence of contamination of the sample.  As well, the defense expert admitted that based on the number of drinks Numrich testified to consuming, Numrich’s blood alcohol content should have been around 0.12, also well over the legal limit.  Because the improper statements of the prosecutor are inconsequential when viewed against the weight of the evidence against Numrich, we decline to order a new trial.

Separately: Prior OWI convictions are generally inadmissible to prove the “status element” of OWI-Habitual when the defendant admits the prior(s), ¶17, citing State v. Alexander, 214 Wis. 2d 628, 571 N.W.2d 662 (1997). However, Numrich opened the door to admissibility by testifying that he was an experienced drinker who knew when he had had too much to drink: “In other words, he was painting a picture of himself as someone who is safe and responsible and would not cross the line of driving while intoxicated.  After that testimony, it was not improper for the State to cross examine him regarding his prior convictions in order to show that Numrich either did not know or did not care when he had crossed that line in the past,” ¶18.

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