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Prosecutor Faulted for Closing Argument

A defendant’s conviction of dogfighting is reversed because the prosecutor’s recitation during closing argument of defendant’s prior criminal charges that purportedly went unpunished was so prejudicial it required a mistrial, the Court of Appeals holds.

Cross-examination

Although the prosecution asked defendant’s wife on cross-examination if she was testifying in his favor because she was afraid of him, as evidenced by her claims of assaults and emergency protective orders against him, defendant waived objection to this evidence when he acquiesced in the trial court’s decision to read to the jury defendant’s prior offenses.

Defendant’s acquiescence to the trial court’s attempt to provide a curative action has waived any argument regarding a mistrial concerning these actions. Defendant is unable now to challenge the prosecutor’s question listing defendant’s prior offenses, as he agreed to the action taken by the trial court after his objection and motion for a mistrial. Defense counsel told the trial court directly that he had “no objection to all of your directives” to the prosecutor in the reading of defendant’s prior charges, including charges of assault on his wife and her four prior emergency protective orders against him.

Even after defense counsel was informed that the charges involved more serious offenses than assaults and protective orders, he continued to agree with the trial court’s decision to read the charges and dates to the jury. He did not object to the admission of the documents relating to defendant’s prior charges.

Defendant has waived any grounds for a mistrial based upon the commonwealth’scross-examination and the court’s response to it. We do not consider this portion of the record in our analysis of whether a mistrial was warranted in this case.

Closing argument

The prosecutor’s closing argument specifically referenced prior charges against defendant that involved his wife. The commonwealth’s attorney told the jury defendant was asking them to find him not guilty, “just like he was found not guilty” of the prior charges against him. Unlike his previous reference to these charges, which involved an effort to demonstrate the wife’s bias, this statement was clearly an effort to persuade the jury that defendant was more likely to have committed this crime because of his prior interactions with the criminal justice system. It is well settled that evidence of other crimes or bad acts of an accused is generally inadmissible in a criminal prosecution. The obvious purpose of the commonwealth attorney’s statement was to suggest defendant’s “criminal propensity,” a violation of well-established legal principles regarding evidence of other bad acts or crimes.

Examining the totality of the circumstances, we find the improper comment made during the closing argument was so impressive as to remain in the minds of the jurors and influence their verdict.

We hold it was an abuse of discretion for the trial court to deny defendant’s motion for a mistrial. The commonwealth offered no argument that the error was harmless and we find no basis for such a holding.

The trial judge denied the motion for a mistrial but made no factual determinations regarding the commonwealth’s attorney’s intent. Since we now reverse the denial of the motion for a mistrial, we remand the matter back to the trial court for a finding on whether the prosecutor’s actions were an effort to subvert the protections afforded by the Double Jeopardy Clause.

There was sufficient evidence to support the conviction for promoting or preparing for dogfighting. Two expert witnesses testified about the physical evidence seized from defendant’s property, including a breeding stand, spring pole and flirt pole, which they described as items used in the breeding of fighting dogs. Defendant had numerous dogfighting publications and journals, some of which contained defendant’s own advertisement for puppies, in which he used language relating to dogfighting.

Reversed and remanded.

Hawkins v. Commonwealth (Malveaux) No. 1863-15-2, Dec. 20, 2016; Caroline County Cir.Ct. (Kelly) Jean M. McKeen for appellant; Lauren C. Campbell, AAG, for appellee. VLW 016-7-312(UP), 15 pp.

VLW 016-7-312

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