Case Detail
CitationPeople v. Spence, 938 N.Y.S.2d 622 (N.Y. App. Div. 2012)
CrimeNon-violent, other
Pros. First NameUKN
Pros. Last NameUKN
Trial Year2010
BodyAppeals court
OpinionThe New York Supreme Court, Appellate Division, held that: (1) the prosecutor's improper witness vouching during summation deprived the defendant of a fair trial; and (2) the prosecutor's improper remarks during summation relating to the defendant's tattoos deprived the defendant of a fair trial. "We find that improper remarks by the prosecutor during summation deprived the defendant of a fair trial. The prosecutor improperly vouched for a witness and implied that the witness faced retribution from the defendant when he stated, over objection, that the witness testified 'not knowing what the ramifications . . . would be for herself and her family.' A prosecutor may not bolster the credibility of a witness by 'making himself [or herself] an unsworn witness and supporting his [or her] case by his [or her] own veracity and position' [citations omitted]. Here, the defendant was prejudiced by the prosecutor's inflammatory and unsupported insinuation that the witness was more credible because she testified despite some unspecified possibility of retribution for doing so. There is no support in the record of any threats to the witness or her family and, moreover, the prosecutor's comments violated the rule that a prosecutor may not 'try to convey to the jury, by insinuation, suggestion or speculation, the impression that the defendant is guilty of other crimes not in issue at the trial'[citations omitted]. . .Additionally, the prosecutor made improper remarks relating to the defendant's tattoos. The defendant introduced evidence that he has tattoos on his arms in order to undermine the credibility of a witness who testified that she saw him at the crime scene holding a gun and wearing a t-shirt, but could not remember whether the man she saw had tattoos on his arms. The tattoos, which depicted, among other things, a smoking gun, bullets, and the words 'gangster life,' may have posed some self-created prejudice to the defendant in and of themselves, a risk the defendant had to bear by putting them in evidence. However, the prosecutor's summation crossed the bounds of permissible rhetoric. Specifically, it was improper for the prosecutor to, in completing his analogy that if it 'walks like a duck' and 'looks like a duck,' then 'it's a duck,' argue that the violent nature of the defendant's tattoos established his identity as the person seen in possession of the gun. Since there was no evidence from any eyewitness that the person seen at the crime scene had tattoos, the only possible purpose of these comments would have been to improperly argue that it was more likely that the defendant had committed the crime because of his bad character, which the prosecutor constructed for the jury from the violent nature of the defendant's tattoos [citations omitted]."
Determination Year2012
Misconduct TypeTR: Inadmissible
TR: Inflammatory
TR: Vouching
C/S EffectReversal of conviction
Pros. Misc. ReportedUKN
Sanction TypeUKN
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