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State v. Janklow2/23/2005
reverse the conviction only if the misconduct has prejudiced the party as to deny him or her a fair trial." Id. (citation omitted). The denial of a motion for mistrial is reviewed under an abuse of discretion standard. State v. Ball, 2004 SD 9, , 675 NW2d 192, 197 (citations omitted). Also, a trial court's ruling on a motion for new trial based on misconduct of counsel will not be disturbed unless there is a clear abuse of discretion. State v. Stetter, 513 NW2d 87, 90 (SD 1994).
[ .] In closing arguments, Janklow's counsel criticized the State for its failure to take a reading of Janklow's glucose after the collision or have the blood sample that was obtained for alcohol analysis also tested for glucose. Counsel for Janklow suggested by his arguments that the State was not interested in a "search for the truth." His counsel was also critical of the State's medical expert, Dr. Wilde. Defense counsel noted that the State had consulted with him only two weeks before trial and that he was not aware of Janklow's Atenolol prescription prior to trial. In his rebuttal, the prosecutor responded to these comments by pointing out that the State did not test Janklow's blood at the time of the collision because Janklow indicated that his blood sugar levels were fine and he did not appear to be exhibiting signs of hypoglycemia. Further, the prosecutor informed the jury that Dr. Wilde was contacted "immediately when we learned about this goofy hypoglycemia defense."
[ .] Janklow's counsel did not object to the State's comments during closing arguments. Therefore, the trial court was not given an opportunity to consider the objection or admonish the jury prior to submitting the case to them. Counsel made a motion for mistrial based on the State's comments regarding the medical defense after the jury had begun deliberating. As an alternative to the motion for mistrial, Janklow requested a limiting instruction to the jury that Janklow had timely disclosed all reports in accordance with the trial court's discovery orders.
[ .] The trial court denied the motion for mistrial because it found that the comments were not so prejudicial as to warrant a mistrial and that the jury had already been instructed that the arguments of counsel were not evidence. "Under the settled law of this state, 'no hard and fast rules exist which state with certainty when prosecutorial misconduct reaches a level of prejudicial error which demands reversal of the conviction and a new trial; each case must be decided on its own facts.'" Stetter, 513 NW2d at 90 (citations omitted). "Additionally, ' he trial judge was on the scene, had heard the arguments and had the opportunity to note whether they had any apparent effect on the jury. He apparently [did not] feel that they had and we accede to his judgment lacking any showing on the part of the defense of actual bias or prejudice.'" Id. (citations omitted) (alteration in original). Janklow has not shown that the trial court abused its discretion in denying the motion for mistrial and motion for new trial based on these comments.
[ .] The second occurrence of prosecutorial misconduct alleged by Janklow occurred at the end of the State's rebuttal. Janklow argues that the prosecutor made a community conscience argument to the jury. "Community conscience arguments are improper." Stetter, 513 NW2d at 90 (citations omitted). The State told the jury: "The stop sign couldn't stop him. Nothing could stop him, and it resulted in Randy Scott's death. I think Ladies and Gentlemen, you know what can stop him." The State also concluded its rebuttal by stating: "Folks, this is your county, these are your communities, these are your roads, and now this is your case." However, Janklo
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