United States v. Bobbie Ray Frazier

JOHNSON, Circuit Judge,

dissenting:

The majority largely ignores many significant misstatements and improper comments by the prosecutor in his closing statement. Because I find that these un-proprieties rise to the level of plain error, I dissent.1

During the closing, the prosecutor alluded to acts of perjury that were neither charged nor proved. The prosecutor stated without further explanation that Ms. Frazier made more false statements than those charged. See Brooks v. Kemp, 762 F.2d 1383, 1403 (11th Cir.1985) (attorney may not hint that he has additional evidence he has not produced), cert. denied, 478 U.S. 1022, 106 S.Ct. 3337, 92 L.Ed.2d 742 (1986). The prosecutor moreover misrepresented to the jury that Ms. Frazier did not tell the grand jury that her medical problems caused her to forget about the conversations. See U.S. v. Valentine, 820 F.2d 565, 570 (2d Cir.1987) (reversal required when prosecutor knowingly misrepresented defendant’s grand jury testimony).

The prosecutor impermissibly expressed his personal opinion about defendant’s guilt by asserting that Ms. Frazier’s memory defense was a post hoc coverup for her lies. See U.S. v. Stefan, 784 F.2d 1093, 1100 (11th Cir.1986), cert. denied, 479 U.S. 855, 107 S.Ct. 193, 93 L.Ed.2d 125 (1986); see also, ABA Standards for Criminal Justice, § 3-5.8(b) (1986) (“It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.”). Furthermore, he unfairly maligned defendant’s counsel by making statements such as “the defense and the presentation you saw was garbage.” See U.S. v. McLain, 823 F.2d 1457, 1462 (11th Cir.1987).

The prosecutor also grossly exaggerated the weakness of defendant’s defense by repeatedly characterizing it as utterly mer-itless. Although a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). A prosecutor may even describe a defense as “absurd” and “a big fake” as *828long as the trial record supports the prosecutor’s comments. United States v. Caldwell, 543 F.2d 1333, 1361-62 (D.C.Cir.1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). In this case, however, it is undisputed that Ms. Frazier actually had blockage of her carotid artery, that she suffered a transient ischemic attack,2 that she took prescription drugs which slowed her responsiveness, and that she suffered memory loss. What was contested was whether these conditions prevented her from remembering two conversations which occurred several years before. The prosecutor’s repeated reference to the defense as “garbage,” “mush,” “absurd,” a “smoke screen,” and an “excuse for perjury” amounted to a flurry of “foul blows.” Berger v. United States, 295 U.S. at 88, 55 S.Ct. at 633.

In light of Ms. Frazier’s colorable arguments, the prosecutor failed to compile the overwhelming evidence of guilt necessary to render harmless his many improprieties. See Francis v. Dugger, 908 F.2d 696, 701 (11th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1696, 114 L.Ed.2d 90 (1991). Moreover, the trial court failed to cure the prosecutor’s errors through jury instructions. See United States v. Lopez, 898 F.2d 1505, 1511-12 (11th Cir.1990). I therefore find that the prosecutor’s improprieties “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). For the foregoing reasons, I would reverse the conviction.

. I do not address the majority’s other ruling since I find this issue dispositive.

. The attack, similar to a stroke, rendered her temporarily blind and paralyzed.