Opinion
P-00-CR-224
July 5, 2001.
ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
Before the Court is the Defendant Rafael Miranda Fierro's Motion for New Trial, filed on September 19, 2000, in the above-captioned matter. The Defendant was tried by a jury in Pecos, Texas on September 11, 2000, and a verdict of guilty as to both counts of the Indictment was returned on September 13, 2000. The government filed a Response to Defendant's Motion for a New Trial on February 20, 2001. After due consideration of the Defendant's arguments, the Court is of the opinion that the Motion for New Trial should be DENIED.
DISCUSSION
The Defendant contends that he is entitled to a new trial because the prosecutor's closing argument improperly prejudiced the Defendant's substantial rights. In particular, the Defendant argues that the prosecutor improperly stated in closing argument that the Defendant had five months in which to review the discoverable evidence and conform his testimony to that evidence. The Defendant concedes that no objection was made at trial to the prosecutor's statements. See Mot. New Trial at 1.
Improper comments by a prosecutor may constitute reversible error where a defendant's right to a fair trial is substantially affected. United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir. 1994). To determine whether a defendant's right to a fair trial has been substantially affected, a court considers factors such as the magnitude of the prejudicial effect of the statements, the efficacy of any cautionary instruction, and the strength of the evidence of the defendant's guilt. Id. Here, because no objection to the prosecutor's comments was made during the trial, the jury's verdict can be reversed only if the prosecutor's conduct amounted to plain error. See id. (citation omitted).
"Plain error" is defined as error "so obvious that our failure to notice it would seriously affect the fairness, integrity, or public reputation of judicial proceedings and result in a miscarriage of justice. The burden of showing plain error is a heavy one, and this [C]ourt will notice plain error only in exceptional circumstances." Id. (quoting United States v. Wicker, 933 F.2d 284, 291 (5th Cir. 1991)).
The Supreme Court recently pronounced judgment in a case that is practically indistinguishable from the one at bar. In Portuondo v. Agard, 529 U.S. 61 (2000), Justice Scalia, writing for the majority of the Court, held that it was constitutional for a prosecutor to alert the jury in her closing argument to the fact that the defendant had the opportunity to hear all the other witnesses testify at trial and tailor his own testimony accordingly. The Court stated that when a defendant takes the stand in order to testify on his own behalf, his credibility is fairly put into play like that of any other testifying witness:
In sum, we see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness's ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate — and indeed, given the inability to sequester the defendant, sometimes essential — to the central function of the trial, which is to discover the truth.
Id. at 73.
The same principle as that articulated by the Supreme Court in Agard applies to this case. When the Defendant took the stand in order to testify, he automatically placed his credibility in issue. While the prosecutor's comments regarding the Defendant having had five months in which to tailor his testimony to the discoverable evidence in the case might not have been the most desirable statements, they were nevertheless permissible as a constitutional matter. Cf. Agard, 529 U.S. at 73 n. 4. Furthermore, the Defendant has not met his heavy burden of demonstrating that the prosecutor's conduct amounted to plain error. See Andrews, 22 F.3d at 1341. Finally, the Court notes that the jury in this case was instructed to "[r]emember that any statements, objections, or arguments made by the lawyers are not evidence. . . . In the final analysis . . . it is your own recollection and interpretation of the evidence that controls in the case. What the lawyers say is not binding upon you." The Defendant, by his own admission, has provided no proof that the jury did not follow this instruction. See Mot. New Trial at 3; United States v. Tomblin, 46 F.3d 1369, 1390-91 (5th Cir. 1995). In sum, the Defendant's substantial right to a fair trial was not affected by the prosecutor's comments during closing argument. Cf. United States v. Gallardo-Trapero, 185 F.3d 307, 321-23 (5th Cir. 1999).
The Defendant's lawyer contends in the Motion for New Trial that she never even provided the Defendant with a copy of the discovery material, due to his inability to speak English. The government's meager, four line Response to the Motion for New Trial does not dispute this contention.
Accordingly,
It is ORDERED that the Defendant's Motion for New Trial is hereby DENIED.