Darrell V. McGraw, Jr. David
Karickhoff
Attorney General
Sutton,
West Virginia
Robert D. Goldberg Attorney
for the Appellant
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. “Four factors are taken into account in
determining whether improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor's remarks have a tendency
to mislead the jury and to prejudice the accused; (2) whether the remarks
were isolated or extensive; (3) absent the remarks, the strength of competent
proof introduced to establish the guilt of the accused; and (4) whether the
comments were deliberately placed before the jury to divert attention to
extraneous matters.” Syl. Pt. 6, State v. Sugg, 193 W.Va. 388,
456 S.E.2d 469 (1995).
2. “It is improper for a prosecutor in this
State to '[A]ssert his personal opinion as to the justness of a cause, as
to the credibility of a witness . . . or as to the guilt or innocence of
the accused. . . .' ABA Code DR7-106(C)(4) in part.” Syl. Pt.
3, State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981).
3. “An attorney for the state may prosecute vigorously, as long as he deals fairly with the accused; but he should not become a partisan, intent only on conviction. And, it is a flagrant abuse of his position to refer, in his argument to the jury, to material facts outside the record, or not fairly deducible therefrom.” Syllabus, State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931).
4. “The prosecuting attorney occupies a quasi-judicial
position in the trial of a criminal case. In keeping with this position, he is
required to avoid the role of a partisan, eager to convict, and must deal fairly
with the accused as well as the other participants in the trial. It is the prosecutor's
duty to set a tone of fairness and impartiality, and while he may and should
vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial
role with which he is cloaked under the law.” Syl. Pt. 3, State v. Boyd,
160 W.Va. 234, 233 S.E.2d 710 (1977).
5. “A judgment of conviction will not be
reversed because of improper remarks made by a prosecuting attorney to a jury
which do not clearly prejudice the accused or result in manifest injustice.” Syl.
Pt. 5, State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982).
6. “A judgment of conviction
will not be set aside because of improper remarks made by a prosecuting attorney
to a jury which do not clearly prejudice the accused or result in manifest
injustice." Syl. Pt. 5, State v. Sugg, 193 W.Va. 388, 456 S.E.2d
469 (1995).
Per Curiam:
This is an appeal by James Paul Hamrick from an
order of the Circuit Court of Webster County finding the Appellant guilty
in a magistrate jury trial of the offense of battery. The Appellant appeals
the battery conviction, seeking reversal with directions to enter an order
granting his motion for judgment of acquittal, or in the alternative, his
motion for new trial. Upon thorough review of the briefs, arguments of counsel,
record, and applicable precedent, we reverse the Appellant's conviction and
remand for entry of an order granting the Appellant a new trial.
Ruth Ann Hamrick, the Appellant's wife, had previously
worked with Ms. Farley in the Webster County Sheriff's Office. Mrs. Hamrick's
employment had been terminated three years prior to the April 2, 2002, grocery
store altercation, and she had instituted a civil action against the Sheriff's
Office for wrongful discharge, settled out of court in July 2001. Subsequent
to Mrs. Hamrick's termination, Ms. Farley had apparently accused Mrs. Hamrick
of stealing coffee money. Consequently, the State contended that tensions
existed between Ms. Farley and Mr. Hamrick regarding his wife's termination
and the surrounding circumstances.
Contrary to Ms. Farley's testimony, the Appellant
testified that Ms. Farley had instigated the contact in the grocery store
by blocking him. He testified that he had asked her to move and that she
had refused to move. Rather, she leaned back onto his arm as he attempted
to go behind her. He leaned back toward her and continued to move around
her between the soda display and the open portion of the grocery store aisle.
He explained that he did not make unlawful or intentional physical contact
of an insulting or provoking nature with Ms. Farley. No other witnesses
to the incident testified.
During the prosecutor's rebuttal closing argument at trial, the following colloquy transpired:
Mr. Hall [attorney for the State]: [T]he suggestion that
Mr. Hamrick's wife won a settlement, and therefore, the Sheriff's office was
out for revenge against him or her, and that this charge was trumped up and fabricated,
and here we are, and it's surreal. I have a duty as a prosecutor to uphold the
law, and if I thought for a moment that this was some trumped up charge as it
has been suggested here, I would have dismissed this case.
I reviewed this independently, and independently of all
this _
Mr. Karickhoff [attorney for the Appellant]: I object
to this. Counsel is vouching this case. He's not allowed to do that, Your Honor.
Mr. Hall: He opened the door. (See
footnote 1) They made the suggestion _
The Court: I'll allow him to continue, but keep
it brief.
Mr. Hall: I just was to tell you [the jury] that this
case is being prosecuted because this was a decision of me, and I wasn't involved
in this. That's all I have to say.
Subsequent to the magistrate court jury trial,
the Appellant was found guilty of the offense of battery. The lower court affirmed
that conviction by order entered July 7, 2003. On appeal to this Court, the Appellant contends that (1) the prosecutor
made remarks personally vouching the State's case during rebuttal closing
argument; and (2) the verdict is not supported by substantial evidence and
is against the weight of the evidence.
Four factors are taken into account
in determining whether improper prosecutorial comment is so damaging as to require
reversal: (1) the degree to which the prosecutor's remarks have a tendency to
mislead the jury and to prejudice the accused; (2) whether the remarks were isolated
or extensive; (3) absent the remarks, the strength of competent proof introduced
to establish the guilt of the accused; and (4) whether the comments were deliberately
placed before the jury to divert attention to extraneous matters.
We further observed in State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988), that “the purpose of the Critzer rule is to prevent the use of the prosecutor's status as a means to bolster witness credibility.” 180 W.Va. at 351, 376 S.E.2d at 557. As this Court explained in the syllabus of State v. Moose, 110 W.Va. 476, 158 S.E. 715 (1931),
An attorney for the
state may prosecute vigorously, as long as he deals fairly with the accused;
but he should not become a partisan, intent only on conviction. And, it is
a flagrant abuse of his position to refer, in his argument to the jury, to
material facts outside the record, or not fairly deducible therefrom.
See also United States v. Beasley, 102 F.3d 1440, 1449
(8th Cir.1996), cert. denied, Beasley v. United States, 520 U.S. 1246
(1997) (“Impermissible vouching may . . . occur when the government implies a guarantee of a witness's truthfulness, refers to facts
outside the record, or expresses a personal opinion as to a witness's credibility”); State
v. Shuler, 545 S.E.2d 805, 818 (S.C. 2001), cert. denied, Shuler v.
South Carolina, 534 U.S. 977 (“Improper vouching occurs when the
prosecution places the government's prestige behind a witness by making explicit
personal assurances of a witness' veracity, or where a prosecutor implicitly
vouches for a witness' veracity”).
This Court has addressed allegedly prejudicial statements
by prosecutors on several occasions. In syllabus point three of State
v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977), this Court explained as follows:
The prosecuting attorney occupies
a quasi-judicial position in the trial of a criminal case. In keeping with this
position, he is required to avoid the role of a partisan, eager to convict, and
must deal fairly with the accused as well as the other participants in the trial.
It is the prosecutor's duty to set a tone of fairness and impartiality, and while
he may and should vigorously pursue the State's case, in so doing he must not
abandon the quasi-judicial role with which he is cloaked under the law.
In Justice Starcher's concurrence to State v. Swafford, 206
W.Va. 390, 524 S.E.2d 906 (1999), he fittingly observed that “[a] prosecuting
attorney is not just an officer of the court, like every attorney, but is
also a high public officer charged with representing the people of the State.” 206
W.Va. at 398, 524 S.E.2d at 914. Justice Starcher continued as follows:
Wearing the cloak of the office,
a prosecutor can therefore usually exercise great influence upon jurors. Because of this, the conduct and language of the prosecutor in a trial in which
the accused's liberty is at stake should be forceful but fair, based upon
the evidence, and not directed towards gaining a conviction through the aid
of passion, prejudice or resentment.
Id., 524 S.E.2d at 914.
This Court has also consistently endeavored to
attain a balanced resolution to allegations of prosecutorial misconduct by
recognizing that reversal is not warranted unless a prosecutor's remarks
are sufficiently prejudicial. See State v. Hobbs, 178 W.Va.
128, 358 S.E.2d 212 (1987). Syllabus point five of State v. Ocheltree,
170 W.Va. 68, 289 S.E.2d 742 (1982), explains that “[a] judgment
of conviction will not be reversed because of improper remarks made by a
prosecuting attorney to a jury which do not clearly prejudice the accused
or result in manifest injustice.” Syllabus point five of Sugg expresses
the same principle, as follows: “A judgment of conviction will
not be set aside because of improper remarks made by a prosecuting attorney
to a jury which do not clearly prejudice the accused or result in manifest
injustice.” 193 W.Va. at 393, 456 S.E.2d at 474.
In applying these principles to the case sub judice, our determination of whether the allegedly improper prosecutorial comments were so damaging as to require reversal is guided by syllabus point six of Sugg, as outlined above. It is our conclusion that the prosecutorial remarks at issue had a significant “tendency to mislead the jury and to prejudice the accused.” Sugg, 193 W.Va. at 393, 456 S.E.2d at 474. The remarks by the prosecutor in this case specifically addressed the prosecutor's personal role in deciding that the case was meritorious and should be prosecuted. The prosecutor referenced his own personal “duty” to ensure that non-meritorious cases were not advanced through his office.
Second, we find that the remarks, while somewhat isolated
within the context of the rebuttal closing argument, were not so detached or
singular as to excuse their utterance. The third prong of syllabus point six
of Sugg requires this Court to examine the issue of “the strength
of competent proof introduced to establish the guilt of the accused” even “absent
the remarks.” Id. at 393, 456 S.E.2d at 474. Our review of the evidence
in this regard indicates that the testimony established a controversy between
the parties regarding their recollection of the altercation. Particularly in
this instance, it is especially damaging to the jury's ability to remain objective
when the prosecutor insists that he had “independently reviewed” this
matter, that his “duty” as a prosecutor required him “to
uphold the law,” and that he would “have dismissed the case” if
he had “thought for a moment that this was some trumped up charge. . . .”
Regarding the fourth element of syllabus point
six of Sugg, “whether the comments were deliberately placed
before the jury to divert attention to extraneous matters,” it is this
Court's opinion that such intent was inherent within the prosecutor's comments. Id. at
393, 456 S.E.2d at 474. The “extraneous matter” to which
the jury's attention was diverted was the prosecutor's own personal role in verifying the legitimacy of the
criminal action brought against the Appellant. Such statement essentially
places the government's prestige behind the complaining witness and
constitutes an offer of personal opinion regarding the claim.
As this Court accentuated in England, the
underlying objective of the Critzer rule is the prevention of “the
use of the prosecutor's status as a means to bolster witness credibility.” 180
W.Va. at 351, 376 S.E.2d at 557. We believe that the Critzer rule
was violated by the prosecutor's remarks in this case. The prosecutor's remarks
can be seen as implying a sense of superior, additional knowledge, imploring
the jury to trust him personally based upon his duty as a prosecutor. We
find that manifest injustice has resulted through prosecutor's comments
and that the Appellant was prejudiced thereby.
Moreover, we note that our review of the record in this case, including the witnesses' testimony and the electronic evidence, suggests a rather equal balance between that favoring the state's case and that supporting the defenses asserted. In that light, the jury's credibility determinations likely became a dominant factor in its decision finding the defendant guilty. In such a scenario, there is a strong possibility that the jury's evaluation of the evidence may have been tilted toward a finding of guilt beyond a reasonable doubt through inappropriate prosecutorial comment.
Based upon the foregoing, we reverse the Appellant's
conviction and remand this matter for entry of an order granting the Appellant
a new trial.