Commonwealth v. Saimon

CLERK OF COURT SUPREME COURT CN ' MI FILED 92 CEC 29 A 8: 0l FOR PUBLICATION IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN ��IANA ISLANDS COMMONWEALTH. OF THE NORTHERN ) APPEAL HO. 91-009 MARIANA ISLANDS, ) CRDUNAL CASE NO. 90-97 ) Plaintiff/Appellee, ) ) vs. ) OPINimi ) MASARO A. SAIMON, ) ) Defendant/Appellant. ) Argued and Submitted May 28, 1992 Counsel for Defendant/Appellant: Pamela O'Leary 'l'otver Deputy Public Defender Office of the Public Defender civic center, susupe saipan, MP 96950 Counsel for Plaintiff/Appellee: Julie Van Dyn� Assistant Attorney General Office of the Attorney General Civic Center, Susupe Saipan, MP 96950 BEFORE: DELACRUZ, Chief Justice, VILLAGOMEZ and BORJA, Justices. VILLAGOMEZ, Justice: I. THE CASE Defendant saimon was charged with second degree murder on June 14, 1990, pursuant to 6 CMC § 1101(b). The information alleged that he murdered Erlinse Santos (11Erlinse11), his common-law wife. 369 Saimon denied shooting Erlinse and alleged that she committed suicide by shooting herself. Prior to trial, defense counsel attempted to discover all the files of the. Department of Public Safety ("DPS") regarding inmate Herbert Camachq' s ("Herbert") suicide by hanging in jail. The files contained letters and statements pertaining to Herbert's intimate relationship with Erlinse and other matters related to the investigation of Herbert's suicide. Defense counsel asserted that such files ',vere relevant to the issue of whether Erlinse cor:unitted suicide as a result of being torn between her love for Herbart and her commitment to Saimon and their children. She asserts that Erlinse' relationship with Herbert put a strain on her common-law marriage to Saimon and affected her work habits, caused her personality to change, and made her personal life troublesome. The trial court allowed limited discovery of the DPS files, releasing only the statements of Herbert and three other persons, but sealed the rest of the files for purposes of an appeal. Trial by jury commenced on December 11, 1990. During trial, the court admitted photographs of the decedent over the objection of defense counsel. The defense argued that the pictures wera gruesome and their unfair prejudicial effect upon the jury 1 outweighed their probative value. Appellant also now asserts that during closing argument and on cross-examination, the prosecutor made statements and asked 1 Appellant should have, but did not, argue that the unfair prejudicial effect substantially outweighed the probative value of the photographs. Rule 403, Commonwealth Rules of Evidence. 370 questions which were improper. Appellant characterizes these statements and questions as: 1. Improper comments regarding defense counsel. 2. Calling the defendant a liar and expressing a personal view of defendant's guilt. 3. Comments on defendant's failure to call witnesses. 4. Statement of sympathy for the victim and calling for justice. 5. Statements regarding facts not in evidence. 6. Asking the jury to use their m·m personal experience r:�hen deliberating. 7. Mischaracterizing certain testimony. 8. Misstating the evidence. 9. Knowingly using misleading and inadmissible scientific testimony. 10. Eliciting inadmissible evidence. The jury returned a verdict of guilty as charged on December 24th, 1990. The trial court sentenced Saimon to 21 years imprisonment on March 5, 1991. After the trial, the defense filed a motion for a new trial based upon newly discovered evidence. The evidence consisted of a letter written by Erlinse on June 3, 1990 (two weeks before her death) to her cousin, Emiko, in Phonpei. In the letter, Erlinse wrote: "It happen that last two (2) month ago I felt that I was put into love magic to hate him so much I usually think of killing II myself After a hearing on April 8th, the trial court denied the motion. 371  On April 19th, 1991 Saimon timely appealed. II. THE FACTS Around midday on June 12, 1990, Saimon and Erlinse were at their house. They had been having communication problems earlier that day, and, as a result, Saimon had left his police work early. According to a witness, Saimon came out of the house with a handgun in his hand and fired the gun once. He then went inside th9 house where he argued in a loud voice with Erlinse. The witness also testified that Erlinse said "Stop it, 11 and that Saimon shouted obscenities at Erlinse and also said "I will kill you!" After the argument, a witness heard a gunshot in the house. That gunshot killed Erlinse. Saimon had been drinking from a bottle of whiskey prior to the shooting. The evidence indicated that there was a struggle immediately prior to Erlinse's death which had cau�ed the fan, television, and other items to fall to the floor and Erlinse's eye glasses to break on the floor. A bullet which entered near the inside portion of Erlinse's left eye and exited at the right rear part of her head caused her death. Erlinse was right-handed. After the gunshot in the house, Saimon came out with the handgun in his hand, got into his pick-up truck and drove away very fast. He drove to the airport, where the police came and took him in for questioning. saimon was the only eyewitness to what occurred inside the house. 372  Four days after Erlinse's death, Herbert Camacho hung himself in his prison cell at the Division of Corrections. He left messages regarding his love relationship with Erlinse and his decision to take his own life after Erlinse died. Herbert (a long­ term inmate) and Erlinse (employee of the Division of Corrections) had been lovers for some time . III. TH.::!: IS3U2S The appellant raises the following issues: 1. Whe ther the trial court abused its discretion in denying appellant's pre-trial motion to discover the entire file of DPS. 2. Whether the trial court abused its discretion in admi tting into evidence the gruesome photographs of decedent. 3. Whether the prosecutor's commen ts a t trial constituted misconduct which deprived defendant of a fair trial. 4. Whether the trial court abused its discretion in denying defendant's motion for a new trial. 5. Whether the cumulative effect of the above-enumerated errors denied defendant a fair trial. 373  IV. DENIAL OF THE DISCOVERY OF THE ENTIRE DPS FILES. The trial court reviewed in camera the DPS files and then allowed discovery of only certain statements, sealing the rest of the files for purposes of an appeal and denying discovery thereof. Appellant contends that the trial court abused its discretion by not allo•.ving the defense to review the entirety of the files before ruling on their "scope of discovery.11 Brief of appellant at 9. We disagree. We have reviewed the files and find that those portions which the trial court sealed are not relevant to the issue of whether Erlinse committed suicide, had any reason to commit suicide or had any ideation of suicide. The statements which the trial court did order to be produced were relevant. If the materials that were sealed were relevant, then the trial court should have allowed the defen3e to review the files. The trial court then could hear arguments concerning the admissibility of the files and then make a ruling. See State v._ Estrada, 738 P.2d 812 (Hawaii 1987). Here, since the materials sealed were not relevant or admissible, they need not be disclosed to the defense. Estrada, supra at 820. v. ADMISSION OF GRUESOME PHOTOS The three photos admitted into evidence at trial and at issue on this appeal include Exhibit No. 24, depicting a close-up view of decedent's face while seated on a chair in her home immediately 374 after her death; Exhibit No. 5 depicting decedent's head during autopsy prosected by a metal probe showing the bullet's path; and Exhibit No. 20, depicting a broad view of decedent and the room where she was found dead. Appellant argues that (1) the unfair prejudicial effect of the gruesome photos outweigh their probative value and (2) the same evidence cou],d have been presented by oral testimony and non- prejudicial drawings or diagrams. 2 Appellee counters that the photos are not only relevant but are essential and their probative value is not substantially out-weighed by unfair prejudicial effect. Rule 403 of the Commomvealth Rules of Evidence provides that "(a]lthough relevant, evidence may be excluded if its probative value is substantially out'>veighed by the danger of unfair prejudice If If the probative value equals the danger of un£air prejudice, then the relevant evidence may not be excluded. The danger of unfair prejudice must be substantially greater than the probative value of the relevant evidence. Rule 403, Com.R.Evid; See, 22 C. Wright and K. Graham, Federal Practice and Procedure Sections 5214, 5215 (1978). Regarding the trial court's application of Rule 403, Fed.R.Evid. (this is the same as our Rule 403), to the evidence, one authority has writtep: 2 Admissibility of evidence is reviewed for abuse of discretion. Commonwealth v. Bergonia, No. 91-001 (N.M.J. March 19, 199 ); Guerrero v. Guerrero, �o. 90-018 (N.M.l. March 18, 1991). 2 375  The rule requires the judge to go through a conscious process of balancing the costs of the evidence against its benefits. Unless the judge concludes that the probative worth of the evidence is "substantially outweighed" by one or more of the countervailing factors [in Rule 403] , there is no discretion to exclude; the evidence must be admitted. If, on the other hand, the balance goes against probative worth, the judge is not reqUired to exclude the evidence but he "may" do so. 22 c. Wright and K. Graham, Federal Practice and Procedure section 5214 at 263-264 (1978). Photographs constitute demonstrative evidence, and therefore are admissible under Rule 403, Com. R. Evid. , so long as their probative value is not substantially oubveighed by their unfair prejudicial effect. We have reviewed the photos, the testimonies related thereto, and the purpose for which they were offered. For the reasons set-- forth below, we conclude that all three photos are not only relevant but highly probative and their admission did not constitute an abuse of discretion. The photos are significantly more expressive, revealing, and probative than any of the oral testimonies or drawings. Any unfair prejudice would not substantially outweigh the probative value of the photographs. A. Exhibit No, 24. Exhibit No. 24 (facial picture) was offered to show the condition of the area of the face where the bullet entered. such condition relates to the factual issue of whether there was a contact wound. That is, whether the gun was in contact with the 376 face when it was fired. Two medical doctors testified as expert witnesses. One said it was a contact wound and the other said it was not. The exhibit shows the condition of the wound and its surrounding area. The jury could compare the testimony of the witnesses with the condition of the face sho'\m in the picture to determine which testimony is more consistent with the condition of the wound. See S tate v. Sheehan, 744 P. 2d 824 (Kan. 1987) (photos admitted showed extent of victim's wounds and corroborated testimony of witnesses and pathologist); state v. Walton, 650 P.2d 1264 (Ariz.App. 1982) (photo showing whether powder burns present on victim relevant to distance between defendant and victim and therefore admissible even though gruesome). Exhibit No. 24 therefore was relevant, highly probative, and need not be excluded as evidence. B. Exhibit No. 5. Exhibit No. 5 (head picture), which shows the angle of the bullet's path, is critical to the issue of whether Erlinse sho t herself • . See Valentine v. s. t ate, 617 P. 2d 751 (Alaska 1980) (Photo of victim admissible to show bullet's path) • The government expert witness testified that the typical manner in which a person commits suicide (with a pistol) is by shooting himself/herself through the temple or the roof of the mouth. In this case, this evidence is particularly crucial because 377 Erlinse, a right-handed person, is alleged to have shot herself near the left eye. The jury would have had to imagine Erlinse holding the pistol in her right hand, placing it against the inner portion of her left eye, and then pulling the trigger while the gun was pointing towards the right side of her head, a rask that does not appear easy or simple. The jury would have to know the exact path of the bullet to raalistically imagine how Erlinse supposedly shot herself. Exhibit Ho. 20 depicts the decedent as found dead on the chair in her house. It is highly probative because it shows no empty space to her right side but :t large empty space to her left side. The jury could surmise from the photo that if Erlinse �vas in fact shot by anoth�r perscn, that person had to be on#her left (where there is open space} and not to her right (where there was a chair, table with.larnp, and a wall). That person most likely would have had to shoot h�r on har left side, which is where she was shot. The photo also shows that if the defendant did take the gun from the decedent's right hand after she allegedly shot herself, as he testified at trial, it would have been unlikely that he would not notice the injury to Erlinse• s left eye and the blood, because he would have had to reach over her from her left side. This is relevant in refuting the defendant• s testimony that as he was taking the gun from Erlinse•s hand, he did not look to see whether 378 Erlinse was injured and that he " didn't know that she was hurt. " The picture also shows the disarranged coffee table and the broken glasses on the floor, all of which are .relevant to the factual issue of whether there had been a struggle between the two prior to the shooting. See People v. Young, 710 P.2d 1140 (Colo.App. 1985) (Photos which depicted interior of house in which shooting occurred were relevant and admissible because they ei:tphasized location of furniture and nature of pre:nises in relation to defendant, victim, and weapon); State v. Grilz, 666 P. 2d 1059 (�riz. 1983) (Photo of cri�e scena showing victims and scane admissible because depicted physical lay-out of crime scene); State v. Benfield, 632 P. 2d 26 (Or. App. 1981) (photo of victim as found - - in chair with gunshot wound in head -- was admissible). VI. PROSECUTORIAL MISCmTDUCT Appellant argues that the prosecutor made improper comments to the jury which, either separately or cumulatively, were so prejudicial that they adversely affected his right to a fair and impartial trial. He further argues that since the evidence in this case was circumstantial, conflicting, and susceptible to two different interpretations, it is more probable that the jury was improperly influenced by the remarks of counsel. Saimon suggests that the trial court should have affirmatively intervened, .§.YS. sponte, to cure the improprieties. If a timely objection was made at trial to an improper 379 statement, we apply a harmless error test to "consider whether it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial." McKoy, 771 F.2d at 1212; see also, u.s. v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986); Rule 52(a), Com.R.Crim.Proc. At trial, however, counsel for defendant did not object to the majority of the allegedly improper statements. Generally, failure to object at trial precludes appellate review. Sipsas v. State, 716 P.2d 231 (Nev. 1986). The u.s. Supreme Court has held that 11counsal for the defendant cannot as a rule remain silent, interpose no objections, and after a verdict has been returned seize for the first time on the point that [the prosecutor's] comments to the jury were improper and prejudicial." United states v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239, 60 S.Ct. 811, 851, 84 L.Ed.1129 (1940); see also, United States v. Young, 470 U.S. 1, 16 n. 13, 105 s�ct. 1038, 1046 n. 13, 84 L.Ed.2d 1 (1985). Even where counsel posed no objections at trial, however, we may look to each statement to determine whether it was improper, and, if so, whether it constitutes "plain error." u.s. v. Solomon, 825 F.2d at 1292, 130 0 (9th Cir. 1987 ). A plain error is one "affecting substantial rights." Rule 52 (b), Com.R.Crim.Proc.3 See United States v. Birges. Sr., 723 F.2d 666 (9th Cir. 1984); Commonwealth v. Peters, No. 90-026 (N.M.I. Jan. 8, 1991). 3 Rule 52(b) of the Commonwealth Rules of Criminal Procedure, which resembles Rules 52(b) of the Federal Rules of Civil Procedure, states that 11[p]l3in errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." 380  We will not lightly invoke our power to notice plain error. As the u.s. Supreme Court has written: The plain error doctrine of Rule 52 (b) tempers the blow of a rigid application of the contemporaneous-objection requirement. The Rule authorizes the Courts of Appeals to correct only particularly egregious errors, those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings. In other words, the plain-error exception to the contemporaneous­ objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result. United States· v. Young, supra, 105 s.ct. at 1046 (citations and quotations omitted; emphasis supplied) . As one noted commentator has written, "[t]he power to notice plain error, whether at the request of counsel or on the court's own motion, is one that the courts exercise cautiously and only in exceptional circumstances. n 3A c. Wright, Federal Practice and Procedure, Section 856 at 338 (1982) (footnotes omitted) . When we do invoke the.po_wer to review a particular statement forplain error, we review the statement against the entire record, and strive to "relive the whole trial imaginatively and not to extract from episodes in isolation abstract questions of evidence and procedure. n Young, 105 s.ct. at 10 46, quoting, Johnson v. United States, 318 u.s. 189, 202, 63 s. ct. 549, 555, 87 L. Ed. 704 (1943). This broad scope of review is important because " reversal on the basis of prosecutorial misconduct requires that the misconduct be so pronounced and.persistent that it permeates the entire atmosphere of the trial. 11 u.s. v. McLain, 823 F. 2d 1457, 1462 (11th Cir. �987) . 381  We have reviewed, under the above- stated principles, each of the prosecutor's statements which appellant contends were improper. Based upon our review, we find that most of the prosecutor's remarks were not improper. Those statements which were improper did not amount, either separately or cumulatively, to plain error because the improper statements, "al though inappropriate and amounting to error, were not such as to undermine the funda�ental fairness of the trial and contribute to a miscarriage of justice. " Young, 105 s.ct. at 1047. Appellant presents for our ravia� tan categories of allegedly improper statements. We will analyze each of these statements in turn below. Because defense counsel did not object to nine of these ten categories of statements at trial, if a particular statement was improper, we ';vill revie•,., it for plain error. Young, .§.!il2.G· The final allegedly improper statement, involving a single question by the prosecutor, was objected to by defense counsel �nd we therefore review that statement under a harmless error standard. �cKoy, 771 F.2d at 1212, see also, u.s. v. Polizzi, 801 F.2d 1543, 1558 (9th Cir: 1986); Rule 5 2 (a), Com.R.Crim. Proc. In performing our review, we are reminded that 11tt�hile (the prosecutor] may strike hard blows, he (or she] is not at liberty to strike foul ones. " Berger v. United states, 295 u.s. 78, as, 55 s.ct. 629, 633, 74 L.Ed.2d 1314 (1935); see also, Young, 105 s. ct. at 1042. 382  1. Improper comments regarding defense counsel. On appeal, Saimon points to three statements by the prosecutor which he claims constitute improper comments about counsel for the defense: As I listened to (defense counsel] argue to you, I found myself asking a question, is he really giving you 1 fair reading of the evidence. And I couldn • t ans•.o1er that he was. . . But what he doesn't point out to you is that Dr. • Allen did not giva his opinion that this was a suicide and what he doesn't point out to you is that Dr. Allen is still a �vitness hired to act on behalf of defendant and he has a bias as a result . . •(Defense counsel} spent quite a bit of time on the • bullets in the car. on the bullets, and this is a rt excellent example not only of circumstantial evidence but is also the kind of questioning that is designed more to distract th�n it is to lead you to a reasonable doubt." We do not agree with appellant that by these statements the prosecut:or sought "to raise the inference " that defense counsel 41\o�as making up a story " or "that he lied by omission by failing to disclose informat i.on . • . " Brief of appellant at D. The jury may have viewed the prosecutor's statements as comments on defense counsel's · characterization of the evidence, not as comments on defense counsel personally. It is not necessarily improper for the prosecutor to comment that defense counsel's characterization of the evidence is incorrect. u.s. v. Hitow, 889 F. 2d 1573 (6th Cir. 1989). The prosecutor's statemen'ts were hard, but not foul blows, and ware not improper. See carol v. state, 756 P. 2d 614 (Okl.Crim. 383 1988) (court found prosecutor's argument was directed at defense counsel's interpretation of the evidence, not at defense counsel personally); People v. Miller, 790 P.2d 1289 (Cal. 1990). 2. Calling the defendant a liar and expressing a personal view of defendant's quilt. During his closing argument, the prosecutor made, at different intervals, the following statements : . . . The only person testifying that Erlinse Santos ever talked about suicide is this man who ran out of the house with a smoking gun in his hand. Now, is there a motive to fabricate? Ladies and gentlemen this man just shot his commonlaw wife . . That is a shocking incident in and of itself. And you ask yourselves what is the natural response to a person when they have been faced with something they have done of that nature is how could I have done it, I . • . didn't do it, I didn't do it please I didn't do it. • • • And I suggest to you that ·that's what Masaro Saimon started during the day he left his residence and he hasn't stopped yet. •Now do guns get magically • loaded? or is Masaro Saimon not telling us something . . . . Masaro Saimon was there, why can't he tell us what happened? Because he's not willing to tell the truth. Now can you believe that? or is Masaro Saimon not being truthful to us? • •Or is Masaro Saimon not being truthful. . I suggest that each question that I'm asking has one answer. Appellant contends that through these statements, the prosecutor "asserted his personal views as to the credibility of defendant and as to defendant's guilt. [and] referred to 384 appellant as a liar." Brief of appellant at 20. We find that the prosecutor did not improperly refer to appellant "as a liar. n We read these statements as raising questions about the defendant's credibility as a witness and the veracity of his testimony by drawing reasonable inferences from the evidence presented. This is not an improper tactic. A prosecutor may "voice doubt about the veracity of a defendant who has taken the stand where sucll comments are supported by the record." u.s. v. Hoelker, 765 F.2d 1422, 1426 (9th Cir. ), cert. den., 475 u.s. 1024, 106 s.ct. 1219, 89 L. Ed.2d 330 (1985). Also, the prosecutor may argue reasonable inferences from the evidence, including the inference that one of the two sides is 4 lying. u.s. v. Molina, 934 F. 2d 1440 (9th Cir. 1991). Because the defendant took the stand, the truthfulness and veracity of his testimony became the proper subject Of the prosecutor's closing argument. The record supports the inference made by the prosecutor in his closing argument that Salmon may have na motive to fabricate, 11 that he 1shot his cornmonlaw wife,11 and that he lied to the jury during his testimony. Because these inferences were reasonably drawn from the evidence, inclu�ing the defendant's testimony, the prosecutor did not act improperly in making such statements. We also fail to �ind that the prosecutor expressed his own 4 �court has held that •[i]t is not i��pen1issible for a prosecutor in closing arguaent to cell tile deferdant a liar, provided that the tel"'!!l is not used to the point of excessiveness.• U.S. v. Spfyw, M9 F.2d 461. 466 (7th Cir. 1988). 385 personal opinion on the defendant's guilt. We recognize that it is firmly established that a prosecutor may not express his or her personal opinion on the defendant's guilt. U.S. v. McKoy, 771 F.2d 1207 (9th cir. 1985). In this case, the prosecutor simply did not express his evidentiary conclusions as a personal opinion. We disagree with the appellant's assertion that the prosecutor somehow expressed his personal opinion merely by inferring that Salmon's testimony was untruthful or by stating that Salmon shot his common law wife. Also, to hold that a prosecutor's reasonable inferences from the evidence constitute his or her personal opinion on the defendant's guilt would unduly chill advocacy by leaving a prosecutor with little or no room for arguing such reasonable inferences. We decline to place such constraints on the advocacy of either the prosecution or the defense. 3. comments on defendant's failura to call �itn�ssas. The prosecutor remarked to the jury: . They never argued; never argue and yet no one, not even he, can explain how the television was dumped over on its face, the fan thrown on the ground, the broom broken, the glasses shattered. These things happen magically? Later, in rebutting defense counsel's closing argument, the prosecutor told the jury that the government's ballistics expert's "analysis and identification was conclusive and you have no other 386 experts disagreeing with him • • • • If it's so unreliable, why is there not more testimony." Appellant contends that by these statements the prosecutor implied that the defendant had a duty to come forward with evidence, such as expert witnesses, and therefore "impermissibly shifted the burden of proof" from the government to the defendant. Brief of appellant at 23. It is settled that in a criminal trial the government bears the burden of proving each element of its case beyond a reasonable doubt, In re Winship, 397 u.s. 358, 90 s.ct. 1068, 25 L.Ed.2d 368 {1970), and the defendant has no duty to prove his or her innocence. State v. Traweek, 715 P.2d 1148, 1152 {Wash.App. 1986). However, the prosecutor may call attention to the defendant's failure to present exculpatory evidence and call witnesses so long as the comment is not phrased so as to call attention to the defendant's failure to testify. Territory of Guam v. Ojeda, 758 F.2d 403 {9th Cir. 1985). In the instant case, the defendant did testify, and the prosecutor called the jury 1 s attention to the substance of the defendant's testimony. The prosecutor 1 s remark that "not even [the defendant] can explain" how or why certain items at the scene of the incident were found in disarray was not improper. This statement restated the evidence; on cross-examination, the defendant could not offer an explanation. Read in context of the entire closing argument, we do not read this statement as implying 387 that the defendant had a burden to offer such an explanation. Rather, we read the statement as intended to draw the jury 1 s attention to the reasonable inference that there was, in fact, a struggle between the victim and defendant which caused the items to fall into disarray. The other statement by the prosecutor was made during his rebuttal to the defense counsel's closing argument. The prosecutor told the jury that the ballistics expert's "analysis and identification was conclusive and you have no other experts disagreeing with him. Now you had two pathologists but you have no other experts on ballistics. If it's so unreliable, why is there not more testimony."