US. APP. 84-1728

"[Defense Counsel]: I'd rather not have my argument prefaced by [sic] not listening to what I have to say about the law."

"The Court: You don't want the instruction then?"

"[Defense counsel]: No, Your Honor.

No further mention was made by anyone of the original motion to strike, or of the judge's initial readiness to grant it.

Defense counsel then began his own closing argument by predicting, accurately, that the judge's instructions as to the law would not coincide with the prosecutor's legal theory. After asking the jurors to be sure to follow the judge's instructions, counsel continued:

"When you listen and hear the Judge talk about what is foreseeable consequences, listen to see if he says anything about reasonable man; he will not. What you're going to be hearing about in the instructions and what this case is about is what Mr. Thomas was thinking on March 11, 1983." [11]

In her rebuttal argument, the prosecutor again mixed entirely appropriate argument with a more dubious passage:

"Now, I told you before and I will tell you again that the fact that Mr. Thomas did not understand or did not know based on his experience

[11 Prejudice from a misstatement by the prosecutor may be dissipated when defense counsel corrects it and the judge bears him out. See Cross v. United States, 122 U.S. App. D.C. 283, 285, 353 F.2d 454. 456 (1961).[

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that stone burns and in this case, granite, which you heard explodes when fire touches it, is not at all relevant to the question of foreseeability ... An intelligent person knows that the contact would result in damage under the circumstances." [12]

Following argument, as previously noted, the judge's instruction as to malice was taken directly from Instruction 4.43, and thus bore out defense counsel's prediction that there would he no mention of a reasonable person test The judge also instructed the jurors, both in his opening remarks and in his charge, that "it is your duty to accept the law as I state it to you." At no time, however, did the judge explicitly address, in terms readily understandable by lay jurors, the question whether the line of argument by the prosecutor which he had earlier agreed to strike was right or wrong. In particular, he never dealt, at least explicitly, with the prosecutor's assertion that Thomas' stated surprise that the column was damaged, and his professed belief that it would not be, were irrelevant. The jurors may have deduced the correct answer from the judge's omission of the reasonable person test from his instructions. It is also possible, however, that they did not.

III

In Gaither v. United States, 134 U.S. App. D.C. 154, 172, 413 F.2d 1061, 1079 (1969), the court stated:

[12 Although, if considered alone, this passage might be susceptible of the more charitable construction suggested by Judge Belson in his dissent, we think that the prosecutor's arguments in her initial closing and her remarks in rebuttal are in harmany with one another. When considered together, they plainly cross into the forbidden territory.]

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"The applicable test for prejudice is whether we can say, 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." [13] The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.

Id. at 172, 413 F.2d at 1079. Gaither involved the prosecutor's misstatement of the facts, but the same principles apply where, as here, she has misstated the law. (James) Powell v. United States, 455 A.2d 405 (D.C. 1982). We address the three Gaither factors in turn.

A. The Closeness of the Case

We have no hesitation in concluding, especially after viewing the spectacular color photographs of Revelation burning, the kerosene-fed flames rising high and enveloping the immediately adjacent column, and the damage actually done, that the circumstantial evidence of malice in this case is very strong. The jury could reasonably find that Thomas was not only frustrated, as he readily acknowledged, but angry as well, and that his zeal to send a message by doing something 'big' led him to incinerate Revelation with little or no regard for the consequences to the property of others. An examination of the photographs makes it difficult to resist the conclusion that anyone of even modest intelligence must have known that the flames would at least singe and probably discolor and thus "injure" the column. The prosecutor scored some telling points during cross-examination on

[13 The passage in quotation marks ia from Kotteakos v. United States, 328 U.S. 750, 765 (1946).]

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this issue. Thomas testified that he was a philosopher who acted in a logical fashion. His counsel in effect invited the jury to note his intelligence. The inference is strong that Thomas was a man of reasonable intelligence who must have known of the risk.

From another perspective, however, it is difficult to determine the strength of the case, because the result turns in large part on Thomas' credibility. The only issue was malice, an aspect of Thomas' state of mind It was Thomas' testimony on that very subject, and specifically his insistence that he did not believe that the column was at risk, that the prosecutor characterized as irrelevant. It is difficult if not impossible to assess on a cold record whether Thomas' demeanor and manner of testifying would have led the jurors to a different result if the prosecutor had not told them that the most important part of his testimony was irrelevant, or if the judge had explicitly cleared up the point.

B. The Centrality of the Issue

There can be no question that the prosecutor's incorrect characterization of the law went to the only real question in the case. The centrality of the issue to which the incorrect arguments were addressed constitutes the greatest difficulty, in our view, with the government's contention that any misstatement was harmless.

C. The Steps Taken in Mitigation

As previously noted, the judge correctly instructed the jurors on three separate occasions as to the law of malice, and he also told them that his instructions as to the law were controlling. Moreover, events unfolded rapidly after the initial objection to the prosecutor's ar-

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gument, and the defense attorney --an able advocate during the trial as a whole--was not as assertive as he might have been at the critical time, never again pushing his motion to strike or requesting clarifying instructions, and never moving for a mistrial. From the perspective of the judge, who (unlike his appellate counterparts) did not have briefs or transcripts or extensive time for reflection or collegial consultation, the defense attorney's rejection of the judge's suggested resolution and his subsequent silence may understandably have indicated that counsel had abandoned the point.

Nevertheless, we conclude that, on the central issue of the case, the jury should have been told, when the prosecutor argued the "reasonable person" test and the defense objected, that the ultimate issue was Thomas' state of mind, and that what a reasonable man would have foreseen, while relevant as to what Thomas would have foreseen, was not conclusive. Indeed, the trial judge himself evidently agreed with this view, and expressed himself ready to strike the offending remarks. Whether he affirmatively changed his mind about doing so, or whether the point was accidentally abandoned after defense counsel declined a lesser remedy,' [14] is not clear from the record. Moreover, assuming arguendo that defense counsel's challenge to the jury to listen to the judge's charge and compare it with the prosecutor's statement about the reasonable person standard, followed by a correct charge, cured that prosecutorial misstatement standing alone, see Cross v. United States, supra [15] --an

[14 We think it reasonable to infer from the sequence of events that defense counsel construed the judge's switch to the lesser remedy as an effective denial of the motion ta strike, and thought it futile to raise the subject again.]

[15 Since defense counsel maintained that his client was an intelligent man, the "reasonable person" standard as applied]

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issue we need not decide -we do not think that the prosecutor's related but more extreme legal theory (that Thomas' surprise that the column was damaged was irrelevant) was ever sufficiently countered by the court. In effect, this critically important and misleading proposition was left hanging. We also conclude, given the close connection in time and content between the prosecutor's assertion of the "reasonable person" standard and her contention that Thomas' professed "surprise is irrelevant," as well as the judge's direction to defer objections until the prosecutor had finished, that a "plain error" analysis should not be applied to the "surprise is irrelevant" issue despite defense counsel's failure to challenge those specific words. Indeed, we understand the prosecutor to acknowledge as much at oral argument.

But even if one deems defense counsel's objection to have been too short-lived and to tentative, the conviction nevertheless cannot stand. In cases in which the danger of prejudice is substantial, "mild judicial action" in response to an improper argument by the prosecutor is insufficient. King v. United States, 125 U.S. App. D.C. 318, 331, 372 F.2d 383, 396 (1967). When counsel misstates the law, the better practice is for the court to intervene promptly and to correct the misstatement, especially where, as here, the judge has discouraged the interruption of closing argument by counsel. See (Duane) Dyson v. United States, 450 A.2d 432, 442 n.9 (D.C. 1982). An attempt to prejudice the jury should be condemned sua sponte by the trial court in the presence of the jury, United States v. Jenkins, 140 U.S. App. D.C. 392, 397, 436 F.2d 140, 145 (1970) (prosecutor called to Thomas had an evidentiary basis. If Thomas was reasonably intelligent, then arguably there was no difference between what he could foresee and what a reasonably intelligent person would foresee.

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defendant a hoodlum), and we think that the same holds true where the prosecutor seriously misstates the law. The Supreme Court has recently emphasized the importance of prompt and decisive action by the trial judge where counsel has made an improper argument to the jury. United States v. Young, 470 U.S. 1, 9 (1984). So have we. Hammill v. United States, 498 A.2d 55l, 555 (D.C. 1985); Hawthorne v. United States, 476 A.2d 164, 172 (D.C. 1984).

In the present case, the prosecutor's misstatement went to the heart of the only real issue in the trial. Defense counsel objected, and after the judge initially indicated that he would take comparatively strong corrective action, he offered a less decisive remedy, which the defense declined. The result was that, aside from the standard "redbook" instructions, no corrective action was taken at all. Although the trial court has no general duty to instruct the jury sua sponte, Allen v. United States, 495 A.2d 1145, 1150 (D.C. 1985) (en banc), [16] we hold that on these facts, in spite of defense counsel's relative passivity, the judge was obliged to counteract in some effective fashion the prosecutor's critical misstatement of the law.

It may very well be that the result of the trial would have been the same even if the prosecutor had not misstated the law, or if the judge had stricken or otherwise dealt more rigorously with her misstatements. We cannot say this with "fair assurance," Kotteakos, supra,

[16 Cf. Corrado v. United States, 93 U.S. App. D.C. 183, 193, 200 F.2d 112, 722 (1953), cert. denied. 341 U.S. 1018 (1954) "It was the judge's duty to instruct the jury correctly, regardless of what theory any party might urge upon him in offering instructions."]

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however, and accordingly reverse Thomas' conviction and remand the case for a new trial." [17]

So ordered.

[17 There continues to be confusion in Criminal Jury Instruction 4.43 between the first sentence of the quotation on p. 10, supra. which apparently requires an evil purpose, and the paragraph that follows, which does not. See Charles, supra. We suggest that the instruction be revised in conformity with the quotation from Perkins on p. 8, supra, where it is stated that either a bad intent or wanton conduct with conscious awareness of the risk is required.]

The trial judge also instructed the jury, in conformity with the first part of Criminal Jury Instruction 3.01, that "some criminal offenses require only a general intent. And where this is so, and it ia shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act." The judge never expressly stated that the criminal offenses to which this proposition applies include malicious destruction of property, but this was perhaps implicit.

There was no objection to this instruction, and we certainly do not hold that it was "plain error" to give it. We suggest, however, that even if "general intent" language can be theoretically reconciled with the concept of malice, it is more likely to confuse lay jurors than to enlighten them. An appropriate adaptation of Criminal Jury Instruction 3.02 (proof of intent). which the judge also gave, is of course entirely appropriate.

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