State v. Ayers, 535 A.2d 330 (Vt. 1987). · Go Syfert
State v. Ayers, 535 A.2d 330 (Vt. 1987). Cases Citing This Book View Copy Cite
131 citation events (74 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Cited for
535 A.2d at 333 Finding plain error in prosecutor's personal beliefs23 citing casesfinding *531 error in prosecutor’s statements that “I think . . . [complainant’s] story ... is the truth,” and “I believe that [defendant] on that day severely breached that responsibility [as a driver] by undertaking the actions [on the road].2 citing courts put it this way
  • State v. Marshall Parker, 2024 VT 64, 327 A.3d 875.published 2 cites
    (We have rarely found plain error in prosecutor’s arguments to the jury even where we have condemned the argument.)
  • State v. Darryl M. Galloway, 2020 VT 29, 231 A.3d 1157.published
    Reversal on plain-error grounds is appropriate where the error is “obvious” and “strikes at the heart of [defendant’s] constitutional rights or results in a miscarriage of justice.” Id. (quoting State v. Ayers, 148 Vt. 421, 426 , 535 A.2d…
  • State v. Jason Atherton a/k/a Melton, 2016 VT 25, 144 A.3d 311.published
    (finding *531 error in prosecutor’s statements that “I think . . . [complainant’s] story ... is the truth,” and “I believe that [defendant] on that day severely breached that responsibility [as a driver] by undertaking t…)
  • State v. Scott Provost, 2014 VT 86A, 133 A.3d 826.published 2 cites
    To be entitled to reversal on plain-error grounds, the error must 6 be “obvious,” and defendant must show that “the error strikes at the heart of [his] constitutional rights or results in a miscarriage of justice.” State v. Ayers, 148 Vt.…
  • State v. Reynolds, 2014 VT 16, 95 A.3d 973.published
    This standard requires “a showing that the error strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice.” State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 333 (1987). ¶ 34.
  • State v. Brandt, 2012 VT 73, 59 A.3d 141.published
    In challenges to the prosecutor’s closing argument, we have found reversible error absent an objection only if the argument is “ ‘manifestly and egregiously improper.’ ” State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 333 (1987) (quoting…
  • State v. Kinney, 2011 VT 74, 27 A.3d 348.published 2 cites
    (finding error in prosecutor's statements that "I think ... [complainant's] story ... is the truth" and "I believe the believable testimony here)
  • State v. Jackson, 2008 VT 71, 956 A.2d 1126.published 3 cites
    Similarly, in State v. Ayers, 148 Vt. 421, 423-24 , 535 A.2d 330, 331-32 (1987), we upheld the trial court’s admission of a hearsay statement made after the declarant ran into a police station following an incident in which her husband ram…
  • State v. Decoteau, 2007 VT 94, 940 A.2d 661.published
    Because defendant’s claim involves his right to confront adverse witnesses and implicates the validity of the entire proceeding, we examine whether the court committed an error that “strikes at the heart of defendant’s constitutional right…
  • State v. Decoteau, 182 Vt. 433 (Vt. 2007).published
    Because defendant's claim involves his right to confront adverse witnesses and implicates the validity of the entire proceeding, we examine whether the court committed an error that "strikes at the heart of defendant's constitutional right…
Show 13 more citing cases
  • State v. Hemond, 2005 VT 12, 868 A.2d 734.published
    State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987) (citing V.R.Cr.P. 52(b)).
  • State v. Plante, 668 A.2d 674 (Vt. 1995).published
    Such errors occur only in rare and extraordinary cases, State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 333 (1987), and will be found only where failure to recognize the error would result in manifest injustice.
  • State v. Lawton, 667 A.2d 50 (Vt. 1995).published
    State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987); see also Code of Professional Responsibility DR 7-106(C)(4) (lawyer shall not assert personal opinion as to witness’s credibility or defendant’s guilt).
  • State v. Wool, 648 A.2d 655 (Vt. 1994).published
    State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987).
  • State v. Cohen, 599 A.2d 330 (Vt. 1991).published 5 cites
    State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 333 (1987).
  • State v. Ross, 568 A.2d 335 (Vt. 1989).published 2 cites
    (Nonprejudicial errors do not warrant retrial in any event under the harmless error rule, V.R.Cr.P. 52(a).) The plain error rule, rather, provides: “Plain errors or defects affecting substantial rights may be noticed although they were not…
  • State v. Verge, 564 A.2d 1353 (Vt. 1989).published
    See State v. Francis, 151 Vt. 296, 298-301 , 561 A.2d 392, 393-95 (1989); State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987).
  • Deyo v. Kinley, 565 A.2d 1286 (Vt. 1989).published
    By his silence, defendant acquiesced in the admission of the testimony. *201 We recognize that even where an issue is not preserved, we can reverse in exceptional cases where there is plain error that affects substantial rights of the part…
  • State v. Rehkop, 2006 VT 72, 908 A.2d 488.published 2 cites
    See State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987) (faulting a prosecutor’s statement of personal belief that the defendant was guilty); State v. Messier, 146 Vt. 145, 159 , 499 A.2d 32, 42 (1985) (“It is axiomatic in criminal…
  • State v. Heath, 649 A.2d 243 (Vt. 1994).published 2 cites
    See State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987).
  • State v. Francis, 561 A.2d 392 (Vt. 1989).published 6 cites
    See State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987), and cases cited, where the rule and its rationale are stated: *299 In a long line of cases . . . , this Court has condemned statements by the prosecutor that indicate a perso…
  • State v. Shawn Bellanger, 2018 VT 13, 183 A.3d 550.published 2 cites
    Compare Hemond , 2005 VT 12 , ¶¶ 15-16, 178 Vt. 470 , 868 A.2d 734 (finding no plain error where prosecutor's statements overtly framed as personal opinion "appeared sporadically at roughly six locations," expressed what prosecutor thought…
  • Varnum v. Varnum, 586 A.2d 1107 (Vt. 1990).published 2 cites
    See, e.g., State v. Ayers, 148 Vt. 421, 425-26 , 535 A.2d 330, 333-34 (1987) (plain error “strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice”); In re Maher, 132 Vt. 560, 562 , 326 A.2d 142, 14…
148 Vt. at 426 “a showing that the error strikes at the heart of defendant's constitutional rights or results in a miscarriage of justice.”10 citing cases7 citing courts quote it
  • State v. Marshall Parker, 2024 VT 64, 327 A.3d 875.published 2 cites
    “We have rarely found plain error in prosecutor’s arguments to the jury even where we have condemned the argument.”
  • State v. Darryl M. Galloway, 2020 VT 29, 231 A.3d 1157.published
    Reversal on plain-error grounds is appropriate where the error is “obvious” and “strikes at the heart of [defendant’s] constitutional rights or results in a miscarriage of justice.” Id. (quoting State v. Ayers, 148 Vt. 421, 426 , 535 A.2d…
  • State v. Reynolds, 2014 VT 16, 95 A.3d 973.published
    This standard requires “a showing that the error strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice.” State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 333 (1987). ¶ 34.
  • State v. Wallace Nolen, No. 2010-319 (Vt. Apr. 21, 2011).unpublished 2 cites
    Plain error requires “a showing that the error strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice.” State v. Ayers, 148 Vt. 421, 426 (1987). “[I]n the context of a challenge to a closing argume…
  • State v. Jackson, 2008 VT 71, 956 A.2d 1126.published 3 cites
    Similarly, in State v. Ayers, 148 Vt. 421, 423-24 , 535 A.2d 330, 331-32 (1987), we upheld the trial court’s admission of a hearsay statement made after the declarant ran into a police station following an incident in which her husband ram…
  • State v. Decoteau, 2007 VT 94, 940 A.2d 661.published
    Because defendant’s claim involves his right to confront adverse witnesses and implicates the validity of the entire proceeding, we examine whether the court committed an error that “strikes at the heart of defendant’s constitutional right…
  • State v. Decoteau, 182 Vt. 433 (Vt. 2007).published
    Because defendant's claim involves his right to confront adverse witnesses and implicates the validity of the entire proceeding, we examine whether the court committed an error that "strikes at the heart of defendant's constitutional right…
  • State v. Hemond, 2005 VT 12, 868 A.2d 734.published
    State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987) (citing V.R.Cr.P. 52(b)).
  • State v. Francis, 561 A.2d 392 (Vt. 1989).published 6 cites
    See State v. Ayers, 148 Vt. 421, 425 , 535 A.2d 330, 333 (1987), and cases cited, where the rule and its rationale are stated: *299 In a long line of cases . . . , this Court has condemned statements by the prosecutor that indicate a perso…
  • Varnum v. Varnum, 586 A.2d 1107 (Vt. 1990).published 2 cites
    (plain error “strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice)
535 A.2d at 332 Determining declarant's state of mind regarding excited utterance4 citing casestrial courts have “wide discretion” to determine whether declarant was under the influence of the excited event1 citing court put it this way
  • State v. Voorheis, 2004 VT 10, 844 A.2d 794.published
    State v. Ayers, 148 Vt. 421, 424 , 535 A.2d 330, 332 (1987).
  • In Re Est. of Peters, 765 A.2d 468 (Vt. 2000).published 3 cites
    See id.; State v. Ayers, 148 Vt. 421, 424 , 535 A.2d 330, 332 (1987).
  • State v. Ives, 648 A.2d 129 (Vt. 1994).published
    See V.R.E. 104(a); State v. Ayers, 148 Vt. 421, 424 , 535 A.2d 330, 332 (1987).
  • State v. Verrinder, 637 A.2d 1382 (Vt. 1993).published
    State v. Ayers, 148 Vt. 421, 424 , 535 A.2d 330, 332 (1987).
535 A.2d at 334 high unlikelihood pro se defendant would interrupt argument of prosecutor to object requires that trial judge take extra care and a failure to do so contributes to a finding of plain error3 citing cases1 citing court put it this way
  • State v. Martel, 670 A.2d 845 (Vt. 1995).published
    This Court has held that prejudice from improper argument may be determined by a number of factors, including the frequency of the improper argument, State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 334 (1987), whether the remark was infla…
  • State v. Sims, 608 A.2d 1149 (Vt. 1991).published 2 cites
    (high unlikelihood pro se defendant would interrupt argument of prosecutor to object requires that trial judge take extra care and a failure to do so contributes to a finding of plain error)
  • State v. Cohen, 599 A.2d 330 (Vt. 1991).published 5 cites
    State v. Ayers, 148 Vt. 421, 426 , 535 A.2d 330, 333 (1987).
535 A.2d at 331 cited at this page1 citing case
  • State v. Jackson, 2008 VT 71, 956 A.2d 1126.published 3 cites
    Similarly, in State v. Ayers, 148 Vt. 421, 423-24 , 535 A.2d 330, 331-32 (1987), we upheld the trial court’s admission of a hearsay statement made after the declarant ran into a police station following an incident in which her husband ram…
148 Vt. at 424 “This attribute creates the trustworthiness on which the rule is based.”1 citing casethe opinion's own words at *424
  • State v. Miguel Francisco, No. 2014-027 (Vt. Jan. 9, 2015).unpublished
    This attribute creates the trustworthiness on which the rule is based.” State v. Ayers, 148 Vt. 421, 424 (1987).
148 Vt. at 425 ment, he said: “I think . . . that the story which Mrs. Ayers has told you today is the truth. It is what happened.” and “I believe that Mr. Ayers on that day…1 citing caseopening of page *425 (no citing court says what it cites this page for)
  • In Re Noyes, No. 21-cv-2781 (Vt. Super. Ct. Dec. 22, 2025).
    State v. Ayers, 148 Vt. 421, 425 (1987). 3 The Vermont Constitution separately guarantees “[t]hat in all prosecutions for criminal offenses, a person hath a right to be heard by oneself and by counsel.” Vt.
Retrieving the full opinion text from the archive…
State of Vermont
v.
Dennis E. Ayers
85-039.
Supreme Court of Vermont.
Sep 11, 1987.
Published opinion
535 A.2d 330
1987 Vt. LEXIS 526
William D. Wright, Bennington County State’s Attorney, and Deborah A. Barnard, Deputy State’s Attorney, Bennington, for Plaintiff-Appellee., David W. Curtis, Defender General, and William A. Nelson, Appellate Defender, Montpelier, for Defendant-Appellant.
Allen, Peck, Dooley, Keyser, Springer.
Cited by 40 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 78%
Citer courts: Supreme Court of Vermont (1)
Dooley, J.

Defendant appeals his conviction, after a jury trial, of careless and negligent operation of a motor vehicle in violation of 23 V.S.A. § 1091(a). Defendant raises two issues on appeal: whether certain hearsay evidence was admitted improperly and whether statements of the prosecutor made in closing argument were so prejudicial as to require a new trial. We reverse and remand for a new trial.

The incident giving rise to the conviction arose out of a marital dispute. At the time, defendant and his wife were living separately, with two of their daughters residing with defendant and the other with the wife. On the day of the incident, the wife drove to defendant’s house and left one daughter for a visit while taking another with her. Thereafter she drove home to Bennington by a circuitous route.

According to the testimony of the wife and the 13 year old daughter who was with her, they encountered defendant twice along the road. After the second encounter, defendant followed his wife in his vehicle, accelerating to bump into her from behind. Thereafter, he swung out and pulled along side her in the lane of oncoming traffic in an attempt to force her to stop her vehicle. The two vehicles finally reached a state police barracks along[*423] Route 7 in Shaftsbury. The wife tried to turn left into the barracks access road and was blocked by defendant. Only by backing up on Route 7 was she able to get to the state police. On entering the barracks, she gave a statement to a state police officer who described her as “visibly shaken . . . extremely nervous, upset, . . . bordering on tears off and on.”

Defendant’s story was much different. He agreed with the wife’s testimony on her visit to his house and on the fact of the first encounter on the road. Thereafter, he said he went home and never saw his wife again on that day.

At trial, the wife and child who was with her testified, relating the story of the encounters with defendant. The state police officer also testified relating the statement given by the wife at the Shaftsbury barracks.

The defendant appeared pro se. He attempted limited cross-examination of the State’s witnesses. He took the stand and related his version of the events. He called no other witnesses.

The entire trial including evidence, closing arguments and the charge to the jury was concluded in a morning. The jury found defendant guilty.

First, defendant claims that the admission of the officer’s hearsay testimony about the statement of the wife given at the Shaftsbury police barracks was reversible error. The State admits that the testimony of the state police officer was hearsay but argues that it was admissible under Vermont Rule of Evidence 803(2), the exception for excited utterances. The exception covers statements about a “startling event or condition” which is made while the “declarant was under the stress of excitement caused by the event or condition.” V.R.E. 803(2). We agree with the trial court that the evidence of the officer was admissible under the exception.

The defendant concedes that the wife’s statement related to a startling event. The car bumping incident combined with defendant’s attempts to block access to the police barracks constituted a battery that would have excited a reasonable person. It was comparable to the fire this Court found startling in State v. Solomon, 144 Vt. 269, 272, 476 A.2d 122, 124 (1984).

There was ample evidence from which the trial court could find that the declarant was under the stress of excitement of the event. The officer testified that the wife was upset, bordering on tears and her voice “quivered heavily.” See State v. Hafford, 410[*424] A.2d 219 (Me. 1980); McCurdy v. Greyhound Corp., 346 F.2d 224 (3d Cir. 1965); State v. Rohdes, 23 Ohio St. 3d 225, 492 N.E.2d 430 (1986). The controlling effect of the excitement can continue even though the officer had “to calm her down” sufficiently to get a statement. State v. Mateer, 383 N.W.2d 533, 535-36 (Iowa 1986) (declarant had to be calmed down to give a statement; stress still dominant even though declarant could act “rationally”).

The underlying factual findings to support the elements of the exception are for the trial court and will not be overturned unless they are clearly erroneous or there is an abuse of discretion. See State v. Sprague, 144 Vt. 385, 389, 479 A.2d 128, 130-31 (1984); cf. V.R.C.P. 52(a); McCormick on Evidence § 297, at 857 (E. Cleary 3d ed. 1984) (trial courts have “wide discretion” to determine whether declarant was under the influence of the exciting event). In this case, the court took an offer of proof and considered the foundation facts in a conference at the bench outside the hearing of the jury. See V.R.E. 103(a). Given the discretion accorded the trial court and the careful consideration of the issue to prevent prejudice to the pro se defendant, the decision to admit the evidence must be affirmed.

Defendant argues that our law has an additional requirement that the statement be “spontaneous” and that this element was not present in this case. The term “spontaneous” was used to describe the excited utterance exception in State v. Solomon, 144 Vt. at 272, 476 A.2d at 124, as taken from McCormick’s treatise on evidence. See McCormick on Evidence § 297, at 855 (E. Cleary 3d ed. 1984). It is more a restatement of the kind of declaration that fits the rationale for the exception than a separate element. See 4 J. Weinstein & M. Berger, Evidence § 803(2) [01], at 803-85-86 (1983). The important attribute of the statement is that the declarant’s powers of reflection and fabrication be suspended because of the controlling effect of the excitement. This attribute creates the trustworthiness on which the rule is based. The circumstances surrounding the wife’s statement here showed it did not result from reflection, and the opportunity for fabrication was minimal.

The defendant’s second claim — prosecutorial misconduct in the closing argument to the jury — presents a more substantial issue. In the closing and rebuttal arguments, the prosecutor made a number of statements that indicated a personal opinion that the defendant’s version of the events was false. In the closing argu[*425] ment, he said: “I think . . . that the story which Mrs. Ayers has told you today is the truth. It is what happened.” and “I believe that Mr. Ayers on that day severely breached that responsibility [as a driver] by undertaking the actions [on the road].” In his rebuttal argument, he said: “I believe the believable testimony here, the testimony consistent with Mr. Ayers’ state of mind on that day and with what happened, is Mrs. Ayers’ testimony and the testimony of her daughter.”

In a long line of cases beginning with State v. Parker, 104 Vt. 494, 500, 162 A. 696, 699 (1932), this Court has condemned statements by the prosecutor that indicate a personal belief that the defendant is guilty. See State v. Brown, 147 Vt. 324, 328-29, 515 A.2d 1059, 1062-63 (1986); State v. Messier, 146 Vt. 145, 159-61, 499 A.2d 32, 37-38 (1985); State v. Riva, 145 Vt. 15, 20, 481 A.2d 1060, 1063 (1984); State v. Savo, 141 Vt. 203, 213, 446 A.2d 786, 792 (1982); State v. King, 131 Vt. 200, 208, 303 A.2d 156, 161 (1973); State v. Ross, 130 Vt. 235, 238-39, 290 A.2d 38, 40 (1972); State v. Bishop, 128 Vt. 221, 229, 260 A.2d 393, 399 (1969); State v. Jackson, 127 Vt. 237, 238, 246 A.2d 829, 829-30 (1968); State v. Gravelle, 117 Vt. 238, 246, 89 A.2d 111, 116 (1952); see also Code of Professional Responsibility DR 7-106(C)(3) and (4). There is a great risk that the jury will give special weight to this opinion because of the prestige of the prosecutor and the fact-finding facilities available to the office. See American Bar Ass’n, Standards for Criminal Justice, Standard 3-5.8, Commentary at 3-88. Further, statements of opinion suggest that the jury should treat the prosecutor’s argument as evidence with the new evidence being the opinion of the prosecutor. Id. at 3-89. There is no question that the comments of the prosecutor crossed the line in this case. The case turned entirely on the credibility of the witnesses. If the jury believed the evidence of defendant’s wife, there was no alternative to a finding of guilty. Thus, the jury could draw no other conclusion from the prosecutor’s remarks than that he thought the defendant was guilty.

The defendant faces a significant barrier to reversal, however. The defendant generally cannot complain of an error below unless a timely objection was made in the trial court, and none appears in this case. Only in exceptional cases involving “plain errors . . . affecting substantial rights” can an error lead to a reversal absent a timely objection. V.R.Cr.P. 52(b). See State v. Riva, 145 Vt. at 19, 481 A.2d at 1063; State v. Bailey, 144 Vt. 86,[*426] 99-100, 475 A.2d 1045, 1053 (1984); State v. Billado, 141 Vt. 175, 182, 446 A.2d 778, 782 (1982). For “plain error,” we have required a showing that the error strikes at the heart of defendant’s constitutional rights or results in a miscarriage of justice. See, e.g., State v. Hoadley, 147 Vt. 49, 53, 512 A.2d 879, 881 (1986); State v. Ramsay, 146 Vt. 70, 75, 499 A.2d 15, 18 (1985); State v. Campbell, 146 Vt. 25, 27, 497 A.2d 375, 377 (1985). In challenges to the prosecutor’s closing argument, we have found reversible error absent an objection only if the argument is “manifestly and egregiously improper.” State v. Bailey, 144 Vt. at 100, 475 A.2d at 1053. We have rarely found plain error in prosecutor’s arguments to the jury even where we have condemned the argument. State v. Riva, 145 Vt. at 20, 481 A.2d at 1063; State v. Bailey, 144 Vt. at 101, 475 A.2d at 1054.

For a number of reasons, we believe the prosecutor’s argument was plain error in this case. First, the argument went directly to the heart of the defense and had obvious prejudicial impact. See State v. Ross, 130 Vt. at 238, 290 A.2d at 40. The case was entirely about credibility. The prosecutor’s opinion that he believed the wife and disbelieved the defendant could have determinative weight for the jury.

Second, the prosecutor repeated his belief a number of times in a short closing argument. The prejudicial comment was not isolated and hardly could be ignored by the jury. Compare State v. Jackson, 127 Vt. at 238, 246 A.2d at 830; State v. Truman, 124 Vt. 285, 293, 204 A.2d 93, 99 (1964). See also Annotation, Prosecutor’s Argument to the Accused’s Guilt, 88 A.L.R.3d 449, § 12 at 539 (1978) (number of improper remarks a consideration in whether argument is grounds for reversal).

Third, the defendant was appearing without counsel and was highly unlikely to interrupt the argument of the prosecutor to object even if he knew that the line of appropriate argument had been crossed. We believe that the trial judge has to be very sensitive in such a case so that obvious errors do not creep into the proceeding because of the lack of knowledge of the defendant. [1][*427] This was an obvious error. [2]

Finally, it appears from the transcript that the prosecutor’s motive was to retaliate against entirely proper actions of the defendant. Even if the defendant’s argument were improper, the prosecutor does not acquire a license to respond with improper argument. See United States v. Young, 470 U.S. 1; Belsky, The Retaliation Doctrine: Promoting Forensic Misconduct, 50 Alb. L. Rev. 763 (1986). Here, however, the defendant acted within his rights — he could in closing argument make personal comments about credibility because his credibility was the issue. The prosecutor responded in kind by becoming both an advocate and a witness. We infer in his conduct the “studied purpose” to introduce the improper considerations we have condemned in the past. See, e.g., State v. Lapham, 135 Vt. 393, 407, 377 A.2d 249, 257 (1977).

Reversed and remanded.

1

In United States v. Young, 470 U.S. 1, 10 (1985), the Supreme Court, in addressing a claim of prosecutorial misconduct in closing argument, noted that the trial judge has the responsibility to maintain decorum and “ ‘is not a mere moderator, but is the governor of the trial (quoting Quercia v. United States, 289 U.S. 466, 469 (1933)). This point is particularly important where the defendant is appearing pro se.

2

The court gave a general charge to the jury that the statements of counsel are not evidence but did not directly address the prosecutor’s remarks with an instruction. Compare State v. Foy, 144 Vt. 109, 115( 475 A.2d 219, 223-24 (1984) (court struck the argument and immediately cautioned the jury to ignore it). The general charge was not sufficient to respond to the prejudice created in this case.