Recent unpublished COA decision addressed closing argument and personal opinions made by defense counsel. Here is an extract of that decision regarding this issue:
During closing argument, defense counsel stated that “from the bottom of [his] heart [he] believe[d] Dr. Larson acted appropriately. . . .” Perry argues that interjection of counsel’s personal belief was inappropriate and constitutes grounds for reversal.
Initially, we note that counsel for Perry did not object to the statement made by Larson’s counsel during closing argument. “The function of the Court of Appeals is to review possible errors made by the trial court, but if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review.” Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985). Because counsel did not bring this matter to the attention of the trial court, we need not address it. However, for the sake of completeness, we do so below.
In support of her argument, Perry cites to three criminal cases, Armstrong v. Commonwealth, 517 S.W.2d 233 (Ky. 1974); Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982); and U.S. v. Bess, 593 F.2d 749 (6th Cir. 1979). In Armstrong, the prosecutor commented on his belief that a witness “was honest and conscientious, and that his word was worthy of belief.” 517 S.W.2d at 236. Although the Court held that the statement was improper, it determined that the defendant had not been prejudiced thereby. Id.
In Moore, the prosecutor stated that a witness was “one of the most dangerous and vicious killers” he had seen. 634 S.W.2d. at 437. The Court determined that such personal comments by the prosecutor about the character of a witness were not proper and reversed Moore’s conviction. Id. at 438. However, that reversal was based on a number of errors at the trial court level, not just the prosecutor’s statement during closing argument.
In Bess, the prosecutor stated that
[i]f the United States did not believe the defendant was guilty of committing these charges in the indictment, based on the evidence that has been presented to you, this case, of course, would have never been presented to you in the first place. It never would have been presented to you.
593 F.2d at 753. The prosecutor also stated that he believed beyond a reasonable doubt that Bess was guilty. Id. The United States Court of Appeals for the Sixth Circuit determined that these statements by the prosecutor were not only improper but violated applicable ethical rules of conduct. However, the Court stated that it would not adopt a per se rule that such statements mandated reversal. Rather, it held that such statements would not constitute reversible error if the evidence of guilt was overwhelming, if the statements were not flagrant, if the statements were not objected to, or if the trial court did not properly admonish the jury following an objection. Id. at 757-58. Because counsel for Bess did object and the court did not admonish the jury, the Court reversed and remanded.
As noted by Larson, the preceding cases are distinguishable because they all involve criminal defendants and statements by prosecuting attorneys. Such attorneys have a heightened duty to seek the truth rather than to simply advocate a position. However, attorneys in both civil and criminal cases have a duty to refrain from “stat[ing] a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Rule of the Supreme Court 3.130(3.4)(e).
Taking the above into account, we conclude that the statement by Larson’s counsel regarding his personal belief that Larson acted appropriately appears improper. However, immediately after he made that statement, Larson’s counsel stated that the jury, not he, was to determine what to believe, and Perry’s counsel failed to object. Therefore, we hold that the statement by Larson’s counsel was not sufficiently egregious as to merit reversal.
PERRY (SUSIE), ET AL.
LARSON (GERALD M.), ET AL.
KELLER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
NOT TO BE PUBLISHED