Tuesday, June 9, 2020
Page 3
Prosecutor’s Remark to Jury Requires Reversal—C.A.
Justice Kim Says Deputy District Attorney Urged Inference of Guilt From Defendant Telling Police He Wanted Lawyer
By a MetNews Staff Writer
A man who threw a pug from a balcony, retrieved the animal, again tossed the dog from the second floor, came downstairs, and ran over the pet with his car two or three times is entitled to a new trial, the Court of Appeal for this district has held, because the prosecutor told the jury to infer guilt from the fact that the man asked for a lawyer.
The opinion, filed Friday and not certified for publication, was authored by Justice Dorothy Kim of Div. Five. It reverses the conviction of Moonkyo Lee for “maliciously and intentionally” killing an animal, a felony, with an enhancement based on his use of a deadly weapon: his automobile.
Lee’s defense was that he suffers from a mental illness and that he has no recollection of the incident.
In her summation, Deputy District Attorney Noelle Brown questioned why, if Lee had blacked out as he claimed at trial, he didn’t tell that to police officers when they questioned him.
Consciousness of Guilt
Brown said in her rebuttal to the defense’s argument:
“[A]t the point that he got an interpreter..., the first thing he did was ask for a lawyer. What do you need a lawyer for if you don’t even know why you’re in trouble; right? [I]f you don’t know why you were detained, then why is [your] first question, ‘Can I get a lawyer?’ That’s something that people ask when they know they’ve done something wrong. They want representation so they can go about defending themselves in the best manner appropriate.”
Los Angeles Superior Court Judge Renee F. Korn sustained the defense lawyer’s objection to the argument but was not asked to give a curative instruction, and didn’t.
‘Flagrantly Improper’
In Friday’s opinion, Kim quoted the prosecutor and said:
“In other words, she argued that defendant’s invocation of the constitutional right to counsel was a reason to find him guilty. Although there is no evidence that the prosecutor acted with ill-will (at trial, defense counsel expressed her belief that the prosecutor did not intend to prejudice defendant), this argument by the prosecutor was ‘flagrantly improper.’ ”
The jurist also said it was improper to comment during rebuttal on Lee not mentioning his black out to officers because it “was not a fair response to defendant’s closing argument, but rather a variation on a theme that she had first developed during cross-examination and closing argument.”
Reversal is required, Kim declared, because “the evidence of defendant’s guilt was not overwhelming, at least not on the single issue disputed by defendant at trial, namely, whether he had acted consciously when he killed his son’s dog, a killing that he did not dispute.”
Lee and his wife testified as his suffering previous blackouts and a son told of aberrant behavior on his part.
The case is People v. Lee, B298604.
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