US. APP. 84-1728

BELSON, Associate Judge, dissenting: My differences with the majority opinion are narrow, but crucial to the outcome. They center upon the manner in which defense counsel participated in the phases of the trial upon which reversal is based. My conclusion is that in light of the way the defense tried this case, the trial court did not

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To recount the salient facts, after defense counsel objected to the prosecutor's use of a reasonable person standard in her closing argument in chief, the trial judge at first responded to defense counsel's objection by expressing his readiness to strike the prosecutor's remarks, but after some colloquy indicated that he would instruct the jurors that attorney's statements of the law are not evidence and would tell them to look to his final instructions on the issue. Defense counsel declined that relief and, most significantly, made no request whatsoever that the trial judge grant any different relief, not even the relief that was first offered.

When the prosecutor revisited the matter of foreseeability in the rebuttal argument, defense counsel made no objection. [1]

Defense counsel never asked for a mistrial,

[1 I add that I disagree with appellant and the majority that the challenged portion of the prosecutor's rebuttal argument contained an incorrect statement of law. The prosecutor said:

"Now, I told you before and I will tell you again that the fact that Mr. Thomas did not understand or did not know based on his experience that stone burns and in this case, granite, which you heard explodes when fire touches it, is not at all relevant to the question of foreseeability.

"What is relevant is that if something is set on fire that is right next to something else, it is, indeed, foreseeable that that something else is going to be touched and damaged by The flames. It cannot be denied.

"[Defense counsel] said to you that Mr. Thomas is an intelligent man. You saw that on the stand. And for him to suggest that that act was not foreseeable does not comport at all with what we've seen here. An intelligent person knows that that conduct would result in damage under the circumstances."

It is important to note that the prosecutor was not referring to a standard of foreseeability but rather to the question of foreseeability. See majority opinion at 7 et seq. It is not disputed that what a reasonable person would foresee was a relevant consideration on the issue of malice. See majority opinion at 9. Moreover, the prosecutor's argument can be taken to mean that Thomas did not help himself by his as assertion that he did not know that granite would burn or explode when fire engulfs it, because he knew at least that if fire was right next to something else, here granite, the something else in question was going to be "touched and damaged by the flames." If the defendant knew that there was going to be damage, e.g..defacement of granite, it is not significant to the issue of malice that he was not aware of the extent of damage or the precise type of damage.]

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nor did he ask the trial court to deal with any prosecutorial misstatement in the final jury instructions. On this record, I simply disagree that there was any trial court error that requires us to reverse appellants conviction.

It is significant that there was nothing in the way the trial judge conducted the trial to discourage defense counsel from asking for any type of relief he wished to request. After the trial judge's initial proposal to strike the offending parts of the prosecutor's argument in chief had evolved into a different remedy, as I described above, defense counsel was entirely free to ask the trial judge to return to his first course of action Instead, he ended the discussion by saying that he did not wish the instruction finally proposed by the judge. If defendant had preferred some alternate cure in order to remedy the prosecutor's apparently good-faith misstatement of the law regarding malice, it was incumbent upon defense counsel to ask for it. See ABA Criminal Standard 4-7.7 (d) ("[T]he lawyer has a duty to have the record reflect adverse rulings or judicial conduct which the lawyer considers prejudicial to his or her client's legitimate interests."). Instead, after he declined the proffered relief,

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the defense counsel went through the rest of the trial without raising the matter again. Defense counsel thereby gave every indication that he had made a tactical choice when he turned down the proffered relief.

Even if we posit that the prosecutor's misstatement of the law was so egregious that it normally would have required sua sponte intervention by the trial court, that does not dispose of this case. Here the matter was raised by counsel and dealt with by the court in a manner that evoked no indication of dissatisfaction from defense counsel. I respectfully dissent from a reversal of a judgment of conviction under these circumstances.

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