Summary 2006 WY 153

Summary of Decision issued December 15, 2006

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Case Name: Cazier v. State

Citation: 2006 WY 153

Docket Number: 05-114

Appeal from the District Court of Lincoln County, the Honorable Dennis L. Sanderson, Judge

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

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

Issues: Whether the district court abused its discretion in denying appellant’s motion for mistrial after the investigating officer testified that Ms. Cazier had refused to speak to him. Whether the district court erroneously permitted evidence or argument concerning prior bad acts of Ms. Cazier. Whether improper character evidence was admitted resulting in plain error. Whether improper vouching for the victim occurred resulting in plain error. Whether sufficient evidence supported Ms. Cazier’s conviction. Whether cumulative error warranted reversal.

Holding: On March 16, 2004, Ms. Cazier and her husband were at home together when after their children left for school, they began to argue. Ms. Cazier became angry and punched Mr. Cazier in the face and whipped him repeatedly with television cables. Ms. Cazier appeals her conviction for aggravated assault and battery.
Standard of Review: The Court reviews the denial of a mistrial motion under an abuse of discretion standard. Evidentiary rulings are also committed to the sound discretion of the district court and are not subject to appellate second guessing absent an abuse of discretion. When no objection is made at trial, the Court applies the plain error standard of review. In reviewing the sufficiency of the evidence, the Court assesses whether all the evidence presented is adequate to form the basis for an inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State.
Motion for Mistrial (for improper comment on silence): The Court has described the right to remain silent as one of the most fundamental rights accorded a defendant in the criminal justice system. The statement at issue arose during cross examination when defense counsel inquired as to the nature and extent of the investigation. The statement was not elicited by prosecution and does not reflect the intent to cast guilt upon Ms. Cazier. Defense counsel rejected the district court’s offer of a curative instruction. The district court left the matter open for further consideration. The district court relied on Hughes v. State. The record does not reveal that the State attempted to use the statement to its advantage. The State did not ask the jury to consider Ms. Cazier’s pretrial silence as evidence of her guilt. Accordingly, the Court could find no abuse of discretion in the denial of the motion for a mistrial.
Evidentiary Rulings: Ms. Cazier presented three issues relating to the admission of evidence. In each instance, defense counsel did not object to the evidence that was admitted. The Court is mindful that in some circumstances, a failure to object is a tactical decision.
Prior Bad Acts: Ms. Cazier challenged testimony that she hurt her husband on previous occasions; forced Mr. Cazier to make a false police report and made her daughter falsely report the events of March 16, 2004. The Court then reviewed how the challenged testimony arose at trial. Ms. Cazier did not object to the testimony at trial. Citing Williams and Howard, she contended that no objection was needed because it constituted W.R.E.404(b) evidence. The Court agreed with the State that the testimony was not truly 404(b) evidence. None of the three areas of testimony challenged by Ms. Cazier contravened W.R.E.404(b). Under the circumstances, the Court did not find impermissible inquiry or prosecutorial overkill. The State responded to the defense’s theory and the testimony rebutting it was reasonably limited in scope. The State did not suggest that Ms. Cazier had a propensity to commit crime nor was there any attempt to use evidence regarding Ms. Cazier’s prior conduct as substantive evidence of her guilt. The Court rejected the claim the district court was required to evaluate the evidence in accordance with the strictures of the 404(b) jurisprudence. The Court found no error.
Improper Character Evidence: Ms. Cazier asserted that Officer Malik offered quasi-expert opinion on domestic violence couples that constituted improper character evidence. She analogized it to expert testimony on battered woman syndrome. This testimony combined with the evidence of prior violence demonstrated efforts by the prosecution to prove that she was a batterer who had acted in conformity with that role. No objection was made at trial, so the Court’s review was for plain error. Ms. Cazier opened the door on this testimony with the presentation of the evidence of her husband’s self-injuring behavior. The State was entitled to counter her characterizations and denials. Ms. Cazier further claimed that the prosecutor erred by emphasizing in closing argument that the couple acted in conformity with their domestic violence roles. The general rule in Wyoming is that a failure to interpose a timely objection to improper argument is treated as a waiver unless the misconduct is so flagrant as to constitute plain error.
Vouching for Credibility of Victim: Ms. Cazier claimed that Officer Malik improperly vouched for the credibility of the victim by saying he looked like a “whipped pup”. There was no objection at trial to the use of the phrase. Defense counsel pursued a strategy to discredit Officer Malik. The Court analyzed the claim in terms of plain error because there was no objection at trial. The Court reviewed the record to determine if the officer was implying that he believed or held an opinion with respect to the victim’s version of the events surrounding the assault. The Court stated that Officer Malik’s expression of belief did not amount to impermissible vouching because it did not concern the truth of Mr. Cazier’s accusations leading to the felony charge. It pertained to a story told about a different, earlier incident. The Court concluded that impermissible vouching did not occur.
Sufficiency of the Evidence: Ms. Cazier claimed the evidence was not sufficient to support her conviction and that it did not demonstrate that the victim suffered serious bodily injury or that his injuries resulted solely from the events of March 16, 2004. The Court reviewed the evidence in the light most favorable to the State. They determined whether a quorum of reasonable and rational individuals would or could have found the essential elements of the crime were proven beyond a reasonable doubt. The Court concluded that the evidence could have allowed the jury to conclude that Mr. Cazier had at a minimum suffered severe disfigurement. In addition, Officer Malik found a note of apology from Ms. Cazier located on top of the cables used to beat the victim. The Court concluded the evidence was sufficient to allow the jury to conclude that the victim’s injuries had resulted from the beating on March 16, 2004.
Cumulative Error: In the absence of finding any error, the claim of cumulative error failed.

Affirmed.

J. Burke delivered the decision.

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