Harris v. People
| Decision Date | 17 January 1995 |
| Docket Number | No. 93SC155,93SC155 |
| Parties | LaShawn HARRIS, Petitioner and Cross-Respondent, v. The PEOPLE of the State of Colorado, Respondent and Cross-Petitioner. |
| Court | Colorado Supreme Court |
David F. Vela, State Public Defender, Thomas K. Carberry, Deputy State Public Defender, Denver, for petitioner and cross-respondent.
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert M. Russel, First Asst. Atty. Gen., Robert M. Petrusak, Jonathan Arnold Abbott, Asst. Attys. Gen., Denver, for respondent and cross-petitioner.
Frances Smylie Brown, Forrest W. Lewis, Denver, for amicus curiae Colorado Crim. Defense Bar.
Nathan B. Coats, Chief Deputy Dist. Atty., Second Judicial Dist., Denver, for amicus curiae Colorado Dist. Attys. Council.
In People v. Harris, No. 91CA0390 (Colo.App. Dec. 24, 1993) (), the court of appeals affirmed the trial court's judgment based on a jury verdict finding the petitioner and cross-respondent, LaShawn D. Harris, guilty of first degree assault. 1 In so doing, the court of appeals agreed with Harris's argument that the prosecuting attorney's conduct during closing argument was improper but rejected Harris's argument that such conduct required reversal of the judgment. Harris has appealed that determination. The People contend on cross appeal that the court of appeals erred in concluding that the prosecutor's remarks were improper. We affirm in part, reverse in part, remand the case with directions.
During the late evening of August 11, 1990, Harris and several of his friends, including Hoover James and a person known as "Leech," were walking along Denver's 16th Street Mall. Harris and Leech began arguing, and James warned Leech to stop or suffer injury. Leech left the scene, but soon returned with two companions, Tracy Rudisel and David LeMoine. Although James told Rudisel and LeMoine to stay out of the argument between Harris and Leech, Harris and Rudisel then began to argue, and during the course of this argument Harris shot Rudisel in the chest.
Harris was arrested on August 12, 1990, and charged with the offense of assault in the first degree. Harris conceded that he had shot Rudisel, but raised affirmative defenses of intoxication and self-defense. A jury trial commenced on January 14, 1991, during a period of time just prior to the initiation of military action by the United States and other nations against Iraq. 2
On January 17, 1991, the President of the United States announced that military action against Iraq had commenced. Later that day the prosecutor and Harris's attorney presented closing arguments to the jury. During his initial closing argument, the prosecutor made the following statements:
When you put together all of the testimony and you look at all of the exhibits in this case, you come to realize that what I told you in opening statements is true. For no good reason, no good reason at all, but for a combination of a lot of bad reasons, this Defendant, anxious to use this deadly weapon, acted like a bully and a thug last August and he used extreme and totally unwarranted violence against another human being, and he hurt him severely. For this, this Defendant needs to be held responsible.
You know, this Defendant's inhumanity to his fellow man did not attract a lot of attention during the first part of last August. This city, this country, this world were more focused on a more exaggerated act of violence early last August. Another man, filled with a sense of the power of his killing weapons that he wanted to use, acted like a thug and bully and used extreme and unwarranted violence against a neighboring country full of human beings, and he hurt them severely. I speak, of course, of Saddam Hussein and the brutality he used for no good reason against Kuwait last August.
Defense counsel objected to these statements as follows:
I'm going to object. If [the prosecutor] is trying to compare my client to Saddam Hussein, I think that is totally irrelevant. I would object.
The prosecutor responded in the following manner:
Your Honor, I'm not comparing. Certain principles are the same.
The trial court overruled the objection, stating as follows:
Well, I trust this jury is sophisticated enough to see that there's no association whatsoever. I'm not sure where your rhetoric is going, but please continue.
The prosecutor then continued as follows:
Ladies and gentlemen, we can debate, as did the United States Congress, whether or not the United States should have to take the primary responsibility to hold that violent dictator accountable for his violent crime. But there is no debate that this jury in Denver, Colorado, and this court of law in Denver, Colorado, does have the moral and the legal responsibility to hold this violent Defendant accountable for his violent crime committed last August in the City of Denver.
For over five months, the victim, Tracy Rudisel, and all of us have waited for an opportunity to have this violent criminal held responsible for his actions. This has truly been a week of decision not only for you here in Courtroom 16, but all around the world. Unpleasant facts have to be faced. Good and honest people like you are called on now to serve their government and demonstrate their courage against the bully and the thug.
In the process, the hope, as was stated by [the President] last night, is to create a world where the rule of law, not the rule of the jungle, governs our conduct. No nation will be permitted to brutally assault its neighbor, and in this case, no person shall be permitted to brutally assault his fellow human being. The 16th Street Mall should not be a jungle. As [the President] said when he talked about the air attack last night, even at that moment, his thoughts were not on war; his thoughts were on peace, the peace he hoped to obtain. So, too, one can hope that someday, men, women, the elderly, and children can walk the streets of Denver without fear of being assaulted by individuals like this Defendant.
....
This was a very intentional act, made clear not only by the words right after the shooting, but by the words uttered by this Defendant right before the shooting: "I'm going to teach you a lesson, white boy." That's more or less the same thing that Saddam Hussein said to the United States last night; he's still saying he's going to teach us a lesson.
....
[The President] last night quoted a woman officer stationed in the Persian Gulf named Jackie Jones. He quoted her as saying, "If we let him get away, who knows what's going to be next." And, no, this Defendant is not Saddam Hussein, but a lot of the same principles apply. This violence was not on the same level as the violence used by Saddam Hussein, but you can't let unwarranted violence go unchecked. Justice over there and here in this courtroom requires courage. Please have the courage to find this Defendant guilty of what he did, first degree assault.
Defense counsel did not object to these statements and did not request a mistrial. During closing argument defense counsel described the prosecutor's references to Saddam Hussein as irrelevant.
In his rebuttal argument, the prosecutor made the following comments:
Ladies and gentlemen, again, let me make clear that which I stated in my first closing argument, that, no, this Defendant is not Saddam Hussein. The amount of violence is grossly different. The location of the violence is grossly different. One act is halfway around the world; the other act is less than a quarter of a mile from where you now sit right in the heart of our city of Denver. They both have been involved in naked, unwarranted aggression against defenseless human beings, and they both need to be held responsible.
Defense counsel did not object to these statements and did not request a mistrial.
Harris was convicted and sentenced to thirteen years' imprisonment. Harris appealed his conviction to the court of appeals, raising, inter alia, the following issue:
Whether the Prosecution's outrageous closing argument, in which [the defendant] was compared to Saddam Hussein, abrogated [the defendant's] right to a fair trial.
The court of appeals affirmed. The court concluded that the prosecutor's references to Saddam Hussein and the Persian Gulf War were improper, but that they did not constitute reversible error.
In his petition for certiorari review of the court of appeals' decision, Harris asserted, inter alia, that the court erred in concluding that although the prosecutor made improper comments during closing arguments, the comments did not constitute reversible error. 3 The People petitioned for certiorari review of the court of appeals' conclusion that the prosecutor's closing arguments contained improper comments. Having agreed to address these issues, we do so simultaneously.
In Wilson v. People, 743 P.2d 415 (Colo.1987), we observed that "a prosecutor, while free to strike hard blows, 'is not at liberty to strike foul ones.' " Id. at 418 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). In Wilson we also pointed out that because a prosecutor represents the "sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all," the prosecutor's interest in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Wilson, 743 P.2d at 418 (quoting Berger, 295 U.S. at 88, 55 S.Ct. at 633). This governmental aspect of a prosecutor's role in conducting criminal proceedings on behalf of all the people of the state gives rise to the justified immunity that protects prosecutors in the performance of their duties. See, e.g., Pleasant v. Lovell, 654 F.Supp. 1082, 1092 (D.Colo.1987); ...
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