May, J.
….
Prosecutorial Misconduct
During closing arguments, the deputy prosecutor discussed the evidence supporting the conviction and had an accompanying slide presentation. During his argument, the court interrupted and the following side bar occurred:
[Court]: . . . Have a problem with that last slide.2
[Defense]: I was about to object to it, Judge.
[Court]: The last slide (inaudible) defendant hasn’t given you any-defendant’s not required to give them anything.
[State]: Well, (inaudible) he said . . . the gun was dropped.
[Court]: (Inaudible) That’s what she said in her closing; but your slide suggests that he has some burden to give them, some other alternative and obviously they don’t.
* * * * *
[Court]: (Inaudible) admonish the jury.
[State]: (Inaudible) in the instructions.
[Defense]: That’s not enough (Inaudible)[.] [Court]: I’ll remind them that the defense is not required to present evidence to prove his innocence or explain anything.
[Record citations omitted throughout.] The court then admonished the jury: “Folks, just as a reminder, the defendant is not required to present evidence; uh, present any evidence to prove his innocence or to prove or explain anything.” The defense did not thereafter request a mistrial or additional admonition.
[Footnote 2:] We note that our review of this issue has been hampered by the defendant’s failure to make the content of the slide part of the record at trial so that on appeal we might know what the jury may have read from the allegedly prejudicial slide.
On appeal, Miles argues the deputy prosecutor’s inclusion of words on a slide suggesting Miles had a burden to explain what happened was prosecutorial misconduct that “denied full due process protection for Miles, entitling him to a new trial.”
The trial court stopped the deputy prosecutor’s presentation when it noticed the content of the slide. The deputy prosecutor did not read the slide to the jury or vocalize a suggestion that Miles had a burden to prove any fact or to prove his innocence. Nevertheless, some of the jurors may have read the content of the slide. The trial court discussed its concerns with counsel at a sidebar and then admonished the jury that Miles had no burden to prove or explain anything. The final jury instructions included this instruction regarding the presumption of innocence…. In light of the jury instructions, the admonition, and the abundant evidence of guilt, Miles has not demonstrated “such an undeniable and substantial effect on the jury’s decision that a fair trial was impossible.” [Citation omitted.]
….
Affirmed.
Crone, J., and Bradford, J., concur.