Summary 2006 WY 32

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Case Name: Hopson v. State

Citation: 2006 WY 32

Docket Number: 05-78

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Defendant): Megan L. Hayes, Laramie, Wyoming

Representing Appellee (Respondents/Defendant/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: March 21, 2006

Issues: Whether Appellant was denied his Fifth and Fourteenth Amendment rights when he proceeded to trial and testified in his own defense and the state attempted to use that testimony against him during the habitual offender phase of his trial. Whether the district court erred when it denied Appellant’s motion to dismiss the criminal charge as it had been alleged in the Information. Whether Appellant was deprived of his due process right to a fair trial due to prosecutorial misconduct.

Holdings: Appellant claims that the State violated his right to testify in his own defense when it attempted to use his trial testimony against him during the habitual offender phase of his trial. He further argues that the State denied him due process and a fair trial because if he was convicted as an habitual offender with three prior felonies, he faced life imprisonment. Appellant claims that he would have pled guilty to the aggravated assault charge and the habitual offender status with two prior felonies if the Information had not included a federal firearm offense that was later dismissed. If he had pled guilty, Appellant argues, the district court would not have heard the officers’ testimony and, therefore, he would have received a more lenient sentence. However, to the extent Appellant’s testimony was used during the habitual offender phase of the trial, it was used by the prosecutor to argue that the federal firearms convictions arose out of a separate occurrence and should be considered by the jury as a third offense in determining his status as an habitual offender. The argument was made out side of the jury’s presence and was offered as a response to Appellant’s W.R.Cr.P. 29(a) motion for acquittal on the habitual offender charge. Appellant’s belief that his rights were violated inexplicably ignores the fact that the district court ruled in his favor and reduced his habitual offender status to two prior felonies. In other words, Appellant won the very argument he now brings on appeal.

Appellant next argues that his rights to due process and a fair trial were violated because he was given “no meaningful alternative” other than proceeding to trial. Appellant’s argument seems to follow this logic: (1) Appellant faced an aggravated assault with a deadly weapon charge and a possible sentence enhancement as an habitual criminal with three prior felonies; (2) if convicted of both the aggravated assault and the habitual criminal status as contained in the Information, he faced a mandatory life sentence; (3) had he been charged as an habitual offender with only two prior felonies and convicted, he faced a sentence of ten to fifty years’ incarceration; (4) had he been charged as an habitual offender with two prior felonies, he would have pled guilty to the aggravated assault and the habitual offender sentence enhancement; (5) because he was charged with three prior felonies, he proceeded to trial hoping to be found innocent and avoid a mandatory life sentence; and (6) because he elected to go to trial, the judge heard testimony from the officers at whom Appellant fired the shotgun, which testimony the district court relied on in imposing a “severe” sentence. It is generally recognized that sentence imposition involves consideration of two broad categories: (1) the crime and its circumstances, and (2) the character of the criminal. The testimony that Appellant claims was prejudicial to him clearly falls within the first category. The sentencing court necessarily considered the officers’ testimony, which testimony was uncontested and clearly relevant to determining the nature of the crime and its circumstances. Moreover, if Appellant’s case had not proceeded to trial, the district court inevitably would have been informed of the circumstances surrounding the crime through the pre-sentence investigation report, Appellant’s factual basis for his guilty plea, and the officers’ testimony at sentencing in the form of victim impact statements. Because the district court would have been informed of the nature and circumstances of the crime, there can be no prejudice that resulted from the officers’ trial testimony. Additionally, Appellant’s conclusion that his sentence would have been more favorable absent the officers’ testimony is purely speculative and ignores the fact that the sentencing court considered a variety of factors in determining the sentence and merely mentioned that “the serious nature of the incident” was one consideration in reaching its ultimate decision. Finally, Appellant’s argument ignores the fact that the bifurcated trial process allowed him to contest his status as an habitual offender independent of the adjudication of his guilt for the substantive offense. If Appellant believed himself innocent of the habitual offender charge as contained in the Information, he could have – and did – contest that charge during the habitual offender phase of his trial. His choice to exercise or forego his right to trial during the guilt phase was independent of his choice to contest his habitual offender status. Thus, Appellant has not proven that he was prejudiced and, therefore, has failed to demonstrate plain error.

Appellant next argues that the district court’s denial of his pretrial motion to dismiss the habitual offender charge was in error. Appellant couched his pretrial motion both in terms of a motion to dismiss the habitual offender charge as contained in the Information and as a motion to suppress the federal firearms convictions should his trial reach the habitual offender phase. Appellant argued that his federal firearm possession felony should be removed from the Information because it did not arise out of a “separate occurrence” as a matter of law. The district court held a hearing on the motion and determined that Appellant’s argument needed factual development at the habitual offender phase of the trial. Appellant claims that the district court erred in so holding and, as a result, he proceeded to trial instead of pleading guilty. Appellant then claims, as he did in his first argument, that he was prejudiced because the district court heard and relied on the trial testimony of the police officers when it sentenced him to imprisonment for eighteen to thirty years. According to Appellant, had the district court dismissed the third felony from his habitual offender charge, he would have pled guilty and the district court would not have sentenced him as harshly because it would not have heard the officers’ testimony. In order for relief to be granted on appeal, W.R.Cr.P. 52(a) and W.R.A.P. 9.04 require that any error in the proceedings below be harmful to the appellant. When reviewing whether an error was harmless, the focus is on whether an appellant’s substantial rights were affected. To demonstrate harmful error, the defendant must show prejudice under circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play. In the present action, even if it were assumed for purposes of this appeal that some error occurred when the district court denied Appellant’s pretrial motion, such error would necessarily be harmless. Appellant ignores the fact that the information the officers testified to at trial would have been available to the district court at sentencing through the pre-sentence investigation report, victim impact statements, and Appellant’s own factual basis for his guilty plea. Moreover, considering the admissible and undisputed testimony of victims is not a circumstance that manifests inherent unfairness and injustice. Therefore, if any error was committed when the district court denied Appellant’s pretrial motion, such error was harmless. And beyond that, Appellant has not shown that, as a matter of law, the district court was wrong in determining that there were factual issues to be resolved by the jury.

Before the court will hold that an error has affected an accused’s substantial right, thus requiring reversal of a conviction, it must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Appellant claims that prosecutorial misconduct occurred in the following situations: (1) the prosecutor argued “undocumented allegations” during sentencing, which allegations indicated that Appellant had traded drugs for the gun he used in the shooting; (2) the prosecutor offered to produce new witnesses at sentencing who would testify that Appellant had traded drugs for the gun; (3) the prosecutor attempted to use hearsay evidence and Appellant’s own testimony to prove the firearm possession conviction during the habitual criminal phase of the trial; and (4) the prosecutor improperly charged Appellant as an habitual offender with three prior felonies. Appellant’s only claim of prejudice from these incidents is that there is a reasonable possibility that, in the absence of the misconduct that forced this case to trial when no credible, admissible or relevant evidence existed to support a third, independent felony conviction, the sentence imposed by the trial court might have been more favorable to him. The State’s evidence as indicated in motion hearings would be that he acquired that firearm in exchange for meth. Appellant’s counsel objected to the argument and noted that the only evidence presented to the jury was that the shotgun used in the shooting “was in the room when he got there.” In response to that objection, the prosecutor responded that “if the Court has any questions, we would be more than happy to bring the witnesses in.” Ultimately, the district court ruled in favor of Appellant and stated that it would not consider where and how Appellant obtained the shotgun. Appellant now claims that even though the trial court disregarded this information in imposing sentence, the prosecutor’s repeated assertions that undocumented allegations could support the habitual criminal charge reveals his fundamentally misguided belief that he possessed credible, admissible or relevant evidence to support this charge, a belief that informed and drove his misconduct throughout these criminal proceedings. However, regardless of what the prosecutor may or may not have believed when charging Appellant as an habitual offender, Appellant still bears the burden of proving that he was prejudiced by the alleged error. In the instant case, the district court specifically disregarded the State’s comments and Appellant’s argument must fail.

Even assuming, for purposes of this appeal, that the alleged errors actually occurred in the proceedings below, Appellant has failed to show that he was prejudiced by those errors. Appellant’s belief that his sentence would have been more lenient is purely speculative, ignores the district court’s duty to consider the crime and its circumstances, and disregards the fact that the testimony would have come before the district court at sentencing even if Appellant had pled guilty to the aggravated assault charge.

Affirmed.

J. Voigt delivered the opinion for the court.