Opinion
CV 00 1941.
June 14, 2000.
JUDGMENT MEMORANDUM AND ORDER
Having been convicted of manslaughter and Criminal Possession of a Weapon, and having exhausted his state remedies challenging the judgment, petitioner seeks a writ of habeas corpus. His contention is that the prosecutor violated federal constitutional rights by an inappropriate and prejudicial summation.
A close reading of the summation supports the conclusion that it was slightly inflammatory. The trial court successfully drew the stings. Defendant's constitutional rights were not violated. In context of the overwhelming evidence of guilt, they were, in any event, not so harmful as to warrant granting the writ.
The court, before summation, warned the jury that the jurors would decide only on the evidence (Tr. 429), could reject arguments and inferences suggested by the attorney (Tr. 429-430) and that the counsels' arguments were not evidence (Tr. 430).
The summation of defense counsel was itself quite pungent in suggesting that the police forced witnesses to testify against petitioner by various threats, including loss of a child (Tr. 433-34) and other pressures (Tr. 439). Also suggested by defense counsel was misleading of investigators at the crime scene by the police (Tr. 435), and an otherwise inadequate investigation (Tr. 436-437). A key witness was characterized as "bizarre" (Tr. 440) and all three main witnesses as living by "no rules" (Tr. 443) and not "motivated by truth" (Tr. 443; see also Tr. 451 ("no rules")). In short, credibility of the people's witnesses was comprehensively attacked (Tr. 451).
The prosecution responded in kind and persisted despite the courts attempt to caution her. She stated the defense "must give you a reason to adopt . . ." (Tr. 453). The court immediately sustained an objection and pointed out "Defense has no burden of proof. The burden of proof is on the people." (Tr. 453). The prosecutor kept trying to narrow the issue (Tr. 454), and to suggest that there was no real issue about what happened in the store where the shot was fired (Tr. 455, 457-458). When the prosecutor argued about what is "uncontested" (Tr. 458), the court pointed out that the jurors would decide that (Tr. 458) and when she said "we know" (Tr. 458), the judge sustained an objection to the "term `we know'" (Tr. 45; see also Tr. 459, 460. Defense counsel continued peppering the prosecutor with objections (e.g., 461, 462, 463, 464). The court admonished the prosecutor not to make "irrelevant comments" when she objected to the constant interruption of her argument. Most of that argument was based on readings from the record (e.g., Tr. 466-470). References to Grand Jury testimony was stricken with an admonition to the jury (Tr. 473). To implied shifts of the burden of proof, the court repeatedly emphasized that defendant had no burden (Tr. 476). References to prior litigation was properly sustained and the jury instructed to disregard the comment (Tr. 480). Arguments on credibility were, the court properly indicated, "responsive to the argument . . . by the defense" (Tr. 482; see also Tr. 499).
The charge was unexceptional in re: emphasizing the people's burden of proof (Tr. 500, 505, 512-515). No exceptions were taken (Tr. 531).
In short, given the evidence, the arguments of counsel and the trial court's successful efforts to keep the trial fair, no constitutional violation has been shown. The petition is dismissed. A certificate of appealability is granted on the issue of the prosecutor's overreaching on summation.
SO ORDERED.