County of Maricopa v. Maberry, 555 F.2d 207, 223 (9th Cir. 1977) (reversing because of the combination of an erroneous instruction on a fundamental issue, and counsel's misconduct in asking a grossly improper question). See also Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967) (granting a new trial). In Elledge, there was both misconduct during final argument and admission of highly prejudicial evidence, consisting of a letter to the State Department of Liquor Licenses and Control which suggested that defendant's bar was a meeting place for homosexuals.
On the other hand, the introduction of evidence or the pursuit of a line of argument which has no bearing on the alleged wrong but which serves only to prejudice the jury, has been held to be grounds for reversal. Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). The court in Elledge stated: ". . . we find it is imperative that the defense be offered an opportunity for a trial free from the admission of irrelevant and highly prejudicial evidence, improper questions and remarks."
Here, we think an abuse of discretion is apparent. Some remarks and conduct by counsel cannot be cured by objections and admonishments. Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). The question is,
"The introduction of evidence or pursuit of a line of argument which has no bearing on the alleged wrong but which serves only to prejudice the jury is grounds for reversal." Elledge v. Brand, 102 Ariz. 338, 339, 429 P.2d 450, 451 (1967) (citations omitted). Statements made to a jury not supported by facts or reasonable inference that result in prejudice may also constitute reversible misconduct.
The supreme court noted: "There was no evidence in the record to sustain either of these statements or insinuations." Id. Our supreme court has affirmed the granting of new trials based on similar misconduct in Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967) (introduction of evidence with no bearing on trial issues intended only to prejudice jury was grounds for reversal); Sisk v. Ball, 91 Ariz. 239, 371 P.2d 594 (1962) (new trial proper when statements to jury not supported by facts and resulted in prejudice); and Mayo v. Ephrom, 84 Ariz. 169, 325 P.2d 814 (1958) (new trial proper when counsel made numerous inappropriate comments to jury). ¶ 7 More recently, in Grant v. Arizona Public Service Co., 133 Ariz. 434, 652 P.2d 507 (1982), the court determined that plaintiff's counsel had committed misconduct in closing argument by arguing his personal beliefs, facts that were not in evidence, and inferences that were not legitimately supported by an exhibit, but deferred to the trial court's decision that the misconduct did not require a new trial.
However, the introduction of evidence or the pursuit of a line of argument without bearing on the alleged wrong which serves only to prejudice the jury requires reversal. Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). Here, the prosecutor's closing arguments contain strange factual inaccuracies about geography.
As already mentioned, O'Connor's testimony about the adequacy of the warnings was stricken by the judge. Ortho relies on Elledge v. Brand, 102 Ariz. 338, 339, 429 P.2d 450, 451 (1967), to argue that the trial judge's instructions could not adequately cure the prejudice and that a new trial is required. Because Elledge was a criminal case featuring several instances of attorney misconduct and the introduction of evidence that had no bearing on the alleged crime, we do not find its holding persuasive in this context.
No evidence was presented that Bell had engaged in any homosexual conduct in prison or that he killed anyone. Bell has raised as a separate issue on appeal the contention that the State's repeated references to homosexuality constituted misconduct of counsel and were prejudicial. Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). Although the references to homosexual conduct would not form an independent basis for reversal, the numerous references to homosexuality magnified the prejudicial impact of the inadmissible character evidence.
The only other instance when the corporate liability defense was raised by appellant's counsel occurred during closing argument. The remarks of counsel are not evidence, whether they are made during opening argument, Walker v. County of Coconino, 12 Ariz. App. 547, 473 P.2d 472 (1970), or during closing argument, Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). Subsequent to the conclusion of the trial and issuance of a minute entry decision by the trial court, Godwin filed "Objections to Form of Judgment" and a supplement thereto attempting to bring evidence before the court regarding the liability of Beetex Corporation, as opposed to Godwin, to Quine.
We note, as Godwin concedes, that the trial court sustained timely objection to these questions and further instructed the jury not to consider the questions and answers in their deliberations. Godwin alleges that these questions and answers were sufficiently prejudicial to require reversal even though the objections were sustained. Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967). We disagree.