*1 STATE OF MONTANA, Appellee, Plaintiff and v. LEE
CHERYL
CRISWELL and
EDWIN JAMES CRISWELL,
Appellants.
Defendants
No. DA 12-0132 and DA 12-0133.
February
Submitted on Briefs
2013.
July 2,
Decided
2013.
Rehearing
August
Denied
opening had operated told years, an “animal Idaho handling rescue” in for several “hundreds and Eventually, however, operation hundreds and hundreds of cats.” was shut down. The Criswells kept number of their cats and They around, initially relocated northwest Montana. living moved company leave, for awhile on Plum Creek land until asked at staying campgrounds. Finally, they and thereafter various moved (west some Kalispell). onto land near Marion *3 The to acknowledged jury Criswells the in their opening ¶5 statements that their situation desperate. in December 2010 was in, “They got they vehicle, fuel, they they snowed had no had no had food, they money, had they got really desperate, things got no no really point, they At that had jury bad.” 116 cats. The Criswells told they loved their and did out Rather, cats not set to harm them. “tragedy” funds, assistance, huge struck: “lack lack of cold snap storm, perfect into a turned storm for The disaster.” Criswells suggested that the evidence would show that their situation not behavior, result of criminal due to beyond but was circumstances their control. Deputy County Attorneys Flathead Kenneth R. Park and
¶6 Lori evidence, presented Adams the State’s which is detailed below under One. At case-in-chief, Issue the close ofthe State’s the Criswells moved dismiss to for insufficient The Court evidence. District heard arguments and denied the as motions to both defendants. The presented testimony witnesses, Criswells then from five defense including themselves, prosecution Criswells and the thereafter two presented rebuttal witnesses. closing In Park arguments, prosecutor referred to
living “squatters camp” situation as a characterized Criswells “professional as freeloaders.” Park asserted also that the Criswells had animals, “run out” for abusing implied been of Idaho and he that the lieu of providing marijuana medical money on spent had based on for a mistrial jointly moved The Criswells their cats. food for improper, remarks been finding that Park’s While these remarks. remarks, within considered Court also found the District trial, the Criswells’ prejudice did not three-day the entire context of motion. denied their The court thus fair trial. right to a District Court The Cheryl guilty. and Edwin jury found years, and period of six Cheryl of sentence imposition deferred conviction) (who felony prior had a Edwin committed years those two years, two Corrections for Department subject made and Edwin’s sentences Cheryl’s suspended. 200 hours complete each conditions, including that various severally jointly and restitution pay and that community service County Animal Shelter. $14,684.47 the Flathead in the amount of only possessing Cheryl and Edwin also limited The District Court each, spayed animal provided the animal companion one neutered. issues. This Court raising the same two appeal, now The Criswells appeals. their
has consolidated
DISCUSSION evidence to present Did the State Issue One. sufficient convict? Review
I. Standard of sufficiency-of-the-evidence Although approach 11¶ theories, standards governing legal distinct argument under two essentially the same. are that the State’s evidence was hand, the Criswells contend On one thus, and, the District Court send the case to
insufficient to A motion to to dismiss. their mid-trial motion granted should may made at the close of be for insufficient dismiss 46-16- the evidence. Section at the close of all evidence or prosecution’s if, only viewing the evidence granted The motion should be MCA. there is not sufficient the prosecution, favorable to light in the most *4 find the essential trier of fact could which a rational upon evidence Rosling, v. doubt. State beyond offense a reasonable elements of the de novo a 35, 1, P.3d 1102. We review 342 Mont. 180 2008 MT ¶ evidence exists as to whether sufficient court’s conclusion district 126, 19, Mont. 160 P.3d Swann, MT v. ¶ convict. State 511. evidence hand, that the State’s the Criswells contend On the other and, finding guilt jury’s ultimate support
was insufficient thus, this Court should reverse their convictions. A claim of insufficiency support may evidence to a verdict raised for the be appeal. Granby, 193, 198-99, first time on State v. 283 Mont. 939 P.2d (1997). 1006, 1009 In assessing whether sufficient evidence supports conviction, we view the light evidence most favorable to the prosecution and determine whether a rational trier of fact could have found all the essential beyond elements of the offense a reasonable Torres, MT 101, 16, 369 516, 299 doubt. State v. Mont. P.3d 804. Analysis II. The District Court instructed the that to a person convict aggravated animal cruelty, the State had prove beyond a reasonable doubt that
1. The Defendant cruelty collection, inflicted to animals on a kennel, animals; or herd of ten or more 2. The knowingly. Defendant acted 45-8-217(2),
See MCA.The § District Court defined “cruelty to animals” as follows:
Cruelty to animals justification, means that without person knowingly subjects an animal neglect by: to mistreatment or
1. confining the manner, animals in a cruel failing to provide the person’s animals custody with food and water quantity of sufficient quality to sustain the animal’s normal health. 45-8-211(l)(b),
See (l)(c)(i), § MCA. Finally, the District Court jurors instructed the had to Cheryl’s guilt determine separately that, from Edwin’s guilt and “in order to find a Defendant guilty, you must unanimously agree upon the commission of the same specific act constituting the crime within the period alleged.” On appeal, challenge only Criswells justification” “without They element. argue that the State failed present sufficient evidence that the manner in which their cats were confined and nourished from 25, 2010, December 17 to unjustified. State, on the other hand, argues prosecution presented sufficient evidence from which a rational trier of fact could find that there justification was no cruelty for the the Criswells inflicted. Given arguments, these we must novo, review trial record de light and in the most favorable to the prosecution, to determine whether the State presented sufficient justification” on the “without element. According testimony to the witnesses, of the State’s relocated from Idaho to Montana in July time, 2010. At three travel roughly trailers and 100 cats. The initially around, staying moved at campgrounds, various in early but November *5 Marion, a half mile off near about they up campsite a set had cut back Road, clearing the forest been Valley in a where Pleasant Winnebago motor included an old campsite lines. Their power home, green camper. and a yellow camper, a Borton, Montana, Kate the Criswells contacted arriving in Upon ¶17 Marion. The Criswells livestock rescue near nonprofit a operated who rescue, her they and asked they nonprofit a cat told Borton that were they up could set a mobile funding places of and where about sources had organizations that referred them to several local home. Borton operation. she first started her rescue assisted Borton when Borton over the had further communications with The Criswells Edwin provided them with cat food when next few months. She They continued to ask her about they running were out. indicated and about funding “already nonprofit for their active” rescue sources of sensed, however, home. Borton that put a their mobile place and, fact, with her forthcoming” “not were “evasive” Criswells were living their situation. about Spay the Flathead andNeuter The Criswells also had contact with They to Task represented in the summer and fall of 2010.
Task Force they they group were an animal rescue personnel Force of money. appointments The Criswells made to have a number had no clinics, which spay-and-neuter altered at the Task Force’s their cats always a month. The Criswells were not able were held once however, facility, Force so Task Force transport the cats to the Task donated pick up. drove out to the cats The Task Force also volunteers Notably, always the Criswells met Task Force pet foodto the Criswells. and Task Force Director Mimi personnel away campsite, from their (like Borton) had at trial that she felt the Criswells Beadles testified living. She found it unusual that been “evasive”about where were facility group” permanent a “rescue would not have a website or the animals. people where could see medical issues in several of the personnel Task Force observed that were example, pregnant For the two females
Criswells’ cats. infections, three July upper respiratory clinic had brought into the relating clinic had issues brought September of the ten males into the eyes. spoke expressed their Beadles with Edwin in October and Thereafter, of the Criswells’ cats. concerns about welfare any their cats or neutered at the spayed Criswells declined to have clinic. November half Sometime in the first of December longer admitted that no could care for
contacted Beadles and Society the Humane Beadles advised them to contact cats. Billings organization United States in be able to because would in a large group expressly through take cats. Edwin refused to follow suggestion, however. Edwin, On a call December Borton received from who was at gas station in Marion. He told that his truck broken her down Cheryl food, fuel, totally heating and that he and out of out of of money. going out He told Borton that “he was to walk back to the campsite were, wife he where his was and his animals and was done.” grabbed bags Borton immediately gas some food and drove *6 station. She some diesel for the heater bought fuel Criswells’ and helped get campsite. Edwin back to the day, camped The next another individual who was near the
¶23 gave testified, them ride to Borton’s ranch. As Borton later Cheryl appeared very shape.” They “hungry, and Edwin “in bad were very thin, very dirty,” and cold Borton “obviously to the core.” noted one feet Cheryl’s that of was frostbitten. The Criswells’ demeanors very quiet, they you “were and couldn’t eye”-except look the when cats, Borton the point “very asked about at which the Criswells became very defensive.” Spay Borton and a volunteer with the and Neuter Task Force
alerted Officer County Paul Charbonneau ofFlathead Animal Control situation-i.e., they to the Criswells’ living that were near Marion with 100 cats were “in over and dire straits.” Charbonneau decided to 17). that (Friday, conduct welfare check afternoon He December first campsite. drove to the to Due the amount of snow on the ground, park he had Valley to Pleasant Road and walk to the campsite. Upon arriving, he on Winnebago green knocked and the yellow trailers, camper but no one answered. He see through could the windows that there were cats in both trailers. Charbonneau noted that he did not a cell phone signal at the Even campsite. when he Valley Road, back got coverage to Pleasant at “spotty” was best. Charbonneau home proceeded ascertaining Borton’s after that the Criswells were there. The Criswells admitted him that they help needed not take could care themselves and the cats on Yet, their own. suggested when Charbonneau the cats transporting facility, they the Task Force the Criswells indicated that instead to take cats find wanted with them and a shelter. Charbonneau explain tried to going were not to find a shelter able to take people two and a hundred stay cats. Borton offered to let the Criswells her, campsite with but the Criswells elected to return to their evening. provided with a food. bag Charbonneau of cat (December 18). Borton campsite day visited the Criswells’ next green enter the her to hesitancy,” allowed “a lot of
With had Edwin by setup. surprised Borton was yellow trailers. with were retrofitted camper trailers her that previously told Rather, “there any kennels. cats, did not see but Borton kennels for by jumped on ... and I was I in there walked was a free-for-all. head, my my shoulders.” Had them on 15 or 20 cats. probably “cats and there were “cramped,” “very small” and trailers were ceilings. moving around in the cats Borton even heard everywhere.” as “uninhabitable” trial, the trailers At Borton characterized and the smell everywhere, feces animals. “There was people and both eyes, made me strong my it burnt urine was so ammonia from the of diesel fuel that trailer, there also a smell yellow In the cough.” going pass I was that I was afraid strong “so and vivid Borton found cats in the two trailers many Borton noted out.” pans no water visibly sick. She saw emaciated, dehydrated, and trailer, she any yellow cat foodin the but trailer, nor did she see either green trailer. the floor in the dry note some cat food on did leaving. He as Borton was campsite arrived at Charbonneau water, food.Charbonneau advised plus pet additional brought fuel and arrangements to have making the Criswells that he started to the Task Force and the trailers towed campsite plowed into the road however, unfolded, process ultimately facility. As events days due to a number of delayed for several removing the trailers was the road problems mechanical logistical significantly, issues-most *7 under the meantime, and the cats remained In the the trailers grader. Criswells’ control. 22, campsite the road to the Finally, Wednesday, December
¶29 inside) (with the cats still and the trailers were towed was cleared the Criswells did facility. testified that the Task Force Charbonneau him; rather, they him to custody to “allowed” exactly “relinquish” not day, he and Beadles made and the cats. The next remove the trailers entered the cats into the clinic. Charbonneau arrangements to transfer trial, At he food and fresh water. provide trailers to the cats with morning of a “free-for-all.” On the the scene inside as described removing the cats. began Charbonneau December at trial about the conditions and Beadles testified Charbonneau trailers on December 23 and they entered the they had observed when to what descriptions Their were similar respectively. December highly The trailers were still on December 18. Borton had seen urine. “entirely covered”with feces and “[E]verything”was unsanitary. extent, feces, covered, and also to some The cats themselves were breathing them. Even with type had “some of fuel oil” on some also “overwhelming.” apparatus, Charbonneau found the smell Due to the (such coyotes) weather and the threat of predators cold as vicinity of the been campsite, cats had confined continually “fifthly]” in this Other than what environment. 23rd, food, actual provided Charbonneau had on the there was no cat water, pans. no no clean bowls litter Nearly all of the Criswells’ cats had a issue of medical some Yunker, Dr. kind. Terrance R. veterinarian who examined the cats trailers, following their from the their removal summarized conditions issues, Twenty-one eye conjunctivitis, at trial. cats had such as eye, eye, ruptured scarring, discharge. sunken corneal and ocular Nine removed, of these cats had have their eyes and Dr. Yunker noted “very that one of the had cats been in severe Five pain.” cats had problems relating mouths, their required which removal of their Twenty-five teeth. had respiratory cats conditions attributable to viral Forty-three dehydration. and bacterial causes. cats suffered from quarters Three of the cats underweight, being were nine severely Fifty emaciated. ear cats had mites. Two or three had skin cats lesions. An untold number had diarrhea. Charbonneau, Beadles, Yunker that, and Dr. each testified professional opinions, the cats’ medical conditions were
attributable to the manner in which had been confined in the Criswells’ trailers. Dr. Yunker explained “density” was one of the problems. Cats, main he are explained, animals, not pack confining together so many in a area only put small not substantial animals, stress on the but also facilitated transmission of diseases among unsanitary them. The conditions and lack proper food and only water compounded problem. Eleven of the old; Criswells’ cats were less than six months
roughly eighty-five old; six and eighteen between months and the over years remainder were three old. Three cats were pregnant nursing. two were Dr. Yunker testified that he believed most of these genetically cats were related to opined each other. He that the Criswells rescued than had no more half a cats and dozen bred the rest. Dr. Yunker estimated that the medical cats’ conditions had been
ongoing Likewise, for several months before their rescue. Charbonneau and Beadles unsanitary indicated that conditions inside the trailers existed before trailers were towed from the Criswells’ In campsite. regard, Beadles that it required testified volunteer *8 per day sanitary living hours to maintain for the conditions following Moreover, cats their transfer to facility. the Task Force
520 cat pounds 210 of day and per food of cat pounds
cats consumed $175, mention overhead not to weekly cost of a week-at per litter equipped had not been Criswells electricity. The as such expenses care. level of this minimal provide (on again on and cross-examination questioned Borton was acknowledging examination) funding. While the issue of
redirect funds, she nonprofit to obtain easy for a always it is not funding arrange proper must organization that a rescue emphasized the animal “you get don’t opined that animals. She taking in the before bag me a somebody will donate oh, well, maybe in six months go, and got to have place, you’ve something got to have You’ve dog of food. water, food, and shelter live, got to have you’ve facility for them veterinary and light, animal, you’ve got to appropriate made such had not The Criswells absolutely.” place, care preparations. Rosenthal, a veterinarian Dr. Jeff final was The State’s witness Society. The Humane the Idaho Director of the Executive
and involving the events to discuss Dr. Rosenthal called prosecution 2005, he in October He testified that years earlier.1 several Animals, a cat “rescue” that ofVoiceof inspection an conducted rural area of in a fairly property remote running on Criswells were housing eight trailers consisted of operation Idaho. northern and urine” and “filled with feces were of cats. The trailers hundreds medical issues. signs cats showed of Many poor repair.” “in were during the October informed Dr. Rosenthal unsanitary and their trailers were inside that the conditions inspection them that the cats. He told among illnesses leading to were “divest that the Criswells should segregated and needed to be animals could, because the cats as soon as many of as themselves Nevertheless, being it used for.” for the use was facility was unsuitable eleven property to the an unannounced visit made when Dr. Rosenthal (in 2006), even worse. There conditions were September later months foodand and urine. While fecal contamination “significantly more” feces, among the food was scattered “much of present, water hundreds of cats With clean water.” much of the water wasn’t there would have been testified that Dr. Rosenthal together, confined getting cats not food, the weak sick for competition fights deal of stress” great “a The cats suffered nutrition needed. testimony considered was to be that this Court instructed The District mistake, propensity knowledge and not character only purposes and absence *9 this diagnosed situation. Dr. Rosenthal problems, various medical including upper respiratory disease, conjunctivitis, flea and ear mite infestation, and emaciation due to malnutrition or illness. He problems cats, attributed these to the extreme number of the extreme density cats, of the and lack proper food, water, and sanitation. end, In the 400-plus 264 of the cats removed from the trailers had to be euthanized. the foregoing testimony Given witnesses, from the State’s we
disagree with the Criswells’ contention that the State failed to present sufficient they evidence that acted justification. without Again, viewing the light most prosecution, favorable to the (and did) Criswells knew of the problems that can ultimately result from attempting to house and care large for a number of cats without adequate funding and facilities. The Criswells knew that confining multiple together cats in cramped quarters, and failing provide food, water, with proper sanitation, and stresses the cats and Yet, leads to medical issues. despite this knowledge, despite and money food, lack of the Criswells chose to confine over 100 cats together trailers, in two camper which were wholly inadequate to house this Moreover, number of cats. they chose to situate themselves and their cats in a relatively location, remote a half mile offthe county road, where there was no cell phone coverage and where vehicle access during winter months would problematic. be The unsanitary conditions of the trailers and the illnesses ofthe cats inside existed for weeks, perhaps months, even before the cats were Throughout rescued. this period, resources were available to help the Criswells and their cats, yet the Criswells maintained an intransigent attitude and persisted in concealing the true conditions of their facilities and their cats from those who could provide assistance. Borton, This included Beadles, Charbonneau-who, upon learning severity of the situation, promptly rallied members of community effect a rescue. Focusing on the specific charged dates in the Amended (December
Information 17to 25), December the Criswells contend that natural beyond forces their control-severe winter weather-dictated the manner in which the cats were confined and nourished from the 21st, 17th to the and that the cats were in the care and possession of County from the Thus, 22nd to the 25th. maintain that could not have done anything improve the cats’ during situation period. argument, however, This misses the mark. The issue before jury was Criswells, whether the justification, without knowingly subjected animals to mistreatment neglect. supra. See Based that the Criswells fact could find: trier of testimony, a rational
on the finances cats, knowing that their large number keep decided to animals; that the lack insufficient to sustain facilities were care existed for several water, sanitation, and medical food, proper not to obtain Criswells decided weeks, months; if not point access to at which assistance until December meaningful justification snow; the Criswells had no by was hindered campsite cats and to unmanageable number of keep an their decisions to thereby subjected assistance; and that the obtaining delay in the form of cruel neglect, to mistreatment or their animals nourishment, December 17 to from inadequate and/or confinement December presented the State sufficient reasons, we hold that For these justification” finding. support a “without
evidence to
Court abuse its discretion
Did the District
Issue Two.
*10
mistrial?
Criswells’ motion
a
denying the
of Review
I. Standard
a motion for a mistrial
grant
trial court’s
or denial of
We review a
Gladue,
v.
its discretion. State
whether the court abused
to determine
1,
A court abuses its
1,
11,
Now, confining portion of this. You heard let’s talk about the Rosenthal, Yunker, and Paul Charbonneau about Dr. Dr. from Any more pictures. You’veseen the way these cats were confined. cruel, especially trailers is one or cats in those confined than two infections that the subjected are to the diseases and viral they if locked in kind of animal deserves to be confinement caused. What at a time? filth for weeks to months its own by a that this was caused you Defendants to believe The want camp squatters them in their where freak snowstorm that locked they Well, were trespassing. Montana, it snows, is northwest it it started snowing couple a months before this happened. along
Further argument, referring his to the Criswells’ testimony they had solicited and relied on donations support their Idaho operations, and Montana Park asserted: beauty juror
The ofbeing a in this country you is that get goto back to that room and ask yourself what really makes sense in case, this what really happened here. The scenario that fits this easy. The Criswells were run out of Idaho they because claiming to rescue, be no-kill cat yet their actions killed more cats than a kill they shelter and refused to listen to anybody there. The truth of the matter is that Criswells, Edwin and Cheryl Criswell, freeloaders, are professional freeloaders at that. They even stepped up here questioned Paul Charbonneau as why he didn’t bring them cleaning supplies courtesy of the taxpayers of county. The Criswells have taken freeloading to a whole many new level. How times in past [sic] words have we heard the word “give”? “donate” or figured Criswells have 501(c)(3) out they that if nonprofit animal they rescue can everyone ask give else to they stuff and don’t have go do the one thing survive, need to do to and that is work. Ladanye
Dr. even testified that Edwin has a medical marijuana card, yet he can cut yard wood and do work. We can marijuana afford but we can’t afford cat food. The Criswells did not contemporaneously object to the “squatters
camp,” Idaho,” “run out of and “freeloaders” remarks. Edwin did object, however, to “marijuana” references. argued He prosecutor “asking the jury to make a decision based on the nature of what [Edwin] is doing, not the facts of the charge.” The District Court sustained objection jurors reiterated to the were to *11 disregard anything that was not in evidence rely and were to on their “own individual and collective recollection of what the evidence is in this case and not the argument of counsel.” In closing his argument, Edwin’s counsel identified some ofPark’s “inflammatory comments” and attempted Then, to refute them. after jury had retired deliberate, to the Criswells made their motion for a mistrial. They argued prosecutor that the had jury by tainted the offering inadmissible character evidence and improper personal opinions regarding their credibility and culpability. They posited that the District Court’s curative instruction was insufficient remedy taint. In response, Park argued that the Criswells themselves had opened the door to his remarks and that their conduct met the
524 that his He maintained “squatter.” of “freeloader”
definitions on to comment or to inflame not intended remarks had been characters. the Criswells’ challenged whether the to research Court recessed The District two-step this Court’s applied The court a mistrial. warranted
remarks prejudiced comments have improper determining whether analysis for step The first is to trial. impartial a fair and right to a defendant’s If improper made comments. prosecutor determine whether made, step is to assess whether the second improper comments a fair and right the defendant’s prejudiced those comments 389, 25, Mont. MT Lindberg, 2008 ¶ trial. State v. impartial improper Prejudice resulting from 1252; Gladue, 11-12. ¶¶ 196 P.3d defendant is on the the burden presumed; is not comments his prejudiced comments improper prosecutor’s that the demonstrate Gladue, 25; 27. Lindberg, impartial ¶ trial. right ¶ her to a fair and or resulted, improper comments prejudice determining In whether entirety. Lindberg, of the case its in the context must be viewed 25. ¶ that Park’s test, Court first found this the District Applying inflammatory, they were in that improper
remarks were in the record. The District Court any basis or without unprofessional, however, had not met their burden determined, that the Criswells then remarks, of the entire viewed the context demonstrating impartial trial. trial, right to a fair three-day prejudiced speech” “loose his himself had been with The court noted that Edwin testimony. during his “spoke and often in a vernacular” Analysis III. grant a trial court’s noted, for abuse of discretion As we review Gladue, apply a mistrial. We ¶ denial of a motion for judge position the trial the best standard because deferential the introduction of the event at issue-whether gauge the effect that testimony, or evidence, questionable presentation inadmissible during closing argument-will making improper comments Seaman, 466, 475-76, 771 P.2d 236 Mont. jury. State v. 238, 113 290; 130, 27, P.3d MT 327 Mont. (1989); Long, State v. ¶ 44, 134 Here, 89, 61, 332 P.3d 82. we Dubois, MT Mont. State v. did not abuse its discretion. that the District Court conclude the District analysis, agree we prong the first As to
525
There
evidence in
improper.2
that Park’s remarks were
was no
Court
been
record
the
that the Criswells had
“run
supporting
the
assertion
Idaho,
there
that
had a
although
out” of
was evidence
Edwin
card,
marijuana
there was no
that Edwin had
medical
evidence
in
food. It
actually purchased marijuana
providing
lieu of
cat
improper
during
not ofrecord
prosecutor
for a
to comment
evidence
Gladue,
14;
Daniels,
247, 26,
closing argument.
State v.
2003 MT
¶
¶
Furthermore,
331,
Mont.
Flathead Valley community special case, took “a interest” in the jury “already feeling pressure audience,” from the and Park’s only remarks “served the jury’s feelings heading bias into The trial judge rejected deliberations.” considered this possibility and it, and judge, we do not believe the doing, in so failed to employ judgment First, conscientious or exceeded the bounds of reason. after objected references, Edwin marijuana to Park’s judge reminded the jurors rely were to on their own memories disregard and were any by assertions counsel of matters not in potential prejudicial evidence. “The improper arguments may effect of cured jury be when the been regard has admonished not to those Gladue, Second, statements as evidence.” the judge gave careful motion, consideration to the an recessing for over hour study the legal Third, relevant standards under this Court’s cases. motion, denying jury already noted judge that the been exposed language during to “loose” and “vernacular” Edwin’s appeal, dispute In its answer brief on the State it *13 living the Criswells’ aware of already were well
testimony, jurors Rather than relied on donations. the fact situation and remarks, more it is by Park’s against being biased they were: for what those remarks jurors saw plausible defendants unnecessary disparagements unprofessional guilt. bearing question on the having no to observe position is in the best “Because the trial court made statements questionable effect of determine the jurors and rulings in its of discretion it a latitude argument, given is closing Here, statements."Dubois, mistrial based on such motions for in the remarks-considered prosecutor’s that the judge determined trial jurors as to render the egregious not so entire trial-were context ofthe have not shown fairly. The Criswells judging the evidence incapable of ruling. discretion an abuse of
CONCLUSION a rational upon which sufficient evidence presented The State Criswells, doubt that beyond find a reasonable trier of fact could animals knowingly subjected justification, without 25, 2010. The 17 to December neglect from December or mistreatment denying the Criswells’ discretion in did not abuse its District Court for a mistrial. motion Affirmed. WHEAT, RICE, McGRATH, JUSTICES JUSTICE
CHIEF COTTER, BAKER and MORRIS concur. McGRATH concurs.
CHIEF JUSTICE Court, separately I write the decision of the I concur with While I to be the nature of what believe only the serious emphasize overwhelming that, given I misconduct. concur prosecutor’s the Criswells’ case, prejudice did not in this the comments tend to Jurors, my experience, trial. impartial to a fair and rights judgment and can good sense and grounded in common come to court missteps. illogical attorneys’ peculiarities overlook generally prosecutor’s review of the Court’s careful Considering the District there gave jury, to the that the court and the instructions comments fairly. The fact conducted proceedings question little however, mean that convictions, does not affirm the Criswells’ that we condone the prosecutor’s improper we or tolerate remarks. designed judicial WTiilenot to be used as criteria for evaluation of
misconduct, provide the ABA Standards for Criminal Justice do an for appropriate professional Regarding benchmark conduct. 3-5.8(c) prosecution, provides “[t]he Standard should prosecutor make arguments appeal prejudices jury.” not calculated to to the ofthe Justice, ABA Criminal Standards for Prosecution Function and (3d 1993). Function, 3-5.8(c), Defense Standard ed. The comments explain: further
Unfortunately, some an prosecutors permitted excess of zeal for or a fancy exaggerated carry conviction rhetoric to beyond permissible [See of argument. e.g. Berger limits (1935).] States, course, v. United 295 U.S. prosecutor Of must be free present arguments logical vigor. force and Nonetheless, remarked, the Supreme may as Court has “while he blows, liberty strike hard he is not at to strike ones.” [Berger, foul 88.] 295 U.S. at
Remarks calculated to bias or prejudice evoke should never be by anyone, made in a court especially prosecutor. Where the jury’s predisposition against particular segment society some *14 exploited stigmatize witnesses, is the accused the accused’s such argument clearly trespasses the bounds reasonable inference or fair comment on the evidence....
ABA Standards at 107-08. Supreme recently rejected petition United States Court a
certiorari in a where prosecutor appeals case the made similar prejudices.1 Although petition, Court denied the Sotomayor Justice joined by issued a statement Breyer Justice to ensure that petition the Court’s denial of the did not signal tolerance of the prosecutor’s statement, remarks. In improper Sotomayor Justice quoted Judge Frank of the Circuit Appeals: Second Court of “If government in a is jurors counsel criminal suit allowed to inflame the by irrelevantly arousing prejudices, deepest jury may become weapon against in his hands a lethal may directed defendants who be innocent. He not permitted juror, should be to summon that thirteenth questioning defendant, African-American, prosecutor While is who asked, got African-Americans, you’ve got Hispanics, you’ve got bag “You’ve full of money. light go say, you-a you drug Does that tell bulb doesn’t off in an This head (2013). States, deal?” Calhoun v. United 133 S.Ct. States v. United (quoting at 1137 Calhoun, 133 S. Ct.
prejudice.” 1946) (J. (2d Frank Cir. Co., 155 F.2d Fireworks Antonelli omitted)). (footnote prosecutor, a former Sotomayor, Justice dissenting) dignity of our remarked, conduct diminishes “[s]uch further rule oflaw. We for the respect undermines justice system and criminal offear and not to fan the flames justice, seek the Government to expect Calhoun, 1138. 133 S. Ct. at prejudice.” Court, prosecutor District to the explanation In his inflame the intended to remarks had not been maintained that his Opinion, characters. See the Criswells’ or to comment on inflame the If intended to hard to believe. not Personally, I find that characters, then what were comment on the Criswells’ jury or Prosecutors officer of the court. A is an prosecutor intended to do? these By making and the rule of law. promote justice must strive respect undermined the jury, prosecutor comments to improper Although prosecutor’s comments justice system. for the criminal case, emphasized in this it must be grounds for a mistrial were not is not to be tolerated. type that this of conduct notes “does not finding unnecessary, ‘unprofessional, district court’s the comments were ” inflammatory.’ remarks improper excuse Park’s this does not testimony. While Fourth, in effect. prejudicial mitigate it does tend closing, “only” to bias remarks served that Park’s asking us to find remarks possibility them, ignore against days of credibility. After three Park’s impugn served to instead