Alleged prosecutorial misconduct for violation of trial judge's order

-)

Spradling: May it please the court, Jacqie Spradling on behalf of the Appellee, and Justice Johnson, may I address you first and ask you if there are other instances ofprosecutorial misconduct that you believe should have been or could have been cited? I'd happily address anything that you wanted to. As a beginning I will tell you that sentencing is not an issue in this case, and so we do understand that the Hard 50 sentences need to be reversed .. For this court's information, I was one of the trial lawyers below, and so, urn, would add that as well. As to the ...

Justice Johnson: Ms. Spradling.

Spradling: Yes.

Justice Johnson: Before you get started here I'd address something that Justice Biles raised. I was just going through your brief. I don't see where you made a preservation argument on the 6455 evidence.

Spradling: For the no contemporaneous objection?

Justice Johnson: Court: Right.

Spradling: You're correct. '

Jri.stice Johnson: jurisdictional.

And the preservation of evidence is prudential rule, is it not? It' s not

Spradling: Yes, sir. Yes, sir.

Justice Johnson: And so, we've said if you fail to make an argument or raise an issue that that's deemed abandoned.

Spradling: You're right.

Justice Johnson: So why wouldn't the preservation be deemed abandoned in this case with regard to the defendant's 6455 issue?

Spradling: I'm not sure, your honor, whether the preservation is required to address or prohibit a contemporaneous objection argument. I don't know the answer to that. I will tell you that it's my understanding that the law is solid and longstanding on the requirement for a contemporaneous objection.

Justice Rosen: Well, I'll, uh, I'll jump in with what I think is, uh, misconduct, and that's right off the bat. You were warned not to refer, or to have anybody in the gallery stand up. And apparently this is something that has occurred at some other time with this particular judge and you, because there was some reference to- I know, you know what I'm talking about; you said yes.

Spradling: Yes, sir.

Justice Rosen: And then ther~e -"I don't want you to do that in this case. I don't want d then during your closing argument you do exactly what the references to folks here at all." trial court emphatically told yo !;'hat not to do. JAnd the only reason I mention that is because the extremes to which the trial judge went/to inform you not to do that, and you did it anyway. Why isn't that misconduct? And why isn't that something we should look at? And what is your answer to that?

Spradling: I can give you the history to that if you'd like, your honor.

Justice Rosen: I don't want to hear history. You were warned not do to that, and you did it anyway.

Spradling: And actually, let me disagree with you, please. In the case that Judge Parrish was talking to me about, there was a closing argument in a case, I think it was Dimick, although I can't promise you that that' s true. And at some point during my closing argument I looked at the galley, and I said something about the- the jury's verdict being important to everyone. And almost all of the people behind the state took up. That is not what happened in the Chandler case. There was no one who stood up in the Chandler case. I didn't request anyone to stand up in the Chandler case. '

Jqstice Rosen: Any reference to it, you said, "I'm getting a look. I'm getting a look from what I'm talking about." And you were referring to the defendant's sister, I believe.

Spradling: Yes. Shirley Riegle, that's right.

Justice Rosen: And so you were referring to someone in the gallery and the court told you not to do that.

Spradling: And let me disagree with the analogy if I could please. 1 do not believe that saying that the defendant's sister who was mean mugging the state is akin to asking half of the galley to stand up during closing argument. So I respectfully disagree that I did the same thing that the court asked me not to.

Justice Dan Biles: Let me jump on the point that I started with, with defense counsel. You'll agree that there was no Protection from Abuse Order.

Spradling: I'll agree that there was no Protection from Abuse Order. There was a ...

Justice Rosen: Even though you said there was.

Spradling: Yes, sir.

¡ Justice Dan Biles: And, in the -I was reading the closing argument again last night, and when that comes up it seems like you hit it hard, fast. No. 1, you said something that wasn 't true, that

6