(dissenting in part).
SUTIN, Chief Judge (dissenting in part).
{31} I respectfully dissent in part.
False Statement
{32} The majority opinion quotes the statements of the prosecutor it finds objectionable in a short-cut fashion, saying that the prosecutor told the jury in rebuttal that there was “ ‘no evidence of date rape drugs’ because the judge would not ‘allow [them] to hear’ it.” Majority Opinion, ¶¶ 1, 2. The majority opinion then states that this statement was false and misleading because it suggested that scientific evidence of drugging existed. Majority Opinion, ¶¶ 15, 17. The full statement and actual context of the prosecutor was:
Mr. Esparza [defense counsel] says, No evidence of date rape drug. That is wrong. The Judge wouldn’t allow things— wouldn’t allow you to hear things that you are not allowed to consider as evidence. That wouldn’t come in. That’s why you get instructed.
So when [Victim] sat there from this bench, from this witness stand and said, I felt like I had never felt before. I felt drugged. That is testimony. You are allowed to consider that.
When Dr. Williams came in and said that all of her statements were consistent with being drugged, you’re allowed to consider that.
The foregoing followed two statements by defense counsel that there was “simply no proof’ of a date rape drug, and “simply no proof’ that “this was a drug-induced incident.” When the evidence in the case is considered together with defense counsel’s closing argument and the prosecutor’s rebuttal, the circumstances do not reflect that any aspect of the prosecutor’s statements was false and misleading.
{33} Victim testified that it felt like someone had thrown her in “gel,” explaining that “it was just heavy,” she could not get her arms to move, her legs were not working, her tongue was heavy and thick, and she could not respond to the questions of her friend, Marcie King. She had never felt like that before. The amount of alcohol she drank would normally not make her have the next-day symptoms of being “very sick,” her body feeling “real achy,” her stomach being “extremely nauseous,” having diarrhea, and her head hurting. She never had the lack of memory that she experienced that night, and she was “terrified” by her inability to move or talk. She felt as if she had been drugged. Her friend testified that she observed Victim’s behavior change “drastically,” sliding “downhill” within twenty to thirty minutes. Dr. Williams testified about what can occur from date rape drugs. Thus, there was evidence in the case from which the jury could infer that Victim may have been incapacitated from a drug. Therefore, the defense counsel’s closing argument statement that there was “simply no proof’ of a date rape drug was incorrect, as the prosecutor correctly noted.
{34} The prosecutor immediately followed with the statement that “the [jjudge ... wouldn’t allow you to hear things that you are not allowed to consider as evidence. That wouldn’t come in. That’s why you get instructed.” Read in full context, one could reasonably conclude that the prosecutor was explaining nothing more than the correct procedure in jury trials that the judge’s job is to assure that the jury only hears what it is allowed under the rules to consider as evidence. One could also reasonably conclude that the judge did not in this case exclude evidence that the jury should have heard and thus the evidence the jury heard was properly before it for consideration during its deliberation. One could further reasonably conclude that the judge did not exclude any particular incriminating evidence of which the jury was unaware. There is no indication whatsoever in the record that the prosecutor was specifically suggesting that evidence existed, much less scientific evidence, of which the jury was unaware, that was excluded by the court and that the jury did not hear.
{35} Contrary to the majority’s view, even were it possible to construe the prosecutor’s statements to indicate exclusion of evidence, there is nothing to indicate that he was referring to exclusion of scientific evidence. There are two strong reasons for this. First, the evidence in the case and the arguments of counsel to the jury drove home that there were no scientific tests or other scientific evidence showing that any kind of date rape drug was given to Victim. As well, the prosecutor had earlier reminded the jury during his initial closing remarks that “[y]ou heard no expert ... say that we tested the blood and the urine and found the rape drug.” He also informed the jury that Dr. Williams was the only person who testified about a date rape drug, explaining that the drug goes in and out of the system fast “before the woman knows what hit her,” that “[t]hey take away ... memory,” and “[t]hat’s the way they are used.”
{36} Second, the only drug-specific evidence that was excluded by the court was that relating to Victim’s having seen at Defendant’s house what she believed to be Ecstasy. The court granted a motion in limine forbidding Victim from testifying “as to which person may have surreptitiously drugged her without her consent.” Also, as a pretrial matter immediately before trial began, Defendant moved to exclude any testimony regarding Ecstasy, and the court determined that certain testimony regarding Ecstasy would not be permitted. Thus, the only evidence that the court excluded relating to drugging was any discussion of pills Defendant showed her at an earlier time, who specifically may have drugged her, and certain testimony about Ecstasy. The evidence had nothing to do with science.
{37} Based on the foregoing, I see no basis on which to characterize anything the prosecutor said as being false and misleading. Further, to state in an opinion that a lawyer has made a false statement, and particularly to infer as the majority does that the statement was intentionally misleading, is a serious accusation that ought not be made unless the falsity, and particularly an intent to mislead, is clear. I therefore think that the majority is in error in their characterization of the prosecutor’s statement.
Fundamental Error
{38} Even were it possible to construe the prosecutor’s statements as indicating in some manner that the court would not allow drug-related evidence of which the jury was unaware, it is unlikely that the jury was influeneed by it in reaching their verdict or, if influenced to some degree, that the test of fundamental error was met. Evidence of Victim’s incapacity from either alcohol or drugs or both was strong if not overwhelming. The prosecutor’s statement could hardly have been a contributing factor to the verdict.
{39} For all of the foregoing reasons in this dissent, I respectfully cannot agree in the majority’s determination to reverse under the fundamental error doctrine.