Appeal from the Superior Court of the District of Columbia. (No. F-8241-02). (Hon. Erik P. Christian, Trial Judge).
Before Wagner, Chief Judge, and Schwelb and Glickman, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Submitted January 6, 2005
After a trial by jury, appellant Larry Finch was convicted of aggravated assault while armed and assault with a dangerous weapon. His appeal challenges the sufficiency of the evidence and the propriety of the prosecutor's rebuttal argument. We affirm.
We need not discuss at length the question of sufficiency of the evidence. Witnesses testified that appellant, who was intoxicated and behaving belligerently and abusively to those around him, disturbed Anthony Jones in Dupont Circle while Jones was playing chess. An argument ensued. Jones asked appellant to move away, but appellant instead moved closer, and as Jones turned to face him, appellant suddenly plunged a knife deep into Jones's neck. Jones required emergency surgery to repair two life-threatening lacerations to his right carotid artery. Viewed in the light most favorable to sustaining the verdict, see Curry v. United States, 520 A.2d 255, 263 (D.C. 1987), this evidence plainly was sufficient to sustain appellant's convictions. The jury was entitled to credit Jones and to disbelieve appellant's testimony that he acted in legitimate self-defense regardless of the facts that other eyewitnesses did not observe the stabbing; that Jones was impeached with prior statements concerning his encounter with appellant some years before the current incident; and that there was a question about the exact spot in Dupont Circle where the stabbing occurred.
Appellant's main contention is that the trial court erred in not granting him a mistrial after the prosecutor, in her rebuttal argument, improperly (1) expressed her personal opinions of his and other witnesses' credibility, (2) referred to him as a convicted thief and drug dealer, and (3) argued facts not in evidence. Appellant did not object to the comments in the first category, but he did object (unsuccessfully) to the comments in the latter two and moved for a mistrial on those grounds. We agree with appellant that some of the prosecutor's comments were objectionable. On balance, however, we conclude that the improprieties were not so prejudicial as to entitle appellant to reversal of his conviction.
The principles that govern our review of appellant's claim are well-settled. We start by determining whether the challenged comments were, in fact, improper. If they were, we must determine whether the trial judge erred or abused his discretion in responding to them. See Irick v. United States, 565 A.2d 26, 33 (D.C. 1989).*fn1 Our evaluation takes into consideration the context in which the comments were made, the gravity of the impropriety, its relationship to the issue of guilt, the effect of any corrective action taken by the judge, and the strength of the government's case. See Chatmon v. United States, 801 A.2d 92, 99 (D.C. 2002). If an objection was preserved, this court may not affirm the convictions unless we are satisfied that the appellant did not suffer "substantial prejudice" from the prosecutor's improper comments. See McGrier v. United States, 597 A.2d 36, 41 (D.C. 1991) (citing the test for harmless error stated in Kotteakos v. United States, 328 U.S. 750, 765 (1946)). On the other hand, if the appellant failed to make a timely objection to the improper comments or the trial judge's ruling thereon, the appellant must establish "plain error" in order to secure a reversal. "When there has been no objection at trial, reversal of a conviction based on improper prosecutorial argument is appropriate only in a 'particularly egregious' case, when 'a miscarriage of justice would otherwise result.'" Id. (quoting United States v. Young, 470 U.S. 1, 15 (1985)).
1. Expression of Personal Opinions as to the Credibility of Witnesses
We often have admonished that "[i]t is improper for a lawyer to express a personal opinion about a witness' veracity [or credibility] during arguments to the jury." Id. at 43 (emphasis added; citations omitted). Such comments are objectionable to the extent that they "convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant . . . [or] induce the jury to trust the Government's judgment rather than its own view of the evidence." Young, 470 U.S. at 18-19. In contrast, while the distinction is not always clear in practice, it is proper for an advocate to argue that the evidence supports the conclusion that a witness is incredible. See Irick, 565 A.2d at 35-36. Thus, the key inquiry is whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo. A comment will be within the acceptable range as long as it is in the general nature of argument, and not an outright expression of opinion.
Id. at 36 (emphasis in original).
Appellant claims that the prosecutor, in rebuttal argument, improperly expressed her personal opinion about the credibility of the complainant Anthony Jones,*fn2 a prosecution witness named Earl Da niels,*fn3 and appellant himself.*fn4
As to the italicized comments in footnotes 2 and 3 concerning Jones and Daniels, perhaps some of them were permissible as characterizations based on "logical inference from the evidence," Hammill v. United States, 498 A.2d 551, 557 (D.C. 1985), but others were comparable to comments that this court has specifically disapproved. See, e.g., Scott v. United States, 619 A.2d 917, 927 (D.C. 1993) (holding that it was improper for prosecutor to state in his closing argument that a witness "was open and up front and honest when he testified in this case to those things that had been transgressions in his life").We think, however, that even if at least some of the prosecutor's remarks on the credibility of Jones and Daniels were infelicitous, they ...