Summary 2007 WY 37

Summary of Decision issued March 6, 2007

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Case Name: Talley v. State

Citation: 2007 WY 37

Docket Number: 05-268

Appeal from the District Court of Lincoln County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, 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 prosecutorial misconduct occurred when the prosecutor questioned Appellant about whether other witnesses were “lying.” Whether the prosecutor committed misconduct in closing argument by referring to an accomplice’s inability to testify.

Facts/Discussion: Appellant, her brother, Marco Lemus, and Mr. Rawle conspired sometime during their car trip from South Dakota to Arizona, to rob Mr. Leon-Leyva who was located in Kemmerer. They drove their car and that of Mr. Leon-Leyva to a remote area and set in on fire with the body inside. An investigation revealed that the victim had suffered numerous stab wounds. Appellant appealed her convictions for felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery.
Standard of Review: Allegations of prosecutorial misconduct are reviewed by reference to the entire record and hinge on whether a defendant’s case has been so prejudiced as to constitute denial of a fair trial. Appellant had the burden of demonstrating plain error because no objection was made at trial to either the prosecutor’s questioning or to the closing argument.
Improper Questioning: A prosecutor may not cross-examine a defendant using the “lying” or “mistaken” technique. Such questions are improper and use of them amounts to misconduct. The State conceded Appellant demonstrated a violation of a clear and unequivocal rule of law however they contended Appellant failed to prove prejudice to her right to a fair trial. To evaluate the prejudice of improper “were they lying” questions, courts weigh several factors including the severity and pervasiveness of the misconduct; the significance of the misconduct to the central issues in the case; the strength of the State’s evidence; the use of cautionary instructions; and the extent to which the defense invited the misconduct. After reviewing the entire record, the Court could not conclude that in the absence of the prosecutor’s misconduct a reasonable possibility existed that the verdict would have been more favorable to Appellant. Even taking into account the impropriety of the prosecutor’s cross-examination, the evidence was sufficient to sustain the conviction. Accordingly, the Court concluded Appellant failed to demonstrate prejudice from the prosecutor’s misconduct.
Closing Argument: Appellant challenged statements made by the prosecutor during his rebuttal argument that Marco Lemus did not testify because he would have invoked his Fifth Amendment privileges. The Court found the prosecutor’s statement concerning Marco improper because it referred to an extraneous matter that should not have been before the jury. It is well-settled law that a prosecutor must restrict his argument to the evidence presented to the jury. The Court considers the nature of the error in question within the context of the quality of the prosecution’s case against the accused. The Court also evaluates the gravity of the error, the likely impact on the average juror, whether the comment was deliberately place before the jury to divert attention to extraneous matters and whether the error was invited by defense counsel. When placed in context, the Court believed the prosecutor’s statement was not a deliberate attempt to inject extraneous matters for the jury’s consideration. The apparent motive was to respond to the argument of defense counsel which focused on Marco Lemus.
Holding: The evidence was sufficient to sustain Appellant’s convictions even taking into account the impropriety of the prosecutor’s cross-examination. The Court concluded Appellant failed to demonstrate prejudice from the prosecutor’s misconduct. The Court stated the nature of the prosecutor’s comment was an aside rather than a point of emphasis. The reference was fleeting and followed by an attempt to redirect the jury to the evidence in the case. The Court also found it significant that the prosecutor did not ask the jury to draw an inference from Marco’s absence. Even if the jury inferred that Marco did not testify because he was guilty of the robbery and murder, that inference was consistent with Appellant’s theory of the defense and was not prejudicial. Accordingly, the Court found the prosecutor’s comment did not amount to plain error requiring reversal.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/35fwej .