Unpublished Disposition, 875 F.2d 319 (9th Cir. 1988)

MEMORANDUM^** 

Brian Scott Stephens, petitioner, was found guilty of first degree murder (Cal.Penal Code Sec. 187) and assault with a deadly weapon (Cal.Penal Code Sec. 245(a)), and was sentenced to state prison for 30 years to life. The California Court of Appeals affirmed the judgment and the California Supreme Court denied the petition for review. On September 21, 1987, Stephens filed a petition for writ of habeas corpus in the district court. The federal magistrate filed a report and recommendation that the petition be dismissed and on March 22, 1988, the district court filed a final order dismissing the petition. Stephens appeals. We review de novo, Zimmerlee v. Keeney, 831 F.2d 183, 185 (9th Cir. 1987), and we affirm.

Stephens asserts that improper comments by the prosecutor during closing argument justify reversal. Prosecutorial misconduct during closing argument is reversible error only if "the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, (Patel), 762 F.2d 784, 795 (9th Cir. 1985). See Donnelly v. DeChristoforo, (Donnelly), 416 U.S. 637, 642-43 (1974) (" [N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice").

Stephens' claim of constitutional error focuses on the following remark made by the prosecutor during the course of his closing argument to the jury. "And what I ask you to do is go through the evidence to evaluate the evidence and not just jump for the easy thing to do. Because, it will be very, very easy in this case to find the defendant guilty of some innocuous crime. It is very difficult to find the defendant guilty of first degree murder." At the conclusion of the prosecutor's closing argument,¹  petitioner's trial counsel objected to the statement arguing that the jury would draw the inference that if they convicted Stephens of manslaughter "they are letting him off and he won't do any time." Trial counsel requested an instruction that "manslaughter is not an innocuous charge." The trial judge did not give a specific disapproving instruction, rather, the judge instructed the jury not to discuss or consider punishment in rendering their verdict. Stephens contends that the prosecutor's statement made in closing argument was improper; that the comment was so misleading and prejudicial that it deprived Stephens of a fair trial; and that the jury instruction was not curative because it was given the next day and did not specifically instruct the jury to disregard the improper statement.

"We consider first whether the statements were improper and, if so, whether it is more probable than not that the prosecutor's conduct 'materially affected the fairness of the trial.' " United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986), quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985).

The prosecutor's remarks were to the effect that it will be easier for the jury to convict Stephens of "some innocuous crime" than to convict him of first degree murder. " [A] prosecutor 'should refrain from argument which diverts the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.' " Perez, 491 F.2d at 174 (quoting American Bar Association Standards for Criminal Justice, The Prosecution Function Sec. 5.8(d)) (recognizing "that it is difficult to draw a fine line between what is permissible and what is impermissible in closing argument") (emphasis added). The appellant argues that the jury inferred from this statement that it would be "letting Stephens off" and that Stephens would not serve any prison time if it convicted him of manslaughter.

Conflicting inferences can be drawn from the isolated passage of the prosecutor's argument and "it is by no means clear that the jury did engage in the hypothetical analysis suggested by [the petitioner] or even probable that it would seize such a comment out of context and attach this particular meaning to it." Donnelly, 416 U.S. at 644. The court "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretation." Id. at 647. In this case, it is questionable whether the prosecutor's remarks improperly diverted the jury from its duty to decide the case on the evidence.

Even assuming that the prosecutor's comments in this matter were improper, we conclude the error, if any, was harmless beyond a reasonable doubt. See United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987) (quoting Patel, 762 F.2d at 795) (" [t]he critical inquiry is whether in the circumstances of the trial as a whole, the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial").

Petitioner's contention that United States v. Williams requires a different conclusion is without merit. 523 F.2d 1203, 1208 (5th Cir. 1975). In Williams, the prosecutor stated in closing argument, "if [the defendant] walks out of this courtroom, this is a blank check, this is a blank check for this man to go out and commit a crime against you, against Judge O'Kelley, against your families, against your friends." Id.

The Fifth Circuit in Williams "was not willing to hinge its reversal of [the defendant's] conviction on the improper closing argument" alone. Id. at 1210. In reversing the defendant's conviction, the court in Williams relied on the prejudicial effect of both the pretrial publicity and the improper closing argument. The victim's widely publicized and televised appraisals of the defendant's personality, "the character of those comments, their proximity to the time of trial, and the familiarity of the panel members with the crime charged" in concert with the closing argument sufficiently "clouded the issue of [defendant's] mental responsibility" so as to deprive the defendant of "his right to a fair and impartial trial." Id. at 1209-10.

In this case, there was no pretrial publicity. Further, the district court instructed the jury that "statements by the attorneys during the trial are not evidence." He instructed that the charge of murder necessarily included the offense of voluntary manslaughter. The jury was instructed that if it was satisfied beyond a reasonable doubt that the killing was unlawful but if it has a reasonable doubt whether the crime is manslaughter or murder, it must find that the offense was only manslaughter. The judge also instructed " [i]n your deliberations, the subject of penalty or punishment is not to be discussed or considered by you. This is a matter which must not in any way affect your verdicts."

"Whatever prejudice flowed from [the prosecutor's] statement was adequately cured when the court later instructed the jury" not to discuss or consider punishment in rendering their verdict. United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986). Although not a specific disapproving instruction, " [t]he trial court's instructions were sufficient to focus the jury's attention on the proper issues." Id. Accordingly, we find that the prosecutor's statements at trial by itself did not so infect "the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 413 U.S. at 643.

AFFIRMED.

REINHARDT, Circuit Judge, concurring:

I concur. I agree that the improper comments of counsel were not "so prejudicial as to deprive the defendant of a fair trial."