the State's comments upon the uncharged acts misrepresent the facts related to the crimes charged and introduce facts that were not admitted at trial, such as the reasons the State did not charge Stephano with additional offenses. Such commentary is improper and beyond the permissible bounds of closing argument. We recognize that a prosecutor has a wide latitude to explain evidentiary problems and to draw reasonable inferences from the evidence. Nevertheless, a deduction may be based only upon evidence which was actually introduced.The COA held that the repeated improper references were gross and flagrant and evinced ill will. As a result, it ordered a new trial.
Moreover, because the comments emphasize uncharged crimes that, although admitted without objection at trial, tend to indicate the criminal defendant's propensity to commit sex crimes and practically invite the jury to reach a compromise verdict, we cannot deem the comments to be insignificant. Multiple reasons might exist for the State's decision not to charge crimes that have been alleged by a victim, not the least of which is the prosecutor's belief that such crimes are not credible. By offering an explanation for failing to charge such crimes, the prosecutor in this case effectively testified and suggested that, save for the operation of law or the poor memory of a victim, Stephano should be facing an even greater punishment than permitted by the charged offenses. This argument was improper.
In addition, it was clearly improper for the prosecutor to go outside the record and tell the jury that Stephano was responsible for more crimes than just the offenses charged in the complaint.
[Update: the state did not file a PR and the mandate isued on April 2, 2009.]