Can a defendant bring a claim against a prosecutor for misconduct on appeal against the finding that the prosecutor made inappropriate comments about a change in the defense?

California, United States of America


The following excerpt is from People v. Ashmus, 2 Cal.Rptr.2d 112, 54 Cal.3d 932, 820 P.2d 214 (Cal. 1991):

[54 Cal.3d 976] We reject defendant's claim on procedural grounds. "It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion"--and on the same ground--"he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Benson, supra, 52 Cal.3d at p. 794, 276 Cal.Rptr. 827, 802 P.2d 330.) In this case, defendant made no such assignment and request. We recognize that counsel objected to the prosecutor's comments concerning the alleged change in the defense. But that objection cannot reasonably be construed to extend to the later remark complained of here. "It is true that the rule does not apply when the harm could not have been cured." (Ibid.) Such a situation, however, was not present here: any harm threatened was certainly curable.

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