People v. Hall (2000)
In People v. Hall (2000) 82 Cal.App.4th 813, police officer Williams testified that he and his partner, Tinsley, had arrested the defendant for being under the influence of cocaine, and then found cocaine in the defendant's pocket when they searched him. (Id. at p. 815.)
Defense counsel argued that the testifying officer was not credible, and pointed out that Tinsley had not been called as a witness. (Id. at p. 816.)
In rebuttal, the prosecutor stated that "'If Officer Tinsley had some kind of fantastic light to shed on this case to exonerate this defendant, you know that this attorney would have called Officer Tinsley.'" After the defendant's counsel's objection to this line of argument was overruled, the prosecutor went on to argue that defense counsel was "'suggesting that we are hiding Officer Tinsley because he's going to reveal something some kind of incredible evidence to exonerate her client. And that's just not the case. You could have heard repetitive testimony from Officer Tinsley, basically telling you the same thing, that he was there and recovered the rock . . . .'" (Ibid.) The defense counsel's objection was again overruled.
Thus, in People v. Hall, supra, 82 Cal.App.4th at page 813, the prosecutor in effect represented to the jury that Tinsley's testimony would have substantively corroborated Williams's testimony regarding the defendant's guilt. The appellate court held that this was reversible error, reasoning that "the prosecutor went too far when he told the jury the absent witness's testimony would have been repetitive. The effect of this argument was to tell the jury that the witness, if called, would have testified exactly as Officer Williams did, in a manner favorable to the prosecution. This was misconduct. " (Id. at p. 817.)
In sum, in People v. Hall (2000) a crack cocaine possession case, the defense was that the defendant did not possess the drug and the officer who testified was lying. (Hall, supra, 82 Cal.App.4th at pp. 815-816.) The prosecution called only one of the officers present at the arrest to testify. In closing argument, the prosecutor stated that he did not call the other officer because his testimony would have been the same. Defense counsel's objection that the prosecutor was arguing facts not in evidence was overruled and no admonition was given. (Id. at p. 816.)
The Court of Appeal reversed the conviction, holding that the assertion of a fact not in evidence was highly prejudicial; it was not satisfied beyond a reasonable doubt that the misconduct did not affect the verdict. (Id. at pp. 817-818.)
In Hall, there was no admonition and the presumption that juries follow instructions did not come into play. In short, the prosecutor committed misconduct by telling the jury that the testimony of a police officer who did not testify at trial would have supported the officer who did testify. ( Id. at p. 817.)
Defense counsel objected and the court overruled the objection.
In that circumstance, the reviewing court found that a request for an admonition would have been futile and that the issue of misconduct was not waived. ( Id. at pp. 817-818.)