Opinion
No. WD 63647
June 27, 2006
Appeal from the Circuit Court of Jackson County, The Honorable K. Preston Dean, Judge.
Jeremy L. Banks appeals the circuit court's judgment convicting him of first-degree murder and armed criminal action. A jury found him guilty of the September 14, 2003, shooting death of Alvon Turner in Kansas City. Banks does not challenge the sufficiency of the state's evidence against him but complains only that the circuit court overruled his objection to the prosecuting attorney's rebuttal closing argument. We affirm the circuit court's judgment, finding that its overruling Banks' objection was not prejudicial.
In his closing argument, Banks argued to the jury that the witnesses to the shooting, which occurred at a "crack house," were drug users, and he questioned their ability to perceive accurately. He noted that police detectives "weren't there. They don't know what happened. . . . It is logical that all the detective[s] had is based on what people tell [them], outside of scientific evidence which they didn't even try to get [in this] case. So the State's case hinges upon the believability of [the state's witnesses at the scene]."
The prosecuting attorney responded in rebuttal:
[Police detectives] didn't just go on the word of a crack addict. They had several witnesses.
And, ladies and gentlemen, when the scene is set and held and we have to go and catch the Devil, there are no angels as witnesses. This is Hell. He is the Devil. They aren't angels. He is guilty beyond a reasonable doubt.
We surmise that the prosecutor actually said "set in Hell", rather the "set and held", as recorded in the transcript.
Banks objected: "Calling my client a devil is improper argument that was intentional and calls for a mistrial." The prosecutor responded that she was not name-calling: "It's an analogy. I set up the analogy properly." Banks retorted that "the analogy [is] improper when you say somebody is Satan." The circuit court overruled Banks' objection.
A prosecutor's referring to the defendant as "the Devil" is prejudicial error when doing so constitutes "low order of abuse and denunciation of defendant" intended to inflame the jury to convict a defendant solely on the basis that he is an evil person. State v. Barrington, 95 S.W. 235, 257 (Mo. banc 1906). But the prosecutor was not intending to persuade the jury to convict Banks solely because they deemed him to be an evil person. She was making an obvious point: that the jury should understand that her witnesses presented credibility issues because they were "hanging around" a crack house.
The prosecutor perhaps would have been wiser to select an analogy without the "loaded words" of "Devil" and "Hell." But her analogy — that, when "we have to go and catch the Devil, there are no angels as witnesses" — was clear. Any juror of average intelligence would have understood her point: not that the jury should convict Banks because he was an evil person, but that her eyewitnesses' credibility issues were to be expected. Her argument was not designed to inflame.
Perhaps the prosecutor overreached when she decided to explain her obvious analogy to the jury by adding, "This is Hell. He is the Devil. They aren't angels." But, still, it was clear that she was not intending to inflame the jury or even to call Banks "the Devil." She was not telling the jury that Banks was the Devil incarnate; she was telling the jurors that, for purposes of understanding her analogy, they should consider Banks to be the Devil. More importantly, we find no indication that this jury was so lacking in sophistication that the analogy or the prosecutor's explanation of it aroused them to convict Banks because they thought that he was an evil man.
We do not condone the prosecutor's inappropriately calling a defendant names, especially as lack of civility among litigants continues to manifest itself. Indeed, the Supreme Court has condemned the practice of inappropriately calling a defendant such names as the Devil. State v. Johnston, 957 S.W. 2d 734, 750 (Mo. banc 1997), cert. denied, 522 U.S. 1150 (1998); State v. Young, 12 S.W. 879, 883-84 (Mo. banc 1890).
But what Missouri's courts have condemned is not what happened in this case. A prosecutor's calling a defendant a professional burglar, for example, is unacceptable if it is only "a personal castigation" and not "a legitimate characterization" of the evidence. State v. Hornbeck, 492 S.W.2d 802, 808-09 (Mo. 1973). Calling the defendant "a low and contemptible brute, unworthy the respect of the community" is not appropriate if doing so is "calculated to inflame the passions of the jury against the defendant[.]" State v. Fischer, 27 S.W. 1109, 1110-11 (Mo. 1894). Arguing that the defendant "has the devil in her heart" should not be tolerated if the argument is intended to "appeal to mere passion and prejudice[.]" State v. Goodwin, 217 S.W. 264, 266-67 (Mo. 1919). Characterizing the defendant as "a young devil" is unacceptable if it is a "personal abuse of the defendant[.]" State v. Hibler, 51 S.W. 85, 86-87 (Mo. 1899). Calling the defendant a "no-good murderer" is proper unless doing so is "mere personal abuse unconnected with the evidence[.]" State v. Jackson, 499 S.W.2d 467, 471 (Mo. 1973) (epithet was not prejudicial). This is but a sampling of the abundance of case law.
A wise prosecutor will refrain from using name-calling, but "not every divergence" from the policy of no name-calling "justif[ies] the reversal of the judgment." Hibler, 51 S.W. at 87. "Courts have consistently held that . . . name-calling is ill advised, intemperate and unnecessary[,] but it is not prejudicial, especially where there is evidence which would support such a characterization." State v. Poole, 556 S.W.2d 493, 495 (Mo.App. 1977).
The prosecuting attorney in this case was not engaging in illegitimate characterization or personal castigation. Her analogy was not calculated to inflame the jury's passions against Banks. It did not appeal to the jurors' passion and prejudice. Her intent was not to heap personal abuse on Banks. Her analogy was clearly connected to the evidence. She was endeavoring to persuade the jury that her otherwise unbelievable witnesses should be believed — that they were deserving of credibility. Given the character of her witnesses, it was a tough sell, and she concluded that she needed an analogy to persuade the jury.
In her initial argument, the prosecutor made the same point that she sought to make in her analogy, but in an unquestionably proper fashion: "[W]ho would you expect to be the witnesses in this case at a drug house? A librarian? Your preacher? Someone from church? A guy from the grocery store? No. You're going to expect people who use crack and or in this lifestyle. That's who's going to be there. You may not like them. Nobody has to take them home for dinner. But by believing them [—] believing what they saw [—] doesn't justify [—] doesn't validate and doesn't say that it's okay. You are simply believing them."
Contrary to Banks' argument to the circuit court, the mere use of "devil" in the prosecutor's analogy was not necessarily prejudicial. Such a proposition is not only contrary to precedent, but it is overly simplistic in today's society in which a goodly number do not even believe in the Devil and mention of his name does not impart the fear and passion that it may have in eras gone by. Indeed, many are entertained by movies depicting the Devil, our children dress up in caricatures of him at Halloween and other times, and we name sports teams after him.
The prosecutor's purpose was to make a legitimate analogy in response to Banks' argument concerning the credibility of the state's eyewitnesses. She did not intend to use an epithet to inflame the jury to convict Banks on the basis that he was an evil man. We, therefore, do not deem the circuit court's ruling to have been prejudicial error and affirm the circuit court's judgment.
Victor C. Howard, Judge, concurs.
Ronald R. Holliger, Judge, dissents in separate opinion.
DISSENTING OPINION
I respectfully dissent.
The majority opinion sets a new — and far too low — standard for ad hominem attacks, namely whether counsel "intended to inflame the jury to convict a defendant solely on the basis that he is an evil person." (Slip opinion at page 2). The point should not be whether personal attacks are intended to persuade or tip the jury. Such attacks are just plain wrong, unprofessional, and demeaning to our sense of justice and our legal system.
This basic flaw in the majority analysis leads it to ignore the injustice of unprofessional decorum in our courtrooms; justify, if not tacitly approve, an improper argument because it is an "analogy"; and ignore that the real question is prejudice. In doing so, the majority misreads precedent. It also teeters back and forth about the propriety of the arguments, saying on one hand it was perhaps overreaching and unwise, yet characterizing it on the other hand as a proper analogy. What the majority never clearly says is whether the trial court properly overruled the defendant's objection. Nor does it say what has changed since 1997 when our Supreme Court said that calling the defendant the devil was improper, period. State v. Johnston, 957 S.W.2d 734, 750 (Mo. banc 1997). And, finally, the majority justifies its analysis by saying that the word "devil" itself has lost its association with evil and an average juror would see through the name calling. In effect the majority has said that the jury will be able to see that it is just lawyers being lawyers. Our profession and the law is doomed if the standard for our conduct is the average of our current society.
The State insists that the remark was proper and was supported by the evidence. I disagree. The State points to no evidence that the defendant was in fact the devil and the crime scene was hell. The remark was pure hyperbole, an ad hominem personal attack designed to inflame the jury. The prosecutor's remark, calling Banks the Devil, was unequivocally improper and unprofessional. Johnston, 957 S.W.2d at 750. "The prosecutor may prosecute with vigor and strike blows but he is not at liberty to strike foul ones." State v. Nelson, 957 S.W.2d 327, 329 (Mo.App. 1997) (quoting State v. Burnfin, 771 S.W.2d 908, 912 (Mo.App. 1989)). "Trial courts have wide discretion in controlling closing arguments, but they abuse that discretion when they allow plainly unwarranted and injurious arguments." State v. Reyes, 108 S.W.3d 161, 168 (Mo.App. 2003) (quoting State v. Hahn, 37 S.W.3d 344, 356 (Mo.App. 2000)). In approving the analogy, the majority fails to acknowledge that it would have been enough for the prosecutor to say that it does not find angels as witnesses in crack houses. But the closing argument goes on to compare the defendant to these admittedly non-angelic witnesses. And the intended comparison is clear: the defendant is even worse (a person having the worst of character) than the state's witnesses. The trial court erred when it overruled Banks's objection to the improper argument.
As the majority acknowledges, there is a long history of precedent dealing with ad hominem attacks generally and this particular argument specifically.As early as 1890 the Supreme Court said that calling the defendant the devil "was mere personal abuse of the prisoner, and not to be tolerated in any tribunal calling itself a court of justice." State v. Young, 12 S.W. 879, 884 (Mo. 1890) (emphasis added). The majority misstates the holding in State v. Barrington, 95 S.W. 235, 257 (Mo. banc 1906), by stating that it finds prejudice only when the argument constitutes "a low order of abuse."However, the trial court in Barrington, sua sponte, directly and severely rebuked counsel in front of the jury, even referring to counsel by name. Id. In light of the trial court's corrective actions, the Supreme Court said that the prosecutor's language "was not of that low order of abuse and denunciation of defendant as indicated in the decisions which this court has held prejudicial error." Id. In other words, the trial judge's rebuke of the prosecutor cured the prejudice because the remark was not "so low" that a mistrial was required. An argument could be so improper that not even the sustaining of an objection and a purportedly curative instruction could cure the prejudice. The Supreme Court returned to this issue in 1919 when a woman was convicted of running a bawdyhouse. State v. Goodwin, 217 S.W. 264, 266 (Mo. 1919). The prosecutor told the jury that she "has the devil in her heart" and "is guilty of white slavery." Id. The trial court sustained the objection. Nevertheless the Court reversed, saying,
The action of the court was wholly insufficient. Trial judges are clothed with abundant authority to conduct the proceedings of their courts with dignity and to prevent appeals to mere passion and prejudice, and it is their duty on proper occasion to exercise that authority with salutary vigor.
Id. at 267. The Court held that in the absence of a strong rebuke, prejudicial error occurred. Id.
Unfortunately some more recent cases have seemed to become more tolerant, or at least have criticized improper personal remarks in milder language. The majority unfortunately adds to this tolerance. In 1977 the court in State v. Poole, 556 S.W.2d 493, 495 (Mo.App. 1977), collected other cases permitting the use of pejorative terms because the evidence would support the characterization. The court described such name calling as "ill advised, intemperate[,] and unnecessary." Id. Nevertheless, the review was for plain error, which is not our standard here. And in State v. Healey, 562 S.W.2d 118, 130 (Mo.App. 1978), the court said a characterization of the defendant as diabolical "may have been improper" and the solitary remark calling the defendant "a devil" was not sufficient to justify a mistrial unless the prejudice could be removed in no other way. The opinion therefore implies that the prejudice could have been removed by some other action by the trial court communicated to the jury. In the present case no such relief was available because the trial court overruled the objection. The trial court here should have sustained the objection and, at the very least, instructed the jury to disregard the prosecutor's remark.
Courts and legal scholars have struggled with how to effectively address improper prosecutorial forensics. Some might argue that appellate courts' seemingly more temperate view toward personal attacks has encouraged prosecutors to take more chances and trial courts to see less need to strongly intervene because of a belief that prejudice will seldom be found. It was said by this court:
[A]lthough we confess our inadequacy to probe the mental processes of counsel, we would be less than realistic if we did not recognize (without regard to the case before us) that sometimes counsel, encouraged by the demonstrated reluctance of courts to declare mistrials or grant new trials for improper argument, deliberately transcend the bounds of legitimate argument, conscious of the possibility that objection may be made and sustained, but smug in the knowledge that the objectionable matters may not be effectively withdrawn and that their poisonous influence may not be entirely neutralized.
Hildreth v. Key, 341 S.W.2d 601, 616 (Mo.App. 1960). In other words, the risk is minimal and deemed worth taking. Professor Albert W. Alschuler wrote in 1972 that he and others over a twenty-year period had not uncovered a single case in which a prosecutor had been disciplined for forensic misconduct. Albert W. Alschuler, Courtroom Misconduct by Prosecutors and Trial Judges, 50 Tex. L. Rev. 629, 670-71 (1972). One needs no further study to conclude the threat of bar discipline is hollow. Professor Alschuler also found in his own study and that of another law school not a single contempt citation of a prosecutor for forensic misconduct. Id. at 674. The only realistic deterrent to improper conduct is through the trial and appellate courts.
There remains the issue of prejudice in our case. Where a trial court has abused its discretion with respect to improper closing arguments, reversal is warranted only upon showing that the defendant was prejudiced. State v. Williams, 24 S.W.3d 101, 124 (Mo.App. 2000). Stated otherwise, "even if the prosecution's argument was improper, reversal is appropriate only if it is established that the comment of which Appellant complains had a `decisive effect on the jury's determination.'" State v. Armentrout, 8 S.W.3d 99, 111-12 (Mo. banc 1999) (quoting State v. Hall, 982 S.W.2d 675, 683 (Mo. banc 1998)).
The State correctly states that overwhelming evidence of guilt may lead an appellate court to find that a defendant was not prejudiced by trial court error. State v. Beal, 966 S.W.2d 9, 14 (Mo.App. 1997). The majority does not even recognize this issue in its finding of no prejudice, although the State argues that it presented such evidence. That argument ignores that Banks' principal defense was the credibility and unreliability of the witnesses. The State was required to seek a capias to produce at least two of its witnesses. The State had to impeach several of its own witnesses with prior statements. Several witnesses testified that they and others at the scene were very drunk and/or high on drugs. The State was forced to call a police officer to testify that he did not believe any of the witnesses to be drunk or under the influence of drugs at the time of their questioning on the day of the shooting. In addition, there were numerous other inconsistencies in the statements and/or trial testimony of the witnesses. The State spent some time in its opening argument justifying these inconsistencies and suggesting that the witnesses were afraid of Banks (because, argued the State, "He kills snitches"). There was evidence that the house where the shooting occurred was a crack house and also a house of prostitution. Thus the credibility and reliability of the witnesses and their ability to accurately perceive and remember the events of that day were substantial issues. It further appears that a juror was excused even before the final argument because he expressed fear of retaliation based on testimony during the trial. Although in addressing the sufficiency of the evidence we view the evidence in the light most favorable to the State, State v. Kusgen, 178 S.W.3d 595, 596 (Mo.App.W.D. 2005), we do not do so when evaluating the potential prejudice of trial error, see State v. Leisure, 796 S.W.2d 875, 880 (Mo. banc 1990) ("Error, which in a close case might call for reversal, may be disregarded as harmless when the evidence of guilt is strong.").
Twenty years ago Judge Sommerville of this court said,
Unfortunately, prosecutorial "overkill" is a far too common occurrence. Perforce, when the State, as here, insists on walking the precipice of reversible error, it must be prepared to suffer the consequences of stepping over the edge — reversal and remand for a new trial.
State v. Perry, 689 S.W.2d 123, 126 (Mo.App.W.D. 1985). In sum, the State's own evidence showed that the location of the crime and the witnesses it was forced to rely upon were unsavory at best. The State said this "world is hell," referring to the scene and the witnesses. To go on to support their witnesses the prosecutor directly called Banks the chief of this world of hell: "the devil himself." In so doing, the State fell over the precipice separating proper and legitimate argument from personal and inflammatory attack. The trial court should have promptly and firmly rebuked counsel in front of the jury. The court's failure to do so prejudiced the defendant.
Judges, lawyers, and observers have for a number of years increasingly decried the incivility between lawyers themselves and towards parties and witnesses in judicial proceedings. The use of vituperative language, if not acceptable, has become too tolerated. In trial, counsel sometimes seem to believe that zealous advocacy permits, if not demands, that opponents be personally derided and that cases should be decided by appeals to prejudice, fear, envy, and bias, regardless of whether those emotions have anything to do with the facts and law of the case. Rhetoric is too often substituted for logic and reason.
And although every witness, party, opposing counsel, and other participant in a trial is a victim and injured by such conduct, the ultimate victim is our system of justice itself. Respect for the rule of law and our system of administering it depend upon public trust and confidence, whether it is in civil or criminal cases. Historically fundamental to that system has been the concept that individuals and corporations are tried (civilly or criminally) for their acts and not for simply who they are (or are alleged to be). It is tragic that the common observation of laymen is that it is just lawyers being lawyers.
And although the courts cannot provide the sole solution, when one asks what courts have done to stem this behavior, the answer too often is "precious little." Judges and lawyers and sometimes both decry this behavior and urge some answer. Judges criticize lawyers for their behavior. Lawyers criticize judges for tolerating it or for not taking firm actions to stop it. Appellate courts frequently play their role as well by finding no abuse of discretion or no prejudice, or by describing as a tactical decision defense counsel's failure to object, without admitting that counsel may not be willing to object where there is little chance of it being sustained or of any meaningful relief being granted on appeal.
See, e.g., Healey, 562 S.W.2d at 130.
[a1] I split this intro material, putting the philosophical reasoning at the end of the opinion, and the case quotes and Texas law review reference at the beginning of the Discussion section.
We have made another step towards abolishing the precipice. The risk of ad hominem attack is worth taking because the likelihood of any real consequence is slight.
I dissent and believe the judgment of conviction should be reversed and remanded for a new trial.