Got a FIP? Watch out for suggestions by the prosecutor that the conviction shows your client has a criminal character

Renaldo K. Lucas v. United States, No. 12-CF-240 (decided October 30, 2014).

Players:  Associate Judge Thompson, Senior Judges Ruiz and Steadman.  Opinion by Senior Judge Ruiz.  PDS for Mr. Lucas.  Trial Judge Robert I. Richter.

Facts:  During closing arguments in this gun possession case, the prosecutor argued that Mr. Lucas “had [the gun] on his person just like he had that prior conviction on his record.”  The defense objected but was overruled.  During deliberations, the defense revisited the issue, asking for a mistrial or a curative instruction.  Both requests were denied.  Mr. Lucas was convicted of possession of a firearm by a felon, and related charges.

Issue: Whether the prosecutor’s comment during closing arguments that the defendant “had [the gun] on his person just like he had that prior conviction on his record” improperly invited the jury to engage in criminal propensity reasoning, and if so, whether the court’s failure to sustain an objection to the comment was prejudicial. 

Holding: The defense’s objection “was well founded and should have been sustained.” Slip op. at 16 (quoting Williams v. United States, 549 A.2d 328, 334 (D.C. 1988)).  Although the government was entitled to remind the jury of the parties’ stipulation regarding Mr. Lucas’s prior conviction, the prosecutor “was required to do so in a manner that would not be reasonably understood by the jury as an invitation to convict based on a perception of appellant’s propensity to commit crime.”  Slip op. at 15-16.  However, the error was not prejudicial.

Of Note:

Keep this case in mind for trials where your client’s prior convictions are admissible.  Prosecutors may not say anything to the jury that would imply “a propensity relationship between the two facts—appellant’s prior conviction and [the current alleged conduct.]”  Slip op. at 15. NG

Read full opinion here.