In this decision, the COA found that an isolated instance of counsel discussing his or her own observations about the area of the accident and its impact upon the accident was not error requiring reversal. For what it is worth, I find this disturbing, that an experienced trial judge (Judge Stephen Mershon, Senior Status Judge) would have permitted this observation by counsel to stand, and that the COA found that it was not a reversible error. In many cases, it is not so much what is in evidence but what can be either “prayed” or “preyed” into evidence that is of consequence.
Allowing counsel to essentially testify about her observations of the traffic flow at the situs of the accident on the morning of her closing was without the benefit of being under oath, no opportunity to be cross-examined, went to the ultimate issue of liability in the case, and was quasi-expert testimony in her own right.
For those of us who have tried cases, this was big. For those who look at them from afar without the benefit of being in the arena, I can only surmise a lack of appreciation of the human behavior and trial dynamics.
The bell had been rung. The genie was out of the bottle. And the old saw that the jury understands that counsel’s argument is not evidence reflects a lack of comprehension of human behavior.
Here is the argument. You decide for yourself:
On my way here today I was sitting on the corner of Jefferson and 7th Street and Jefferson is a one-way headed west and I was in the curb, and my light was green and I could see pedestrians on the corner that were intending to cross heading south and when the lights were green I could see cars coming up from my left and I thought “there is no way, there is no way that if a car coming up . . .”
[objection by Plaintiff and bench conference]
So as I sat there in the westbound turn lane of Jefferson and cars were coming upon my left it occurred to me the similarities between that situation and this and I hoped we were all lucky enough that nobody decided to cross that intersection at that given time because another accident like this would have happened.”
WILSON (ALISHA)
VS.
MADZHITOV (MIKAIL)
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND DIXON (CONCURS)
2011-CA-001544-MR
2011-CA-001664-MR
NOT TO BE PUBLISHED
JEFFERSON
Specifically, Alisha takes issue with the following portion of Mikail’s counsel’s closing argument:
On my way here today I was sitting on the corner of Jefferson and 7th Street and Jefferson is a one-way headed west and I was in the curb, and my light was green and I could see pedestrians on the corner that were intending to cross heading south and when the lights were green I could see cars coming up from my left and I thought “there is no way, there is no way that if a car coming up . . .”
[objection by Plaintiff and bench conference]
So as I sat there in the westbound turn lane of Jefferson and cars were coming upon my left it occurred to me the similarities between that situation and this and I hoped we were all lucky enough that nobody decided to cross that intersection at that given time because another accident like this would have happened.”
With every alleged error we must adhere to the harmless error standard set forth in CR2 61.01, and disregard any errors or defects in the proceedings that do not affect the substantial rights of the parties. We note than an isolated instance of an alleged improper remark “will seldom be found prejudicial[,]” as opposed to when the remark “is repeated and reitareated in colorful variety[.]” Stanley v. Ellegood, 382 S.W.2d 572, 575 (Ky. App. 1964) (citation omitted). In this case, we see no prejudicial effect as a result of counsel’s comments. Of importance, the remarks were an isolated instance within the context of a broader argument summarizing the evidence. Furthermore, by way of Alisha’s counsel’s multiple objections during closing argument, the jury was repeatedly informed by the trial court that the closing argument was not evidence to be considered, but was simply counsel’s own summary of the evidence. Given the wide latitude afforded counsel during closing arguments, we are unable to conclude a counsel’s mere mention of observing the intersection where an accident took place would justify a reversal of the trial court’s ruling. See Stopher v. Commonwealth, 57 S.W.3d 787, 805-06 (Ky. 2001) (under Kentucky law, counsel is afforded wide latitude during closing arguments). Assuming arguendo that counsel’s comments were outside the bounds of permissible advocacy, the comments were not prejudicial nor did they affect Alisha’s substantial rights. Accordingly, this point of error is not a basis for reversal of the judgment.3
