Assignments of error one, two, three, four, five, six and seven are not well taken, and the judgment is affirmed.
We agree with Judge Day's decision, which follows this majority opinion, in overruling assignments of error one, five and six, and that part of seven which claims the defendants were not proven guilty beyond a reasonable doubt. We do not concur in his decision in regard to assignments of error two,1 three and four. The lack of concurrence in three and four results in our disagreement also with his conclusion that these defendants were denied a fair trial and due process as claimed in part of assignment of error seven.
Assignments of error three and four are not well taken and warrant some explanation of our conclusion with respect to them.
After defense witness Walsh testified on direct examination he had an unpleasant exchange of words with Assistant County Prosecutor Lazzaro. This dialogue took place in the hall of the courthouse during a recess and out of the *Page 367 presence of the jury. Mr. Lazzaro threatened Mr. Walsh, and a summary of this exchange is contained in Judge Day's opinion.
Following the confrontation between Walsh and Lazzaro, the parties returned to the courtroom wherein defense counsel made a motion for a mistrial based on the foregoing event. A voir dire hearing was held by the court out of the presence of the jury and Walsh confirmed that the altercation took place and that he was threatened by Lazzaro but that it would not affect his testimony as to the statements he would make or his manner of testifying.
The trial court, in effect, overruled the motion for a mistrial and permitted Walsh to continue his testimony when the trial resumed.
In separate proceedings out of the hearing of the jury the trial court found Lazzaro guilty of contempt for conduct unbecoming a lawyer and fined him $50.
The question to be resolved is whether the out of court confrontation between defense witness Walsh and Assistant County Prosecutor Lazzaro prejudiced the defendants' right to a fair trial. While we abhor the tactics of the County Prosecutor, the penalty for his conduct was properly handled by the trial court in contempt proceedings which were separate and apart from the defendants' trial and out of the presence of the jury.
We are not prepared to say that such out of court conduct is prejudicial to a defendant's right to a fair trial as a matter of law. The answer to such conduct unbecoming a lawyer is by separate contempt proceedings which was done in this case, rather than by automatically declaring a mistrial. If the record did show that the witness was affected to such an extent that his testimony would be different as to form and substance, and that the defendant would be denied his right to a fair trial and be prejudiced by the Assistant County Prosecutor's actions toward the witness, the trial court should have declared a mistrial.
However, upon reviewing the entire transcript of testimony, we find that the entire unpleasant, out of court episode between Walsh and Lazzaro did not affect the defendants' *Page 368 right to a fair trial and did not prejudice the defendants, and that the third assignment of error is not well taken.
The fourth assignment of error deals with the Prosecutor's conduct during closing arguments, in which it is charged that he appealed to the passion and prejudice of the jurors and affected the defendants' right to a fair trial.
It is noted that the trial court advised the jury that arguments of counsel are not to be considered as evidence. It is well recognized that in many cases counsel for the defense and counsel for the State become enthusiastic and exuberant in expressing their views of the evidence. But unless such arguments are considered as appealing to the passion and prejudice of the jury to such an extent that it will affect the defendants' right to a fair trial, a reviewing court will not reverse on this basis.
We have reviewed the transcript of the Assistant Prosecutor's closing argument and conclude that it did not appeal to the passion and prejudice of the jury and did not affect the defendants' right to a fair trial and could not be considered prejudicial error. The fourth assignment of error is also not well taken.2
Judgment affirmed.
SILBERT, P. J., concurs.
1 Judge Day's opinion has adequately stated the basis for our position with respect to assignment of error number two and we need not repeat it.
2 Actually, Judge Day comes to the same conclusion but for reasons founded on failure to preserve the claimed error. The majority finds no substantive error on this point in this case.