Defense urges reversal after prosecutor called defendant a 'thug' and told jury to 'do your duty'; state says curative instruction cured error

At oral argument, Seth Seagraves, counsel for appellant Caprice Pete, told the appellate panel that the prosecutor used a racially pejorative term in closing argument and later urged jurors to "do your duty." Seagraves told the court the prosecutor, a white attorney, called Pete a "thug" during closing and then said that if jurors did not convict "he will have gotten away with it," prompting a timely objection.

Seagraves said the trial judge sustained the objection and issued a curative instruction and ordered the state to retract, but he told the panel the state did not actually retract on the record. He argued the word "thug" can carry racial connotations and cited case law including Galtz in support of the proposition that arguments invoking racial or other prejudices should be excluded. "I had just had my client called a thug in front of a mostly white jury," Seagraves told the panel.

State counsel Ronald Coleman replied that the trial court addressed the remark when it occurred, sustained the objection and gave the jury the curative instruction the defense requested. "To the extent that this was improper at all, the court addressed it, granted the relief that the defendant wanted, issued a curative instruction, and because the jury is presumed to follow those instructions, there is no error here on appeal," Coleman told the court. Coleman also argued the challenged "do your duty" remark was delivered in context — the prosecutor was arguing jurors have a duty to follow the law and the judge’s instructions — and that any isolated comment was harmless in light of what Coleman described as overwhelming evidence of guilt.

The defense told the panel it had attempted to press its concern at trial but that the judge cut off further argument about the sufficiency of the curative instruction; defense counsel said he preserved the objection but did not continue a protracted fight over the curative wording. The state said the defendant requested the court instruct the jury to disregard the comment, and the court did so.

No appellate decision was announced at argument. The panel heard competing positions on whether the prosecutor’s language and the follow-up comment were improper and whether the trial court’s curative measures were sufficient to avoid reversal.