Friday, January 17, 2020

"I Saw It. It Was Right There" Prosecutor's Argument Draws New Trial

A new trial has been granted to a defendant in a child sex abuse case in light of the prosecutor's closing argument. 

The Rhode Island Supreme Court held that a curative instruction was insufficient

During closing argument, the prosecutor stated:

“This man, Henry Bozzo, molested that young girl. It wasn’t a mistake. He did it intentionally. He stared at her as she was walking out of the courtroom. He stared her down. I saw it. It was right there. That is no mistake there.” (Emphasis added.)

The defendant immediately objected. The trial justice reserved ruling on the objection. The prosecutor continued: “You know there is no mistake there. He knew what he was doing.” After the prosecutor concluded his closing argument, the trial justice called for a sidebar, and defendant moved to pass the case, arguing that the prosecutor was “basically testifying[,]” and making an “absolutely a hundred percent improper argument.” The defendant contended that the prosecutor improperly referred to that which he had personally observed, rather than to facts that were in the trial record. The defendant also argued that the prejudice caused by the statements was so significant that it could not be cured by an instruction. The state responded that the prosecutor’s remarks stemmed from defendant’s conduct and demeanor when Veronica left the stand—all of which occurred in the presence of the jury. The state further argued that, even if the remarks were inappropriate: “It’s only argument. I think the [c]ourt can instruct on that. I think a curative instruction would be fine. The [c]ourt is going to give an instruction that it’s only an argument. It’s not to be considered as evidence.”

The trial court held the remark and gave a curative instruction, to which the defendant did not object.

The court

We are of the opinion that the prosecutor’s statements exceeded the “considerable latitude” he was allowed because his statements were not based on evidence or testimony adduced at trial, were extraneous to the issues in the case, and had the potential for unfair prejudice. Lastarza, 203 A.3d at 1166. We are also satisfied that a curative instruction could not  overcome the prejudice in this case. Thus, we conclude that the trial justice erred in denying defendant’s motion to pass the case.

An issue involving the presence of Bikers Against Child Abuse at the trial

We need not reach the merits of defendant’s BACA-related contentions, because these claims are procedurally infirm. The defendant did not object to the presence of BACA members in the courtroom during Veronica’s testimony, nor to Veronica wearing a BACA vest, until after Veronica testified. And defendant declined the trial justice’s offer to give a curative instruction to the jury about the presence of the BACA members in the gallery. The defendant did not move for a mistrial, propose an alternative curative instruction, or provide any substantive feedback on the proposed instruction.

Warwick Post reported on the sentencing.

During the trial, the State proved that on Aug. 4, 2015, Bozzo molested a seven-year-old female known to him.  The victim disclosed the abuse to her mother and grandmother, who in turn reported the abuse to the police in early September.

On Sept. 2, 2015, Bozzo was arrested by the Rhode Island State Police for possession of child pornography. He pleaded no contest to the charge on May 9, 2016 and was sentenced to four years suspended with probation plus additional conditions prohibiting access to computers and the Internet as well as being ordered to have no contact with children.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/01/a-new-trial-has-been-granted-to-a-defendant-in-a-child-sex-abuse-case-in-light-of-the-prosecutors-closing-argument-the-rhod.html

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