Sally Smith v. UNITED STATES DISTRICT COURT FOR THE EASTERN JOAN YUKINS, Warden, DISTRICT OF MICHIGAN

*The Honorable Curtis L. Collier, District Judge for the Eastern District of Tennessee, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0313n.06
Filed: April 26, 2005
Case No. 03-1992
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SALLY SMITH, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
JOAN YUKINS, Warden, ) DISTRICT OF MICHIGAN
)
Respondent-Appellee. )
)
__________________________________________
BEFORE: NELSON and BATCHELDER, Circuit Judges; COLLIER,* District Judge.
ALICE M. BATCHELDER, Circuit Judge. Petitioner Sally Smith [“Smith”] appeals the
district court’s denial of her petition for a writ of habeas corpus filed under 28 U.S.C. § 2254,
alleging that the prosecutor had denied Smith a fair trial by suggesting in rebuttal argument that
Smith’s counsel did not believe in the defense he presented to the jury. The district court held that
the judgment of the Michigan Court of Appeals, which held that the prosecutor’s error did not
require reversal, was not contrary to, or an unreasonable application of, clearly established federal
law. Because we find no error in the district court’s judgment, we AFFIRM.
I.
During Smith’s trial in the Oakland County Circuit Court for conspiracy to possess with
intent to deliver more than 650 grams of cocaine, the prosecutor said in his closing rebuttal

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argument, “[The defense attorney is] throwing [defenses] out at you in a shotgun approach. Why
is that? Maybe some desperation because the evidence is overwhelming. Maybe another reason is
he may not even really believe in the defense, I don’t know.” Smith’s counsel objected to the
statement immediately, and the judge instructed the jury to disregard the statement. Smith was
ultimately found guilty and sentenced to mandatory life imprisonment without parole.
Smith appealed her conviction and sentence as of right to the Michigan Court of Appeals.
Among other claims, she alleged prosecutorial misconduct based on the prosecutor’s suggestion that
the defense counsel did not believe in the defense. The Michigan Court of Appeals affirmed,
holding that the prosecutor’s statement was improper, but that “[t]he error was not so great as to
require reversal,” both because “the statement was made during the haste and heat of trial and in
response to defense counsel’s arguments regarding the evidence,” and because after defense counsel
objected to the statement the trial court immediately instructed the jury to disregard the statement.
The Michigan Supreme Court subsequently denied Smith’s delayed application for leave to appeal.
Smith then filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Eastern District of Michigan. Among other claims, she alleged
that the prosecutor’s suggestion that the defense counsel did not believe in the defense deprived her
of a fair trial. The district court denied Smith’s petition in its entirety, but issued a certificate of
appealability on the sole issue of whether the prosecutor’s suggestion that defense counsel did not
believe in the defense “result[ed] in unconstitutional prosecutorial misconduct in violation of the
Due Process Clause.” We denied Smith’s request for a grant of certificate of appealability as to the
other issues. Smith v. Yukins, No. 03-1992, Order of March 14, 2004.
II.

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Because Smith objected at trial to the prosecutor’s statement at issue, we review de novo her
claim of prosecutorial misconduct. United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999); cf.
United States v. Wright, 343 F.3d 849, 862 (6th Cir. 2003) (reviewing for plain error when defendant
failed to object to prosecutor’s statements at trial). Our review is governed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) of 1996, because Smith filed her claim after AEDPA’s
effective date. We therefore may not grant Smith’s petition unless she demonstrates that the state
court’s dismissal of her prosecutorial misconduct claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court of the United
States as of the time the state court entered its order. Williams v. Taylor, 529 U.S. 362, 402-13
(2000).
The relevant question with regard to a claim that habeas relief must be granted because of
prosecutorial misconduct, is whether “the prosecutor’s comments ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” Macias v. Makowski, 291
F.3d 447, 451 (6th Cir. 2002) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In
our post-AEDPA cases, this circuit has consistently utilized the two-step inquiry for reviewing
claims of prosecutorial misconduct set out in our pre-AEDPA case of United States v. Carroll, 26
F.3d 1380, 1383-90 (6th Cir. 1994). Our rationale for relying on circuit precedent rather than
Supreme Court precedent has been that Carroll “merely reiterates factors set forth in Supreme Court
decisions evaluating prosecutorial misconduct.” Gordon v. Kelly, No. 98-1905, 2000 WL 145144,
at *6 (6th Cir. Feb. 1, 2000).
Following Carroll’s approach, we must first determine whether the prosecutor’s statements
were improper. Carroll, 26 F.3d at 1387. We agree with the Michigan Court of Appeals that the

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prosecutor’s comment implying that Smith’s counsel did not believe in the defense he was
presenting was improper. We have held that “while counsel has the freedom at trial to argue
reasonable inferences from the evidence, counsel cannot misstate evidence or make personal attacks
on opposing counsel.” United States v. Carter, 236 F.3d 777, 784 (6th Cir. 2001). As the district
court correctly found, “[t]he prosecutor’s comment was not related to evidence presented at trial and
constituted improper personal attacks aimed at defense counsel.”
Having found that the prosecutor’s statement was improper, we move to the second step of
the Carroll inquiry: whether the impropriety of the statement was flagrant and thus violated the due
process rights of the defendant. Carroll, 26 F.3d at 1385; see also Macias, 291 F.3d at 452. To
determine flagrancy, we consider four factors: “(1) whether the conduct and remarks of the
prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks
were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4)
whether the evidence against the defendant was strong.” Macias, 291 F.3d at 452. In this case, the
Michigan Court of Appeals properly concluded that none of the four factors compelled the finding
that the prosecutor’s comment was so flagrant as to warrant reversal.
Addressing the first factor, we have held that “[o]rdinarily, a court should not overturn a
criminal conviction on the basis of a prosecutor’s comments alone, especially where the district
court has given the jury an instruction that may cure the error.” Carter, 236 F.3d at 787; see also
United States v. Roberts, 986 F.2d 1026, 1031 (6th Cir. 1993) (holding that “the prejudicial effect
of improper comments may be negated by curative instructions to the jury”). In this case, the trial
court immediately instructed the jury to disregard the comment, and shortly thereafter, instructed
the jurors that the lawyers’ arguments, questions, and statements were not evidence. See Roberts,

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986 F.2d at 1031-32 (holding that a trial court could negate the prejudicial effect resulting from the
prosecutor’s improper remarks by instructing the jury that the lawyers’ statements and arguments
are not evidence).
With regard to the second factor, we have held that we will not overturn a verdict unless the
prosecutorial misconduct is “so pronounced and persistent that it permeates the entire atmosphere
of the trial.” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (internal quotation omitted).
In this case, the prosecutor’s comment implying that defense counsel did not believe in the defense
he was presenting was limited to a single statement during closing rebuttal. Although Smith
complains of other allegedly improper comments by the prosecutor, we will not take them into
account here; Smith procedurally defaulted her objection to one of those statements and the district
court held that the others were not improper, and we denied a certificate of appealability as to them.
The statement at issue here was isolated and far from extensive.
Smith did not present any evidence to suggest that the prosecutor intentionally made any
improper statements. Because there is no evidence of intent in the record, the third factor does not
help Smith establish reversible error.
Finally, the strength of the circumstantial evidence against Smith supports a finding that the
prosecutor’s error did not affect the outcome of the trial, and therefore, reversal under the fourth
factor would not have been proper. As the district court found, “the court cannot conclude that the
jury was overcome by the prosecution’s rebuttal comments rather than the strong circumstantial
evidence of [Smith’s] guilt.”
III.

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The Michigan Court of Appeals held that the prosecutor’s comment implying that Smith’s
counsel did not believe in the defense he was presenting did not require that Smith’s conviction be
reversed. Because that judgment was not contrary to, or an unreasonable application of, clearly
established federal law, we AFFIRM the district court’s order denying Smith’s petition for habeas
relief.

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