State v. Roscoe

¶1I am pleased to join the majority opinion in all respects save one. I write separately merely to express my belief that the trial justice's failure to grant defendant a mistrial based upon the prosecutor's comments in closing argument insinuating that the defense had called Mrs. Mouchon "a slut" and "a whore" throughout the trial was an abuse of discretion.

¶2These statements are not only inflammatory, they are false. The record is devoid of any reference by the defense to the victim as being a "slut" or a "whore." In my judgment, these remarks could not help but "arouse the sympathy and passion of the jurors." State v. Mead , 544 A.2d 1146, 1150 (R.I. 1988). Nor do I believe that a curative instruction could expiate the prejudice inherent in such fallacious and incendiary comments. To be sure, the defense strategy was to suggest that this 85-year-old woman was involved in a consensual sexual relationship with a man over fifty years younger. As difficult to believe as that theory may seem-the jury clearly rejected it-the theory is a far cry from characterizing the victim as a "slut" and a "whore."

¶3I appreciate the majority's indignation concerning the prosecutor's inappropriate remarks. I would, however, go one step further and declare that they were so outrageous as to require a new trial. In doing so, I am reminded of the United States Supreme Court's admonition that prosecutors have a "unique responsibility" in our system-"his [or her] duty is to seek justice, not merely to convict." Young v. United States ex rel. Vuitton et Fils S.A. , 481 U.S. 787, 803, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (quoting American Bar Association Model Code of Professional Responsibility EC 7-13 (1982) ). "He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

¶4I join without reservation in the Court's opinion to the extent that it addresses the Confrontation Clause issue, and I view with favor the Chief Justice's concurring opinion that calls for a new trial because of the contents of the prosecutor's closing argument. In my judgment, there are two available grounds in this case on which a new trial could be ordered: because of the Confrontation Clause issue so nicely analyzed in the Court's opinion and also because of the impropriety of the prosecutor's closing argument-an argument that was not focused on the evidence in the record, but instead egregiously mischaracterized defense counsel's theory of the case as well as what defense counsel had actually said and done in the course of the trial.1 Although the majority does not reach the *1249issue, I should add that there was error here which was certainly not harmless.2

¶5Therefore, it is my view that the defendant in the instant case is entitled to a new trial because of the violation of the Confrontation Clause, as the majority opinion holds; but I also wish to explicitly note that this case could also be reversed due to the very inappropriate language and baseless animadversions in the prosecutor's closing argument.3