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State v. Jones6/15/2000
g statements cured the defects); State v. Bailey, 160 Ariz. 277, 279-80, 772 P.2d 1130, 1132-33 (1989) (holding that a remark that the defendant had been in jail did not require a mistrial because " ven if the members of the jury reached that conclusion, they would have no idea how much time he spent in prison or for what crime"). Here, the testimony made relatively vague references to other unproven crimes and incarcerations. Furthermore, the judge gave an appropriate limiting instruction, without drawing additional attention to the evidence.
Second, unlike the primary case on which Jones relies, Dickson v. Sullivan, 849 F.2d 403 (9th Cir. 1988), in which a court official told jurors of the defendant's previous involvement in a similar case, the statements here were unsolicited descriptions from a witness concerning a dissimilar crime. When the statements are made by a witness, whose credibility is already at issue, they do not carry the same weight or effect as a statement from a court official, who is presumed to uphold the law. The defendant agreed during trial that the prosecution played no part in soliciting the information from David. Therefore, the statements are not as harmful as those made in Dickson, and the trial court did not abuse its discretion.
E.
Jones's fifth point of error concerns statements the prosecution made during closing arguments. During the arguments, the prosecutor made reference to the death penalty, compared Jones to Ted Bundy and John Wayne Gacy, and asked the jury to return a guilty verdict on behalf of the victims and their families. The defense moved for a mistrial, and its motion was denied. Although we agree that some of the prosecutor's statements were inappropriate, for the following reasons, we uphold the trial court's decision.
Misconduct by the prosecutor during closing arguments may be grounds for reversal because he is a public servant whose primary interest is the pursuit of justice. See Berger v. United States, 295 U.S. 78, 55 S. Ct. 629 (1935). To determine whether a prosecutor's remarks are improper,
he trial court should consider (1) whether the remarks call to the attention of the jurors matters that they would not be justified in considering in determining their verdict, and (2) the probability that the jurors, under the circumstances of the particular case, were influenced by the remarks. Misconduct alone will not mandate that the defendant be awarded a new trial; such an award is only required when the defendant has been denied a fair trial as a result of the actions of counsel. The trial court is in the best position to determine whether an attorney's remarks require a mistrial, and its decision will not be disturbed absent a plain abuse of discretion. State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-57 (1988)(citations omitted).
Furthermore, prosecutors have wide latitude in presenting their closing arguments to the jury: "excessive and emotional language is the bread and butter weapon of counsel's forensic arsenal, limited by the principle that attorneys are not permitted to introduce or comment upon evidence which has not previously been offered and placed before the jury." State v. Gonzales, 105 Ariz. 434, 436-37, 466 P.2d 388, 390-91 (1970). In this case, the prosecutor's statements did not rise to the level of misconduct.
Jones argues that the prosecution's reference to the death penalty in closing argument constituted reversible error. We have recognized that calling attention to the possible punishment is improper because the jurors do not sentence the defendant. See State v. Cornell, 179 Ariz. 314, 327, 878 P.2d 1352, 1365 (1994).
Jo
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