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People v. Mayfield1/2/1997
t Snowden did not speak for all law enforcement personnel and that it was reasonably likely, based on matters of common knowledge, that at least some officers held the opposite view.
3. Appeal to Passion
Defendant challenges the following argument as an improper appeal to passion:
"We have those officers out there to protect us because there are individuals like Dennis Mayfield in our society. . . . But there's some people that have a total, an absolute disregard for our laws. Dennis Mayfield is one of those. . . . Unfortunately, we have people like Dennis Mayfield. And because of that we need people like [Detective] Amicone and [Sergeant] Wolfley and all the other officers that came in here, to help us live in this community, in this great state, in this free country that we have. It's free. Yes, it is. Free. We all have our free agency, our ability to choose and to decide. And unfortunately Mr. Mayfield exercised his free agency in a manner that goes contrary to the rules of society. . . . You remember what President John Kennedy said. Ask not what your country can do for you. Ask what you can do for your country. A lot of people that have given for their country that have made this a free land. [ Sic.] He has not given. He has taken. Taken whatever Dennis Mayfield decided that he wanted throughout his entire adult life."
Defendant argues that the prosecutor's references "to patriotism and persons who have died fighting for our country, interspersed with references to police officers other than [Sergeant] Wolfley, could have been made only for the purpose of arousing passion and prejudice." Additionally, he argues that by his references to "individuals like Dennis Mayfield" and to "people that have a total, an absolute disregard for our laws," the prosecutor was urging the jury not to assess defendant's individual culpability, but instead to view him as a representative of the criminal element of society. We disagree.
Although it is misconduct for a prosecutor to make comments calculated to arouse passion or prejudice ( United States v. Koon (9th Cir. 1994) 34 F.3d 1416, 1443), the comments defendant challenges here were not so calculated. A reasonable juror would discern two themes in the quoted comments: first, that the murder of a peace officer engaged in performing official duties is a particularly aggravated form of murder, and, second, that defendant's life history revealed him to be a person not deserving of sympathy or mercy. Both lines of argument are permissible at the penalty phase of a capital case. Appeal to patriotism was not a significant theme of the argument, nor was the argument reasonably likely to inflame the passions of any juror or to cause any juror to disregard defendant's individuality and to view him merely as a symbol or personification of society's criminal element. We find no misconduct.
4. Personal Opinion
Finally, defendant challenges the prosecutor's concluding remarks as an improper expression of personal opinion:
"If there was ever an individual who has blatantly displayed his disregard and his contempt for our laws, it's Dennis Mayfield. And if there was anyone in our society, because of that conduct, that warrants the death penalty, it's Dennis Mayfield. And I would ask you to return that verdict."
The statements were not couched as an expression of personal opinion but as a Conclusion to be drawn from the evidence. In any event, it is not misconduct for a prosecutor in the penalty phase of a capital case to express in argument a personal opinion that death is the appropriate punishment, provided the opinion is grounded in the facts in evidence. ( People v. Ro
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