dissenting.
[122] A review of the record has convinced me that the prosecutor's misconduct was a small part of the trial and does not rise to the level of prejudice accorded by the majority. Therefore, I must respectfully dissent from the reversal of the appellant's conviction.
[¥23] In view of all of the evidence at trial, the one isolated exchange during cross-examination did not affect the outcome of the trial. The jury was afforded the opportunity to see and hear Earll, as well as Catfish and Bunnie, and weigh for itself the respective credibility of each; warts, plea bargains and all. The testimony from Catfish and Bunnie was that Earll had not only smoked methamphetamine that morning but also had, in fact, purchased a quantity of it from Catfish. There was ample testimony that Earll was good friends with Catfish and was very familiar with the methamphetamine operations at the trailer, not to mention the fact that law enforcement personnel observed Earil transporting a bag containing methamphetamine. In that light, the statements regarding Cox's alleged testimony were merely cumulative.
[T 24] In addition to the testimony of Catfish and Bunnie, the jury was instructed regarding statements made by counsel. The prosecutor's misrepresentations were quickly countered and denied not only by defense counsel but also by the defendant himself. The trial judge immediately made it clear that the comments were not evidence, as indicated by his intimations that if counsel wanted to continue, they would be put under oath. Rather, the instruction given by the trial court was specifically created for situations such as this one. In the absence of any evidence to the contrary, we should assume that the jury has the ability to follow instructions and does, in fact, abide by those instructions.
[125] Furthermore, the closing argument did not constitute misconduct. The prosecutor's statement that Earll was the only person who said he had not smoked methamphetamine was true. The other two witnesses to the events of that morning and who testified during the trial stated that Earll had indeed smoked methamphetamine that morning. The prosecutor's statement does not mention any statements by Tracy
*794Cox at all. In fact, it is clear from the context of the quote that the prosecutor was referring to testimony given at the trial, That was a permissible argument based on the evidence adduced at trial.
[126] The gravity the majority applies to the prosecutorial misconduct is based largely on the conventional belief that a jury automatically views a prosecutor in a favorable light, thus heightening the possibility of prejudice arising from perceived prosecutorial misconduct. In view of some recent cases before national audiences, it may be that such conventional wisdom is open to reconsideration.
[127] But assuming for the sake of this opinion that a jury will bring a certain regard for the prosecutor to the beginning of a trial, surely no one believes that such regard is immune to attack or erosion during the course of a trial.
[128] Here, as soon as the prosecutor's misstatement was made, both the defense counsel and the defendant himself vigorously contradicted it. The trial court immediately corrected, one might say ridiculed, counsel,
eliciting laughter from the jury. Later, after instructing the jury as to how to view the prosecutor's statements, the trial court saw fit to comment on the sins of prosecutors, generally. Under these cireumstances, given this climate, any exalted position afforded this prosecutor most certainly was destroyed. Vet, the jury weighed all that it had heard and seen and returned a conviction.
[129] Under these cireumstances, viewing the trial record in its entirety, I can only conclude that the prosecutor's misuse of Tracy Cox's alleged testimony did not constitute substantial prejudice depriving Earll of a fair trial, and that Earll was convicted in spite of prosecutorial misconduct and the fallout it generated, not because of it. I would affirm the conviction.