State v. Wasyluk

A trial court may exercise its discretion when responding to improper opinion statements by an attorney. When the improper statements are accidental and immediately addressed, it is not an abuse of discretion to issue a cautionary instruction instead of granting a mistrial.

Defendant appealed a judgment of conviction of two counts strangulation constituting domestic violence. Defendant argued that the trial court abused its discretion by giving cautionary instructions instead of granting a mistrial in response to the prosecutor repeatedly using the phrases “I think” and “I believe” when describing the evidence and arguing the case to the jury. The trial court decided that a cautionary instruction was sufficient because the comments were not made to vouch for evidence or testimony, but only in speaking about what the evidence did or did not show. The Court held that the record showed that the prosecutor’s comments were unintentional and continuously apologized for. It was within the trial court’s discretion to issue a cautionary warning to the jury and not grant a mistrial. Affirmed.