Opinion
No. 78-805
Decided August 7, 1980. Petition for rehearing granted and prior opinion of June 19, 1980, withdrawn. Rehearing denied August 21, 1980. Certiorari granted February 2, 1981.
On basis that remarks of prosecutor in closing argument constituted reversible error, defendant appealed his conviction of second degree burglary, first degree sexual assault, and the finding that he committed a crime of violence.
Reversed
1. CRIMINAL LAW — Prosecutorial Misconduct — Five References — Defendant's Demeanor — Conduct at Defense Table — Constituted Plain Error. Where, in prosecution for burglary and sexual assault, prosecutor referred, on five separate occasions during his rebuttal argument, to defendant's demeanor and conduct at defense table during course of trial and attacked defendant's credibility by noting that he laughed during People's argument and during testimony of victim, that prosecutorial misconduct was highly prejudicial and improperly referred to events which were outside of the record and, as such, constituted plain error requiring reversal of conviction.
2. Defendant's Behavior — Defense Table — Improper Subject — Closing Argument. Defendant's behavior at defense table is not evidence and, therefore, is an improper subject for comment in closing argument.
3. Defendant Testified — Character in Issue — Not Permit — Prosecutorial Comment — Defendant's Conduct. Although defendant had testified and had thereby placed his character in issue, that fact in no way expanded prosecutor's area of comment to include matters concerning defendant's conduct at the defense table.
Appeal from the District Court of El Paso County, Honorable Bernard Baker, Judge.
J. D. MacFarlane, Attorney General, William R. Rapson, Designated Counsel, for plaintiff-appellee.
Karp Goldstein, Kenneth H. Stern, for defendant-appellant.
Gardy Constant appeals his conviction of second degree burglary, first degree sexual assault, and the finding that he committed a crime of violence. Constant argues that, even though there was no contemporaneous objection, remarks made by the prosecutor during his closing argument warrant reversal by this court. We reverse.
On five separate occasions during his rebuttal argument, the prosecutor referred to the defendant's demeanor and conduct at the defense table during the course of the trial. He attacked Constant's credibility by noting that the defendant laughed during the People's argument and during the testimony of the victim. Constant argues that these remarks were highly prejudicial and improperly referred to events which were outside of the record. We agree.
[1] The defendant's behavior at the defense table is not evidence and, therefore, is an improper subject for comment in closing argument. See People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978). The fact that a defendant has testified and placed his character in issue in no way expands the prosecutor's area of comment to include inferences based on events beyond the scope of the evidence.
The People argue, however, that, absent contemporaneous objection, such prosecutorial comments are not so egregious as to constitute plain error. Under the circumstances of this case, we disagree.
Plain error, which may be noticed on appeal, although not raised before the trial court, is error which seriously affects substantial rights of the accused. Crim. P. 52(b); People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). Each case must be resolved based on the particular facts and issues presented. Upon a reading of the record, a determination must be made whether the error contributed to the defendant's conviction. People v. Barker, supra.
Here, the record shows that the complaining witness and the defendant each related an extraordinary account of the events, materially different on the essential question whether the complaining witness consented. Thus, the main question before the jury was which of these witnesses testified truthfully. Even the trial judge, in addressing the defendant at sentencing, declared that he would be the "first to admit that it was a close case." Under these circumstances, the improper argument attacked Constant's believability, making the remarks highly prejudicial. The prejudicial effect was augmented by the frequency of the remarks during the rebuttal argument which the defendant had no opportunity to meet.
[2] The People argue that People v. Sepeda, supra, prescribes a "higher standard of prosecutorial misconduct" in order to constitute plain error. Sepeda is not susceptible to this construction. While the court in Sepeda emphasizes that rarely will prosecutorial misconduct constitute plain error, the determination of whether the misconduct was plain error turns not on the nature of the misconduct but on the impact of the misconduct upon the result. See People v. Barker, supra. Thus, the more difficult the determination for the jury, the more wary the prosecutor must be that his conduct does not improperly influence the verdict, being ever mindful of his duty "to seek justice, not merely to convict." People v. Walker, 180 Colo. 184, 504 P.2d 1098 (1972).
[3] We are cognizant of People v. Ferrell, 200 Colo. 128, 613 P.2d 324 (1980), but regard it as distinguishable. There the comments by the prosecutor were not pervasive throughout the argument, and there was no indication that the remarks were egregious enough to affect the result.
Constant also argues that the evidence was insufficient to support the jury's verdict. Viewing the evidence as a whole and in the light most favorable to the prosecution, we have determined that it is sufficient to support the conclusion by a reasonable mind that the defendant was guilty of the charge beyond a reasonable doubt. See People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).
We have reviewed Constant's argument that the trial court erred in failing to exclude evidence that jewelry belonging to the victim and allegedly taken from her apartment was found in Constant's car, and find it to be without merit. See People v. Anderson, 184 Colo. 32, 518 P.2d 828 (1974).
In view of our conclusion, we need not address Constant's other assignment of error.
The judgment is reversed and the cause is remanded for a new trial.
JUDGE SMITH concurs.
JUDGE STERNBERG dissents.