Is a defendant's failure to object to statements made by the prosecutor during his penalty phase argument constitute misconduct?

California, United States of America


The following excerpt is from People v. Hayes, 276 Cal.Rptr. 874, 52 Cal.3d 577, 802 P.2d 376 (Cal. 1990):

Defendant contends that various statements made by the prosecutor during his penalty phase argument constituted misconduct. Defendant did not object to any of these statements, nor did he request a curative admonition. As defendant recognizes, the failure to object is normally deemed a waiver of the claim of misconduct. (People v. Walker (1988) 47 Cal.3d 605, 650, 253 Cal.Rptr. 863, 765 P.2d 70; People v. Green, supra, 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d 468.) He argues, however, that the various misconduct claims should not be deemed waived because the resulting harm could not have been cured by an admonition (People v. Green, supra, at p. 34, 164 Cal.Rptr. 1, 609 P.2d 468), and because [52 Cal.3d 634] defense counsel's failure to object constituted ineffective assistance of counsel.

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