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Closing Argument – Reference to Defendant’s Failure to Testify

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208

For Doss: Robert R. Henak

Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:

¶81      …

[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify, three factors must be present: (1) the comment must constitute a reference to the defendant’s failure to testify; (2) the comment must propose that the failure to testify demonstrates guilt; and (3) the comment must not be a fair response to a defense argument.

State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669 (citing Robinson, 485 U.S. at 34).

¶92      We have previously declined to establish a bright-line test as to “whether a prosecutorial comment crosses over ‘into the forbidden area of comment on an accused’s failure to testify’ and ‘violates constitutional rights,'” State v. Moeck, 2005 WI 57, ¶74, 280 Wis. 2d 277, 695 N.W.2d 783(citing State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988)). Instead, such determinations must be made on a case-by-case basis. Moeck, 280 Wis. 2d 277, ¶74.

¶93      The court of appeals has adopted the approach taken by the Third Circuit that “[t]he test for determining whether remarks are directed to a defendant’s failure to testify is ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ Questions about the absence of facts in the record need not be taken as a comment on a defendant’s failure to testify.” State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984)(citations omitted). Applying this test, the court of appeals has ruled that by presenting a limited reply to a defendant’s claim during a pro se trial that the state was unable to prove its case, the prosecutor did not improperly comment on the defendant’s failure to testify. Id.; See also State v. Werlein, 136 Wis. 2d 445, 457, 401 N.W.2d 848 (Ct. App. 1987)([T]he prosecutor’s comments were made in rebuttal to defense counsel’s suggestion that these were legitimate explanations for the events leading to the shooting.”).

¶94      Thus, where Doss’s attorney argued that Doss’s behavior in depositing the estate funds showed nothing but good motives, it is not clear that the prosecutor’s statements about the absence of facts in the record should be taken as a comment on Doss’s failure to testify, particularly where there was no direct reference to Doss’s failure to testify. This is the type of case that straddles a fine line between permissible and impermissible commentary by the State. The U.S. Supreme Court has recognized that a prosecutor’s statement that falls short of a direct statement on a defendant’s failure to testify, but instead “‘refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony,'” is at most an attenuated violation of Griffin v. California, 380 U.S. 609 (1965), and Robinson, 485 U.S. at 34, and may not actually constitute a violation at all. United States v. Hasting, 461 U.S. 499, 503, 506 & n.4 (1983). Therefore, Doss has not established that her counsel’s failure to object was deficient performance. See Johnson, 133 Wis. 2d at 217; Strickland, 466 U.S. at 688.

So? Did the closing argument amount to a comment on failure to testify or didn’t it? The court doesn’t purport to say. Apparently, it doesn’t have to. Trial counsel, in the first instance, waived the issue by not objecting, ¶83. More problematically, the court now seems to say that when an issue isn’t clear-cut, counsel can’t be deficient by failing to react. Thus, this case “straddles a fine line” and therefore Doss didn’t establish deficient performance. To be sure, the court doesn’t connect the dots quite that directly, but what else could it have meant? In this sense, the holding joins a lengthening list of cases to similar effect (see summaries collected here).