Clark v. Lashbrook

Dist. Ct. did not err in denying defendant’s habeas petition challenging his murder and robbery convictions arising out of incident in which victim was killed during robbery of marijuana by three gang members, even though defendant argued that prosecutor committed misconduct during closing arguments. While defendant argued that prosecutor improperly referred to his failure to testify by noting that defendant had failed to present facts to support claim that he was not at crime scene, said reference did not deprive defendant of fair trial since prosecutor’s observation could be construed as proper comment about weakness of defendant’s defense. Moreover, trial court otherwise gave curative jury instruction regarding defendant’s failure to testify. Also, while defendant argued that prosecutor injected facts outside the record during rebuttal portion of closing argument regarding claim that defendant and other gang members entered into agreement with “wink” and “nod,” said comment was fair observation that defendant made agreements with other gang members nonverbally.