State v. Taylor, 425 A.2d 1231 (R.I. 1981). Prosecutor’s comment about defendant’s failure to call witnesses at trial was reversible error.
The state may never comment about the defendant’s failure to call witnesses at trial because it suggests that he has a burden or that he knew their testimony would be unfavorable.
Trial court’s instruction that “a defendant never has to prove anything” and to keep the prosecutor’s comments “in context” was inadequate. Trial court should have told the jury that the prosecutor’s argument was improper and must be totally disregarded. Id at 1235.
Cautionary instruction must “(1) identify the prosecutor’s conduct as improper, (2) unequivocally indicate that the jury must disregard it, and (3) unequivocally indicate that since the defendant has no duty to present witnesses or any other evidence, his failure to do so cannot be construed as an admission that the evidence.would have been adverse.” Id. at 1235.
The failure to request a Taylor instruction constitutes a waiver of your appellate rights. In Lapointe and White, the prosecutor’s comments about the defendant’s failure to call witnesses was improper but defense counsel waived any appellate rights when he failed to request a Taylor instruction. See State v. Lapointe, 525 A.2d 913 (R.I. 1987) and State v. White, 512 A.2d 1370 (R.I. 1986).
State v. Horton, 871 A.2d 959 (R.I. 2005). Prosecutor improperly characterized defendant charged with first-degree child molestation as a monster and defense counsel objected. The trial justice never responded to counsel’s objection and defendant was convicted. R.I.S.C. affirmed defendant’s conviction because it found the error harmless.
R.I.S.C. admonished the court for failing to address counsel’s objection and noted that the characterization was improper. “We begin by stating firmly that we do not condone tactics that serve to demonize a particular defendant. As we previously have stated, ‘[a] criminal trial cannot be allowed to become like a day at a Roman Coliseum when an individual’s fate was determined by the cheers or jeers of the crowd.’” Id. at 965 (quoting State v. Mead, 544 A.2d 1146, 1150 (R.I. 1988).
The issue was not adequately preserved for appeal because defense counsel failed to lodge a specific objection (but rather generally objected), never moved to strike, and did not motion for a new trial.
State v. Barkmeyer, 949 A.2d 984 (R.I. 2008). Defense counsel requested a mistrial after prosecutor characterized defendant in a child molestation case as a “predator” who “preys on weak people,” and suggested that defense counsel was intentionally misleading the jury. The trial justice called the statements “unfortunate” and issued a cautionary instruction to the jury. R.I.S.C. held that the judge’s curative instruction was an adequate remedy.
“There is no fixed rule of law to determine whether a challenged remark is incurably prejudicial, but instead, the trial justice must assess the probable effect of the remark within the factual context of the evidence presented.” Id. at 1007.
The Court must assume the jury has complied with a cautionary instruction “unless some indication exists that the jury was unable to comply.” Id.
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