A few days ago (here), I commented on a new case in which the court reversed a conviction because of comments made by the prosecutor. Now comes another opinion from a different division of the appellate court in which the court rejects a similar claim. This new case is called People v Chester and is available here.
Are the cases consistent? You be the judge.
In the case that reversed the conviction, the court found that the prosecutor's remarks were offered to draw the jury’s attention to defendant’s decision to exercise right not to testify. Here is what the prosecutor said:
“Have you heard any evidence that he didn’t know they were the police?” . . . “You didn’t hear anything from that witness stand. You didn’t hear any evidence that he didn’t know they were the police."
In the case announced today, the court found that at least part of the prosecutor's statement was improper, but then concluded taht the error did not deny defendant a fair and impartial trial. Here is what the prosecutor said:
"What did the defendant do? Well, we have heard testimony from the officer and the officer testified hasn't been refuted or questioned in any way, you haven't heard any other testimony to refute what the officer said ..."
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