Nature of the Case
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Facts
D delivered Trottier to the emergency room where she later died of a single gunshot wound to the head. Police officers eventually arrived and questioned D. D recounted at least eight different stories about Trottier's shooting to hospital personnel, police officers, and two friends, all of whom testified at trial. Officers arrested D and proceeded to investigate D's apartment where the shooting took place. Police found evidence outside D's apartment, then knocked and announced their presence, but received no response. The police entered the apartment through the rear unlocked sliding glass door in order to look for other victims or suspects and to protect the safety of the officers. This warrantless 'protective sweep' turned up Trottier's blood in various locations, including on D's bed, bedding, floor and wall of the bedroom, as well as on the stairs and handrail. Police sought a search warrant for D's apartment. While waiting for the warrant, police discovered a .22 caliber pistol with one spent round in the chamber, wrapped in a towel, and located in a bucket immediately outside the back door to D's apartment. After getting the warrant they found .22 caliber ammunition and a life insurance policy, held by Trottier, naming D as the primary beneficiary. Gillen represented D at trial and on direct appeal. D claimed that Trottier's death had been a 'tragic accident.' This theory conformed both with the evidence and D's eighth and final story about what happened. Gillen deemed it necessary to forego objecting to the State's introduction of evidence from the apartment in order to bolster their claim that D was not 'hiding anything.' The jury convicted D of deliberate homicide and sentenced him to 100 years. With new counsel, P filed a Petition for Postconviction Relief alleging prosecutorial misconduct at trial and ineffective assistance of counsel. D argues that the prosecutor improperly attacked Gillen by stating during voir dire and closing statement that Gillen was 'hiding the ball,' thereby implying Gillen lied during the presentation of D's case. The prosecutor used the term to remind the jurors of his point during voir dire that jurors should use their common sense when deciding this matter. After analogizing about using common sense to make decisions when crossing a street, the prosecutor stated: 'The books, the movies we watch, all hide the ball. . . . That is what you see in the movies. We hide the ball until the last minute when the butler in the back jumps up and screams, I did it. I just want to make sure we can all use our common sense. Can we all agree on that?' The prosecutor stated during his closing statement: 'Counsel, ladies and gentlemen, you have heard a masterful job by a very eloquent attorney at attempting to hide the ball. . . . Now we agreed we could use our common sense in accordance with the Judge's instructions.' He then related a story about his child's friend lying to him in order to focus the jury's attention on D's conflicting stories. P contends that the prosecutor referred to D's conflicting statements and, through the use of analogy, illustrated how a decision-maker weighs the inconsistent statements against the physical evidence in order to find the truth.
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