MELTON, Justice.
Following a jury trial in these consolidated cases, Sonya and Joseph Smith were found guilty of felony murder, involuntary manslaughter, cruelty to children, aggravated assault, false imprisonment, and reckless conduct based on the couple's treatment of their eight-year-old son, Josef, which led to the child's death.
Viewed in the light most favorable to the jury's verdict, the record reveals that Joseph and Sonya Smith routinely disciplined their son, Josef, by beating him with glue sticks, belts, and heated coat hangers; locking him in confined spaces for extended periods of time; and tying his hands with rope. During the day on October 8, 2003, Joseph disciplined Josef several times, striking him repeatedly with a foot long glue stick. At one point, Josef began complaining of severe stomach pains and had urine that was brownish in color. Later, while Joseph was taking a shower, Sonya Smith beat Josef with a glue stick, drawing blood through Josef's clothing. Sonya and the Smiths' eldest son, Mykel Booth, then forced Josef into a wooden box, beating him about the head as they did so. Sonya and Mykel then tied the box shut with a cord. When Joseph later came out of the shower and removed Josef from the box, the child was barely breathing. Emergency services personnel were called to the Smiths' residence with an unresponsive child complaint, and Josef was taken to the hospital, where he later died. Numerous medical experts examined the extensive bruising throughout Josef's body and to Josef's head, and testified that the cause of Josef's death was either blunt force trauma or asphyxiation.
1. The evidence outlined above was sufficient to enable a rational trier of fact to find Sonya Smith guilty of all the crimes for which she was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Sonya contends that the trial court erred in allowing the prosecutor to dim the lights in the courtroom, bring out a cake with lit candles, and sing "Happy Birthday" to the deceased victim during her closing argument. However, Sonya failed to object to this argument by the prosecutor, and has therefore waived review of this issue on appeal. Mullins v. State, 270 Ga. 450, 451(2), 511 S.E.2d 165 (1999) (in case where death penalty is not imposed, "it [is] incumbent upon [the defendant] to raise an objection to the State's argument below in order to preserve the right to contest the propriety thereof in a subsequent appeal"). See also Paul v. State, 272 Ga. 845, 848(3), 537 S.E.2d 58 (2000) ("Plain error" rule applies only "to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57 [judge expressing or intimating opinion as to what has or has not been proved or as to the guilt of the accused]").
3. Sonya argues that the trial court erred in denying her motion for a mistrial after her son, Mykel, testified that the Smiths prayed that they had not "los[t] another son" after they pulled an unresponsive Josef from the box in which he had been placed. Instead of granting a mistrial, the trial court gave a comprehensive curative instruction, informing the jury that they had to disregard the testimony and could not consider it "in any way, in any form, [or] in any fashion."
"When a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant's right to a fair trial." (Citation omitted.) White v. State, 268 Ga. 28,
4. Sonya contends that the trial court erred by denying her motion for a new trial because the jury's verdict finding her guilty of involuntary manslaughter as a lesser included offense of malice murder was "mutually exclusive" from the jury's verdict finding her guilty of felony murder.
Shepherd v. State, 280 Ga. 245, 248(1), 626 S.E.2d 96 (2006).
Here, the evidence authorized the jury to logically conclude that Sonya had committed several acts of abuse against her son, some of which may have been non-felony acts of abuse that inadvertently led to or contributed to her son's death (see OCGA § 16-5-3), and others that may have constituted felony cruelty to children, which would have served as the underlying basis for the felony murder conviction. See OCGA § 16-5-70(b) ("Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain"). The verdicts here were not mutually exclusive, and this enumeration lacks merit.
5. Sonya claims that the trial court erred by failing to properly advise her regarding her right to testify when her counsel announced that Sonya would not be testifying on her own behalf. However, in order to ensure that Sonya was making an informed decision about whether or not to testify, the trial court did thoroughly discuss with Sonya the pros and cons of her testifying on her own behalf after her counsel announced that she would not be testifying. Moreover, after the trial court engaged in this extensive discussion and asked Sonya's counsel whether anything had been left out of the discussion regarding Sonya's right to testify, Sonya's counsel replied, "I don't think you left anything out."
6. Sonya argues that the trial court erred by overruling Joseph Smith's counsel's objection to the prosecutor asking a State's witness to rate the injuries suffered by the deceased in comparison to other cases that the witness had seen. However, because Sonya did not join in Joseph's objection at trial, or lodge an objection of her own, this issue is also waived on appeal. See Ashford v. State, 271 Ga. 148(2), 518 S.E.2d 420 (1999).
7. Sonya urges that the trial court erred in refusing to admit into evidence at the motion for new trial hearing a Court TV video recording of the prosecutor's closing argument. However, to the extent that Sonya wished to use the video to supplement the official trial transcript and shed additional light on the trial proceedings, she failed to follow the proper procedures to make the video part of the official court record. See
8. Sonya claims that her trial counsel was ineffective because (a) counsel failed to have voir dire recorded, (b) counsel failed to object to the prosecutor asking a witness to compare the victim's injuries in this case to others that he had seen, (c) counsel failed to object to Joseph Smith's counsel asking a State's witness about the severity of the victim's injuries, (d) counsel failed to object to references at trial to a court ruling regarding the custody of the Smiths' remaining children, (e) counsel failed to make a record of his agreement with the prosecutor stating that evidence of the Smiths' other deceased child would not be admitted at trial, (f) counsel failed to effectively cross-examine several State's witnesses, (g) counsel failed to make a closing argument, (h) counsel failed to object to the prosecutor's "Happy Birthday" song during closing argument, (i) counsel failed to present good character evidence at trial, and (j) counsel failed in his overall performance at trial, as evidenced by the cumulative effects of errors (a)-(i) outlined above.
In order to succeed on her claim of ineffective assistance, Sonya must prove both that her trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697(IV), 104 S.Ct. 2052; Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004). In reviewing the trial court's decision, "`[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).
(a) Contrary to Sonya's contentions, the failure to have voir dire recorded, by itself, does not amount to ineffective assistance. Williams v. State, 277 Ga. 853(6)(e), 596 S.E.2d 597 (2004).
(b), (c) Sonya has failed to show how her counsel's failure to object to testimony about the severity of the victim's injuries would have created a reasonable likelihood of a different result at trial. Indeed, there was overwhelming evidence of the extreme nature of the victim's injuries that resulted from beatings by Sonya, and counsel's failure to object to the testimony relating to the extent of the victim's injuries does not indicate that the outcome at trial would have been different if counsel had objected. See, e.g., Johnson v. State, 281 Ga. 770(2)(b), 642 S.E.2d 827 (2007).
(d) Sonya did not question her trial counsel about his failure to object to the testimony regarding the custody of the Smiths' other children. Accordingly, "there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[,] [and] [w]here[, as here,] trial counsel does not testify at the motion for new trial hearing about the subject, it is extremely difficult to overcome this presumption." (Citation and punctuation omitted.) Higginbotham v. State, 287 Ga. 187, 190-191(5)(a), 695 S.E.2d 210 (2010). We find that evidence supports the conclusion that Sonya failed to overcome the strong presumption that her counsel rendered effective assistance here. Counsel's choice not to object "may have been a strategic decision, and because [Sonya] did not question trial counsel concerning this decision, [Sonya] has failed to carry [her] burden to demonstrate that trial counsel provided deficient performance." (Footnote omitted.) Dyer v. State, 278 Ga. 656, 660(7), 604 S.E.2d 756 (2004).
(e) As explained in Division 3, supra, the trial court gave a proper curative instruction in response to Mykel's testimony that the Smiths had lost another child. Accordingly,
(f) "Like the determination of which witnesses to call, the extent of cross-examination is a strategic and tactical decision within the exclusive province of the attorney after consultation with the client." (Citation omitted.) Fairclough v. State, 276 Ga. 602, 605(4), 581 S.E.2d 3 (2003). Here, counsel testified at the motion for new trial hearing that he conferred with Joseph Smith's counsel regarding cross-examination, and that he chose not to cross-examine certain witnesses whenever he was satisfied that Joseph's counsel had elicited the same information on cross-examination that he, himself, would have elicited. In light of this reasonable strategic choice, we find that evidence supports the trial court's conclusion that counsel rendered effective assistance. See, e.g., Smith v. State, 283 Ga. 237(2)(b), 657 S.E.2d 523 (2008).
(g) Counsel made a strategic decision not to make a closing argument. In counsel's professional judgment, one cohesive closing argument delivered by counsel for Joseph Smith would be more effective than presenting two closing arguments. "Inasmuch as th[is] decision . . . was not patently unreasonable, and because [Sonya] provides no basis for concluding that the result of [her] trial would have been different if [her counsel] had [presented an additional] closing argument, [she] has not shown that [her] trial counsel was ineffective in this regard." (Citation omitted.) McKenzie v. State, 284 Ga. 342, 347(4)(b), 667 S.E.2d 43 (2008).
(h) Counsel made a strategic decision not to object to the "Happy Birthday" song during the State's closing argument. Specifically, he preferred to remain silent during the argument rather than run the risk of offending anyone on the jury by giving the impression that he was simply trying to disrupt the prosecutor's argument. See Braithwaite v. State, 275 Ga. 884, 886(2)(b), 572 S.E.2d 612 (2002) (where attorney "reasonably cho[oses] silence [instead of objecting to improper closing argument], . . . we will not use hindsight to second-guess that decision on appeal"). As explained more fully in Division 10(b), infra, while this Court frowns upon the prosecutor's antics and finds them to be highly inappropriate, counsel's decision to remain silent was reasonable, considering the fact that the prosecutor's argument was so "preposterous" and "over the top" that it may have worked to the benefit of the defense even absent an objection. Indeed, it cannot be said that the jury may not have been alienated by the prosecutor's theatrical stunt during its closing argument, as the jury found Sonya not guilty on several of the charges against her, including two charges of felony murder, one of the first degree cruelty to children charges, and the malice murder charge.
(i) "Whether to introduce character evidence and potentially open the door for impeachment is clearly one of tactics and strategy." (Citation omitted.) Washington v. State, 276 Ga. 655, 659(3)(c), 581 S.E.2d 518 (2003). After discussing the issue with Sonya, counsel made a reasonable strategic decision not to introduce good character evidence, as he did not wish to open the door to potentially damaging questions on cross-examination regarding whether the opinions of the good character witnesses would have changed if they knew that someone had caused the death of a child. This claim of ineffective assistance is without merit. Id.
(j) "Because [Sonya] has not shown ineffective assistance of [her] trial counsel in any area of [her] trial, [her] claim that trial counsel's individual and cumulative errors deprived [her] of a fair trial is without merit." Franks v. State, 278 Ga. 246, 264(2)(B)(9), 599 S.E.2d 134 (2004).
9. The evidence outlined above was sufficient to enable a rational trier of
10. Joseph contends that trial counsel was ineffective because (a) trial counsel was acting under a conflict of interest, and (b) counsel failed to object to the prosecutor singing "Happy Birthday" during her closing argument. Both contentions are without merit.
(a) Joseph argues that trial counsel, Manny Arora, was acting under a conflict of interest because he represented both Sonya and Joseph, who had competing interests at trial; and because Arora's legal fees were being paid by a church to which Sonya and Joseph belonged. However, the record belies these claims. While Arora and the attorney who represented Sonya decided together to conduct a joint defense because neither Sonya nor Joseph wanted to blame the other for the victim's death, the fact remains that both Joseph and Sonya had their own, independent, attorneys. See Whatley v. Terry, 284 Ga. 555, 563(IV), 668 S.E.2d 651 (2008) (where attorney did not jointly represent codefendants, prejudice could not be presumed under specialized ineffective assistance Sixth Amendment conflict of interest case law where defendant could not show that "an actual conflict of interest adversely affected his trial counsel's performance"). Moreover, there is no evidence that the church that paid Arora's legal fees exercised any influence over Arora's independent judgment in representing Joseph. Because evidence supported the trial court's conclusion that Arora provided effective assistance in this regard, that conclusion will not be disturbed here. See id. at 563-564(IV), 668 S.E.2d 651.
(b) Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the "Happy Birthday" song during closing argument. Specifically, Arora thought that the "Happy Birthday" song was so "preposterous," "absurd," and "over the top" that "it would turn the jurors off," and that he should not call any more attention to it by objecting to it. In this regard, we must remind all prosecutors in this State that it is not their job to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudices of jurors, but
(Citations and punctuation omitted.) Carr v. State, 267 Ga. 701, 712(10), 482 S.E.2d 314 (1997). Indeed, in order to ensure that the prosecutor did not let her "excess[ive] . . . zeal or the eager quest for victory in [this] case" lead her to forget her duty "to see that justice is done and nothing more" id., the trial court would have been well within its right to control the courtroom by putting an end to the display of the prosecutor, even absent an objection from defense counsel. See OCGA § 15-1-3(4) ("Every court has power . . . [t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto").
In any event, because it was reasonable for Arora to pursue a strategy that would allow the potentially inappropriate antics of the
11. Joseph urges that the trial court erred by failing to merge his conviction for felony murder into his voluntary manslaughter conviction for sentencing purposes because the verdicts on those counts were mutually exclusive. However, for the same reasons stated in Division 4, supra, relating to Sonya Smith, the verdicts relating to Joseph Smith also were not mutually exclusive. Indeed, the evidence authorized the jury to conclude that some of the acts taken by Joseph were non-felony acts of abuse that stemmed from criminal negligence, whereas others amounted to felony cruelty to children. This contention is without merit.
Judgments affirmed.
All the Justices concur, except HUNSTEIN, C.J., and BENHAM, J., who dissent.
HUNSTEIN, Chief Justice, dissenting.
I write because I disagree with the majority that, absent objection, this Court cannot review an error affecting the fairness, integrity and public reputation of judicial proceedings caused by a trial court's violation of its duty to maintain order and decorum in the courtroom. Even without application of the plain error rule here, I disagree with the majority that defense counsel's failure to object was based on reasonable strategy and that no prejudice has been shown as a result of the assistant district attorney's theatrical stunt. For these and other reasons set forth below, I respectfully dissent.
1. The majority, while stating that the trial court "would have been well within its right to control the courtroom by putting an end to the outrageous display of the prosecutor, even absent an objection from defense counsel, [cit.]" (emphasis supplied) Maj. Op., p. 637, refuses to address any error from the trial court's failure to act, although that error was directly raised on appeal. See id. at p. 633 (trial court's error in not stopping prosecutor's birthday cake stunt waived for failure to object). What the majority fails to recognize, however, is that trial judges have not only the right to control their courtrooms: they have the duty to do so. R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 581(9), 292 S.E.2d 815 (1982) (setting forth the "obligation of the trial court to maintain dignity and decorum in the courtroom" (emphasis supplied)). See also Canon 3(B)(3) of the Code of Judicial Conduct ("[j]udges shall require order and decorum in proceedings over which they preside"). In response to actions taken by the prosecutor that were so "outrageous" that the fairness, integrity and public reputation of this criminal proceeding clearly was adversely affected, I would hold under the exceptional circumstances present in this case that the absence of objection does not prevent this Court from reviewing the error caused by the trial court's breach of its duty to maintain decorum in the courtroom.
Paul v. State, 272 Ga. 845(3), 537 S.E.2d 58 (2000) completely supports, if not demands, that we review this error even without objection by counsel at the trial court level. Although the majority cites Paul for the proposition that our review of plain error is limited to death penalty cases and the violation of OCGA § 17-8-57, this misreads what we held in Paul, in which we applied and quoted with approval the Court of Appeals' opinion in Almond v. State, 180 Ga.App. 475, 480, 349 S.E.2d 482 (1986). In the portion of the Almond opinion on motion for rehearing, the Court of Appeals held:
Id. at 480, 349 S.E.2d 482. Finding "the facts of the case at the bar to be exceptional and to seriously affect the fairness, integrity, and public reputation of these judicial proceedings," id., the Court of Appeals addressed the error asserted on appeal even though no objection had been made in the trial court. See also Putnam v. State, 231 Ga.App. 190(3), 498 S.E.2d 340 (1998) (same); Kearney v. State, 184 Ga.App. 64, 66, 360 S.E.2d 633 (1987) (same). Of particular importance is the fact that Almond involved neither death penalty issues nor any violation of OCGA § 17-8-57. It is thus inappropriate to interpret Paul as limiting plain error to those situations. Rather, Paul must be read as this Court's decision to adopt the plain error rule of Silber and Atkinson, supra, when we concluded that "the plain error rule should be applied to cases of [the] kind" addressed in Almond and then applied it to hold that the trial court's error so "`seriously affected the fairness, integrity, and public reputation of these judicial proceedings,'" quoting Almond, in order to hold that trial counsel's failure to object did not preclude review of the issue on appeal. Paul v. State, supra, 272 Ga. at 848-849(3), 537 S.E.2d 58. Accord Wright v. State, 274 Ga. 730(3), 559 S.E.2d 437 (2002) (declining to review under the plain error rule the admission of certain hearsay statements not objected to at trial because defendant failed to demonstrate how the statements' admission seriously affected the fairness, integrity and public reputation of the trial).
The record in this case establishes
There was no legitimate reason for what the prosecutor did. It was neither argument nor rebuttal, because there is nothing at all in the record about birthdays and birthday cakes to raise even the slightest possibility that the prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim's family followed an austere lifestyle, including dietary restrictions, that eliminated the possibility of the victim experiencing the type of birthday event dramatized by the prosecutor.
The record is clear that the trial judge violated his duty to maintain order and decorum in his courtroom. Although he told the jurors in his pre-trial instructions that he was "going to make sure that the decorum of the court—that the decorum of the courtroom stays intact," he took no action to stop an out-of-control prosecutor from turning his courtroom into a theater stage for her unprofessional behavior, which could only have left the jury with the impression that what she did was perfectly acceptable. It is beyond question in this exceptional circumstance that the trial judge's failure to maintain the decorum of his courtroom was an error that seriously affected the fairness, integrity and public reputation of these criminal proceedings, such that "the plain error rule should be applied" to this case, Paul v. State, supra, 272 Ga. at 848(3), 537 S.E.2d 58, and these convictions reversed.
2. Even treating this issue as arising solely under a claim of ineffective assistance of counsel, I cannot agree with the majority that the defense counsel's failure to object was based on a reasonable strategy and thus did not constitute deficient performance.
First, I disagree with the conclusion drawn by the majority that counsel's decision to remain silent here could qualify as reasonable due to counsel's wish to avoid "run[ning] the risk of offending anyone on the jury." Maj. Op., p. 636. A reasonable attorney does not stand by silently and allow the prosecutor to figuratively toss the victim into the jury box, with the resulting prejudice to counsel's clients, out of concern that an objection essential to protecting the impartiality of the jury might "give the impression" that he was "disruptive." No reasonable attorney would sacrifice a client's fundamental right to a fair trial for such a ridiculous reason. Nor was counsel's concern legally sustainable here where the trial court in its opening charge expressly instructed the jurors that "you should not be prejudice[d] in any way against a lawyer who makes objections for the party he or she represents." See Smith v. State, 267 Ga. 372, 374(3), 477 S.E.2d 827 (1996) ("[q]ualified jurors under oath are presumed to follow the trial court's instructions").
I also disagree with the majority's finding that defense counsel was not ineffective on the basis that defense counsel pursued a "reasonable" strategy by gambling that the prosecutor's stunt would "backfire" on the prosecution. Maj. Op., pp. 636 and 637. The majority even approves this strategy: "[i]ndeed, it cannot be said that the jury may not have been alienated by the prosecutor's theatrical stunt during its closing argument." (Emphasis supplied.) Id. at p. 636. The prosecutor's stunt was intended to evoke sympathy for the victim so that the jury, diverted from the facts, would return a verdict based on passion, not the evidence and the law. How is it "reasonable" strategy for defense counsel to use the prosecutor's improper stunt to elicit the opposite but equally improper effect in the jury? It is just as inappropriate for a jury to return a verdict based on prejudice or bias against the State as it is for the jury to return a verdict against the defense based on sympathy for the victim. A jury's verdict must be based on the facts and the law, not passion or prejudice. Jackson v. State, 278 Ga. 235(5)(a), 599 S.E.2d 129 (2004). I cannot agree with the majority's holding that the strategy pursued by defense counsel was reasonable when that strategy is directly contrary to Georgia law. I would instead find
3. Turning to the second prong of the Strickland v. Washington test, I disagree with the majority that appellants failed to establish prejudice from the birthday cake stunt. First, I disagree with the majority that the jury's verdict can be interpreted in any manner as demonstrating a lack of prejudice. The Counts 3 and 4 felony murder charges on which the jury found appellants not guilty were predicated on the exact same allegations that served as the bases for the Count 2 felony murder/cruelty to children charge, as to which the jury found appellants guilty. It is notable that the jury chose to return its guilty verdict on the felony murder charge predicated on cruelty to children, i.e., the one felony most likely to be influenced by the State's improper invocation of sympathy for the victim, as also reflected by guilty verdicts to felony cruelty to children charges in Counts 5, 10, and 12.
Moreover, unlike the situation in Davis v. State, 285 Ga. 343(2), 676 S.E.2d 215 (2009), where the prosecutor dimmed the lights and called for a moment of silence while spotlighting photos of the victims admitted into evidence, no instruction was given here by the trial court to "cure" the prejudice. Notwithstanding the prosecutor's behavior, the jury was never charged that "they could only consider the evidence and the law as charged, and that sympathy for the victim... should play no role in their verdict. [Cit.]" Id. at 344-345(3), 676 S.E.2d 215.
The prosecutor's behavior cannot be considered in the same light as some incidental statement or minor aberration made in the course of her closing argument. It was an unprofessional tactic undertaken for the purpose of ensuring that the State obtain a conviction. It is difficult if not impossible to imagine that the minds of the jurors would not have been influenced by the spectacle they observed. I would find that prejudice to appellants was so highly probable as a result of the prosecutor's unprofessional conduct that the majority is not justified in assuming its non-existence.
4. "From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall [be sentenced to life in prison for murder] must be conducted with dignity and respect." Wellons v. Hall, ___ U.S. ___, 130 S.Ct. 727, 175 L.Ed.2d 684 (2010) (vacating judgment to reconsider evidentiary effect of gag gift given to judge and bailiff by jurors). While that case involved the death penalty, I would apply its standard to this case as well. But the behavior at issue here was no juror-initiated tasteless gag gift. It was an assistant district attorney — an officer of the court and a representative of the State of Georgia — who debased the dignity and respect of these criminal proceedings. Rather than "adher[ing] to the highest standards of professionalism and proper courtroom decorum [cits.]," Gissendaner v. State, 272 Ga. 704, 713(10), 532 S.E.2d 677 (2000), this prosecutor embarrassed every member of our profession with her behavior. The uncontroverted evidence of the events orchestrated by the prosecutor and performed in front of the jury with the tacit permission of the trial court establishes conclusively that the prosecutor did not concern herself with appellants' right to a fair trial. She cared only to win at any cost without regard to how unfair, how
We cannot lose sight of the fact that the legitimacy of our criminal justice system is undermined when we allow proceedings to be conducted in such a manner that they are rightfully perceived to be unfair. As critically important as the constitutional rights of criminal defendants are, those rights are not the only matters that must concern us. We do a disservice to victims, witnesses, jurors, the bench and bar, and the people of the State of Georgia in general when we do not uphold the dignity and integrity of our criminal justice proceedings. Prosecutorial misconduct of this nature is never harmless because, regardless of the particular verdict rendered, the misconduct damages the perception of fairness of trials that is essential to the effectiveness of the system itself. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring).
Our courtrooms are not theaters; the participants in a criminal trial are not actors in reality television programs. It is not enough to "frown on" behavior that undermines the very foundation of the criminal proceedings. We have to stop it. And the only effective means of stopping it is to punish this behavior in the strongest possible manner. The only thing that gets attention is reversal.
For these reasons I would reverse these convictions based on the State's deliberate behavior that deprived appellants of their fundamental right to a fair trial.
I am authorized to state that Justice BENHAM joins in this dissent.