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State v. Greene3/15/2000
reene's drinking habits. However, it is important to put this theory of the State's prosecution in its proper context. As we have already noted, as early as the hearing on the motion to suppress, the State conceded that White did not have probable cause to arrest Greene. Moreover, at the trial, White testified that he did not ask Greene to perform any field sobriety tests because he believed Greene would pass the tests. Thus, one of the State's theories of defense was that a "seasoned drinker" would be less likely to exhibit classic symptoms of intoxication.
. Lawyers are allowed "considerable latitude" in making closing arguments and are entitled to argue for reasonable inferences which the evidence suggests. See State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). A prosecutor crosses over this line when the argument for a guilty verdict is based on factors other than the evidence. See id. Here, we are not persuaded that the prosecutor crossed this line. This was an unusual drunk driving case given the State's unique theory of prosecution. But the evidence allowed for the inference argued by the State.
. Next, Greene contends that the State improperly commented on his right to silence when it stated that the defense had failed to present any evidence disputing the blood test result. We disagree. This court has said:
The comment [to observe that the defendant could produce a witness if he wished] does not alter the burden of proof or penalize the exercise of a constitutional right. Unless the prosecutor indirectly invites an inference based on the defendant's own silence, he may pursue evidentiary inferences for what they are worth....
State v. Patino, 177 Wis. 2d 348, 381-82, 502 N.W.2d 601 (Ct. App. 1993) (emphasis added).
. Here, the challenged statement by the State did not allude to Greene's choice not to testify. Instead, the argument focused on the blood test result and whether it represented convincing evidence for the jury. The State was entitled to observe that this evidence stood unrefuted.
. Finally, Greene complains that the State referred to the famous videotape of the driver operating the vehicle in the Princess Diana crash. The State noted that this driver also did not exhibit any signs of intoxication. We agree that this argument was irrelevant to the issue in this case. However, we do not deem this remark so far off the mark as to warrant a mistrial. This was an isolated remark at the conclusion of the State's argument. Moreover, the trial court instructed the jury to hold its decision to the facts and evidence introduced at the trial and cautioned the jury that the arguments of the attorneys were not evidence.
. A motion for a mistrial based on improper prosecutorial jury argument is addressed to the sound discretion of the trial court. See Haskins v. State, 97 Wis. 2d 408, 419, 294 N.W.2d 25 (1980). That determination is made in light of the whole proceeding, and the proper inquiry is whether the claimed error was sufficiently prejudicial to warrant a new trial. See State v. Grady, 93 Wis. 2d 1, 13, 286 N.W.2d 607 (Ct. App. 1979). The reference to the Princess Diana episode was more irrelevant than prejudicial. Based on the record as a whole, we see no error in the trial court's discretionary decision to reject Greene's motion for a mistrial.
Conclusion
. We uphold the trial court's rejection of Greene's motion to suppress. We also uphold the court's ruling admitting the disputed portion of Harding's testimony because Greene's discovery demand did not seek a summary of any undocumented reports or statements of any experts. Finally, we uphold the court's discretion
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