Appeal from Wyandotte District Court, R. WAYNE LAMPSON, judge.
1. An appellate court's review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial.
2. Although a contemporaneous objection is generally required to preserve an issue for appeal, the absence of a contemporaneous objection is not necessarily fatal to a claim of prosecutorial misconduct during closing argument. If the claimed error is determined to implicate a defendant's right to a fair trial, an appellate court's standard of review is the same regardless of whether an objection was made.
3. The reasonable doubt standard allows a jury to convict a defendant only if it has no reasonable doubt as to the truth of each of the claims required to be proved by the State. No definition or explanation can make any clearer what is meant by the phrase "reasonable doubt" than that which is imparted by the words themselves.
4. When faced with conflicting evidence, a prosecutor can reasonably argue that certain testimony is not believable, as long as the argument is based upon the evidence and not personal opinion.
5. When determining whether a new trial should be granted based upon prosecutorial misconduct, an appellate court considers three factors: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.
6. Under the facts of this case, the prosecutor improperly defined reasonable doubt and made improper comments concerning the defendant's credibility as a witness. However, the misconduct did not deny the defendant a fair trial.
The opinion of the court was delivered by: Malone, J.
Before PIERRON, P.J., MALONE and BUSER, JJ.
Damion La Mark Jackson appeals his convictions of two counts of attempted first-degree murder and one count of aggravated battery. Jackson claims he was denied a fair trial based upon prosecutorial misconduct during closing argument. Specifically, Jackson argues the prosecutor improperly defined reasonable doubt and made improper comments concerning Jackson's credibility as a witness. We agree with Jackson that the prosecutor's remarks were improper, but we conclude the misconduct did not deny Jackson a fair trial.
On March 26, 2006, Nicole Schmidt took her two children to Jackson's house so that Jackson, who was her ex-boyfriend and the children's father, could watch them. Jackson lived with his mother, Marva Jackson. While at Jackson's house, Schmidt and Jackson got into a heated argument. The argument began on Jackson's porch and eventually moved into the street. Schmidt attempted to leave with her children, but Jackson would not let her leave and continued to argue with her. At one point, Jackson either hit or pushed Schmidt, who was holding the youngest child, and made her fall down. According to Schmidt, throughout the argument Jackson told her that if she called the police, he would shoot her, the police, and himself. A neighbor saw the argument and called the police.
Officers Phillip Trusskey and Ryan Fincher arrived at the scene. As the police vehicles were turning onto Jackson's street, Jackson went back into his house. Trusskey arrived on the scene first and approached Schmidt to investigate the domestic disturbance call. Schmidt told Trusskey that she wanted to leave and complete the criminal investigation at a later time. Trusskey allowed Schmidt to leave with her two children, and Trusskey and Fincher approached the house.
When Fincher reached the house he encountered Marva and spoke to her on the front porch. While talking to Marva, Fincher heard what he believed to be one muffled gunshot coming from inside the house. Upon hearing the gunshot, Marva started yelling, believing that Jackson had killed himself. After the gunshot, the officers attempted to enter the house. Fincher saw Jackson carrying a rifle, and Jackson began shooting. Both Fincher and Trusskey took ...