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State v. Janklow2/23/2005
w's counsel did not object to these comments at trial or when he made his motion for a mistrial. This objection was first raised following the verdict in Janklow's motion for new trial. The State argues that Janklow has failed to preserve this issue for appeal.
[ .] "The prosecutor has an overriding obligation, which is shared with the court, to see that the defendant receives a fair trial." State v. Blaine, 427 NW2d 113, 115 (SD 1988) (citation omitted). "The prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings, and [must] not appeal to the prejudices of the jury." Id. (internal citations omitted). This Court condemns this type of argument. However, Janklow failed to object to these comments at trial or in his motion for mistrial. The trial court was deprived of an opportunity to admonish the jury or give a curative instruction. "Having failed to give the trial court the opportunity to rule on this issue by objecting at the time, Defendant has waived this argument on appeal." State v. Boston, 2003 SD 71, , 665 NW2d 100, 109 (citing State v. Corey, 2001 SD 53, , 624 NW2d 841, 844). See also State v. Handy, 450 NW2d 434, 435 (SD 1990) (holding that defendant did not preserve his challenge to alleged prosecutorial misconduct where he did not timely object). "Furthermore, we will not disturb the trial court's ruling on a motion for a new trial based on misconduct of counsel unless we are convinced there has been a clear abuse of discretion." State v. Shult, 380 NW2d 352, 355 (SD 1986) (citations omitted). Janklow has not shown a clear abuse of discretion by the trial court.
[ .] In addition to the two occurrences of prosecutorial misconduct specifically alleged by Janklow on appeal, this Court is disturbed by the prosecutor's use of the other acts evidence. SDCL 19-12-5 (Rule 404(b)) begins by restating the prohibition in SDCL 19-12-4 (Rule 404(a)) against using evidence of a person's character or a trait of his character for the purpose of proving that he acted in conformity therewith on a particular occasion. While this Court finds that the trial court did not abuse its discretion in admitting the other acts evidence for a limited purpose, the prosecutor's attempt in his closing arguments to use the other acts evidence to suggest that Janklow had a propensity to commit this crime was improper.
[ .] This Court finds that the trial court gave a proper limiting instruction to the jury as to the use of other acts evidence both at the time the testimony was presented and at the close of the evidence. Considering the record in its entirety, Janklow fails to show that the prosecutor's comments were so prejudicial that they resulted in a denial of due process.
[ .] 5. Whether the cumulative effect of the alleged errors by the trial court deprived Janklow of a fair trial.
[ .] Janklow argues that the cumulative effect of the alleged errors in this case deprived him of a fair trial. " he cumulative effect of errors by the trial court may support a finding by the reviewing court of a denial of the constitutional right to a fair trial." State v. Perovich, 2001 SD 96, , 632 NW2d 12, 18 (citations omitted). In light of our determinations on the foregoing issues and from our review of the entire record, we believe that Janklow did receive a fair trial.
[ .] Affirmed.
[ .] CALDWELL, BASTIAN, RUSCH and VON WALD, Circuit Judges, concur.
[ .] SEVERSON, Presiding Circuit Judge, and CALDWELL, BASTIAN, RUSCH and VON WALD, Circuit Judges, sitting for GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, disqualified.
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