STATE of West Virginia, Plaintiff, Appellee, v. Kenneth HATALA, Defendant Below, Appellant.
No. 16739.
Supreme Court of Appeals of West Virginia.
March 5, 1986.
345 S.E.2d 310
Mary Rich Malоy, Asst. Atty. Gen., Charleston, for appellee.
This is an appeal from the Circuit Court of Monongalia County. The defendant, Kenneth Hatala, urges us to reverse his cоnviction for aiding and abetting grand larceny, citing improper remarks by the prosecutor and ineffective assistance of counsel. We find no error and affirm.
On December 15, 1983, a bystander in the Hills Department Store parking lot in Morgantown, West Virginia, was watching people leaving the store. She noticed a man, latеr identified as Mr. Hatala, and a woman approach a parked car. Both were wearing coats. When they reached the car they removed their coats, placed them in the car and went back into the Hills Department Store. The two returned later, again wearing coats, and again removеd them and placed them in the car and returned to Hills. This was repeated a total of four times. The bystander notified Hills security officers.
When the security officer approached the parked car, Mr. Hatala was not there, but two girls were sitting inside the car. One of the girls readily handed over two coats from the floor of the car. Both coats were identified as belonging to Hills. The bystander then observed Mr. Hatala going into a nearby Pizza Inn. She recognized him as the man who hаd taken the four coats to the parked car and pointed him out to the security officers. Mr. Hatala was arrested and the automobile was searсhed. The coats and several other items taken from Hills were recovered.
At a trial before a jury in the Circuit Court of Monongalia County, on July 18-19, 1984, Kenneth Hatalа was found guilty of grand larceny as a principal in the second degree, that is, aiding and abetting another to commit grand larceny.
The appellant‘s first cоntention is that the prosecutor made an improper remark in1 her closing statement by saying that the defense counsel would “give you all kinds of smoke screens.”2 No objection was made to this statement at trial. We are thus asked to take notice of the error, if there is one, under the plain error doctrine, as set out in
The plain error doctrine of
The appellant also claims that his case should be rеversed for ineffective assistance of counsel. Here the appellant relies heavily on the fact that at trial his attorney failed to objeсt to hearsay testimony by Hills’ manager as to the value of the goods stolen. At first glance this argument appears to have some merit. However, a closer look at the record shows that the declarant of the hearsay statements was present in the courtroom, ready to be a witness if needed. An objeсtion by the defense counsel would only have caused the prosecution to call one extra witness. The defense counsel is not required to make every objection if it is reasonably
Mr. Hatala had a fair trial without prejudicial error. We, therefore, affirm his conviction.
Affirmed.
MCGRAW, Justice, dissenting:
Representation by the majority in this proceeding notwithstanding, the appellant‘s objections to the prosecutor‘s closing statement extend beyond the isolated remark that defense counsel would “give you [the jury] all kinds of smoke screens.” In reality, the appellant objects to a number of statements by the prosecutor that sought to avoid its burden of proof and attacked his presumрtion of innocence, the very heart of the right to a fair trial. The prosecutor stated on closing argument:
I just want to talk to you a minute about reasonable doubt. Reasonable doubt is not some magic potion.... It boils down to: Do you believe that this young man is guilty or not? Reasonable doubt isn‘t a loophole that you hang your hat on to avoid your duty not to avoid a conviction if you believe this man is guilty by saying: Oh, I have a reasonable doubt.... Typically what defense counsel will dо is make you think there is a reasonable doubt because that is defense counsel‘s big time chance if you can find a reasonable doubt. He will give you all kinds оf smoke screens that might make you think you have a reasonable doubt. [Emphasis added].
This line of argument by the prosecution in this case was unquestionably improper. It erroneously informed the jury that it could convict the appellant even if it was not convinced of his guilt beyond a reasonable doubt as long as it “believe[d] this man is guilty.” Moreover, it implied that the jury should ignore whatever reasonable doubt it might “think” it had, since such doubt would most likely be the product of defense counsel‘s efforts at obfuscation.
In People v. Brown, 111 A.D.2d 248, 250, 489 N.Y.S.2d 92, 94 (1985), the court stated:
We also find it necessary to comment with respect to improper conduct of the prosecutor during trial so that it will not hereafter be repeated. At one point during his summation, after characterizing defense counsel‘s arguments as a cloud of black ink * used to confuse the issues, thе prosecutor stated, “I am going to lead you through that cloud of confusion to the truth“. The implication that the defense arguments were intended to confusе while those of the People were on the side of truth, were wholly improper.... Moreover, later during his summation, the prosecutor stated that, “[b]y your verdict yоu should speak the truth. It is not a search for reasonable doubt.” Such a comment implied that the jury should convict even if not convinced beyond a reasonable doubt, so long as it believed its verdict represented the “truth“.
Although the court reversed on other grounds, 111 A.D.2d at 250, 489 N.Y.S.2d at 94, it clearly implied that repetition of this argument by the prosecutor upon retrial would сonstitute reversible error.
In my view, the prosecutor‘s improper argument in this proceeding denied the appellant his fundamental right to a fair trial and cоnstituted plain error. Although some prosecutorial latitude with respect to closing argument is undoubtedly essential, a prosecutor does not have cаrte blanche to