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State v. James D. Lammers, 2009 WI App 136

Plain error rule; DA’s “vouching” during closing argument

Click here for court of appeals decision

Defense counsel: Amelia L. Bizzaro


¶12      “Plain error” means a clear or obvious error, one that likely deprived the defendant of a basic constitutional right. State v. Frank, 2002 WI App 31, ¶25, 250 Wis. 2d 95, 640 N.W.2d 198 (Ct. App. 2001). Wisconsin Stat. § 901.03(4) recognizes the plain error doctrine, which allows appellate courts to review errors that were otherwise waived by a party’s failure to object. State v. Mayo, 2007 WI 78, ¶¶28-29, 301 Wis. 2d 642, 734 N.W.2d 115. Plain error is “error so fundamental that a new trial or other relief must be granted even though the action was not objected to at the time.” State v. Sonnenberg, 117 Wis. 2d 159, 177, 344 N.W.2d 95 (1984) (citation omitted). The error, however, must be “obvious and substantial,” and courts should use the plain error doctrine sparingly. Id.

 ¶13      There is no bright-line rule for what constitutes plain error. … “[W]here a basic constitutional right has not been extended to the accused,” the plain error doctrine should be invoked. Id. at 195. Our courts have consistently used this constitutional error standard in determining whether to apply the plain error rule. State v. King, 205 Wis. 2d 81, 91, 555 N.W.2d 189 (Ct. App.1996).

 ¶14      If plain error occurred, the burden is on the State to prove that it was harmless beyond a reasonable doubt. …

Issue/Holding: In context, the prosecutor’s closing argument “on why I think you should believe” a witness did not amount to impermissible vouching.

¶16      During his closing, the prosecutor argued that Lammers had been a party to the false insurance claim and told the jury, “Well, if you believe Frank Webster, and I will go into later on why I think you should believe Frank Webster, then [Lammers] knew, he knew ahead of time, it was his idea.” The State contends that this comment simply forecasts evidence that has led the State to believe Webster’s testimony. We agree that this comment does not vouch for Webster’s truthfulness, but rather predicts that after hearing the summation of the evidence, the jury will believe the testimony. A prosecutor may comment on the evidence, argue to a conclusion from the evidence, and may state that the evidence convinces him or her and should convince the jury. State v. Adams, 221 Wis. 2d 1, 19, 584 N.W.2d 695 (Ct. App. 1998). Furthermore, the prosecutor delivered on his promise to explain why Webster should be believed, stating in part that (1) Webster testified he knew he would be in trouble if he lied, (2) Webster had already pled no contest and had nothing to gain by lying, and (3) Webster admitted that Lammers had received no money from the insurance settlement. “[A] prosecutor is permitted to comment on the credibility of witnesses as long as that comment is based on evidence presented.” Id. at 17. There is no plain error here.

Nor did another comment, that the witnesses were told that perjury charges would result if they lied, amount to vouching, given the full context:

¶19      We are convinced that the prosecutor said nothing objectionable thus far. Rather, the prosecutor alerted the jury to possible motives for the testimony given. We observe that the door to this issue was opened on cross-examination, when defense counsel elicited from Webster the terms of his agreement with the State to “fully cooperate” lest his probation be revoked. Upon further cross-examination, Webster stated that the only way he could get in more trouble was by lying on the witness stand. The State is allowed to respond to allegations that its witnesses were coached to lie in exchange for deals with the State. See, e.g., State v. Kaster, 148 Wis. 2d 789, 799-800, 436 N.W.2d 891 (Ct. App. 1989). There was no fundamental error; furthermore, “[A]sking a witness whether he [or she] is testifying by agreement is not likely to bolster his [or her] credibility. If anything it is likely to have the opposite effect, by imputing a motive for the witness’s testifying as the prosecution wants … regardless of the truth.” United States v. Mealy, 851 F.2d 890, 899 (7th Cir. 1988) (citation omitted). And, finally, the circuit court’s instruction to the jury regarding heightened scrutiny of testimony from witnesses granted immunity and witnesses who were co-conspirators was sufficient to dispel any potentially harmful effects of the prosecutor’s references to truthful testimony. See id. at 900.

Moreover, one of the witnesses was granted immunity in the presence of the jury, with the colloquy including a warning that he would face perjury charges if he lied under oath, ¶21.

However, prosecutorial argument that “I believe that their testimony and their demeanor [were] credible” presents a closer, if ultimately unsuccessful, question:

¶23      There is a fine line between what is and is not permitted concerning the lawyer’s personal opinion. Even if there are improper statements by a prosecutor, the statements alone will not be cause to overturn a criminal conviction. United States v. Young, 470 U.S. 1, 11 (1985) (“criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone”). Rather, the statements must be looked at in context of the entire trial. Id. Here, the prosecutor tempered the appearance that he was imposing his own credibility determination upon the jury by asking the jurors to use their own best judgment in assessing the truthfulness of the witnesses. Specifically, the prosecutor reminded the jurors that they themselves saw Webster and Gottsacker testify and could draw their own conclusions.

¶24      Also, the prosecutor’s comment occurred in the midst of his summation of the evidence. A prosecutor may comment on the credibility of witnesses provided that comment derives from the evidence. Adams, 221 Wis. 2d at 17. The prosecutor did an exhaustive review of the evidence and, in this case, his comment about what he believed was tied to the record. We are not persuaded that the remark rises to the level of a fundamental error or that it usurped the role of the jury as arbiter of witness credibility.

Not at all clear why this opinion was published, given its fact-specific nature and the change in the no-cite rule–i.e. you could still cite it if it weren’t published, it just wouldnt be binding; but it doesn’t lay down any novel principles anyway. That said, the opinion does strongly suggest that prosecutorial use of “I believe” to marshall evidence is permissible, ¶22, citing a couple of obscure foreign cases. But just what is prosecutorial vouching? The court doesn’t quite get around to saying (which makes publication all the more curious). Even if vouching really is all that self-evident, reciting the test wouldn’t hurt: the test for “plain error” is no less, well, plain, but that didn’t deter the court from a detailed intro, ¶¶12-15. You’ll find decent discussions on vouching in U.S. v. Combs, 379 F.3d 564 (9th Cir 2004) (long and short of it: improper vouching when prosecutor offers personal assurances of veracity of witness or suggests testimony supported by information not introduced into evidence; cases collected) and United States v. Weatherspoon, 410 F.3d 1142 (Combs followed, court explaining that vouching has two vices: 1) implication the prosecutor’s opinion rests on matters falling outside the record; 2) “prestige of the government” stands behind the witness). The risk, ultimately, is that the jury would substitute the prosecutor’s opinion for its own, independent judgment. Weatherspoon puts the matter quite nicely: “In each instance the prosecutor’s message is identical: I believe [do not believe] the testimony of Witness A. Therefore you should believe [not believe] Witness A too [either].” (Compare that observation to the one by our court, ¶22, that “colloquial phrases such as ‘I believe’ are permissible in the context of discussing the evidence.”) It’s not clear from the court of appeals’ analysis that it perceived any such danger on these facts, but it would have been nice to have it said explicitly.    

Summaries of this and similar cases are archived at Plain Error – Generally / Plain Error, § 901.03 – Generally Prosecutorial Misconduct – Closing Argument: Vouching for Witness