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COURT OF
APPEALS DECISION DATED AND
RELEASED March
27, 1996 |
NOTICE |
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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
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This opinion is subject to further editing. If published, the official version will appear in the bound
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No. 95‑1726‑CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
STATE
OF WISCONSIN,
Plaintiff‑Respondent,
v.
JULIAN
C. HOLT,
Defendant‑Appellant.
APPEAL
from a judgment and an order of the circuit court for Kenosha County: ROBERT V. BAKER, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
PER
CURIAM. Julian C. Holt appeals from a judgment of
conviction for first-degree intentional homicide with a weapon and from an
order denying his motion for postconviction relief. On appeal, Holt contends that various of the prosecutor's
statements at closing arguments so infected his trial that he was denied due
process of law. While we conclude that
some of the prosecutor's remarks were improper, we cannot say that any of them
rises to the level of plain error or that any requires a discretionary reversal
under § 752.35, Stats. Accordingly, we affirm the judgment and the
order of the circuit court.
Holt
was convicted of killing David Umfress, Jr.
Holt, along with Mark Pawlicki, had gone to Umfress' apartment on the
night of January 2, 1994, where they ate potato chips, listened to music and
smoked marijuana. They were later
joined by Florin Adamson, who came to buy drugs from Umfress. Pawlicki testified that, at one point, Holt
came up behind Umfress, stabbed him in the back, grabbed him around the head,
and directed him toward the bedrooms.
Adamson, who was out on the landing, reentered, heard Umfress screaming
and saw Holt in a darkened bedroom swinging his arm down and striking
Umfress. Both Pawlicki and Adamson then
left. Adamson testified that he came
back later with a friend, but that by that time “there was police tape
everywhere,” so they left.
Holt
testified that he stabbed Umfress only after Umfress came after him with a
knife. His version was that Umfress
accused him of stealing marijuana and approached him holding a knife. Holt knocked it out of his hand, picked it
up, chased him into Umfress' bedroom and stabbed him because he “had a feeling
he was going for his shotgun ....” Holt
testified that Umfress grabbed the shotgun, which went off while the two of
them struggled over it. Holt testified
that he could not recall stabbing Umfress more than two times. Holt then went to his uncle's house and
explained what happened to his uncle, his uncle's girlfriend, Georgette
Timoshuk, and her brother, Robert Timoshuk.
Georgette testified that Holt told her that he could not stop stabbing
Umfress. Robert testified that Holt
told him that he stabbed Umfress about fifty times.
During
closing arguments, defense counsel posited that Adamson came back to Umfress'
apartment after Holt had left and stabbed Umfress with a second knife. The prosecutor objected, contending that no
evidence or testimony supported this theory.
While the trial court indicated some reservations about the defense's
line of argument, it took the motion under advisement and allowed the defense
to continue. The prosecutor again
objected when the defense claimed that the blood in the bedroom had not come
from the stabbing.
At
the beginning of his rebuttal argument, the prosecutor stated:
Total lack, total absence of any defense in this case as
manifested with the bush-league tactics that were just employed by defense
counsel in his closing argument. ...
Let me tell you folks that this is the way it is done. All of the evidence that I have is given to
the defense attorney well in advance of trial.
Now, they're not obligated to tell me what their defense is before the
trial starts. That's the way the rules
are. I'm obligated to give them
everything. They are not obligated to
give me much of anything.
After further comment concerning the lack of evidentiary
support for defense counsel's claim about Adamson, the prosecutor stated that
the evidence “wasn't presented because he chose not to show this theory under
light of day.” Defense counsel
objected, stating that “[w]e don't have any obligation to present a
defense. I would object to that
statement.” The prosecutor then
continued:
He chose not to ask Florin Adamson questions about
whether he came back or not because he saw the statements, the detectives
reports. He saw the photographs in the
State's file showing Florin Adamson had not a drop of blood on his person when
he was interviewed by the police that same night.
The prosecutor went on to refer to the defense as using
“these kind of bush-league tactics.
This kind of a ambush.” The jury
ultimately found Holt guilty, and this appeal ensued.
We
begin with the fact that the defense leveled no contemporaneous objections to
those arguably improper parts of the prosecution's closing argument. Failure to object at the time of the alleged
improprieties in the closing argument waives review of that error. State v. Goodrum, 152 Wis.2d
540, 549, 449 N.W.2d 41, 46 (Ct. App. 1989).
However, we may overlook waiver where the error is so plain or
fundamental as to affect the substantial rights of the defendant. State v. Neuser, 191 Wis.2d
131, 140, 528 N.W.2d 49, 53 (Ct. App. 1995).
We
have explained the requisite magnitude of an error deemed to be “plain:” “it must be so fundamental that a new trial
or other relief must be granted.” ... A
“plain error” is one that is “both obvious and substantial” or “grave,” ... and
the rule is “reserved for cases where there is the likelihood that the [error]
... has denied a defendant a basic constitutional right.” State v. Vinson, 183 Wis.2d
297, 303, 515 N.W.2d 314, 317 (Ct. App. 1994) (citations and quoted sources
omitted). While the prosecutor's
description of the discovery process and his allusion to matters not in
evidence[1]
are certainly “obvious” errors, we are unpersuaded that here they are either
“substantial” or “grave.”
All
of the complained of comments were engendered by and responsive to defense
counsel's closing argument that Adamson later returned to stab Umfress after
Holt did, a highly speculative theory with no real support in the record. None of the prosecutor's comments improperly
undermined Holt's right to present a defense, which here was self-defense. Because these comments undercut a theory
which was not pursued or developed at trial and was tenuous at best, we cannot
say that any error in those comments was either substantial or grave.[2] Accordingly, we affirm the judgment and the
order of the circuit court.
By
the Court.—Judgment and order
affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.
[1] While they might
certainly be deemed intemperate, we are unpersuaded that the other matters
complained of, namely, the prosecutor's comments upon Holt himself and the
Adamson-based defense itself, rise to the level of error, given the
circumstances. One of the “hard blows”
a prosecutor may strike is comment upon the opponent's arguments. See United States v. West,
670 F.2d 675, 688 (7th Cir.), cert. denied, 457 U.S. 1124, 1139 (1982).