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Waiver – Closing Argument: Failure to Move for Mistrial

State v. Xavier J. Rockette (II), 2006 WI App 103, PFR filed 6/29/06 ( prior unrelated appeal involving same defendant, different case: 2005 WI App 205)
For Rockette: Timothy A. Provis

Issue/Holding: Failure to move for mistrial waives objection to closing argument, ¶28, citing State v. Dale H. Davidson, 2000 WI 91, ¶86, 236 Wis. 2d 537, 613 N.W.2d 606. Although “plain” or “fundamental” error may not be waived, the test is whether the trial was rendered so unfair as to deny due process, ¶29. In this instance, the claimed error (prosecutorial comments exhorting jury to consider whether the State would give a witness “consideration … without any regard for the truthfulness of the statements,” ¶16) “were not so egregious as to constitute plain error”: “The prosecutor’s comments were limited in scope and, following objections, the prosecutor reminded the jurors that they, and not she, were the arbiters of witness credibility. The court also issued a curative instruction to the jury. Rockette made no motion for mistrial after the court addressed the objections,” ¶30.

Just goes to show how very difficult it is to obtain reversal on the basis of closing argument. There cannot be the slightest doubt that the prosecutorial comments were way over the line, violating the fundamental rule against vouching. As the court of appeals itself said, not so long ago, State v. Steven T. Smith, 2003 WI App 234, ¶23 (finding reversible error in a “closing argument [that] unfairly referenced matters not in the record and vouched for the credibility of the police witnesses”):

¶23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor’s conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer “is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence.” State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). “Argument on matters not in evidence is improper.” State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980).

It would have been nice, then, had the court at least paid lip service to this principle of improper prosecutorial vouching. Perhaps the evidence was overwhelming, or the comments indeed isolated enough that the curative instruction sufficed to overcome the error—but there ought to been some recognition by the court that the comments clearly were improper. If, that is, the court aims to deter a repetition.


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