PUBLISH
UNITED STATES COURT OF APPEALS
Filed 7/26/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 95-2223
STEVE EDWARD GABALDON,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-94-362-LH)
Stephen P. McCue, Assistant Federal Public Defender, Albuquerque, NM, for the
Defendant - Appellant.
Mary Catherine McCulloch, Assistant U.S. Attorney (John J. Kelly, United States
Attorney, with her on the brief), Albuquerque, NM, for the Plaintiff - Appellee.
Before KELLY, BRISCOE and LUCERO, Circuit Judges.
LUCERO, Circuit Judge.
We are asked to clarify the standard of appellate review for claimed prosecutorial
trial misconduct. Defendant Steve Edward Gabaldon appeals his conviction for burglary,
in violation of 18 U.S.C. §§ 1152 and 13 and N.M. Stat. Ann. § 30-16-3(A), and larceny,
in violation of 18 U.S.C. §§ 1152 and 661. Mr. Gabaldon argues that the district court
should have granted his motion for a mistrial on the basis of three instances of
prosecutorial misconduct. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm.
I
Ron and John Abeita, cousins, lived across the road from one another on the Isleta
Pueblo, south of Albuquerque, New Mexico. While working outside in the early evening
of November 23, 1993, Ron saw a car pull up to the front door of his cousin’s house,
about 150 yards away from him. A man got out and knocked on John’s door, walked to
his car and then back to the door, and then kicked in the front door and entered the house.
Minutes later, Ron crossed the road and confronted the intruder outside the house.
The two men spoke for about fifteen minutes. The stranger initially denied breaking into
the house but, when Ron noticed a television in his car, admitted to doing so. The man
returned the television, promised to pay for the damaged door, and drove away. Ron
immediately called the police. When Officer Randy Hanes of the Isleta Police
Department arrived, Ron described the man and his car, and gave Officer Hanes the car’s
license plate number. He described the burglar as between 5'6" and 5'8" tall, wearing
blue jeans and a Chicago Bulls jacket. Defense counsel argues that Defendant Gabaldon
is only 5'4", and three witnesses -- all relatives of the Defendant -- testified that Gabaldon
never wore blue jeans or team jackets.
-2-
The police traced the car to the home of Defendant’s aunt, Darlene Williams, who
lived in Los Lunas, New Mexico. The car and its license plates matched Ron Abeita’s
description of the thief’s car, and the vehicle identification number was that of the car
registered with those plates. Defendant frequently stayed with his aunt for short periods,
did not own his own car, and had borrowed his aunt’s car on prior occasions. Darlene
Williams testified that she had not used the car that night, did not know whether the car
had remained where she parked it during the hours in question, and had a habit of leaving
the keys in the car.
As a result of a tip from Williams’ brother Carl, the police showed Ron Abeita a
photo array which included Defendant’s picture. Ron chose Defendant’s photograph out
of the array.
A jury trial was held in the United States District Court for the District of New
Mexico. In court, the prosecutor made three statements to which Defendant objected
contemporaneously on grounds of prosecutorial misconduct:
(1) During voir dire of the jury: “There will also be evidence presented by
the government in this case that one of the witnesses that you’ll hear
actually saw part of the burglary and went over and talked with the
defendant.”
Tr. at 26.
(2) During the prosecution’s opening statement: “Mr. Ron Abeita will
testify, the government believes, that he has no doubt in his mind who it
was that broke into his cousin’s house. And the government, as well,
harbors the conviction that after you hear the evidence -- ” [At that point,
the prosecutor was interrupted by the defense’s objection].
-3-
Tr. at 51.
(3) During the prosecution’s closing: “Again, the government believes that
the evidence demonstrates . . .” [Defense counsel again interrupted to
object].
Tr. at 220. To the first objection, the court responded, “Well, that’s -- why don’t you just
ask if any of them know the witness?” Tr. at 26. The court sustained the other two
objections. Before the case was submitted to the jury, Defendant’s counsel moved for a
mistrial on the basis of these statements. The court denied the motion, and the jury found
Defendant guilty on both counts of the indictment -- one count of burglary and one count
of misdemeanor larceny.
II
We address a threshold issue concerning the appropriate standard of review.
Defendant frames the sole issue on appeal as whether “Mr. Gabaldon was denied a fair
trial by repeated instances of prosecutorial misconduct.” Appellant’s Br. at 9. He asserts
that “[a]n allegation of prosecutorial misconduct presents a mixed question of fact and
law reviewed de novo.” Id.; see, e.g., United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir.
1996). Appellee frames the issue in a different way: “Whether the trial court properly
exercised its discretion when it denied appellant’s motion for a mistrial based on
prosecutorial misconduct.” Appellee’s Br. at 1. The government points out that we
review the denial of a motion for a new trial based on prosecutorial misconduct for abuse
of discretion. Id. at 10; see, e.g., United States v. Oles, 994 F.2d 1519, 1524 (10th Cir.
-4-
1993).1 At oral argument, the United States requested that we clarify the appropriate
standard of appellate review when, based on alleged prosecutorial misconduct, defendant
has both objected contemporaneously and unsuccessfully moved the district court for a
mistrial. We conclude that an abuse of discretion standard is appropriate.
When prosecutorial misconduct deprives a criminal defendant of a fair trial, the
defendant’s due process rights are violated, Greer v. Miller, 483 U.S. 756, 765 (1987),
and reversal is warranted, Berger v. United States, 295 U.S. 78, 89 (1935); United States
v. Lowden, 900 F.2d 213, 217 (10th Cir. 1990). When a defendant believes that
prosecutorial misconduct has occurred, he or she may move for a mistrial. See Haar, 931
F.2d at 1374. While the Federal Rules of Criminal Procedure offer little guidance on
when judges should grant mistrial motions, we have focused on “‘whether . . . [the
defendant’s] right to a fair and impartial trial was impaired.’” United States v. Torres, 959
F.2d 858, 860 (10th Cir.) (quoting United States v. Pinelli, 890 F.2d 1461, 1473 (10th Cir.
1989), cert. denied, 494 U.S. 1038 (1990)), cert. denied, 506 U.S. 882 (1992). The
defendant may also move for a new trial pursuant to Rule 33 of the Federal Rules of
Criminal Procedure. “The court . . . may grant a new trial to that defendant if required in
1
Appellee, citing precedent in which motion for a new trial has been made,
apparently assumes that a motion for a mistrial and a motion for a new trial are the same, or are
treated the same on appellate review. Although the Federal Rules of Criminal Procedure indicate
that they are different, see Fed. R. Crim. P. 26.3 (Mistrial); Fed. R. Crim. P. 33 (New Trial),
appellee is correct in suggesting that the standard of review in both cases is the same. See, e.g.,
United States v. Haar, 931 F.2d 1368, 1374 (10th Cir. 1991) (reviewing the denial of a motion
for a mistrial based on prosecutorial misconduct for abuse of discretion).
-5-
the interest of justice.” Fed. R. Crim. P. 33. In other words, if after weighing the
evidence and the credibility of the witnesses, the court determines that “the verdict is
contrary to the weight of the evidence such that a miscarriage of justice may have
occurred,” it may grant the defendant’s motion. United States v. Evans, 42 F.3d 586, 593
(10th Cir. 1994) (quotation omitted). Both motions for mistrial and new trial call for an
examination of the prejudicial impact of an error or errors when viewed in the context of
an entire case. This court reviews the trial court’s ruling on such motions under an abuse
of discretion standard. See Haar, 931 F.2d at 1374; Evans, 42 F.3d at 593.2
Where there has been no motion for a mistrial or new trial, the district court has
not exercised its discretion, and therefore it is meaningless to look for an abuse of
discretion. In such cases, we merely review whether the conduct objected to was indeed
improper. Whether prosecutorial misconduct occurred is a mixed question of law and
fact, which we review de novo. See, e.g., United States v. Ivy, 83 F.3d at 1288. If we
2
Defendant relies on United States v. Ramirez, 63 F.3d 937 (10th Cir. 1995), for
the proposition that when a defendant makes both a contemporaneous objection and a mistrial
motion, the court should employ de novo review. However, in Ramirez, the post-trial motion
was a motion to dismiss. Id. at 940. Although that motion was based on prosecutorial
misconduct and therefore may have been meant as a motion for mistrial but mislabelled as a
motion to dismiss, the opinion is inconclusive on this point and we decline to treat it as
controlling in cases where the defendant has moved for a mistrial. We have consistently held --
in handling cases where the defendant has moved for either mistrial or a new trial based on
prosecutorial misconduct -- that the appropriate standard of review is the abuse of discretion
standard. Evans, 42 F.3d at 593 (motion for new trial based on prosecutorial misconduct was
made); Oles, 994 F.2d at 1524 (same); United States v. Hartsfield, 976 F.2d 1349, 1354 (10th
Cir. 1992) (same), cert. denied, 507 U.S. 943 (1993); Haar, 931 F.2d at 1374 (motion for mistrial
based on prosecutorial misconduct); United States v. Novak, 918 F.2d 107, 108 (10th Cir. 1990)
(same); United States v. Butler, 904 F.2d 1482, 1486 (10th Cir. 1990) (same).
-6-
conclude that the conduct was improper, we then evaluate whether it warrants reversal.
Id. We make this evaluation as follows:
A prosecutor’s improper statement to the jury is harmless unless there is
reason to believe that it influenced the jury’s verdict. In assessing whether
the misconduct had such an impact, we consider the trial as a whole,
including the curative acts of the district court, the extent of the misconduct,
and the role of the misconduct within the case . . . [T]o warrant reversal, the
misconduct must have been flagrant enough to influence the jury to convict
on grounds other than the evidence presented.
Id. at 1288 (quotations, citations and brackets omitted).
We hold that when the district court has denied defendant’s motion for a new trial
or for a mistrial, the defendant may not ignore this determination and seek de novo
appellate review of the court’s ruling on defense counsel’s prosecutorial misconduct
objection. Rather, the proper course is for this court to review the denial of defendant’s
motion under an abuse of discretion standard.
III
In the present case, Defendant objects to three statements made by the prosecutor.
The first, the statement that “[t]here will also be evidence presented by the government in
this case that one of the witnesses that you’ll hear actually saw part of the burglary and
went over and talked with the defendant,” occurred during jury voir dire. Defendant
characterizes this as “attempt[ing] to argue the case stating Mr. Gabaldon’s guilt as a
fact.” Appellant’s Br. at 11. In the other two statements, one of which occurred during
the government’s opening statement and the other during closing, the prosecutor uttered
-7-
the phrase “the government believes” when referring to the evidence. Defendant argues
that in doing so the prosecutor impermissibly “interject[ed] her personal belief” into the
trial. Appellant’s Br. at 3. Although the jury was instructed that the arguments of counsel
“are not evidence,” tr. at 46, 182, the court did not instruct the jury specifically regarding
these utterances.
As discussed above, prosecutorial misconduct may be so egregious as to warrant
reversal. Berger, 295 U.S. at 89. In Berger the Supreme Court stated:
The United States Attorney is the representative not of an ordinary
party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall win a case,
but that justice shall be done. . . . 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.
....
It is fair to say that the average jury, in a greater or less degree, has
confidence that these obligations, which so plainly rest upon the
prosecuting attorney, will be faithfully observed. Consequently, improper
suggestions, insinuations, and especially, assertions of personal knowledge
are apt to carry much weight against the accused when they should properly
carry none.
Id. at 88; see also United States v. Young, 470 U.S. 1, 18-19 (1984) (prosecutor’s
vouching for the credibility of witnesses and expressing personal opinion on defendant’s
guilt is improper). However, the statements to which Defendant objects here are far from
egregious. The first statement was particularly innocuous; beyond conclusory assertions
of impropriety, Defendant offers no authority for his claim that it warrants reversal.
Furthermore, while we disapprove of a prosecutor personally vouching for the integrity of
-8-
government witnesses, see United States v. Primrose, 718 F.2d 1484, 1493 (10th Cir.
1983), cert. denied, 466 U.S. 974 (1984), or asserting a personal conclusion that the
defendant is guilty, see United States v. Rios, 611 F.2d 1335, 1343 (10th Cir. 1979), the
impact of the second and third statements also appears negligible.
Even assuming an improper comment, “we cannot review this comment in a
vacuum.” United States v. Manriquez Arbizo, 833 F.2d 244, 247 (10th Cir. 1987).
[G]iven the myriad safeguards provided to assure a fair trial, and taking into
account the reality of the human fallibility of the participants, there can be
no such thing as an error-free, perfect trial, and . . . the Constitution does
not guarantee such a trial . . . .
. . . [I]t is the duty of a reviewing court to consider the trial record as
a whole and to ignore errors that are harmless, including most constitutional
violations.
United States v. Hasting, 461 U.S. 499, 508-09 (1983); Manriquez Arbizo, 833 F.2d at
247-48.
The errors which occurred during this trial were minor ones, not warranting “the
drastic action of declaring a mistrial.” Torres, 959 F.2d at 860. The trial court minimized
the damage by sustaining objections and instructing the jury that the arguments of counsel
were not evidence. Defendant argues repeatedly that the prosecution built a weak case
resting solely on Ron Abeita’s testimony, and that the prosecutorial misconduct bolstered
that testimony and thus deprived him of a fair trial. However, even without this
bolstering, the evidence is quite strong. Abeita faced the burglar at close range for about
fifteen minutes, and described the man and car to Officer Hanes. His identification is
-9-
supported by the fact that the license plates led the police to Darlene Williams’ car, and
by Abeita’s later selection of Defendant’s picture out of the photo array. The car was
available to Defendant during the period in which the burglary took place, and the
defense’s alibi evidence seems unconvincing. Considering the record in its entirety
including the prosecutor’s statements, we conclude that Defendant received a fair trial --
not a perfect trial, but overall a fair one. The district court did not abuse its discretion in
denying his motion for a mistrial.
AFFIRMED.
- 10 -