Clausell v. State

No. 04-175

IN THE SUPREME COURT OF THE STATE OF MONTANA

2005 MT 33

AMUIR SEKOU CLAUSELL,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone, Cause No. DV 02-0620,
The Honorable Russell C. Fagg, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender Office, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: January 19, 2005

Decided: February 15, 2005

Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 Amuir Sekou Clausell (Clausell) appeals from the denial of his Petition for

Postconviction Relief by the Thirteenth Judicial District Court, Yellowstone County. We

affirm.

¶2 Clausell raises the following issues on appeal:

¶3 1. Whether the District Court erred in denying Clausell’s Petition for Postconviction

Relief based upon prosecutorial misconduct.

¶4 2. Whether the District Court erred in denying Clausell’s Petition for Postconviction

Relief based upon ineffective assistance of counsel.

BACKGROUND

¶5 Resolving this appeal requires a limited discussion of the facts, but for a complete

background on this matter, see State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111,

where we affirmed Clausell’s conviction of deliberate homicide. At approximately 3:00 a.m.

on March 22, 1997, Clausell delivered Georgiana Trottier (Trottier) to the emergency room

at Saint Vincent Hospital in Billings where she later died of a single gunshot wound to the

head. Clausell stayed at the hospital while doctors treated Trottier and police officers

eventually arrived and questioned him. Over the course of the early morning and during the

ensuing investigation, Clausell recounted at least eight different stories about Trottier’s

shooting to hospital personnel, police officers, and two friends, all of whom testified at trial.

Officers arrested Clausell later that morning and proceeded to investigate Clausell’s

apartment where the shooting took place.

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¶6 Police officers first found several pieces of evidence outside Clausell’s apartment,

then knocked and announced their presence, but received no response. The police officers

secured the exterior of the apartment and entered the apartment through the rear unlocked

sliding glass door in order to look for other victims or suspects and to protect the safety of

the officers. This warrantless “protective sweep” turned up Trottier’s blood in various

locations, including on Clausell’s bed, bedding, floor and wall of the bedroom, as well as on

the stairs and handrail. The police officers then sought a search warrant for Clausell’s

apartment.

¶7 While waiting for the search warrant, police officers discovered a .22 caliber pistol

with one spent round in the chamber, wrapped in a towel, and located in a bucket

immediately outside the back door to Clausell’s apartment. Police officers searched

Clausell’s apartment once they secured the warrant and found .22 caliber ammunition and

a life insurance policy, held by Trottier, naming Clausell as the primary beneficiary.

¶8 The District Court appointed Kevin Gillen (Gillen) to defend Clausell. Gillen

represented Clausell both at trial and on direct appeal. Clausell’s trial defense rested on the

claim that Trottier’s death had been a “tragic accident.” Gillen, Clausell, and a private

investigator retained for this matter, jointly developed this “tragic accident” theory as it

conformed both with the evidence and Clausell’s eighth and final story about what happened.

To support this theory, Gillen deemed it necessary to forego objecting to the State’s

introduction of evidence from the apartment in order to bolster their claim that Clausell was

not “hiding anything.” The jury convicted Clausell of deliberate homicide and the District

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Court sentenced him to 100 years in Montana State Prison with an additional 2 years for

using a weapon.

¶9 Clausell, with new counsel, filed a Petition for Postconviction Relief (Petition) that

focused on alleged prosecutorial misconduct at trial and ineffective assistance of counsel at

trial and on direct appeal. The District Court denied all of Clausell’s claims without a

hearing, except Gillen’s failure to suppress evidence from the “protective sweep” of

Clausell’s apartment. After a hearing on this issue at which two police officers, Gillen, and

Clausell testified, the District Court concluded that Clausell failed to carry his burden to

establish that the evidence seized from the apartment would have been suppressed,

particularly in light of both the inevitable discovery and public safety exceptions to the

warrant requirement. The District Court determined that Clausell’s “tragic accident” theory

provided his best chance of acquittal, especially given that Clausell remained adamant

throughout trial, direct appeal, and the postconviction proceeding that a tragic accident is

what happened. Furthermore, given Clausell’s theory, the District Court found that the

defense “necessitated the presentation of all the facts surrounding the tragic accident. The

strategic choice of the tragic accident required the evidence seized in [Clausell’s] residence

be presented at trial.” This appeal follows.

STANDARD OF REVIEW

¶10 We review a district court’s denial of a petition for postconviction relief to determine

whether the court’s findings of fact are clearly erroneous and whether its conclusions of law

are correct. State v. Root, 2003 MT 28, ¶ 7, 314 Mont. 186, ¶ 7, 64 P.3d 1035, ¶ 7 (citation

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omitted). Claims of ineffective assistance of counsel constitute mixed questions of law and

fact that we review de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, ¶ 12, 97 P.3d

1095, ¶ 12 (citations omitted). We measure prosecutorial misconduct by reference to

established norms of professional conduct. State v. Martin, 2001 MT 83, ¶ 63, 305 Mont.

123, ¶ 63, 23 P.3d 216, ¶ 63 (citations omitted).

PROSECUTORIAL MISCONDUCT

¶11 Misconduct by a prosecutor may form the basis for granting a new trial where the

prosecutor’s actions have deprived the defendant of a fair and impartial trial. State v. Gray

(1983), 207 Mont. 261, 266-67, 673 P.2d 1262, 1265-66 (citations omitted). Clausell

contends the prosecutor made a series of improper comments during voir dire, closing

statement, and rebuttal, that individually, or if taken as a whole, influenced the jury and

prejudiced him.

¶12 Clausell attempted to raise similar issues on direct appeal. We did not review the

merits of those issues, however, due to Gillen’s failure to make timely objections to the

prosecutor’s statements at trial as required under § 46-20-104(2), MCA. Clausell, ¶¶ 43-45.

Clausell raised corresponding claims during the postconviction proceedings. Although the

District Court noted that Gillen’s failure to object to these statements at trial should have

been raised on direct appeal, it then stated that “[d]espite the failure to object, this Court will

still consider the issue.” The District Court then analyzed Clausell’s allegations of

prosecutorial misconduct before dismissing the issue. Under normal circumstances we

would not review separately Clausell’s claims of potential misconduct due to his failure to

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preserve the issue for appeal. Clausell, ¶ 45; § 46-20-104(2), MCA. In this case, however,

the District Court’s decision to analyze the issue and the close nexus between Clausell’s

prosecutorial misconduct claims and his ineffective assistance of counsel claims leads us to

address briefly Clausell’s allegations of prosecutorial misconduct.

¶13 First, Clausell argues that the prosecutor improperly attacked Gillen by stating during

voir dire and closing statement that Gillen was “hiding the ball,” thereby implying Gillen lied

during the presentation of Clausell’s case. The context of the prosecutor’s “hide the ball”

comments reveals that the prosecutor used the term to remind the jurors of his point during

voir dire that jurors should use their common sense when deciding this matter. After

analogizing about using common sense to make decisions when crossing a street, the

prosecutor stated:

[T]he books, the movies we watch, all hide the ball. . . . That is what you see
in the movies. We hide the ball until the last minute when the butler in the
back jumps up and screams, I did it.

I just want to make sure we can all use our common sense. Can we all agree
on that?

The prosecutor revisited his voir dire comments about common sense during his closing

statement: “Counsel, ladies and gentlemen, you have heard a masterful job by a very

eloquent attorney at attempting to hide the ball. . . . Now we agreed we could use our

common sense in accordance with the Judge’s instructions.” He then related a story about

his child’s friend lying to him in order to focus the jury’s attention on Clausell’s conflicting

stories. The record confirms that the prosecutor’s comments did not constitute prosecutorial

misconduct as they were not meant to impugn Gillen’s credibility, but to keep the jury

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focused on the evidence presented.

¶14 Clausell next argues that the prosecutor improperly commented on Clausell’s

credibility and inferred he was lying when, during closing statement, the prosecutor related

the story about his child’s friend lying to him and immediately tied that story to Clausell’s

defense theory. The State points out, however, that Clausell takes these comments out of

context. Indeed, the record shows that this story formed part of the same example Clausell

used to allege that the prosecutor improperly attacked Gillen. The State contends that the

prosecutor referred to Clausell’s conflicting statements and, through the use of analogy,

illustrated how a decision-maker weighs the inconsistent statements against the physical

evidence in order to find the truth. We agree.

¶15 Clausell also takes issue with a rebuttal statement by the prosecutor regarding

Clausell’s possible use of a towel or pillow to muffle the gunshot noise despite the lack of

physical evidence presented to corroborate that contention. Clausell maintains that the

State’s firearm expert concluded that the towel found in the bucket had not been wrapped

around Clausell’s gun when fired. He argues, therefore, that the prosecutor’s statements

regarding attempts to muffle the gunshot noise were “meant to inflame the jury’s passions

so they would disregard his defense that Trottier shot the gun.”

¶16 We reject Clausell’s contention on the ground that Clausell had an opportunity to

present his alternate explanations at trial. Indeed, Clausell consistently held to his defense

theory of a tragic accident, which by its very terms, concedes that there had been a gunshot.

Clausell’s sole defense was that he did not shoot the gun; a defense that Clausell consistently

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promoted throughout the trial. The jury had ample opportunity to consider whether Clausell

fired the gun, and the State certainly had the right to refute his defense theory. The record

also demonstrates that the prosecutor’s statement properly offered a possible explanation

why Clausell’s neighbors had not heard a gunshot. The prosecutor appropriately inferred

why no neighbors heard a gunshot and his comments seem particularly fitting given that

police officers found the gun in a bucket wrapped in a towel outside of Clausell’s apartment.

¶17 Finally, Clausell argues that the prosecutor violated his due process rights when the

prosecutor urged jurors to put themselves in the place of Trottier. The prosecutor actually

asked the jury not to put themselves in Trottier’s shoes, but instead asked the jury to follow

the evidence trail left by Trottier’s body and determine “what speaks for [Trottier]? The

evidence, Defendant’s actions, Defendant’s admissions.” These isolated incidents of which

Clausell complains do not constitute prosecutorial misconduct.

¶18 Even if we gave Clausell the benefit of the doubt and determined that any single

prosecutor comment, or these comments taken cumulatively, constituted error, Clausell has

not demonstrated such error affected the trial’s outcome. See State v. Kills on Top (1990),

243 Mont. 56, 95, 793 P.2d 1273, 1299. Here the prosecutor’s comments focused on

rebutting Clausell’s “tragic accident” theory. The State presented sufficient evidence for

jurors to find Clausell guilty of deliberate homicide, see Clausell, ¶ 35, and the District Court

correctly admonished jurors to base their verdict only on the evidence before them. We

conclude that Clausell did not establish that the prosecutor engaged in misconduct.

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 INEFFECTIVE ASSISTANCE OF COUNSEL

¶19 The Sixth Amendment of the United States Constitution and Article II, Section 24, of

the Montana Constitution guarantee the right to effective assistance of counsel. We have

adopted the two-part test of Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674, to evaluate ineffective assistance of counsel claims. Kougl, ¶ 11. Clausell

first must demonstrate his counsel’s actions fell below an objective standard of

reasonableness or were deficient. Kougl, ¶ 11. Clausell must overcome a strong

presumption that his counsel’s defense strategies and trial tactics fall within a wide range of

reasonable and sound professional decisions. Davis v. State, 2004 MT 112, ¶ 20, 321 Mont.

118, ¶ 20, 88 P.3d 1285, ¶ 20. If Clausell meets the first prong, he then must show that his

counsel’s deficient performance prejudiced him to the extent that a reasonable probability

exists that the result of the proceeding would have been different had counsel not performed

ineffectively. Kougl, ¶ 11. A reasonable probability means a probability sufficient to

undermine confidence in the outcome, but it does not require that a defendant demonstrate

he would have been acquitted. Kougl, ¶ 25.

¶20 Many of Clausell’s claims of ineffective assistance of counsel relate back to Gillen’s

failure to object to the prosecutor’s comments made during voir dire, closing statement, and

rebuttal. A defense counsel’s use of objections lies within his or her discretion; a failure to

object must, beyond being error, also prejudice the defendant. State v. Campbell (1996), 278

Mont. 236, 250, 924 P.2d 1304, 1313. It is not unreasonable, however, that counsel, as a

trial tactic, would refrain from objecting during opening and closing statements. See Dawson

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v. State, 2000 MT 129, ¶ 105, 301 Mont. 135, ¶ 105, 10 P.3d 49, ¶ 105 (commenting that

the failure to object during closing argument and opening statement is within the “wide

range” of permissible professional legal conduct). It is also not beyond the realm of

reasonableness that defense counsel would not object during certain times of the trial so as

not to confuse the jury or bring undue attention to the prosecution’s case. See State v. Olson,

2004 MT 158, ¶ 17, 322 Mont. 1, ¶ 17, 92 P.3d 1204, ¶ 17 (noting that any number of

reasons not apparent on the record may explain why an attorney chooses not to lodge an

objection).

¶21 In this case, most of these potential objections related to what Clausell claims to be

instances of prosecutorial misconduct. Of course, we held in ¶ 18 above that no

prosecutorial misconduct occurred. Thus Gillen’s failure to lodge objections to those

statements cannot be deemed ineffective assistance of counsel. Moreover, the record

demonstrates that Gillen made motions in limine, timely objected to evidence offered by the

State that resulted in certain testimony being precluded, and presented a viable defense to the

jury. Given the strong presumption that Gillen’s defense strategies and trial tactics fall

within a wide range of reasonable and sound professional decisions, the District Court

correctly determined that Clausell failed to carry his burden of establishing that Gillen’s lack

of objections fell below an objective reasonableness standard.

¶22 Clausell further argues that Gillen’s failure to seek to suppress the evidence obtained

during the search of Clausell’s apartment constitutes ineffective assistance of counsel.

Clausell arrived at the emergency room claiming Trottier had suffered a head injury and

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needed help getting out of his car, but failed to inform the medical personnel that her head

injury resulted from a gunshot wound suffered inside his apartment. Once the medical

personnel discovered the gunshot wound and related Clausell’s improbable story to police

officers, the officers likely had sufficient probable cause to search the apartment. And yet,

Clausell continued to provide further inconsistent statements to the police officers thereby

bolstering a finding of probable cause to search the apartment. During their investigation,

the police officers found a .22 caliber pistol with one spent round in the chamber wrapped

in a towel inside a bucket located immediately outside Clausell’s apartment. The police

officers properly searched the area outside of Clausell’s apartment as he possessed no

reasonable expectation of privacy in the exterior of his apartment, particularly given that the

bucket was apparently in plain view. See State v. Hubbell (1997), 286 Mont. 200, 210, 951

P.2d 971, 977 (holding that there is no legitimate expectation of privacy with respect to

property leading up to and including the threshold of a residence, therefore police officers

were well within their authority to proceed on the open walkway to the front door, where

they saw evidence in plain view).

¶23 Under these circumstances, the fact that police officers then conducted a “protective

sweep” of Clausell’s apartment after entering through an unlocked back door before

obtaining a warrant likely would not have tainted the ultimate search. The police officers

surely could have obtained a warrant to search Clausell’s apartment based upon the events

at the hospital, his inconsistent statements to police officers and medical personnel, and the

discovery of the gun outside his apartment. Therefore, under the inevitable discovery

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doctrine, the evidence seized at Clausell’s apartment would have been allowed. See State

v. Nottie, 2003 MT 170, ¶ 20, 316 Mont. 345, ¶ 20, 71 P.3d 1233, ¶ 20.

¶24 Even if Gillen’s failure to seek to suppress the search of Clausell’s apartment

constitutes deficient performance, Clausell still must demonstrate prejudice to the point that

a reasonable probability exists that the result of the proceeding would have been different.

Any attempt by Gillen to suppress the evidence would not have changed the outcome of trial

given the facts supporting the probable cause to search and the inevitable discovery of the

evidence. Therefore, Clausell failed to carry his burden of establishing that Gillen provided

ineffective assistance of counsel by not attempting to suppress the evidence.

¶25 Finally, Clausell argues that Gillen performed ineffectively during his appellate

representation based upon an inherent conflict of interest resulting from the fact that Gillen

would have to advocate his own ineffectiveness to succeed on several of the issues that

should have been raised on direct appeal. Clausell maintains that the issues Gillen raised on

direct appeal failed because Gillen asked this Court to review trial errors he failed to preserve

properly by not making timely objections. See Clausell, ¶¶ 26, 45. Even if Gillen had

properly preserved the alleged trial errors, Clausell was not prejudiced because Gillen’s lack

of objections did not constitute ineffective representation, as discussed in ¶¶ 20-21 above.

Therefore, we do not feel it necessary to analyze this issue under these facts.

¶26 In the final analysis, Clausell has failed to overcome the strong presumption that

Gillen’s defense strategies and trial tactics fell within a wide range of reasonable and sound

professional decisions. Although he may not agree with the tactics or decisions that were

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made, particularly because he was convicted and sentenced to prison, he has not

demonstrated in this appeal that Gillen’s actions fell below an objective standard of

reasonableness or were deficient. Even if some of the decisions could be deemed sufficient

to pass the first Strickland prong, Clausell has not shown he was prejudiced to the point that

a reasonable probability exists that the result of the proceeding would have been different

had counsel not performed ineffectively. We conclude that Clausell has failed to meet his

burden in demonstrating that Gillen provided ineffective assistance of counsel in this matter

and the District Court correctly denied Clausell’s Petition for Postconviction Relief. We

affirm the District Court on both issues.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ JIM RICE

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Justice James C. Nelson dissents.

¶27 I cannot agree with our Opinion. As long as we are going to address the individual

claims of prosecutorial misconduct, I would hold that the cumulative effect of such

misconduct prejudiced Clausell’s right to a fair trial and that his trial counsel did not render

constitutionally effective assistance by reason of counsel’s failure to object.

¶28 We have held that a prosecutor’s primary interest should be to see that justice is done,

and not simply to obtain a conviction. State v. Hart (1981), 191 Mont. 375, 381, 625 P.2d

21, 25, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981) (citing Berger v.

United States (1935), 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314). See also ABA

Standards for Criminal Justice § 3-1.2(b) and (c) (3d ed. 1993) (hereinafter ABA Standards)

(“The duty of the prosecutor is to seek justice, not merely to convict.”).

¶29 It is well settled that a prosecutor may not make derisive comments about opposing

counsel. United States v. Frederick (9th Cir. 1996), 78 F.3d 1370, 1379-80 (reversed for

cumulative error including comments about defense counsel’s skill in confusing a witness

and saying that defense counsel would ask the jury to consider bits and pieces of the

evidence); Bruno v. Rushen (9th Cir. 1983), 721 F.2d 1193, 1195, cert. denied, 469 U.S.

920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984) (criticizing prosecution’s statements that defense

counsel acted in underhanded and unethical ways); United States v. Rodrigues (9th Cir.

1998), 159 F.3d 439, 451 (holding that the prosecutor’s statements that defense counsel had

“from the start been trying to deceive the jury and had told the jury what was ‘flat out

untrue’” were improper); United States v. Friedman (2d Cir. 1990), 909 F.2d 705, 708-10

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(criticizing as grossly improper prosecutor’s comments that defense counsel would have the

jury pull the wool over its eyes).

¶30 In the case sub judice, the prosecutor commented in voir dire that “tricky” lawyers,

such as those seen on television, always try to “hide the ball.” He explained to the jury that

his mother did not trust lawyers because they “hide the ball.” The prosecutor also related

that where he grew up in Northeastern Montana, attorneys were created somewhere and were

brought in to be confrontational and “tricky.” Then, in his rebuttal argument at closing, the

prosecutor stated: “Counsel, ladies and gentlemen, you have heard a masterful job by a very

eloquent attorney at attempting to hide the ball.” Aside from demeaning lawyers in general,

the law does not permit these sorts of comments.

¶31 In Frederick, the court held that, while the prosecutor’s comment about defense

counsel being a skillful cross examiner who confused the victim was not improper, the

comment that defense counsel “is asking you to look at little bits and pieces” was improper

because, among other reasons, it implied that defense counsel was asking the jury not to see

the truth. Frederick, 78 F.3d at 1379-80. In the instant case, the prosecutor’s comments that

tricky lawyers attempt to hide the ball is on par with the “bits and pieces” comment in

Frederick. In both cases, the prosecutor is telling the jury that defense counsel is asking the

jury not to see the truth.

¶32 To make matters worse, the prosecutor also related a story to the jury about an

incident between his daughter and a neighbor child:

Last summer my daughter Katie and our neighbor friend David were
playing in the backyard. My wife and I were in the living room watching TV,

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 and when all of a sudden Katie burst through the back door, bawling, “David
hit me,” and we look as she’s running in the bathroom and she’s bleeding from
her left ear.
My wife goes into the bathroom to take care of the small cut on Katie’s
left ear, and I thought I better go and find out what happened.
So I called Dave in and I asked Dave, “What happened?” And he looks
at me, being about seven years old, and says, “You know, Katie was swinging
on the swing, doing that trick she does where she rocks back and forth, and she
fell off.”
And I hear Katie call from the bathroom, “Huh-uh.” And so I look at
Dave and I said, “Dave, what did you do?” “Nothing.”
I hear from the bathroom, “Huh-uh.”
So I said, “Dave, did you touch Katie?”
“Well, I was pushing her, but I was just pushing her back because she
wanted to be pushed.”
“Okay, so you did at least come in contact with her?”
“Yeah.”
“Did you come in contact with her head?”
“Well, I might have as I was pushing her.”
“So you did hit her in the ear?”
“Well, yeah, but see, um, we were running to the swing, and a, we were
going to grab it, and she grabbed it and took it away, and she wouldn’t share
the swing with me.”

¶33 After telling this irrelevant, non-record, personal story to the jury, the prosecutor then

tied the neighbor child’s false statements into Clausell’s version of the events, suggesting

that Clausell was lying.

¶34 We have consistently condemned trial counsel who invade the province of the jury

by injecting their personal opinions on witness credibility. State v. Stringer (1995), 271

Mont. 367, 380, 897 P.2d 1063, 1071; State v. Arlington (1994), 265 Mont. 127, 157, 875

P.2d 307, 325.

¶35 Moreover, in State v. Stewart, 2000 MT 379, 303 Mont. 507, 16 P.3d 391, we

specifically condemned the story-telling tactic used by the prosecutor in this case. In

Stewart, the prosecutor told the jury an irrelevant story about a rape case he had prosecuted

16
and lost, and made comments about Missoula County needing a new jail. Stewart, ¶¶ 35-36.

The prosecutor also told the jury that Stewart’s denials were so common that prosecutors had

named Stewart’s defense the “some dude” defense: “Blame it on somebody, some dude,

some dude sitting out there.” Stewart, ¶ 41. In Stewart, the State conceded that the latter

remarks were improper because they referred to matters outside the record and to the

prosecutor’s own experience and because they were an improper comment on witness

credibility and simply the prosecutor’s personal opinion. Stewart, ¶¶ 41-42 (citing Stringer,

271 Mont. at 380-81, 897 P.2d at 1071; State v. Gladue, 1999 MT 1, ¶ 21, 293 Mont. 1,

¶ 21, 972 P.2d 827, ¶ 21). On remand for a new trial, we admonished the prosecutor not to

refer to the rape story, the need for a new jail in Missoula, and the “some dude” defense.

Stewart, ¶ 45.

¶36 The prosecutor in this case committed precisely the same sort of misconduct that we

condemned in Stewart. He referred to an irrelevant, non-record, personal story about a

neighborhood child being caught in a lie and, from that, he then characterized Clausell as a

liar: “Now, isn’t that really what we have in this case?” “Just like my good friend David

who went through a bunch of stories, didn’t line up; this one doesn’t either.”

¶37 Our precedent clearly condemns the tactics that the prosecutor used here. He injected

irrelevant, non-record facts, which were based on his personal experience, into the case and

he then used those to invade the province of the jury by commenting on Clausell’s

credibility.

¶38 As to the matter of Clausell using a pillow or towel to muffle the gunshot noise,

discussed in ¶ 15 of the Court’s Opinion, there was no evidence in the record to support the

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prosecution’s argument to that effect. Indeed, the State’s firearms expert concluded that the

rags found in the bucket with the gun were not wrapped around Clausell’s gun when fired.

And, the State failed to produce any evidence of any other item being wrapped around the

gun. The State’s muffled-gun theory was pure conjecture without support in the record.

¶39 In closing arguments, the prosecutor may argue all reasonable inferences from the

record. ABA Standards § 3-5.8(a). “The most elementary rule governing the limits of

argument is that it must be confined to the record evidence and the inferences that can

reasonably and fairly be drawn from it.” ABA Standards § 3-5.8(a) Commentary.

Convictions based on prosecution arguments unsupported by record-based evidence are

properly reversed. See United States v. Manning (1st Cir. 1994), 23 F.3d 570, 575; United

States v. Teffera (D.C. Cir. 1993), 985 F.2d 1082, 1089; United States v. Forlorma (2d Cir.

1996), 94 F.3d 91, 93-94. The same result should obtain here.

¶40 Finally, we dismiss Clausell’s argument that the prosecutor violated Clausell’s due

process rights when the prosecutor urged jurors to put themselves in the place of the victim.

Here the prosecutor twice asked the jury to assume the position of the dead victim as if she

was present in the court room. The prosecutor stated: “You see, Ms. Trottier, Georgie, does

not want your sympathy, ladies and gentlemen. She’s dead. She wants justice.” He also

asked the jury to “imagine” as if they were Ms. Trottier, sitting in the court room trying to

direct the jury about what evidence was important. Combining these two themes, the

prosecutor then stated: “Georgie’s voice is crying out to you through those things. I ask,

please go in, listen to Georgie’s voice, and come out and tell this Defendant that you heard

it, Guilty, guilty.”

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¶41 These types of “Golden Rule” arguments are improper, as they interfere with the

jury’s objectivity. See Boyington v. State (Tex. Ct. App. 1985), 738 S.W.2d 704, 708-10;

DeJesus v. Flick (Nev. 2000), 7 P.3d 459, 464; McGuire v. State (Nev. 1984), 677 P.2d

1060, 1064.

¶42 I conclude that the cumulative effect of the foregoing incidents of prosecutorial

misconduct prejudiced Clausell’s rights to due process and to a fair trial. United States v.

Roberts (1st Cir. 1997), 119 F.3d 1006, 1016. Our Opinion makes the same mistake as did

the District Court--we view each of these incidents of prosecutorial misconduct in isolation

and ignore their combined effect.

¶43 Finally, I would hold that Clausell was not given constitutionally effective assistance

of counsel by reason of his counsel not objecting to any of the foregoing misconduct. This

failure was not preserved for appellate review, as it should have been, and now we have

thrown holy water on the prosecutor’s misconduct and defense counsel’s failure to object to

it. Clausell’s right to due process and to a fair trial has been violated. Gravley v. Mills (6th

Cir. 1996), 87 F.3d 779; Hagen v. State, 1999 MT 8, ¶ 20, 293 Mont. 60, ¶ 20, 973 P.2d 233,

¶ 20.

¶44 In failing to apply the proper precedent to the prosecutor’s misconduct in this case,

we have, unfortunately, significantly lowered the bar for the performance of trial counsel in

future cases and, worse, our Opinion will simply encourage more of the same improper

conduct.

¶45 I would reverse and remand this case for a new trial. I dissent from our failure to do

so.

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 /S/ JAMES C. NELSON

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