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State v. Thomas2/27/2004
ither Defendant Thomas nor Defendant Bond objected to the characterization. Moreover, the State's case was strong and the effect of the error was insignificant. In short, the State's improper argument did not undermine the fundamental fairness of the trial, and we therefore conclude that this issue gains the Defendants no relief.
B. Don't Give Defendants a Freebie
During opening statement of the penalty phase, counsel for Defendant Thomas stated, "[Defendant] Thomas will never get out of jail. He'll be in there, at the earliest, until he's eighty." In response to this statement, the prosecutor began her closing argument with,
I'm going to start off this morning by apologizing . . . for wasting your time this week because you heard it, they're both doing a lot of time already. "Why in the world are we down here? Let's just forget this murder. I'm sorry, Ms. Day, James Day's death should be a freebie. I mean, they're already doing a lot of time."
Defendants contend that it was improper to argue that a defendant should be sentenced to death as additional punishment for a previous conviction. The State contends that this was a proper response to Defendant Thomas' attempt to minimize the current crime by emphasizing the penalties he already faced.
While community conscience arguments are generally improper, a prosecutor's closing argument must be evaluated in light of the defense argument that preceded it. See Darden v. Wainwright, 477 U.S. 168, 179, 106 S. Ct. 2464, 2470 (1986). Here, both Defendants ignore that it was defense counsel who first invoked community conscience by telling the jurors that Defendant Thomas had already been sentenced to a lengthy period of confinement. Obviously the prosecutor's comment was a response to that statement.
In Darden, supra, the Supreme Court considered the following factors in determining that the prosecutors' closing argument did not deprive the defendant of a fair trial:
The prosecutors' argument did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused such as the right to counsel or the right to remain silent. Much of the objectionable content was invited by or was responsive to the opening summation of the defense. . . . he idea of "invited response" is used not to excuse improper comments, but to determine their effect on the trial as a whole. The trial court instructed the jurors several times that their decision was to be made on the basis of the evidence alone, and that the arguments of counsel were not evidence. The weight of the evidence against petitioner was heavy; the "overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges," reduced the likelihood that the jury's decision was influenced by argument. . . . "Darden's trial was not perfect--few are-- but neither was it fundamentally unfair."
Id. at 181-83 (citations omitted). Similar factors are present here. Doubtless the testimony of the numerous witnesses and the admission by Defendant Bond did far more to seal their fate than a single abbreviated comment by the prosecutor during closing argument. As in Darden, the trial may not have been perfect, but it was fair and no reversible error can be predicated on the prosecutor's closing argument.
III. Admission of Expert Testimony
Defendant Thomas complains that the trial court committed several errors with regard to the admission of expert testimony. Specifically, Defendant Thomas complains (1) Dr. Gardner should not have been permitted to testify and make comments regarding the victim's therapy, (2
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