State v. Mustafa Abdulla Abu-Isba ( 1984 )

Lockett, J.,

concurring in part and dissenting in part. I agree with the court on all issues raised by the appellant except that I would grant a new trial to the appellant because the trial court refused to admonish the jury to disregard remarks in the prosecutor’s final closing argument which injected his personal opinion into the trial.

In his final portion of closing argument, after discussing the testimony of another witness who overheard the alleged threat to Dr. Leipold, the prosecutor stated:

“She thought he was serious. And I guarantee you these gentlemen to whom he spoke these words took him seriously.”

The appellant did not immediately object. Upon completion of the State’s final closing argument, the defense attorney asked to approach the bench. The following conversation occurred:

“Mr. POTTROFF: I didn’t stop counsel during the middle of his argument because I didn’t want to compound the problem. Personal guarantees as to credibility of a witness is ex post facto reversible error. And our Supreme Court has said that.

“Mr. Diehl: I didn’t give a personal—

“Mr. Pottroff: He sáid and I would ask to read back the record if the Court has any question about it, I guarantee these men felt terrorized. I wrote it down when it was said, and that is a personal guarantee.

“The Court: Are you requesting a mistrial?

“Mr. Pottroff: I’m not requesting a mistrial, I’m requesting an admonition, a strong admonition that any personal beliefs on the part of the prosecutor is not an issue in this case and anything that he has said which indicates that he personally believes one way or another should be disregarded from — by them. I could give the case, there is a Kansas case on point where a personal guarantee as to the credibility of a witness came up and the Supreme Court of the State of Kansas in one of the few times that they have done it reversed on that ground. It’s an improper statement by counsel that is under criminal law head note, I believe 1136. I’m not sure of the exact head note, but I have just argued this case in front of a different court in Abilene and I’m convinced that that’s the law. I would ask for an admonition to that effect.

“Mr. Diehl: It’s not my opinion as to their — whether they were telling the truth or veracity and mention any specific witness.

“The Court: The Court does not remember the testimony or not the testimony but the argument in question. And do you have any idea where in the argument that it took place Mr. Pottroff?

“Mr. Pottroff: Yes, Your Honor, it was — would have been halfway through the second argument. I mean as we’re talking, the last five or ten minutes of this rebuttal.”

The trial court had the court reporter read back the prosecutor’s statement.

“The Court: Well, it would seem to the Court two things, number one that any admonition to the jury at this point in time would only emphasize this error. The Court is not familiar with the case that would make it reversible error. The Court is certainly familiar with the cases where the prosecution is not to invoke their personal opinion or statements of what their personal beliefs are in the case and this is probably an improper argument, but it seems to me that no contemporaneous objection to it was made at the time, that is the time that it should have been made that — at the time that it should have been cured. To further do anything about it now would only emphasize or if it was done and absent showing of the authority and I realize you haven’t had much chance, but I think we need to get this thing moved along. And frankly, in my opinion that’s not going to sway that jury one way or the other, so the Court will make no admonition and the jury will be retired for deliberation.

“(Thereupon, the proceedings continued in the hearing of the jury.)”

The majority correctly determined it is error for a prosecutor to inject his or her personal opinion into closing argument. This rule is so essential to a fair trial that the ARA Standards, The Prosecution Function § 5.8 (b) (1971) provide:

“It is unprofessional conduct for the prosecutor to express his personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.”

Our Rule No. 501, Code of Professional Responsibility, DR 7-106(C)(4), 232 Kan. clxxxviii, states:

“In appearing in his professional capacity before a tribunal, a lawyer shall not:

“Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matter stated herein.”

The majority opinion cites State v. Williams, 228 Kan. 723, 621 P.2d 423 (1980); State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980); and State v. McClain, 216 Kan. 602, 533 P.2d 1277 (1975). In each of these cases cited, there was no contemporaneous objection to the improper argument; the court was not requested to admonish the jury to disregard the improper statement; nor was the issue raised until after closing argument had been made to the jury. That is not what occurred in this case.

Here, the appellant’s attorney, after the State’s final portion of closing argument, raised the issue by requesting the trial judge to admonish the jury to disregard the prosecutor’s improper remark. The trial judge acknowledged the remark was improper but refused to admonish the jury as requested by the appellant. The trial judge’s refusal to admonish the jury to disregard improper remarks compounded the original error by the prosecutor, thereby denying the appellant a fair trial.

The majority have in effect overruled the cases cited in the majority opinion and dissent. Each of those cases cited determined the general rule did not apply because the defendant had failed to timely object at the trial. Here the appellant, prior to the jury being instructed by the trial court, properly raised the issue. Furthermore, the majority now state that when a trial judge acknowledges an improper remark was made in closing argument, he may ignore the timely objection to the improper remark and refuse the request to admonish the jury. The trial court’s admonishment to the jury required to cure any prejudice resulting from improper admission of statement or evidence would be no longer required. State v. Mick, 229 Kan. 157, Syl. ¶ 3, 621 P.2d 1006 (1981); State v. Thompson, 221 Kan. 176, 182, 558 P.2d 93 (1976). Such conduct by a trial judge should not be approved by this court. Such a rule is neither fair nor proper.

The appellant deserves a new trial.

Prager, J., joins the foregoing concurring and dissenting opinion.