State v. Gladue

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

In my view, the prosecutor’s statements made during final argument were not so prejudicial as to require reversal.

The prosecutor clearly advised the jury that it was the defendant’s constitutional right to not testify, even though defense counsel, in his opening statement had requested that the jury “listen with an open mind awaiting what the defendant has to say.”

Defense counsel made no objection to the prosecutor’s statements, and, in fact, he made three separate references in his closing argument that the defendant had not testified.

The fact that no objections were made, no motion for a mistrial was made, and no attempt was made to use this conduct as the basis for a motion for new trial, would seem to indicate that defense counsel did not consider the comments prejudicial prior to the jury returning a verdict of guilty and immediately thereafter.

I would hold that, under Lockett, the effect of the prosecutor’s comments was, at most, cumulative, and therefore not grounds for reversal.