Opinion
SUPREME COURT DOCKET NO. 2011-333
08-28-2012
State of Vermont v. Joshua Waterman
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
APPEALED FROM:
Superior Court, Orleans Unit,
Criminal Division
DOCKET NO. 191-4-10 Oscr
Trial Judge: Robert R. Bent
In the above-entitled cause, the Clerk will enter:
Defendant appeals his conviction of lewd and lascivious conduct on a child, in violation of 13 V.S.A. § 2602. He argues that the trial court erred by denying his motion for a mistrial after the prosecutor made improper remarks during closing argument, thereby depriving him of a fair trial. We affirm.
Defendant was charged with one count of lewd and lascivious conduct on a child after the complainant reported unlawful acts committed by defendant when he babysat her several years earlier and defendant admitted to the unlawful contact during an ensuing police interview. Following a two-day trial, the jury convicted defendant of the charge. The prosecutor began closing argument as follows:
I'd like to begin by thanking you all for being here to allow [S.W.] to share with you what Mr. Waterman did to her. Many times, in the rush to pay homage to the defendant's rights, we forget the victims.At that point, defense counsel objected to the remarks and moved for a mistrial. The court warned the prosecutor to be careful but concluded that it was not entirely clear what the prosecutor was going to say and that nothing the prosecutor had said up until that point warranted a mistrial.
On appeal, defendant argues that the trial court erred by not granting a mistrial because the above-quoted comments deprived him of a fair hearing. According to defendant, the comments sarcastically belittled his fundamental rights, inappropriately referred to the complainant as a victim, and erroneously asked the jury to weigh the complainant's rights against his rights. Defendant reasons that because he claimed at trial that his confession was coerced in violation of his constitutional rights and because the prosecutor disparaged those constitutional rights, he was deprived of a fair hearing. In support of his claim of error, he also asserts that the trial court failed to give a curative instruction in a case that was essentially a swearing contest between him and the complainant.
Upon review of the record, we conclude that the trial court did not abuse its discretion in denying defendant's motion for a mistrial. See State v. Messier, 2005 VT 98, ¶ 15, 178 Vt. 412 (stating that disposition of motion for mistrial is discretionary and that reversal is "appropriate only when the moving party demonstrates prejudice, which must be determined according to the facts of each case in the context of the entire proceeding"). "The longstanding rule in Vermont is that counsel should confine argument to the evidence of the case and inferences properly drawn from it, and must avoid appealing to the prejudice of the jury." State v. Lapham, 135 Vt. 393, 406 (1977). Thus, "[w]e have long condemned prosecutors' statements conveying their beliefs or opinions about a case." State v. Rehkop, 2006 VT 72, ¶ 34, 180 Vt. 228. "A defendant seeking reversal of a conviction based on an allegedly improper closing argument must show not only that the prosecutor's argument was improper, but also that it impaired the defendant's right to a fair trial." State v. Hemond, 2005 VT 12, ¶ 11, 178 Vt. 470. In considering whether a prosecutor's remarks during closing argument require reversal, we consider nonexclusive factors such as the blatancy, persistence, and frequency of the remarks; the impact of the remarks on the theory of the defense; the opportunity of the court to minimize any potential prejudice; the strength of evidence supporting the relevance of the remarks; the overall strength of the State's case; the apparent motivation behind the remarks; and whether the remarks were inflammatory and attacked the defendant's character. Id. ¶ 12.
In this case, these factors do not support overturning the trial court's denial of defendant's motion for a mistrial. The prosecutor's opening remarks during closing argument indirectly expressed his belief that the complainant was telling the truth and defendant was guilty. Before being interrupted, the prosecutor also suggested that the jury should consider the rights of victims. Although inappropriate, the remarks were isolated, brief, and incomplete. They did not attack defendant's character and were not particularly inflammatory. Moreover, they were general remarks not directly challenging defendant's claims that his confession was coerced and that the victim's version of events was inaccurate and inconsistent. On multiple occasions, including after closing arguments, the trial court reminded the jury that the attorneys' remarks were not evidence but rather only statements by the parties' advocates. As for the overall strength of the State's case, this was not just a swearing contest; the State submitted into evidence incriminating admissions made by defendant when he was interviewed by police. There were also several other witnesses supporting the complainant's detailed testimony. Considering these factors, there is no basis to overturn the trial court's denial of defendant's motion for a mistrial. See Messier, 2005 VT 98, ¶ 15 (stating that claim of error challenging ruling on motion for mistrial "can be supported only where the trial court's discretion was either totally withheld, or exercised on clearly untenable or unreasonable grounds").
Affirmed.
BY THE COURT:
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate Justice
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Beth Robinson, Associate Justice