State v. Francis, No. 87-458

• Docket Nº: No. 87-458
• Citation: 151 Vt. 296, 561 A.2d 392
• Case Date: February 10, 1989
• Court: United States State Supreme Court of Vermont

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561 A.2d 392 151 Vt. 296 STATE of Vermont
v.
Jay P. FRANCIS. No. 87-458. Supreme Court of Vermont. Feb. 10, 1989.
Motion for Reargument Denied March 28, 1989.

Jeffrey L. Amestoy, Atty. Gen., Elizabeth J. Grant and Susan R. Harritt, Asst. Attys. Gen., and Ilona Bessenyey, Law Clerk (on the brief), Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellant.

Before PECK, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.) and KEYSER, J. (Ret.), Specially Assigned.

MORSE, Justice.

Defendant, Jay P. Francis, was convicted of assault and robbery, 13 V.S.A. § 608(a). This appeal raises issues about the prosecutor's closing argument, the court's charge to the jury on the burden of proof and the elements of the offense, and the contents of the information. We affirm.

I.

The Facts

[151 Vt. 297] On an evening in January 1987, Durward Benware was at the Trackside Tavernin

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Winooski, where he was introduced to Linda Joseph. After drinking there and at another night spot, they took a cab to the apartment of Candy Cochones, an acquaintance of Ms. Joseph's, in Burlington. In the cab, Ms. Joseph asked unsuccessively if she could borrow money from Mr. Benware and, later, ripped a $5 bill trying to pull it away from him as he was paying the cab driver.

Both Ms. Cochones and defendant, her boyfriend, were at the apartment when Mr. Benware and Ms. Joseph arrived. After whispering to Ms. Cochones that she was going to "roll" Mr. Benware, Ms. Joseph made sexual advances toward him and managed to get his wallet. Although they struggled over the wallet, Mr. Benware was able to retrieve it intact.

After more drinks, Mr. Benware, Ms. Joseph and defendant left the apartment. Defendant testified that he wanted to get them out of the apartment and that he also wanted to buy some cigarettes; Mr. Benware claims he thought they were going to defendant's house. In any event, a short time later Mr. Benware was knocked to the ground and his wallet was taken. He testified that he was struck on the head from behind as they were walking through a school yard, and was told by defendant not to get up as his wallet was taken, after which defendant and Ms. Joseph ran off together.

Defendant's version of the incident was that Mr. Benware had become belligerent and jealous. Defendant testified that he was attacked by Mr. Benware, whereupon he shoved him to the ground and ran off, leaving Ms. Joseph with him in the school yard. He claimed that Ms. Joseph, who had told him that Mr. Benware had a lot of money and that she wanted to "rob the guy," must have taken the wallet.

After the assault, Mr. Benware went to a nearby house and called the police, whom he led to Ms. Cochones's apartment. His near-empty wallet was found in a nearby street. While questioning the defendant, who was found near the apartment, the police noticed a "red" knuckle and some specks of blood on his left hand. They also found some money in his pocket.

Ms. Joseph's version of the incident was not told by her to the jury because she had fled the jurisdiction prior to trial. She had, however, confessed to the police that she had assaulted and [151 Vt. 298] robbed Mr. Benware, although they did not believe her at that time because she appeared to be "pretty drunk."

I.

Prosecutor's Final Argument

The defense, in its final argument, pointed out those areas in the evidence where reasonable doubt most logically fit. The defense theory centered on Linda Joseph and her behavior. The defense reasoned that Mr. Benware implicated defendant out of anger and embarrassment for allowing Ms. Joseph to take advantage of him.

In rebuttal argument, the State began:

In a case like this it must be very difficult to come up with a theory of defense. Sometimes you argue the law, sometimes you argue the facts. Sometimes when you don't have the law, you don't have the facts, what you do is put up a big smoke screen. You try to confuse everything as much as you possibly can, and you hope that it works. That's what the defense in this case is. That's all the defense in this case is.

The prosecutor concluded that "Mr. Francis, that gentleman over there, lied to you." At this point, the defendant objected, moved to strike and asked for a curative instruction to the jury. The following then occurred:

JUDGE PINELES: I'll sustain the objection. Mr. Andres, you can comment on the evidence.

MR. ANDRES (prosecutor): That is evidence.

JUDGE PINELES: Let the jury draw their own conclusions.

After the verdict, defendant moved for a new trial on the ground that the prosecutor had stated his opinion that the defendant was a liar.

Despite frequent admonition to prosecutors to refrain from overzealous argument

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to juries, the practice continues. See State v. Ayers, 148 Vt. 421, 425, 535 A.2d 330, 333 (1987), and cases cited, where the rule and its rationale are stated:

[151 Vt. 299] In a long line of cases ..., this Court has condemned statements by the prosecutor that indicate a personal belief that the defendant is guilty. There is a great risk that the jury will give special weight to this opinion because of the prestige of the prosecutor and the fact-finding facilities available to the office.

(Citations omitted.) See also State v. Trombly, 148 Vt. 293, 301, 532 A.2d 963, 968 (1987), cert. denied, 486 U.S. 1029, 108 S.Ct. 2009, 100 L.Ed.2d 597 (1988); State v. Hemingway, 148 Vt. 90, 91-92, 528 A.2d 746, 747-48 (1987), and cases cited.

The numerous cases on point, however, offer little guidance as to when questionable argument is sufficiently prejudicial to warrant a reversal. It was recognized early on that "there is little profit in comparing one case with another." State v. Parker, 104 Vt. 494, 500, 162 A. 696, 699 (1932). Whether a prosecutor's statements ought to result in a reversal depends on such factors as the blatancy of expression, see State v. Ayers, 148 Vt. at 426, 535 A.2d at 333-34, the impact on the theory of the defense, id., persistence and frequency of expression, id., opportunity and potential for the court to minimize prejudicial impact, State v. Trombly, 148 Vt. at 301, 532 A.2d at 968, the strength of evidence to support the logical relevance of the remarks, see State v. Billado, 141 Vt. 175, 183-84, 446 A.2d 778, 783 (1982), the overall strength of the State's case, State v. Hamlin, 146 Vt. 97, 106, 499 A.2d 45, 52 (1985), and the motivation for making the remarks, compare id. at 103, 499 A.2d at 50 ("spontaneous and inadvertent slip") with State v. Lapham, 135 Vt. 393, 407, 377 A.2d 249, 257 (1977) ("studied purpose").

Measured against these standards, the prosecutor's argument here fares poorly. The argument was blatant, blunt, pervasive and deliberate. According to the State, the defense did not show why reasonable doubt was present; it was a "smoke screen," a series of meaningless issues designed to confuse the jury because neither the facts nor the law helped the defendant. The crowning blow, calling the defendant a liar, was delivered in this context. While the judge ruled the latter statement objectionable, he gave no curative instruction to the jury. Finally, the case was not overwhelming against the defendant.

The State claims the evidence supports an argument that defendant lied, and that is true. Defendant's testimony had major [151 Vt. 300] weaknesses, such as the claim that he went out to buy cigarettes when the stores were closed and it was a long walk to the nearest store on a cold night. In addition, there was the fact of his injured hand.

The fault to be found in the prosecutor's claim of fabrication is not a lack of evidentiary footing. Whenever a defendant denies one or more of the elements of the crime, the evidence introduced by the State to satisfy the existence of the elements tends to support an argument that the defendant is not telling the truth. In the case at bar, there was evidence to support arguments that both the defendant and victim were lying. This case turned on credibility assessments. The jury would have acquitted defendant had it decided that there was a reasonable doubt as to the accuracy of Benware's account that defendant played a part in the robbery. On the other hand, to convict, the jury had to conclude that defendant was lying when he said he was acting in self-defense and ran from the scene of the robbery before it happened.

Since it was critical to make defendant out to be untruthful to win the case, it would be unfair for the prosecutor to lend weight to the argument by announcing a personal belief that the defendant was a liar. The prosecutor here was dangerously close to promoting his personal belief to persuade the jury. Labeling the defense summation as a "smoke screen" mischaracterized what we find to be reasonable and relevant arguments.

We are mindful that it is difficult forcefully to argue a point of view without conveying the impression that the advocate believes in what is being said. Otherwise

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argument loses its persuasive punch. We also do not wish to place artificial restrictions on the words chosen by the prosecutor in making closing arguments. Moreover, it is senseless to perpetrate a notion that prosecutors do not or should not have any opinion about the guilt or innocence of those they prosecute, and a jury will likely infer that a prosecutor believes a criminal defendant to be guilty even if the prosecutor never says so. That is why the cases cannot be neatly categorized and must be viewed individually.

Whether the prosecutor has gone beyond the bounds of permissible argument, however, is a question that should be addressed to the discretion of the trial court. Absent plain error, we will review the claimed error only if the trial judge has had an opportunity to consider the question and take appropriate remedial action. Even then, our standard of review is...