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Name: People v. Vance
Case #: A122777
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 09/30/2010

Golden rule arguments, in which the prosecutor asks the jury to put itself in the victim’s position and imagine what the victim experienced, are improper. The victim told appellant’s girlfriend that appellant had been unfaithful, so appellant decide to teach him a lesson. Appellant, the victim, and a third person, met and used methamphetamine together, and then drove to a remote location. Appellant put the victim in a choke hold, causing him to go limp. The victim’s hand and feet were bound, and he was driven to another location where he was abandoned. Sometime later, his remains were discovered. A pathologist was unable to pinpoint the cause of death. Appellant told police that the victim was breathing when he left him. At trial, the prosecutor, over repeated objections by defense counsel, gave an impassioned closing argument urging the jury to put itself in the victim’s shoes and imagine the terror he endured. The jury found appellant guilty of first degree murder, despite defense counsel arguing that, in view of appellant’s drug consumption and learning disability, appellant was guilty of manslaughter or, at most, second degree murder. The appellate court found error based on prosecutorial misconduct and reversed. It is misconduct to appeal to the passions of the jurors by urging them to imagine the suffering of the victim. This is true in both the guilt portion of capital cases and non capital cases because such argument invites the jury to indulge in subjective analysis rather than its proper role of objectively evaluating the evidence and determining if elements of the offense have been met. Here, the error was exacerbated by the prosecution’s continued argument in this vein, despite the court’s sustaining of the defense objections, and the court’s refusal to admonish the jury. The error was prejudicial because the evidence was not overwhelming as to guilt of first degree murder but was equally compatible of guilt of second degree murder. The only real issue for the jury to determine was appellant’s mental state, and the prosecutor’s inflammatory argument clouded the issue to the extent that the verdict was suspect. The conviction was reversed with a copy of the opinion sent to the State Bar for action as it deemed appropriate.