 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Commonwealth v. Ogrod12/30/2003
(2) the prosecutor did refer to child pornography in her closing statement despite being directed not to do so. We begin with the record. On direct examination, Mr. Banachowski testified that Appellant enjoyed pornography, was aroused by young virgins, and did not date adult women. The prosecutor asked Mr. Banachowski, "did he ever tell you why he would want to molest and kill a four-year-old?" Mr. Banachowski responded, "he says he likes young virgins." The prosecutor then asked, "did he ever say he had dated any adult women?" Mr. Banachowski responded, "No. His pleasure was porno shops." N.T. 10/4/96 at 11.
On cross-examination, the attorney for Appellant reviewed the letter Mr. Banachowski sent to the District Attorney line by line in an attempt to show that Mr. Banachowski used his own words and not the words of Appellant; however, the strategy caused additional evidence of Appellant's desire for children to come into evidence. The transcript reads:
Q. [continuing reading the letter, counsel for Appellant asked] " . . . he was aroused by the thought of sex with Barbara Jean and he would masturbate thinking of sex with her." And he said that, right?
A. Right.
Q. "He admits not having sex with adult women, but enjoys sex with young virgins, because they have a sexuality at a young age, and because they are untouched by anyone." And he told you that; is that right?
A. Right.
Q. "He says that he loves them and that all men do, but they don't admit to this. . . . He says that he masturbates here two or three times a day thinking of young virgins or the nurses and guards. He says that he became aroused by the thoughts of young virgin girls or full-figured women." Is that what that says?
A. Right.
Id. at 57-58.
Notwithstanding that the court had ruled that the references to child pornography were not admissible (Id. at 105, 108) in her closing argument, the prosecutor referred to child pornography in a rhetorical fashion. She first reminded the jury of Appellant's statement to his fellow inmate that Appellant believed that his mother suspected that he murdered Barbara Jean. N.T. 10/7/96 at 60. The prosecutor then said:
What did he tell Mr. Banachowski, his mother said to him, "You and your brother are both nuts, and I think you had something to do with killing that young girl." And what did he say to his mother? He said, that's right, I killed her. And if you know what's best, you'll be quiet." He thought that his mother told the police this, so he said he confessed to save himself, because he thought the police had him. They told him, according to him, that they had a witness, and he said to himself, well, that must be my mother.
Id. Then the prosecutor asked rhetorically, if Appellant did not tell his mother that he killed Barbara Jean, "why would you tell somebody you did, and if your mother suspected you, why was that? Was it because you're that kind of person? Did she know he was a pervert? Did she know that he had never dated? Did she know he liked going to sex shops and porn shops and have child pornography around?" N.T. 10/7/96 at 60-61. Defense counsel objected, which objection the trial court sustained. Id.
The standard for granting a new trial because of the comments of a prosecutor is a high one. Jones, 683 A.2d at 1199. "Generally, a prosecutor's arguments to the jury are not a basis for the granting of a new trial unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility towards the accused which would prevent them from properly weighing the evidence and rendering a true ver
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Pennsylvania DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|