Summary 2007 WY 32

Summary of Decision issued February 23, 2007

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Case Name: Seymore v. State

Citation: 2007 WY 32

Docket Number: 05-179

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; H. Michael Bennett, Assistant Attorney General. Argument by Mr. Bennett.

Issues: Whether the jury was misinformed about the mens rea element of escape. Whether the prosecutor committed misconduct.

Facts/Discussion: The instant case is an appeal from an escape conviction. Appellant contends that the jury was improperly instructed and that the prosecutor committed misconduct during the trial. Appellant was charged with violating Wyo. Stat. Ann. § 6-5-206(a)(i). Wyo. Stat. Ann. § 7-18-112 provides specialized definitions of “escape from official detention” for persons housed in adult community corrections facilities.
Jury Misinformed about the Mens Rea Element of Escape: The Court reviewed their standard for the review of jury instructions. They analyze instructions as a whole and do not single out individual instructions or parts. When an appellant does not object at trial to the jury instructions, or request a certain instruction be included, the Court’s review of the issue follows the plain error standard. Appellant did not object at trial to the jury instructions that were given and did not offer any additional instructions. Appellant contended the district court failed to instruct the jury on an essential element of the crime – intent – which is a fundamental error requiring reversal. The Court stated that every crime must contain an actus reus and a mens rea. Appellant also contends that the jury should have been instructed that escape was a “specific intent” crime. The Court acknowledged the trend in law to dispense with the pattern jury instructions defining and explaining intent due to their vagueness and general failure to enlighten juries. Quoting from Mueller v. State, the Court stated the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances upon which the crime can be found to have been committed. The Court found no indication in Wyo. Stat. Ann. § 6-5-206(a)(i) or § 7-18-112 that the legislature intended there to be a specific intent element to the crime of escape and previously, the Court has said escape is a general intent crime. The Court further stated the instructions were inadequate because even a general intent crime requires a showing that the prohibited conduct was undertaken voluntarily. As applied to the facts of the instant case, the State was required to prove that Appellant voluntarily failed to return to FCS at the required time and the jury instructions did not reflect that requirement. Without voluntary conduct, there was no mens rea. It was fundamental error requiring reversal for a trial court to fail to instruct on an essential element of the crime.
Prosecutor misconduct: Even though the Court’s determination of the first issue required reversal, they discussed the second issue to restate important legal principles and to make sure the same mistakes are not made if the matter is re-tried. Claims of prosecutorial misconduct are reviewed under a harmless error standard with reference to the entire record. Appellant identified nine alleged acts of misconduct, the cumulative effect of which allegedly denied him a fair trial. Appellant argued that it was reversible error for a prosecutor to tell a jury that it was the jury’s duty to find the defendant guilty. The Court has considered cumulative error innumerable times and has admonished prosecutors about misconduct repeatedly. After a review of the record the Court stated that the cumulative effect of the transgressions was such they were not sure Appellant was convicted on just the evidence presented. They were convinced the number and the gravity of the errors required reversal.

Holding: The cumulative effect of the instructional error to the jury and the prosecutor’s misstatements was a conviction that could not be trusted because the jury was not properly instructed as to the mens rea element of the crime charged and because of the cumulative effect of several instances of prosecutorial misconduct.

Reversed and remanded for a new trial.

C.J. Voigt delivered the decision.

J. Golden, dissenting: The majority opinion determined that mens rea is a required element of the offense of escape as charged and therefore it was reversible error if the jury was not instructed thereon. J. Golden did not see such an element in the statute. Because he found escape as defined by § 6-5-206 to be a strict liability crime, the jury instructions correctly excluded mens rea as an element of the crime.
In addition, J. Golden reviewed the trial transcript and stated that when the prosecutor’s statements were read in the context of the entire record as the Court must, the comments were not enough in his estimation, to require reversal.

J. Hill, dissenting: J. Hill concurred with the majority that escape is a general intent crime. However, he could not agree with the majority’s decision to reverse Appellant’s conviction on the basis that the jury should have been instructed to find whether or not the failure of Appellant to return to FCS at the required time was voluntary because the issue was not raised by him. Since no argument regarding voluntariness appeared in Appellant’s brief, J. Hill would find that any claim of error on this point was waived by his failure to clearly identify the issue and support it with cogent argument and citation to pertinent authority.
J. Hill disagreed with the majority’s analysis of the prosecutorial misconduct issue. The majority’s conclusion was based in part on its determination that the jury was not properly instructed. Since that error was waived, the instructions as given to the jury became the law of the case and the evidence in the record supported the jury’s verdict.
J. Hill expressed his sympathy with and understanding of the majority’s frustration with the actions of some of the prosecutors in the state and their seeming disregard of the Court’s repeated admonitions regarding proper argument and questioning. In the instant case, he would affirm Appellant’s conviction and sentence.

Link: http://tinyurl.com/yqjq8o .

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