5.8 Closing Argument

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.8 CLOSING ARGUMENT

The prosecution has the right to open and conclude arguments during the penalty hearing. ²²² As noted in paragraph 4.1 of this book, prosecutorial misconduct, particularly during a closing argument, can constitute reversible

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error. The test for reversible prosecutorial misconduct generally includes three relevant factors: (i) whether the prosecutor's misconduct was pronounced and persistent, creating a likelihood that the misconduct would mislead the jury to the prejudice of the defendant; (ii) the strength of the properly admitted evidence against the defendant; and (iii) the curative actions taken by the trial court. ²²³ The Fourth Circuit has reviewed claims of improper argument where the prosecutor expressed personal opinions on the evidence and the credibility of witnesses ²²⁴ and urged the jury to have the "guts" to give the defendant the death penalty. ²²⁵ In United States v. France, ²²⁶ the court noted that "although it is likely whistling in the wind, we feel it necessary to remark that many, or perhaps most, of the reversals and new trials following convictions in criminal cases are brought on by overkill or like overzealous or reckless prosecution on the part of the government."

In a noncapital case, Warmouth v. Commonwealth, ²²⁷ the commonwealth's attorney's closing argument asserted that defense counsel's job "is to try to throw as many red herrings at you to confuse you, to drag things out, to make thing[s] appear differently than they really are. He really doesn't want you to concentrate." The court held that "this argument was improper. It did not address the issues of the case." However, the courts have recognized that even grossly improper argument may be harmless error. ²²⁸ In the initial

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decision in Humphries v. Ozmint, ²²⁹ a panel of the Fourth Circuit Court of Appeals stated:

Victim impact evidence that emphasizes the harm a murder caused the victim, his family, and his loved ones is unquestionably legitimate. However, the comparative worth argument presented in this case, calling for a death sentence based on the relative value of [the defendant's] life vis-à-vis [the victim's], falls squarely within the category of prosecutorial conduct that may be so prejudicial that it renders a trial fundamentally unfair.

The en banc court, ²³⁰ however, reversed the panel because, on habeas corpus review, an incorrect application of federal law is not, in all instances, an objectively unreasonable application of the law.

Although prosecutorial misconduct must be viewed under the totality of the circumstances, there are several forms of closing argument that have been frequently condemned by the courts.

In a noncapital case, the Court of Appeals held: "In the absence of prosecutorial misconduct or bad faith, there is no due process basis for reversing Farmer's convictions simply because the prosecution proceeded under inconsistent theories of the identity of the principal in the first degree in the trial of Farmer and Williams." ²³¹

5.801 Appeals to Emotions. In a 1929 case, Dingus v. Commonwealth, ²³² the Supreme Court of Virginia found error in the argument of the prosecutor that "if it had not been for defendant there firing that shot and killing the deceased, his widow would not be here in mourning weeds." Setting aside the death sentence, the court stated that "whatever liberties are permitted to counsel for persons guilty of crime to appeal for mercy . . . and to refer to those near and dear to them who will vicariously suffer under such circumstances, the prosecutor has no corresponding liberty." ²³³

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In Clozza v. Commonwealth, ²³⁴ however, the Supreme Court of Virginia approved the Commonwealth's rebuttal argument referring to the human qualities of the victim and her family relationship. There is no constitutional or statutory barrier to presenting evidence at the penalty trial concerning characteristics of the victim or the impact of the slaying on the victim's family. ²³⁵

In Payne v. Commonwealth, ²³⁶ the prosecutor's references to the defendant as a "predator" and a "monster" "constituted fair comment upon properly admitted evidence." The court held that the death sentence was not imposed under the influence of passion and prejudice even when the judge described the defendant "as a mad dog who should be put in a gunny sack with some bricks and dropped off a bridge." The trial judge had considered evidence in mitigation as well as past crimes.

5.802 "Send a Message" Arguments. In Dingus v. Commonwealth, ²³⁷ the prosecutor asked for a verdict that would notify criminals in the surrounding area that...