Commonwealth v. Brel

Commonwealth v. Brel, 4 N.M.I. 200 (1994) Commonwealth of the Northern Mariana Islands, Plaintiff/Appellee, v. Godwin Brel, Defendant/Appellant. Appeal No. 93-037 Criminal Case No. 93-0011 December 1, 1994 Amended February 13, 1995 Subm itted on Briefs October 28, 1994 Counsel for appellant: Brien Sers Nicholas, Saipan. Counsel for appellee: Cheryl M . Gill, Assistant Attorney General, Saipan. BEFORE: DELA CRUZ, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. VILLAGOM EZ, Justice: A jury found Godwin Brel guilty of aggravated assault and battery under 6 CM C § 1203(a). Brel appeals his conviction. W e have jurisdiction pursuant to 1 CM C § 3102(a). W e affirm. ISSUES & STANDARD OF REVIEW Brel presents the following issues for our review: 1. W hether the trial court abused its discretion when it dismissed the original inform ation without prejudice under Com . R. Civ. P. 48(a). 1 2. W hether the trial court abused its discretion by permitting cross-exam ination testimony about Brel’s character from a witness who did not testify as a character witness for Brel. The trial court’s evidentiary decisions 1 Cf. United States v. Dyal, 868 F.2d 424, 426 (11th Cir. 1989) (abuse of discretion is standard of review of dismissals pursuant to Fed. R. Crim. P. 48). The government contends that Brel waived his objection to the court’s dismissal of Criminal Case No. 92- 0136 under Com. R. Crim. P. 48(a) because he did not challenge it below. W hat he did challenge was the filing of Criminal Case No. 93-0011, arguing for dismissal under Com. R. Crim. P. 48(b). In the alternative, the government urges us to review the propriety of the Com. R. Crim. P. 48(a) dismissal only for plain error. W e find no waiver. Although Brel did not object to the dismissal of Criminal Case No. 92-0136, he did object to it being dismissed without prejudice. The objection preserved the issue for appeal, and the standard of review is abuse of discretion. are reviewed for an abuse of discretion. 2 3. W hether the governm ent violated Brel’s due process and fair trial rights by making certain com m ents during rebuttal closing argum ent. Because the defendant did not contem poraneously object to the allegedly improper prosecutorial comm ent, we review the statement to determine whether it was improper and, if so, we assess whether it constitutes plain error.3 FACTUAL & PROCEDURAL BACKGROUND On August 3, 1992, the governm ent filed an information (Criminal Case No. 92-0136) charging Brel with aggravated assault and battery, a felony. A jury trial was set for October 26, 1992. On the day of trial, the governm ent moved to dismiss the case without prejudice, subject to refiling within six months, because the com plaining witness could not travel from Palau to Saipan due to an im pending typhoon. The court granted the m otion over Brel’s objection, but subject to a ninety-day refiling period, after which the dism issal would be with prejudice. On January 22, 1993, the governm ent timely refiled a new information (Criminal Case No. 93-0011). In February, Brel moved to dism iss Crim inal Case No. 93-0011 for violation of Com. R. Crim . P. 48(b), for pre- indictm ent delay, and for lack of a speedy trial. The governm ent responded that there had been no bad faith or prejudicial delay. The court denied Brel’s m otion. At trial, defense counsel asked two prospective jurors during voir dire if they believed it was possible for a witness to take an oath to tell the truth, and then not tell the truth, or lie. Brel called as a witness his com m on law wife, who ow ns the bar where the incident giving rise to this case took place. On cross-exam ination, the governm ent asked her whether she feared Brel. Brel objected and the government argued that the question went to bias and motive to lie. Overruling Brel’s objection, the court noted that the government had not asked for specific dates or “anything of that nature.” Transcript of Proceedings at 302-03, 302A, Commonwealth v. Brel, Crim. No. 93-0011 (N.M .I. Super. Ct. M ar. 23, 1993). Brel’s wife testified that she did not fear Brel, and the prosecutor then asked “[h]aven’t you asked for help before?” The witness responded that som etim es she would “call the police to com e and . . . check [her] at the bar because [she was] having [a] problem with . . . Godwin.” 4 Brel im m ediately made two unsuccessful motions for a m istrial on the ground that his wife’s testim ony constituted character evidence adm itted in violation of Com . R. Evid. 404. During closing rebuttal, the prosecutor made several statements which Brel alleges were im proper. Brel did not object to the statem ents at trial. The jury convicted Brel of aggravated assault and battery. This appeal followed. ANALYSIS I. Dismissal without Prejudice Brel contends that the dism issal of the original inform ation without prejudice pursuant to Com . R. Crim. P. 48(a) was made in bad faith and was contrary to the public interest. W e disagree. On or before October 22, 1993, the governm ent inform ed the court that the trial could not go forward due to the absence of the com plaining witness. Supplem ental Excerpts of Record at 43, ¶¶ 8-10. The governm ent 2 See Commonwealth v. Kaipat, 2 N.M.I. 322, 327 (1991); Pennsylvania v. Ragan, 645 A.2d 811, 818 (Pa. 1994). 3 See Commonwealth v. Saimon, 3 N.M.I. 365, 380 (1992). 4 On April 29, 1993, the government filed Criminal Case No. 93-0062 against Brel, charging him with the assault and battery of his wife. Excerpts of Record at 8. The case was dismissed with prejudice on May 3, 1993, after Brel’s wife recanted during a preliminary hearing. Id. at 9.  Commonwealth v. Brel, 4 N.M.I. 200 (1994) m oved to dismiss on October 26, 1992, the day set for trial, prior to the em paneling of a jury. The governm ent explained that the com plaining witness could not be present and his m edical records in Palau could not be obtained for trial without a release from him . From the date of the incident to October 21, 1992, the com plaining witness underwent medical treatm ent on Guam and recuperated in Palau. The governm ent purchased airline tickets for Agent Sokau to accom pany the com plaining witness from Palau to Saipan on October 23, 1992. Id. at 47, 48. However, Typhoon Brian prevented them from traveling to Saipan. The trial court found the governm ent’s reason for requesting dismissal “reasonable” and granted the m otion to dismiss pursuant to Com . R. Crim . P. 48(a). The court also lim ited the period for refiling of the inform ation to three m onths rather than the six months the government requested.5 Transcript of Pretrial Proceedings at 9 (Oct. 26, 1992). W e see no bad faith, and the trial court did not abuse its discretion. II. Admission of Character Testimony Brel asserts that the trial court erred in perm itting his wife to testify about an incident during which she called the police to help her deal with Brel. W e find no abuse of discretion. Under Com . R. Evid. 404 “[e]vidence of other crim es, wrongs, or acts is not adm issible to prove the character of a person in order to show that he acted in conform ity therewith. It may, however, be adm issible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of m istake or accident.” 6 Here, the governm ent’s “other purpose” in questioning Brel’s com m on law wife about calling for help with Brel was to dem onstrate that his wife’s fear of and relationship with him were a source of bias and a motive to testify untruthfully in his favor. Thus, the governm ent sought to impeach Brel’s wife’s credibility 7 by introducing evidence of a prior instance of her inconsistent conduct, which evidence happened to implicate Brel’s character. Brel’s wife’s answer about calling the police was prejudicial because it suggested Brel was prone to act threateningly or violently. Nevertheless, the court perm itted the jury to hear the testim ony for im peachm ent purposes, noting that the governm ent had not asked about specific details, such as the date of the prior incident. See Transcript of Proceedings at 302A. Before adm itting relevant evidence of prior misconduct, a trial court must conduct a Com . R. Evid. 403 8 analysis, balancing the probative value of the evidence against the danger of unfair prejudice. If the danger of unfair prejudice does not substantially outweigh the evidence’s probative value, the court may adm it the evidence.9 The court carefully considered the parties’ argum ents for and against adm ission of the evidence during a sidebar conference. Brel’s wife’s testim ony about her telephone call to the police for assistance with Brel was 5 Brel’s trial ultimately took place within ten months of the filing of the original information. 6 Com. R. Evid. 404(b). 7 Under Com. R. Evid. 607, any party may attack a witness’s credibility. Commonwealth v. Kaipat, 2 N.M.I. at 328. 8 Com. R. Evid. 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 9 Cf. United States v. Sangrey, 586 F.2d 1312, 1314-15 (9th Cir. 1978) (discussing Fed. R. Evid. 404(b) and 403); see also Saimon, 3 N.M.I. at 375 (discussing trial court’s application of Com. R. Evid. 403). certainly admissible to impeach her credibility.10 In light of this and our review of the record as a whole, we conclude that the court adequately weighed the prejudicial effect of Brel’s wife’s testim ony against its probative value, thereby satisfying the requirem ents of Com . R. Evid. 403.11 The court should have given a lim iting instruction as to the purpose for which Brel’s wife’s testim ony was being adm itted. This omission does not constitute reversible error, how ever, because Brel failed to request such an instruction. 12 III. Government’s Rebuttal Closing Argument W e review for plain error only “in those circum stances in which a m iscarriage of justice would otherwise result.” 13 A statem ent reviewed for plain error must be viewed in light of the entire record, because reversal for prosecutorial misconduct will not be granted unless the misconduct is so pronounced and persistent that it perm eates the trial’s entire atm osphere.14 Brel bases his allegation of prosecutorial misconduct on three statem ents the prosecutor made during rebuttal closing argum ent. After considering each statement separately below, we conclude that the challenged rem arks do not, in the context of the whole record, rise to the level of prosecutorial misconduct. A. Characterization of Defense Counsel’s Closing Argument The prosecutor began closing rebuttal by saying “[w]ish I had a broom , ladies and gentlem en, cause if I did, I’d sweep away all of the baloney, all the hooey that you’ve had to listen to for the last 45 minutes to an hour.” Transcript of Proceedings at 442. The prosecutor’s labeling of the defense counsel’s closing as “baloney” and “hooey” did not, as Brel suggests, im plicate the defense counsel’s veracity and personal integrity. Such labeling was not an im proper response to the defense counsel’s characterization of the evidence.15 10 See Ragan, 645 A.2d at 820 (holding admissible, for purpose of impeaching testimony by showing bias, a girlfriend’s testimony that she harbored defendant even though she knew he was a fugitive for a previous crime). 11 See Sangrey, 586 F.2d at 1315. 12 As the Sangrey court stated with respect to this issue: W e do question the failure of the trial judge to give the jury a limiting instruction as to the use of the challenged testimony. Because no limiting instruction was asked for by defendant, we do not find the absence of such an instruction to be reversible error. But in view of the prejudicial effect of [this witness’s] testimony [that defendant raped her prior to raping the complaining witness] might have had on the jury, it would have been appropriate for the trial judge, sua sponte, to have given a limiting instruction. Id. 13 Saimon, 3 N.M.I. at 381 (emphasis omitted) (quoting United States v. Young, 470 U.S. 1, 15, 105 S. Ct. 1038, 1046, 84 L. Ed. 2d 1, 12 (1985)). 14 Saimon, supra . 15 See id. at 383 (“[i]t is not necessarily improper for the prosecutor to comment that defense counsel’s characterization of the evidence is incorrect”).  Commonwealth v. Brel, 4 N.M.I. 200 (1994) B. Reference to Brel as Having “Lied” The prosecutor told the jury that [Defense counsel] was correct in telling you that the credibility of the witnesses is something you have to evaluate. One way you can evaluate it is, is their story today consistent with their story 10 months ago. Nothing [the complaining witness] said on that stand was ever controverted by [defense counsel]. Ever. [The com plaining witness] gave a statem ent 10 m onths ago. Nothing controverted. He told— tells the same story today that he told 10 months ago. Is he credible? Yes. .... Let’s talk about M r. Brel though. He said things on that stand different than what he told the police 10 m onths ago. Som e of them , I’ll agree, were trivial. The point is not that the details were trivial but that he’s telling inconsistent stories. Inconsistent, ladies and gentlem en. And, rem em ber what [defense counsel] asked you, during voir dire, is it possible, do you believe that somebody could get up on that witness stand, under oath, and lie? Remember that? I believe each and every one of you said, yes, that’s possible. And, this is the person who fulfilled that possibility. He got up on that witness stand and he lied. Transcript of Proceedings at 443-44. The prosecutor’s use of the word “lied” to describe what Brel did on the stand did not constitute misconduct. W here, as here, a defendant takes the stand, his or her truthfulness and veracity becom e “the proper subject of the prosecutor’s closing argum ent.” 16 A prosecutor may not go so far as to express his or her personal opinion about a defendant’s guilt, but he or she may make any reasonable inference supported by the record. 17 In addition, a prosecutor may call the defendant a liar during closing argum ent, as long as the term is not used excessively 18 and does not “inject a highly prejudicial personal opinion of [the] defendant’s credibility into evidence.” 19 By choosing to testify, Brel opened the door to com ments about his veracity. During her closing rebuttal, the prosecutor first made reference to inconsistencies between Brel’s statements to the police and his testim ony at trial. Then the prosecutor expressly noted that the inconsistencies were trivial, but that “the point is . . . that [Brel is] telling inconsistent stories.” Id. at 443. Finally, she referred to the defense counsel’s voir dire query about the possibility of a witness lying under oath and concluded that Brel fulfilled the possibility because “[h]e got up on that witness stand and he lied.” Id. at 444. The prosecutor never used the term “liar” and did not repeat the word “lied.” C. Reference to Defense Counsel’s Closing Argument The prosecutor also said “I want to make sure that when you listen [to the jury instructions given by the judge], you listen carefully, and you ask yourself, why did [the defense counsel] leave som e instructions out[?] 16 Id. at 385. 17 See id. at 385-86. 18 Id. at 385 n.4 (dictum) (citing United States v. Spivey, 859 F.2d 461, 466 (7th Cir. 1988)). 19 Ragan, 645 A.2d at 829. W hy did he leave some definitions out[?] W as he trying to confuse you? Only you can answer that.” Id. At first glance this appears to exceed the bounds of permissible com m entary on the defense counsel’s characterization of the evidence. The argum ent goes to the defense counsel’s statement of the law, im plying that he intended to mislead the jury. However, when considered in context, the com ment was a perm issible response to the defense counsel’s closing argum ent. During his closing, the defense counsel said: I’m going to comm ent on the law. The law is going to come from the Judge. I always give a word of caution when I start, you heard [from the prosecutor] that what the lawyer[s] say is not evidence. That what the lawyers— the evidence comes from right there. Sam e with the law. If what I say doesn’t seem to m atch with what the Judge tells you, you listen to the Judge. But I’m not going to try and intentionally deceive you cause that doesn’t help [Brel] at all. I want you to know the law. Id. at 412.20 In response to this statem ent, the prosecutor adm onished the jury to listen to the judge’s instructions on the law, and not to instructions presented by the defense counsel. The prosecutor also suggested that the defense counsel omitted certain portions of the law, and that the jury should not be misled by this. These rem arks m ay have been hard blows, but they were not “foul.” 21 Brel asserts that the prosecutor’s rem arks discussed above, “[g]iven the record of this case,” Appellant’s Brief at 17, constitute m isconduct. As to “the record,” Brel draws our attention only to the bad conduct testim ony elicited during cross-exam ination of Brel’s wife. As previously discussed, the trial court did not err in adm itting, for im peachment purposes, Brel’s wife’s testim ony about calling the police for assistance with Brel. Therefore, the prosecutor’s statem ents during closing, viewed in the context of closing argum ent and the whole record, were not im proper and did not com prom ise Brel’s right to a fair trial. CONCLUSION For the reasons set forth above, we AFFIRM the trial court’s judgm ent of conviction. 20 Defense counsel later gave his rendition of the elements of aggravated assault, which drew an unsuccessful misstatement of the law objection from the government. See Transcript of Proceedings at 423, Commonwealth v. Brel, Crim. No. 93-0011 (N.M.I. Super. Ct. Mar. 23, 1993). 21 See Saimon, 3 N.M.I. at 383.