COURT OF APPEALS DECISION DATED AND RELEASED |
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July 31, 1997 |
NOTICE |
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and rule 809.62, Stats. |
This
opinion is subject to further editing. If published, the official version
will appear in the bound volume of the Official Reports. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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State
of Wisconsin,
Plaintiff-Respondent, v. Jason
L. Jorgensen,
Defendant-Appellant. |
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APPEAL from a judgment of the circuit court for Monroe County: MICHAEL J. MC ALPINE, Judge. Affirmed.
Before Eich, C.J., Dykman, P.J., and Roggensack, J.
PER CURIAM. Jason Jorgenson appeals from a judgment convicting him of physical abuse to a child, contrary to § 948.03(2)(b), Stats. The issue is whether Jorgenson is entitled to a new trial because the State made prejudicial statements during its closing argument. Because Jorgenson failed to timely object to all but one nonprejudicial statement, we affirm.
Jorgenson
was charged with physical abuse to a child.
The victim was a girl who had sustained bruises on her buttocks. The case was tried to a jury and the
evidence consisted, in part, of photographs taken by the attending physician,
Dr. Patterson, which showed that hand-shaped bruises had been inflicted on the
victim.
At
the close of evidence, counsel gave their closing arguments. During the State’s discussion of the
hand-shaped bruises, the prosecutor stated that “[y]ou could tell it was a
right handed hit.” Jorgenson objected
to the prosecutor’s statement. The
court overruled his objection.
After
the jury retired to deliberate, Jorgenson moved for a mistrial on the following
grounds: (1) that the prosecutor’s
statement about a “right-handed hit” and his speculative remarks on why the
victim had difficulty in testifying were comments on information not in
evidence; (2) that much of the prosecutor’s closing argument was improper
personal opinion; and (3) that the prosecutor’s closing statements that
the victim needed justice and that Jorgenson needed criminal sanctions were
improper and inflammatory. The court
denied the motion.
The
jury found Jorgenson guilty. Jorgenson
appeals, contending that the prosecutor’s improper statements denied him his
due process right to a fair trial.
Jorgenson
objected only once during the prosecutor’s closing argument. “Failure to object at the time of the
alleged improprieties in the closing argument … waives review of that alleged
error.” State v. Goodrum,
152 Wis.2d 540, 549, 449 N.W.2d 41, 46 (Ct. App. 1989). Therefore, we confine our review to the
single statement to which Jorgenson objected.
Jorgenson
objected when the prosecutor referenced the bruises on the victim and stated
that “[y]ou could tell it was a right handed hit.” Jorgenson contends that, because there was no evidence that the
bruise was inflicted by a right-handed hit, the prosecutor’s statement
suggested that the jury should consider factors other than evidence to reach a
verdict. The statement, he argues, was
so prejudicial that it denied him a fair trial.
A
motion for a mistrial is committed to the sound discretion of the trial
court. State v. Bunch,
191 Wis.2d 501, 506, 529 N.W.2d 923, 925 (Ct. App. 1995). We draw the line between permissible and
impermissible argument where the prosecutor goes beyond reasoning from the
evidence and suggests that the jury should arrive at a verdict by considering
factors other than the evidence. State
v. Draize, 88 Wis.2d 445, 454, 276 N.W.2d 784, 789 (1979). “Argument on matters not in evidence is
improper.” State v. Albright,
98 Wis.2d 663, 676, 298 N.W.2d 196, 203 (Ct. App. 1980). But, we will not restrain the advocate with
unreasonable restrictions so long as the comments relate to the evidence. Draize, 88 Wis.2d at 456, 276
N.W.2d at 790.
The
State submitted into evidence photographs of the victim’s injuries taken the
day the victim was examined and the day after.
Dr. Patterson described the bruises depicted in the photographs. He characterized them as hand-shaped and
alluded to the outline of a hand print and two or three fingermarks. When the prosecutor stated that “[y]ou could
tell it was a right handed hit,” he suggested what might be inferred from the
photographs. Therefore, the prosecutor’s
closing statement related to the evidence, and the trial court properly
exercised its discretion when it denied Jorgenson’s motion for mistrial.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.