Butts v. United States5/1/2003
ving, i.e., that he was not exercising reasonable care under the circumstances." King v. Pagliaro Brothers Stone Co., 703 A.2d 1232, 1235 (D.C. 1997) (footnote omitted). Considering all of this evidence as we must in the light most favorable to the government, we hold that the jury could reasonably find, as it did, that appellant deviated from the ordinary standard of care.
The government also presented sufficient evidence to establish a causal relationship between appellant's negligence and Mr. Tucker's death. As we have already mentioned, the government's expert testified that Mr. Tucker should have been visible from a distance of 300 feet, yet appellant never saw him until the moment of impact. Given this evidence, the jury could reasonably conclude that appellant's complete failure to see an otherwise visible pedestrian was attributable to her intoxication and her failure to maintain a proper lookout while talking on her cell phone, and hence that her negligence proximately caused her to strike Mr. Tucker with her car.
V.
Appellant's last contention is that the prosecutor misled the jury during his closing argument when he referred to a police officer's testimony that the street lights were functioning properly upon the officer's arrival, without also mentioning that the officer arrived on the scene more than an hour after the accident, and that a witness testified that the lights were "messed up" and would "go on and off." Normally, when reviewing such allegations of improper argument, this court must determine whether the prosecutor's statements actually were improper and, if so, whether the verdict was substantially swayed by the impropriety. See, e.g., Harris v. United States, 602 A.2d 154, 159 (D.C. 1992) (en banc). In this instance, however, defense counsel made no objection at trial to the prosecutor's statement, so "we may not reverse unless the court's failure to intervene sua sponte and take corrective measures amounted to plain error." McGrier v. United States, 597 A.2d 36, 48 (D.C. 1991) (citation omitted). Because we conclude that the prosecutor's rhetorical question during closing argument was proper, we reject appellant's claim of error.
It is settled beyond dispute that a prosecutor "may prosecute with earnestness and vigor -- indeed, he should do so." Berger v. United States, 295 U.S. 78, 88 (1935). There are, of course, limitations on such vigor. The prosecutor may not refer to evidence not in the record, see McGrier, 597 A.2d at 49, make comments intended to inflame the jury, see Nelson, 601 A.2d at 598, or make statements designed to mislead the jury, see Townsend v. United States, 512 A.2d 994, 1000 (D.C. 1986). The prosecutor in this case engaged in none of these improprieties, but merely posed to the jury a rhetorical question that made reference to testimony it had already heard. There is no requirement, as appellant seems to believe, that a prosecutor simultaneously remind the jury of evidence that may point the other way when asking the jury to return a guilty verdict. See State v. Schwartz, 266 Minn. 104, 110, 122 N.W.2d 769, 773 (1963) (a prosecutor " 'is not bound to make his argument to the jury colorless, or argue both sides of the case, if the defendant is represented by counsel' " (citation omitted)). If such a reminder is called for, defense counsel can and should provide it; that is not the prosecutor's job. The trial court in this case had no reason to take any corrective measures sua sponte, for there was nothing to correct. See, e.g., Irick v. United States, 565 A.2d 26, 33 (D.C. 1989).
VI.
Appellant's conviction is therefore Affirmed.
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