When an empty-chair comment is made by the state, defense counsel should object and request cautionary instructions. State v. Taylor, 425 A.2d 1231, 1234 n. 3 (R.I. 1981). In Taylor, this court noted that as a general rule defense counsel must make timely objections and requests for cautionary instructions on an empty-chair reference to preserve this issue for appeal.
The defendant posits that the prosecutor's remarks during closing argument, coupled with the testimony on cross-examination, amount to an improper reference to an "empty chair." He directs our attention to State v. Taylor , 425 A.2d 1231 (R.I. 1981) and its progeny. In Taylor , we held that State v. Jefferson , 116 R.I. 124, 353 A.2d 190 (1976), "forbids prosecutorial comment on the failure of a defendant to present witnesses."
See Corleto , 161 A.3d at 508 (recounting the trial justice's observation that, although the prosecutor's comment "was not directed specifically to the defendant's failure to take the stand[,]" it "indirectly addressed the defendant's failure to take the witness stand" (brackets omitted)). Alternatively, if we conclude that the prejudice was able to be cured with a cautionary instruction, defendant argues that the cautionary instructions given here were inadequate under the standard dictated by this Court in State v. Taylor , 425 A.2d 1231 (R.I. 1981). See Taylor , 425 A.2d at 1235.
Such an instruction, if timely and adequate, is considered an effective correction to an improper reference to the "empty chair." State v. Taylor, 425 A.2d 1231, 1235 (R.I. 1981). However, a failure immediately to request a cautionary instruction at trial will be fatal to defendant on appeal.
We have been careful in the past to disapprove, in the strongest terms, of prosecutorial comment upon a defendant's failure to call witnesses. State v. Taylor, 425 A.2d 1231 (R.I. 1981); see State v. Forrest, No. 80-547-C.A. (order filed December 18, 1981). In Forrest we reversed the conviction, because "counsel for the state improperly commented to the jury in final argument upon the failure of the defendant to present certain witnesses in support of his assertion of self-defense. * * * The cautionary instruction given by the trial justice failed to meet the standards" set forth in State v. Taylor and were inadequate to cure the prejudicial effect of the improper comment.
For example, Jefferson v. State, 353 A.2d 190 (R.I. 1976), touches directly on constitutional matters only as to a defendant's right to testimonial silence. State v. Taylor, 425 A.2d 1231 (R.I. 1981), on which Cavanagh heavily depended, contains no utterances concerning the Constitution. The exhaustion requirement is not satisfied by mere identity between those facts referenced on direct appeal and those facts referenced in the habeas application; there also must be identity of legal theory in state and federal courts.
These general instructions failed to directly address the comments made by WIH in its closing argument and, in our judgment, were insufficient to dissipate the influence of the improper remarks. See Norlin Music, Inc. , 425 A.2d at 76 (concluding that a trial justice's direct admonition to the jury to disregard counsel's remarks was insufficient); see also State v. Taylor , 425 A.2d 1231, 1236 (R.I. 1981) (finding a curative instruction made in response to an improper prosecutorial comment during closing argument to be inadequate where "[t]he trial justice failed to identify clearly the offending statement and to state unequivocally that it must be disregarded"). After careful consideration, it is apparent to us that defense counsel's directive to the jury to send a message to WIH that it should continue to take in the sickest children in all probability prejudiced the jury and rendered the jury unable to properly apportion liability.
It failed to comply with what we directed be given in such situations. See State v. Taylor, 425 A.2d 1231, 1235 (R.I. 1981).
Certainly if the prosecutor had stated or even implied that the defendant was required to offer evidence in his own defense, the defendant's argument would be persuasive. See State v. Taylor, 425 A.2d 1231, 1234 (R.I. 1981); State v. Jefferson, 116 R.I. 124, 136, 139, 353 A.2d 190, 197, 199 (1976). In the instant case, however, the prosecutor's remarks were not improper and the trial justice was correct in not passing the case and in not giving an immediate cautionary instruction.
This tactic generally concerns the rule that the prosecutor may not comment on the defendant's failure to call witnesses or produce any evidence. See State vs. Taylor 425 A.2d 1231 (Rhode Island, 1981) Taylor refers to the case of State vs. Carson [sic Caron] 300 Minn. 123, 218 N.W.2d 197 (1974) which sets forth the reasons why the prosecutor may not comment on a defendant's failure to call witnesses. It might suggest to the jury that the defendant has some duty to produce witnesses or that he bears some burden of proof. And, it might suggest [to] the jury that he did not call a witness because the defendant knew their testimony was unfavorable, i.e. the defendant did not test the sample because he knew it would be unfavorable.