Summary 2005 WY 162

Summary of Decision issued December 21, 2005

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Case Name: Farmer v. State

Citation: 2005 WY 162

Docket Number: 04-188

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Date of Decision: December 21, 2005

Issues: Whether the trial court erred in admitting the prior testimony of a witness, John Biddix, because the witness was not legally unavailable or Appellant was denied his rights under the confrontation clause due to ineffective assistance of counsel in the first trial. Whether the trial court erred in denying that certain jury instructions be given. Whether prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial.

Holdings: The admissibility of prior testimony as an evidentiary ruling is in the sound discretion of the trial court. The Court will generally accede to the trial court’s determination of the admissibility of evidence unless the court clearly abused its discretion. The burden is on the defendant to establish such abuse. Prior testimony may be properly admitted if: (1) the witness is unavailable; (2) the former testimony was given by the witness while he was testifying under oath; and (3) the party against whom the testimony was offered had the opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination at the time of the former testimony. The existence of active arrest warrants and the difficulty in obtaining a current address for the witness led the district court to properly conclude that the witness was unavailable for testimony.
Appellant’s complaints concerning defense counsel’s performance at the first trial do not establish ineffective assistance of counsel. Prior testimony is admissible when given under oath, when given while defendant was represented by counsel, when defendant’s counsel could and did cross-examine, and when cross-examination at trial would not touch upon any new or significantly material line of inquiry. The Court found that the prior testimony of the witness met the four part test and found no abuse of discretion.
The district court rejection of three proposed jury instructions did not constitute fundamental error. Jury instructions must be considered as a whole and the search is confined to prejudicial error. The Court’s review of the record supports the evidentiary findings of the district court.
The Appellant bears the burden of proving prejudice. The propriety of the closing argument is measured in the context of the entire argument and compared with the evidence produced at trial. Appellant did not object to the State’s closing argument at trial, so review is limited to the plain error standard. Upon examination of the statements challenged by Appellant, the Court found that the prosecutor did not reference his own beliefs nor specifically comment upon the credibility of witnesses. Placed in proper context, the prosecutor’s statements are properly viewed as comments upon the evidence. The Court found no error.

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/afcka .