State v. Marsh
| Decision Date | 12 December 1986 |
| Docket Number | No. 11243,11243 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Christina Marie MARSH, also known as Christopher Dean Marsh, Defendant- Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
Prosecutor's statements during closing remarks of personal opinion concerning the defendant's guilt and the credibility of witnesses prejudiced the defendant's right to a fair trial amounting to plain error, where the evidence of guilt was inconclusive and the trial judge did not promptly issue a jury instruction directed specifically to the prosecutor's closing remarks.
Deborah L. Kim (Susan Barr, with her on the briefs), Deputy Public Defenders, Office of the Public Defender, Honolulu, for defendant-appellant.
George H. Yamamoto, Deputy Pros. Atty., Dept. of Pros. Atty., Honolulu, for plaintiff-appellee.
Before LUM, C.J., NAKAMURA, PADGETT and HAYASHI, JJ., and WALTER M. HEEN, Intermediate Court of Appeals Associate Judge, in place of WAKATSUKI, J., excused.
This is an appeal from a robbery conviction. During closing remarks, the prosecutor expressed her personal opinion concerning Defendant's guilt and the credibility of the defense witnesses. We hold that the prosecutor's remarks constituted misconduct which deprived Defendant of a fair trial, and reverse. 1
I.
A jury convicted Marsh of robbery in the second degree in violation of Hawaii Revised Statutes (HRS) § 708-841(1)(a). The State's case rested primarily on the testimony of the victim, Leroy Ing. Marsh denied committing the robbery and asserted an alibi defense. Four defense witnesses testified that Marsh had been in the Pantheon Bar at the time of the crime.
Marsh contends the prosecutor's closing remarks were improper closing argument which substantially prejudiced her right to a fair trial.
During summation regarding Marsh's guilt, the prosecutor repeatedly stated her personal opinion: "Ladies and gentlemen, I feel it is very clear and I hope you are convinced, too, that the person who committed this crime was none other than Christina Marsh." And later: "I'm sure she committed the crime." Referring to Marsh's testimony, the prosecutor stated: Regarding the alibi witnesses' credibility, the prosecutor said: Of another witness' testimony, the prosecutor stated: "I find that awfully hard to believe." The prosecutor expressed on at least nine occasions her belief that defense witnesses had lied.
Hawaii Code of Professional Responsibility DR 7-106(C)(4) provides in part:
In appearing in his professional capacity before a tribunal, a lawyer shall not ... [a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness, ... or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
Prosecutors are similarly bound to refrain from expressing their personal views as to a defendant's guilt or credibility of witnesses. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); ABA Standards for Criminal Justice, Standard 3-5.8 (1980).
The rationale for the rule is that "[e]xpressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony and tend to exploit the influence of the prosecutor's office and undermine the objective detachment that should separate a lawyer from the cause being argued." ABA Standards for Criminal Justice, Commentary, at 3.89. The Supreme Court has observed that a prosecuting attorney's "improper suggestions, insinuations, and especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
However, our finding that the prosecutor's comments were improper does not end the inquiry. Since defense counsel did not object to the prosecutor's remarks, we must determine whether the prosecutor's misconduct constituted plain error which...
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State v. Klinge, No. 21237.
...See Ganal, 81 Hawai`i at 376, 917 P.2d at 388 (citing Hawai`i Rules of Penal Procedure, Rule 52(b); (citing State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986)). During closing argument, a prosecutor is "permitted to draw reasonable inferences from the evidence and wide latitude is......
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81 Hawai'i 358, State v. Ganal
...plain error that affected Ganal's substantial rights. Hawai'i Rules of Penal Procedure (HRPP) Rule 52(b); 24 State v. Marsh, 68 Haw. 659, 661, 728 P.2d 1301, 1302 (1986); see also State v. Churchill, 4 Haw.App. 276, 285, 664 P.2d 757, 763 (1983). The conduct complained of must affirmatively......
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