Wilson v. People, 85SC410
| Decision Date | 14 September 1987 |
| Docket Number | No. 85SC410,85SC410 |
| Citation | 743 P.2d 415 |
| Parties | William WILSON, a/k/a Billy Ray Wilson, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, State Public Defender, Barbara S. Blackman, Chief Deputy Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for respondent.
The question raised in this case is whether a prosecutor's repeated statements during summation that the accused and his wife "lied" in testifying during trial constituted plain error. In affirming the conviction of William Wilson (defendant) for two felony counts of sexual assault, the court of appeals in an unpublished opinion held that the prosecutor's remarks, although improper, did not constitute plain error. We now reverse the judgment and remand the case for a new trial.
The defendant was tried by a jury on charges of second degree sexual assault 1 and sexual assault on a child. 2 The charges were based on the defendant's alleged assault on an eleven-year-old girl on May 31, 1983, in the defendant's trailer home in Holyoke, Colorado, where the defendant lived with his wife and children.
The following facts are not disputed. The defendant owned and operated a store in Holyoke, from which he sold new and used merchandise, and was acquainted with Mrs. H and her eleven-year-old niece, who is the alleged victim in the case and will be referred to as "M." Mrs. H was a close friend of the defendant's wife, and Mrs. H and her niece spent most of May 31 at the defendant's store. During the day the defendant asked Mrs. H whether M could spend the night at his house trailer, and Mrs. H agreed. That night Mrs. H, her husband, their daughter, and their nephew and niece, M, ate dinner at the defendant's trailer home with the defendant, the defendant's wife, and their three children. Mrs. H and her husband left about 10 p.m. with their daughter and nephew, while M stayed and played with the Wilson children.
The events following the departure of Mrs. H and her husband were greatly disputed. M testified at trial to the following sequence of events. At bedtime, the defendant told her that she was to sleep in his room. When M got into the bed with the defendant and his wife, she noticed that the defendant was lying naked in bed. The defendant, according to M, removed M's nightgown and underpants and "stuck his penis up [her] behind" and performed cunnilingus on her. It was M's further testimony that the defendant had sexual intercourse with his wife while M watched.
The prosecution offered into evidence the bedding which the police had taken from the defendant's bedroom pursuant to a search warrant. M recognized the bedspread but was unable to identify the sheets, although she had done so at the police station after they were seized. The prosecution also presented testimony from M's aunt, Mrs. H, who had contacted the police after M allegedly told her two days after the incident that the defendant "had tried to take her clothes off." No medical evidence, however, was offered to corroborate the sexual assault.
The defendant testified in his own behalf. He stated that M had been at his trailer with other family members on the night in question, had played in his bedroom with the other children, and had spent the night in the trailer, but that M had not been in his bedroom after he and his wife went to bed. The defendant denied that any sexual assault had taken place. He acknowledged that he had disciplined the child for misbehavior at his store on June 1, 1983, after the alleged assault but before the charges were reported to the police, and further testified that he had denied Mrs. H's requests for employment during this same period of time. On cross-examination, the prosecution inquired of the defendant about prior felony convictions, and the defendant admitted to a 1976 conviction for assault with intent to commit robbery and a 1978 conviction for selling firearms without a license. 3
The defendant's wife also testified at trial. She testified that M had been playing in the bedroom with the other children earlier in the evening but denied any of the other events previously discussed by M. The defendant also called four character witnesses who testified that his reputation for truth and honesty in the community of Holyoke was good.
During the initial phase of closing argument, the prosecution repeatedly stated that the defendant and his wife "lied" in their testimony, as illustrated by the following excerpts:
The defense then put on their case. They called the defendant and he was aged 36, because he admitted it. And he lied and said that the child said she had asked if she could come over. And he lied and said that the kids played all over the place, including in the bedroom. And he lied when he said that [his child] threw up and that [M] came to him and said that she did. 4
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They made [the testimony] up.
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And [the defendant's wife] lied to you, ladies and gentlemen, and, why, because she had a motive to lie. She would be affected by the guilty verdict and she had a relationship to the defendant.
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And [the defendant's wife] was telling the truth on June 26, although she wasn't yesterday.
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You must decide whether you are going to believe [M] or believe the Defendant Bill Wilson, who has been caught in how many lies. Should we start counting them up? How many times has he lied about this case or about his past? I challenge defense counsel to name one time [M] ... lied at any time.
(Emphasis added). The prosecutor also suggested that the defendant had committed perjury, stating that the defendant "should be told by you ladies and gentlemen that perjury is no defense to a crime." 5 Moreover, on at least three occasions, the prosecutor expressed his personal belief that M was telling the truth.
Sometime after the jury retired to deliberate on the case, the jury foreperson submitted a note to the judge stating that a unanimous verdict could not be reached and requested whether they could direct questions to anyone about the case. The judge responded to the note by telling the jury "to deliberate until you reach a unanimous verdict" and to "rely upon your own recollections of the evidence."
The jury found the defendant guilty of both counts. Although the defendant filed a motion for a new trial, he failed to raise as error the remarks made by the prosecutor during final argument. The court denied the motion for a new trial and, finding extraordinary aggravating circumstances, sentenced the defendant to concurrent six-year terms. The defendant appealed his conviction on several grounds, including improper conduct by the prosecution. The court of appeals in an unpublished opinion concluded that the prosecutor's summation, although not to be condoned, did not constitute plain error. We thereafter granted the defendant's petition for certiorari to consider whether the prosecutor's repeated characterizations of the testimony of the defendant and his wife as "lies" constituted plain error. 6
We begin our analysis by reviewing long-standing precepts of law that must guide our resolution of this case. Although these precepts are simply stated, their application often proves difficult in individual cases.
It has often been stated that a prosecutor, while free to strike hard blows, "is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). For it is as much a prosecutor's duty "to refrain from improper methods calculated to produce a wrong conviction, as it is to use every legitimate means to bring about a just one." Id. Since the truthfulness of testimony and the credibility of witnesses are matters to be determined by the trier of fact, and not by the advocates, it bears repeating again that it is improper for counsel to express his or her personal belief in the truth or falsity of testimony during final argument. E.g., People v. Swanson, 638 P.2d 45, 51 (Colo.1981); People v. Trujillo, 624 P.2d 924, 925 (Colo.App.1980). While counsel may properly point to circumstances which may raise questions or cast doubt on a witness's testimony, and while counsel may also draw reasonable inferences from the evidence as to the credibility of witnesses, e.g., People v. Constant, 645 P.2d 843, 845-46 (Colo.), cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 72 (1982); People v. Lucero, 677 P.2d 370, 373 (Colo.App.1983), counsel may not "throw onto the scales of credibility the weight of his own personal opinion," State v. Ture, 353 N.W.2d 502, 516 (Minn.1984).
Expressions of personal opinion as to the veracity of witnesses are particularly inappropriate when made by prosecutors in criminal trials. A prosecutor "is the representative not of an ordinary party to a controversy, but of a sovereign whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. at 88, 55 S.Ct. at 633. A prosecutor's assertion of personal opinion concerning the credibility of witnesses poses two distinct dangers:
such comments can convey the impression that evidence not present to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.
United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985).
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