Trillo v. Biter

An improper comment by a prosecutor does not materially affect the fairness of a trial when the trial court sustains the defendant’s objection and instructs the jury that statements made by the attorneys during trial are not evidence; and, to be deprived of a fair trial, there must be a reasonable probability that the jury would have reached a different verdict without the prosecutorial misstatements.

Victor Trillo was convicted of second-degree murder. His conviction was upheld on appeal and he exhausted his state collateral remedies. He then filed a federal habeas petition, which was denied by the district court. Trillo then appealed on three issues: “(1) whether the prosecutor in Trillo’s trial committed prejudicial misconduct during closing argument; (2) whether trial counsel was constitutionally ineffective for failing to object to additional closing remarks made by the prosecutor; (3) whether the trial court violated petitioner’s Sixth Amendment right to present a meaningful defense by excluding testimony regarding a statement made by a witness to the victim which might have corroborated petitioner’s theory of defense." The Ninth Circuit held that (1) a prosecutor may not urge jurors to convict a defendant for community safety reasons and therefore the prosecutor's statements in closing argument constituted prosecutorial misconduct, but Trillo was not entitled to habeas relief because he was not prejudiced by the misconduct; (2) Trillo's attorney's failure to object to additional closing remarks made by the prosecutor was constitutionally ineffective because Trillo was not prejudiced and the failure to object "did not undermine the confidence in the outcome of the trial"; and, (3) that the witness statement excluded by the trial court did not violate due process because "[t]here was no evidentiary corroboration at all for the witness statement in Trillo’s trial." AFFIRMED.