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THE ADVOCATE Volume 30, No. 1 January 2008 And in Scott v. Commonwealth, 2006 WL 3751391 (Ky.2006), unpublished, the prosecutor again argued that the jury should “send a message.” The court said that, “...had the issue been preserved, a more rigorous analysis would have been required. Thus, while such comments do not constitute manifest error in the instant case, we note that, generally, any benefit the Commonwealth perceives in utilizing such an argument is far outweighed by the risk of reversal on appeal.” Compare those two cases with Barnes, supra, in which in court sustained 29 objections by defense counsel during the prosecutor’s closing argument, and admonished the jury 11 times. Nevertheless, the conviction was still reversed because the court refused to sustain an objection to the prosecutor’s statement to the jury that finding the defendant innocent would be the only crime greater than the murder itself. What if the trial court forbids attorneys to object during closing arguments? “We cannot hold trial counsel strictly accountable to the rules regarding making contemporaneous objections when the record suggests counsel was repeatedly denied a reasonable opportunity to make a record.” Alexander v. Commonwealth, 864 S.W.2d 909, 915 (Ky.1993). Think about starting the trial with a detailed motion in limine regarding improper argument during closing, and if possible, offer to make avowals of the grounds for your objections. REQUEST RELIEF! – If an objection is overruled, the contemporaneous objection (RCr 9.22) preserves the issue on appeal. On the other hand, if an objection is sustained, there is no further issue preserved for appeal unless the defendant also then requests a mistrial or admonition which is then denied. “An admonition is appropriate only if the objection is sustained.” Barnes, supra, at 568. “In the absence of a request for further relief, it must be assumed that appellant was satisfied with the relief granted, and he cannot now be heard to complain.” Baker v. Commonwealth, 973 S.W.2d 54, 56 (Ky.1998). “[M]erely voicing an objection, without a request for a mistrial or at least an admonition, is not sufficient to establish error once the objection is sustained.” Hayes v. Commonwealth, 698 S.W.2d 827, 829 (Ky.1985). So request further relief! The exact same situation obtains when a trial court offers an admonition and the defendant declines to accept it. If you request a mistrial and the court offers an admonition, accept the admonition if you want to, but make clear you are not waiving your motion for a mistrial. Practice Tip: Being Explicit. Lest you think that you have already been told enough times to be clear and explicit about your position while speaking on the record, please note that, in some very recent decisions, remarks which would normally be understood as nothing more than ordinary politeness and civility have been interpreted on appellate review as waivers of some very important issues. In Alley v. Commonwealth, 160 S.W.3d 736 (Ky.2005), defense counsel spent a good deal of time arguing that his client should not be forcibly medicated to gain competency to stand trial. The trial court refused to rule on the issue, saying there was no proper motion before the court on the matter. Defense counsel’s response was “That’s fine. We understand.” The appellate court ruled that defense counsel had, by saying that, waived the issue he had fought over so long and hard. In Lattner v. Commonwealth, 2006 WL 2924653, (Ky.App.2006), unpublished, the defendant had testified that he was against the use of drugs. The prosecutor wanted to impeach the defendant with a former conviction for drug possession. Defense counsel objected. The trial judge responded by saying that he thought the defendant had opened the door to the impeachment by setting himself up as a “innocent lamb type guy.” Defense counsel’s response was, “That’s fine.” Even though the appellate court explicitly acknowledged that defense counsel had objected to the intended impeachment, it ruled that defense counsel had waived the issue on appeal by then saying “That’s fine.” So, be polite, but be explicit. 54 NOTES
IMPROPER CLOSING ARGUMENTS, EXAMPLES The following is meant to be illustrative but not exhaustive. THE ADVOCATE Volume 30, No.1 January 2008 Defining Reasonable Doubt - Counsel is not allowed to define reasonable doubt. Commonwealth v. Callahan, 675 S.W.2d 391 (Ky.1984). Nevertheless, pointing out that “beyond a reasonable doubt” is different from “beyond a shadow of a doubt” is not an attempt to define reasonable doubt. It is, rather, simply to point out the obvious. Howell v. Commonwealth, 163 S.W.3d 442 (Ky.2005). However, the use of an analogy is an attempt to define reasonable doubt, and it violates the 14 th Amendment safeguard “against the dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” See, e.g., Rice v. Commonwealth, 2006 WL 436123, unpublished, in which the prosecutor used the example, during voir dire, of deciding to marry someone. See also Marsch v. Commonwealth, 743 S.W.2d 830 (Ky.1988) in which the prosecutor, during voir dire, used the example of himself as a hypothetical witness to an auto accident. “In all those cases [where this court found an impermissible attempt to define ‘reasonable doubt’], some attempt was made to use other words to convey to the jury the meaning of ‘beyond a reasonable doubt’.” Howell, supra, at 447, quoting Simpson v. Commonwealth, 759 S.W.2d 224, 226 (Ky.1988). Arguing Legal Presumptions - The primary purpose of a statutory presumption for the Commonwealth is to enable the Commonwealth to overcome a directed verdict. A statutory presumption for the Commonwealth should not be used to compel an inference from a jury. They should not be included in jury instructions in any way which might lead a jury to infer that the Commonwealth need not prove every element of the offense beyond a reasonable doubt. County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), Commonwealth v. Collins, 821 S.W.2d 488 (Ky.1991), Wells v. Commonwealth, 561 S.W.2d 85 (Ky.1978). Of course, the great exception to the rule that juries are not instructed on presumptions is that juries in every criminal case must be instructed on the presumption of innocence. RCr 9.56 (1). Irrelevant Matters: • A lawyer shall not knowingly or intentionally allude to any matter that the lawyer does not reasonably believe is relevant. SCR 3.130-3.4(e). Matters Not in Evidence: • A lawyer shall not knowingly or intentionally allude to any matter that will not be supported by admissible evidence. SCR 3.130-3.3(e). • A prosecutor may not mention facts prejudicial to the defendant that have not been introduced into evidence. Sommers v. Commonwealth, 843 S.W.2d 879 (Ky.1992), Bowling v. Commonwealth, 279 S.W.2d 23 (Ky.1955). • It was error for the prosecutor to argue there was a vast store of incriminating evidence which the jury was not allowed to hear because of the rules of evidence. Mack v. Commonwealth, 860 S.W.2d 275 (Ky.1993). • Where the trial court ruled that part of a tape recording was not admissible, it was error for the prosecutor to tell the jury he “wished” it could have heard those parts that had been excluded. Moore v. Commonwealth, 634 S.W.2d 426 (Ky.1982). 55 NOTES
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The Advocate Journal of Criminal Ju
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