State v. Cartrell Romel Kimble, 2021AP1227-CR, Distirct 1, 11/29/22 (not recommended for publication); case activity (including briefs)

The prosecutor’s closing argument didn’t amount to “vouching” for the credibility of the pretrial statements of two recanting witnesses.

At Kimble’s trial for homicide and reckless endangering safety, two of the state’s witnesses who had previously told police they saw Kimble running from the scene of a shooting claimed they did not recall telling police that Kimble was one of the men and didn’t recall picking his photo out of an array or otherwise identifying Kimble. (Their lack of recall led to the police involved to testify about what the witnesses had told them.) Both witnesses also said they didn’t want to be testifying and said some things that suggested they feared doing so. (¶¶2-18).

In closing, the prosecutor addressed the two “recanting” witnesses and argued their recantations arose from fear of testifying and that the circumstances of the pretrial identifications were credible. (¶¶19-22). Kimble argues these arguments amounted to improper vouching of the pretrial identification that asked the jury to rely on facts not in evidence–namely, the absence of direct evidence the two refused to make an in-court identification out of fear. The court of appeals disagrees.

¶27     During closing arguments, an attorney “may comment on the evidence, detail the evidence, argue from it to a conclusion, and state that the evidence convinces him or her and should convince the jurors.” State v. Adams, 221 Wis. 2d 1, 19, 584 N.W.2d 695 (Ct. App. 1998). An attorney “is allowed considerable latitude in closing arguments, with discretion given to the trial court in determining the propriety of the argument.” State v. Burns, 2011 WI 22, ¶48, 332 Wis. 2d 730, 798 N.W.2d 166. An attorney may not “suggest that the jury arrive at its verdict by considering factors other than the evidence.” Adams, 221 Wis. 2d at 19.

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¶33     We are not convinced that the prosecutor’s comments were objectionable. The prosecutor elicited testimony from both Derek and Cory about each man’s reluctance to testify at trial. In closing arguments, the prosecutor “did an exhaustive review of the evidence” and from that evidence, the prosecutor commented on Derek and Cory’s credibility as witnesses. See State v. Lammers, 2009 WI App 136, ¶24, 321 Wis. 2d 376, 773 N.W.2d 463. The prosecutor’s comments on Derek and Cory’s motivation derived from the evidence within their testimony. The prosecutor did not bring her personal opinion into the case. See Adams, 221 Wis. 2d at 19. Upon examination of the record, we conclude that the prosecutor’s closing argument did not infect the trial with unfairness, and did not violate Kimble’s right of due process. See Burns, 332 Wis. 2d 730, ¶53.