Summary
recognizing that granting of a mistrial is a remedy for prejudicial statements by a prosecutor while concluding that in context a mistrial was not required
Summary of this case from Harris v. StateOpinion
No. 24970
Decided March 19, 1973. Rehearing denied April 23, 1973.
Defendant was convicted of the offenses of unnatural carnal copulation and statutory rape and appealed.
Affirmed
1. JURY — Deliberations — Less Than Forty-five Minutes — Unnatural Carnal Copulation — Statutory Rape — New Trial — Unwarranted. Jury deliberations which lasted less than forty-five minutes and which resulted in defendant's conviction of the offenses of unnatural carnal copulation and statutory rape did not warrant the granting of a new trial; and defendant's argument — — that the jury deliberations were of so short a duration that jury could not have properly reflected on the evidence or considered the instructions — — is without merit.
2. CRIMINAL EVIDENCE — Unnatural Carnal Copulation — Statutory Rape — Brief Statements — Similar Incidents — Cautionary Instruction — Error — Negative. In prosecution for unnatural carnal copulation and statutory rape, where evidence consisted of a few brief statements by prosecuting witness in response to questions by both prosecutor and defense counsel relating to similar incidents which had occurred prior in time to date of specific acts in question and court gave oral cautionary instruction to jury on limited relevance of similar act testimony at conclusion of prosecuting witness' testimony and a similar written instruction when case was submitted to jury, held, under these circumstances, contention of defendant — that trial court erred in admitting evidence relating to other incidents of a similar nature between defendant and prosecuting witness occurring prior in time to acts with which defendant was charged — is without merit.
3. SODOMY — Statutory Rape — Sufficiency of Evidence. In prosecution for unnatural carnal copulation and statutory rape, evidence was sufficient to sustain the guilty verdicts; and notwithstanding defendant's contention that prosecuting witness' testimony was so inconsistent as to be unworthy of belief, testimony of this witness, if believed by the jury, was sufficient to establish the elements of the crimes with which defendant was charged; moreover, testimony of doctor lent some corroboration to witness' testimony.
4. CRIMINAL LAW — Reviewing Court — Re-determination — Conflict — Prohibited. Reviewing court cannot invade the province of the jury by making a re-determination on conflicting evidence.
5. PROSECUTING ATTORNEYS — Prejudicial Statements — Mistrial — Acquittal — Negative. With reference to allegedly prejudicial statements made by deputy district attorney during his closing argument — assuming such statements were prejudicial, the proper remedy would be the granting of a motion for mistrial rather than acquittal.
6. CRIMINAL LAW — Mistrial — Granting or Denial — Discretion of Judge. The granting or denial of a motion for a motion for a mistrial is within the sound discretion of the trial judge, and his determination will not be disturbed on review unless it is apparent that the court abused its discretion.
7. PROSECUTING ATTORNEYS — Offense Report — Police Officer — Comment — Improper — Mistrial — Unwarranted. In prosecution for unnatural carnal copulation and statutory rape, comment of deputy district attorney during final argument pertaining to an offense report — which referred to numerous offenses other than the ones on which defendant stood accused — prepared by police officer who responded to a call from prosecuting witness' mother, although not proper, was not so prejudicial as to warrant the granting of a mistrial; actually, it came as no surprise to the jury that the prosecuting witness accused defendant of several incidents similar to those with which he was charged, since she had so testified at trial.
8. Improper Inference — Witness — Fabrication — Testimony — Unpersuasive — Prejudice — Mistrial — Negative. Where deputy district attorney in his argument to the jury said that defense witness sat in the courtroom when defense counsel gave his opening statement, and where prosecutor further said: "I objected to all of the witnesses being in the courtroom," held, these remarks, as such, were not so prejudicial as to require a mistrial on ground that prosecutor improperly inferred that witness had fabricated his story after hearing defense counsel's opening statement, especially, where there was sufficient basis in the testimony of such witness to permit conclusion that witness' testimony was not persuasive.
9. Comment — Go Back Two Years — Reversible Error — Negative. Where deputy district attorney during his closing argument made the following comment: "Go back two years to an incident — which in the last trial he didn't see fit to —," held, this, as such, was not reversible error; especially, where jury was never informed as to the nature of the incident referred to by the prosecutor and was certainly aware, prior to the prosecutor's statement, that there had been a prior trial.
10. Statement — Provocation — Retaliation — Note — Inflame — Jury — Negative. In prosecution for unnatural carnal copulation and where prosecutor's statement — "He [defense counsel] asked you if such note exists, where is it. And he knows. It was offered in evidence at the last trial of this case," — was provoked by, and in retaliation to, the statement of defense counsel, and jury knew that a prior trial had been held, and paper or note apparently contained only a date, which date and the writing of the date had previously been testified to by the prosecution witness, held, under these circumstances, reviewing court cannot rule that prosecutor's remarks so inflamed and impassioned the jury that it could not render a fair and impartial verdict.
11. Duty of Prosecutor. Duty of prosecutor is not merely to convict, but to see that justice is done by seeking the truth of the matter, and prosecutor must be particularly careful in his conduct to ensure that the jury tries the case soley on the basis of the facts presented to it.
Appeal from the District Court of the City and County of Denver, Honorable Robert T. Kingsley, Judge.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Eugene C. Cavaliere, Assistant, for plaintiff-appellee.
Forest E. Clark, Jr., for defendant-appellant.
The defendant was convicted of the offenses of unnatural carnal copulation and statutory rape. The prosecuting witness — a twelve-year-old girl at the time of trial — testified as to the acts which occurred a year and a half previously and which constituted the basis of the charges. A doctor testified that he had examined the prosecuting witness and found her condition to be consistent with a finding that she had engaged in sexual intercourse numerous times. The defendant denied the charges and introduced the testimony of several alibi witnesses. We affirm.
I.
[1] The defendant argues that the jury deliberations were of so short a duration that the jury could not have properly reflected on the evidence or considered the instructions. The defendant states that the jury deliberated less than forty-five minutes. This does not warrant the granting of a new trial. Sepulveda v. People, 146 Colo. 385, 361 P.2d 625 (1961), cert. denied, 368 U.S. 882, 82 S.Ct. 134, 7 L.Ed.2d 82 (1961), and State v. Burrell, 106 Ariz. 100, 471 P.2d 712 (1970). See State v. Lee, 201 Kan. 177, 440 P.2d 562 (1968).
II.
[2] The defendant contends that the trial court erred in admitting evidence relating to other incidents of a similar nature between the defendant and the prosecuting witness, which occurred prior in time to the acts with which the defendant was charged. This evidence consisted of a few brief statements by the prosecuting witness in response to questions by both the prosecutor and the defense counsel. The gist of the testimony was simply that similar incidents had occurred prior in time to the date of the specific acts in question. The court gave an oral cautionary instruction to the jury on the limited relevance of similar act testimony at the conclusion of the prosecuting witness' testimony, and a similar written instruction when the case was submitted to the jury. We find no reversible error. Godfrey v. People, 168 Colo. 299, 451 P.2d 291 (1969); Hood v. People, 130 Colo. 531, 277 P.2d 223 (1954); and Shier v. People, 116 Colo. 353, 181 P.2d 366.
III.
[3,4] The defendant next argues that the evidence was insufficient as a matter of law to sustain the guilty verdicts. He also states that the entire testimony of the prosecuting witness should have been rejected because it was totally unsubstantiated and was so inconsistent as to be unworthy of belief.
Upon review of the entire record, we find no merit in the defendant's argument that the witness' testimony was so inconsistent as to be unworthy of belief. The testimony of the prosecuting witness, if believed by the jury, was sufficient to establish the elements of the crimes with which the defendant was charged. See Land v. People, 171 Colo 114, 465 P.2d 124 (1970). The following statement from Godfrey, Jr. v. People, supra, is in point:
"This court cannot invade the province of the jury by making a re-determination on conflicting evidence. Duran v. People, 162 Colo. 419, 427 P.2d 318, Neighbors v. People, 161 Colo. 587, 423 P.2d 838, Balltrip v. People, 157 Colo. 108, 401 P.2d 259. The jury having apparently believed the testimony of the prosecuting witness, and disbelieved both the defendant's direct denial and the 'alibi' testimony, we, as a reviewing court, are not at liberty to usurp the jury's function."
Additionally, the testimony of the doctor lent some corroboration to the witness' testimony.
IV.
[5] The defendant urges that the trial court erred in failing to enter a judgment of acquittal on the basis of allegedly prejudicial statements made by the deputy district attorney in his closing argument to the jury. Assuming for the moment that the statements were prejudicial, the proper remedy would be the granting of a motion for mistrial rather than acquittal. Since defendant made a motion for mistrial, we will consider whether there was reversible error in denying it.
[6] The granting or denial of a motion for a mistrial is within the sound discretion of the trial judge. In Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972), we recently reaffirmed the standards to be applied by trial judges when deciding whether such a motion should be granted. The trial court's determination will not be disturbed on review unless it is apparent that the court abused its discretion. Barriner v. District Court, 174 Colo. 447, 484 P.2d 774 (1971); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); and Maisel v. People, 166 Colo. 161, 442 P.2d 399 (1968). As stated in Falgout v. People, supra, this standard of review is founded on the principle that the trial court is in a better position than the appellate court to evaluate the effect of any alleged irregularity upon the jury's determination.
[7] The deputy district attorney made four comments during his argument to the jury to which defense counsel objected. The first comment was in regard to an offense report prepared by the police officer who responded to a call from the prosecuting witness' mother. The report was not admitted into evidence at trial. The deputy district attorney stated that the report referred to numerous offenses other than the ones on which the defendant stood accused. The defense counsel objected and the trial court sustained the objection and ordered the deputy not to refer to the offense report.
It came as no surprise to the jury that the prosecuting witness accused the defendant of several incidents similar to those with which he was charged, since she had so testified at trial. The offense report referred to by the deputy was simply that same accusation, made to a police officer. Although the remark of the deputy was not proper, we cannot hold that, under the circumstances, it was so prejudicial as to warrant the granting of a mistrial.
[8] The defendant contends that the prosecutor improperly inferred that one of the defendant's witnesses had fabricated his story after hearing the opening statement of the defense counsel. The witness' testimony placed the defendant at the witness' store near in time the offenses allegedly occurred. In his argument to the jury, the deputy district attorney said that the witness sat in the courtroom when defense counsel gave his opening statement. The prosecutor further said: "I objected to all of the witnesses being in the courtroom." (Prior to the opening of the defendant's case the deputy had moved to exclude the defense witnesses from the courtroom until they were called to testify. The motion was denied by the trial court.) Defense counsel objected to the prosecutor's statements and the trial court sustained the objection.
The credibility of the defendant's witness had been strongly attacked by the deputy district attorney during cross-examination. There was sufficient basis in the testimony of the witness to permit the jury to conclude that the witness' testimony was not persuasive. Under these circumstances we fail to see how the statement during argument could have been so prejudicial as to require the granting of a mistrial.
[9] The defendant's first trial on these charges had ended in a mistrial. The defendant argues here that the deputy district attorney, in his closing argument, improperly referred to evidence and to actions of defendant's counsel at the prior trial. At one point during argument to the jury, the prosecutor stated: "Go back two years to an incident — which in the last trial he didn't see fit to — ." At this point, defense counsel objected and the court sustained the objection. The jury was never informed as to the nature of the incident referred to by the deputy district attorney. Further, the jury was certainly aware, prior to the prosecutor's statement, that there had been a prior trial. The first reference to the previous trial was made by defense counsel during cross-examination of the prosecuting witness. Other references were made to that trial during the examination and cross-examination of witnesses by both the defense counsel and the deputy district attorney. We do not view the statement as constituting reversible error.
[10] The prosecuting witness testified during trial that she had written on a piece of paper, the date on which the incidents in question occurred. Twice during his summation the defense counsel referred to the piece of paper, questioning whether it existed and, if it did exist, where it was since it had not been introduced into evidence. The deputy district attorney, during his closing argument to the jury, stated: "He [defense counsel] asked you if such note exists, where is it. And he knows. It was offered in evidence at the last trial of this case." Again, defense counsel objected and the objection was sustained by the court. The court went on to instruct the jury to ignore that portion of the deputy district attorney's argument.
The People argue, and we agree, that the prosecutor's statement was provoked by, and in retaliation to, the statement of the defense counsel. See Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950). As stated previously, the jury knew that a prior trial had been held. Further, the paper or note apparently contained only a date. That date and the writing of the date on a piece of paper had previously been testified to by the prosecuting witness. The proof or lack of proof of the actual existence of the piece of paper would not appear to be vital to the case.
Upon review of the prosecutor's closing argument, we cannot rule — as urged by the defendant — that his remark so inflamed and impassioned the jury that it could not render a fair and impartial verdict. This conclusion is buttressed by the fact that the trial judge, who heard the argument and saw its effect on the jury, did not believe that the argument warranted the granting of a mistrial.
[11] We feel compelled to state that the conduct of the deputy district attorney is not to be condoned. This court has repeatedly stated that the duty of a prosecutor in not merely to convict, but to see that justice is done by seeking the truth of the matter. In the type of case tried here, a prosecutor must be particularly careful in his conduct to ensure that the jury tries the case solely on the basis of the facts presented to them. The prosecutor's improper statements to the jury indicate a misplaced zeal to "win" the case, a lack of self-control, and either a lack of knowledge of — or worse, an indifference to — elementary principles of fairness and legalities.
Judgment affirmed.
MR. JUSTICE DAY, MR. JUSTICE LEE and MR. JUSTICE ERICKSON dissent.