New Marshfield shooter appeals his murder conviction

A New Marshfield man sent to prison for his part in a fatal drug-related shootout in that rural community has claimed in an appeal of his conviction that prosecutors went too far during closing arguments, when they called two of his co-defendants "œthugs" and "œgoons," and referred to the fact that they were black.

Philip Dionte Boler, 28, was the first of four defendants convicted in connection with the February 2009 shootout, in which an innocent bystander was killed. He is serving 28 years to life for murder and aggravated robbery.

He bases his appeal, filed in February, on a claim that county assistant prosecutors Rob Driscoll and Keller Blackburn overstepped the legal limits of what prosecutors can say to juries during final arguments.

The prosecutor's office has responded that in each instance of allegedly improper statements, the prosecutor either did not overstep what's legally acceptable, or said nothing that was likely to change the outcome of the trial.

The main points of the appeal, filed by assistant state public defender Spencer J. Cahoon, were the multiple ways in which the state allegedly misused closing arguments to prejudice the jury.

First, Cahoon claimed, it was wrong for prosecutors to state outright that "the defendant is guilty," given that the credibility of the state's main witness, Billy Joe Osborne, had been seriously called into question by other state witnesses, including Osborne's daughter.

Second, he argued, the state presented as "facts" to the jury assertions that hadn't been established during trial.

These included the claim that Boler had said he planned to steal Osborne's guns from the trailer where the shootout took place, and the claim that one of Boler's co-defendants might have been carrying a pistol like the one that killed a Meigs County man, Donnie Putnam, during the gunplay.

"These claims lacked any support in the record," Cahoon wrote, and their use "invited the jury to use facts not in evidence to support two significant conclusions "“ that Mr. Boler or one of his accomplices directly shot the victim, and that Mr. Boler planned to steal." The judge in the case, he argued, should have instructed the jury to ignore these statements.

Thirdly, according to Cahoon, prosecutors used "inflammatory language" in describing the defendants as pursuing a scheme "hatched in hell." Such a phrase "serves no legitimate purpose in closing argument," and was meant to appeal to the jury's emotions, Cahoon wrote.

Also inflammatory, he argued, were references to Boler's co-defendants, Abdifatah Abdi and Mohat Osman, as "two black men," which improperly brought the race issue into an incident where it was irrelevant. (Boler is African American, while Abdi and Osman are immigrants from Africa.) "Through their focus on race, the prosecutors attempted to tap into potential juror bias," Cahoon alleged.

The attorney also objected to the use of "derogatory terms" to describe Abdi and Osman "“ namely, calling them "thugs" and "goons."

Though Boler referred to his young co-defendants once during police questioning as "thugs from the street," Cahoon noted, "the prosecution proceeded to use the terms 'goons' and 'thugs' no less than 38 times throughout closing argument," which he alleged was "designed to inflame the jury against Mr. Boler."

In a response brief, Blackburn argued that conveying the impression that the defendant is guilty "is the point of a prosecutor's closing argument." He also maintained that Boler had confessed to police that he committed aggravated robbery, in statements brought out at trial.

As for the alleged reference to facts not established at trial, Blackburn seemed to acknowledge that this might have happened, but suggested it wasn't improper, and didn't significantly damage Boler's right to a fair trial.

"The prosecution is entitled to a certain degree of latitude in summation," he contended, adding that the disputed "facts" referred to by Cahoon were "reasonable inferences from the direct evidence."

Even if they had not been brought up to the jury, Blackburn added, "we cannot say the results of the trial would have been different," and so their use doesn't constitute error important enough to overturn Boler's conviction.

Regarding the allegedly "inflammatory" language, Blackburn wrote that the use of "black" was "merely descriptive," "and "not used to raise emotion over race." As for "goon" and "thug," Blackburn reiterated that these words had been used by Boler to describe his co-defendants, and his defense attorney didn't object to their use by the prosecution during the trial.

The state's reference to "schemes... hatched in hell," he wrote, was meant to address the credibility of the state's witnesses, by suggesting that in a drug-related shootout, any witnesses for the prosecution are likely to have credibility problems.

The full quote by the prosecution was: "Regarding our witnesses, you cannot expect angels to be witnesses to schemes that are hatched in hell."

Abdi and Osman have indicated they plan to appeal as well.