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Smith v. State12/22/2000
of the prosecutor." People v. Paperno, 54 N.Y.2d 294, 429 N.E.2d 797, 800-01 (N.Y. 1981).
Here, however, we are reviewing the prosecutor's partially objectionable remark for plain error. We will correct an error not raised at trial only if several conditions are satisfied: there must be (1) "error," (2) that is "plain," (3) that "affect substantial rights," and (4) that "`seriously affect the fairness, integrity or public reputation of judicial proceedings.'" United States v. Olano, 507 U.S. 725, 732-35, 736 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). In most cases, a defendant's substantial rights are affected when there is a reasonable probability that, but for the comments, the outcome would be different. See Olano, 507 U.S. at 734- 35.
In assessing the prejudicial nature of this remark, we look at the remark in the light of the entire record, considering the following five factors -- a test applied by the court in United States v. Cornett, [Ms. No. 00-2083, November 13, 2000] __ F.3d __ (7th Cir. 2000) --
"(1) the nature and seriousness of the comments; (2) whether the defense counsel invited the prosecutor's remarks; (3) whether the trial court's instructions to the jury were adequate to cure any prejudice that might otherwise result from the improper comments; (4) whether the defense was able to counter the improper arguments through rebuttal; and (5) the weight of the evidence against the defendant." __ F.3d at __. "Of these factors, [the court] place considerable emphasis on the curative effect of jury instructions and the weight of the evidence." Id. at __.
Here, in its final charge to the jury, shortly after this remark was made, the trial court instructed the jury:
"You should base your decisions only on the evidence admitted in this courtroom. And not everything you heard and saw in this courtroom is evidence. The testimony, the writings, the objects and the other things presented during the trial and allowed by the Court into evidence are evidence in the case. The statements made by the attorneys are not evidence and should not be used by you as evidence in this case.
"However, once evidence is admitted, only the jury can decide two essential things about it: First, whether or not it should be believed; and, second, how important it is. And you should make these decisions about each part of the evidence by using your own common sense as reasonable men and women. You should not imagine things that can't be proven by the evidence admitted in this trial.
"Of course, you must consider all of the evidence admitted in this trial without bias, prejudice, or sympathy to either side, and you must be equally just to both sides. And your verdict must not be based on suspicion, speculation, or conjecture.
"You are the sole judges of the evidence in this case and of the credibility of the witnesses. You may accept or reject any part of the testimony you consider worthy of belief. In determining the weight to be given the testimony of any witness, you may consider the demeanor of that witness while on the witness stand, and his or her apparent candor or evasion, or the existence or nonexistence of any bias or interest in the case. And you may take into consideration any matter which you would consider in your own every day affairs in passing upon the truthfulness and the accuracy of the testimony. And you should weigh the testimony in the light of your own common sense and observations and reach a verdict that will be based upon the truth as you determine it from all the evidence in the case." (R. 1836-39.)
In regard to the weight of the evidence against the appellant,
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