Summary 2007 WY 111

Summary of Decision issued July 17, 2007

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Case Name: Lemus v. State

Citation: 2007 WY 111

Docket Number: 06-68

Appeal from the District Court of Lincoln County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Daniel G. Blythe and Karen Ashcraft Byrne, Cheyenne, Wyoming

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

Date of Decision: July 17, 2007

Issues: Whether the prosecutor committed misconduct, sufficient to warrant reversal of Appellant’s convictions, in his opening and closing arguments, in his alleged threatening and intimidation of witnesses, or in his alleged use of “fake pictures” and perjured testimony. Whether the district court hindered Appellant’s right to present his defense when it allegedly did not offer him experts to assist with his defense, allegedly refused to allow him to speak with his coconspirators, and allegedly refused to allow him to issue his own subpoenas. Whether the district court committed error in allowing Appellant’s videotaped confession – which Appellant insists contained W.R.E. 404(b) evidence – to be played in its entirety, or in allowing the admission of testimony from an expert concerning the nature of the victim’s wounds. Whether the district court interfered with Appellant’s right to a trial by an impartial jury when it denied his motion for change of venue, or in its method of jury selection. Whether sufficient evidence supported Appellant’s conviction for conspiracy to commit aggravated robbery.

Facts/Discussion: Trial proceedings are transferred to another county as provided in W.R.Cr.P. 21(a). A two-part test has been adopted for determining whether a change of venue should be granted after voir dire because of pre-trial publicity: First, the nature and extent of the publicity; second, the difficulty or ease in selecting a jury along with the amount of prejudice which actually appears during voir dire examination. In the present action, Appellant made no attempt to demonstrate the level of pretrial publicity. Sixty-five jurors were summoned for Appellant’s trial. Of those, 12 had heard about the case in the media or from other sources, such as friends and co-workers. Each of those jurors was closely examined. At the close of voir dire, Appellant passed the jury for cause and had no objections to the jury selection process. At trial, Appellant had no objections to the jury selection process, and he passed the jury that was selected for cause. He exercised all of his peremptory challenges. The record of the voir dire shows no irregularities of any sort.
As a part of the lengthy and very complete warnings the district court gave Appellant with respect to disadvantages of representing himself at trial (with standby counsel), the district court specifically called Appellant’s attention to the circumstance that the district court could not aid Appellant in subpoenaing witnesses, and that he would be required to demonstrate the relevance of the testimony of all proposed witnesses. Moreover, the trial court emphasized that it could not aid Appellant in arranging interviews with witnesses from his jail cell, or with witnesses who were incarcerated elsewhere. However, the record supports only a conclusion that witnesses Appellant wanted to call either appeared voluntarily or were summoned by means of subpoena. It is unquestioned that a defendant in a criminal case has a constitutional right to a fair trial, and that includes the right to summon witnesses in his defense. It is, however, the defendant’s burden to ensure that the witnesses he wants are summoned. It is transparent in the record that Appellant’s concept of a “material witness” was very broad. However, the district court did allow Appellant to subpoena an employee of the State Crime Lab whose testimony appeared to be relevant. In addition, the clerk of the district court in Lincoln County met with Appellant in his cell in an effort to further identify, locate, and serve Appellant’s witnesses.
Neither in the trial court below, nor in this appeal, has Appellant articulated a desire to have his codefendants called as witnesses, nor has he provided any cogent argument to suggest that the district court abused its discretion with respect to a request made by Appellant to communicate with his codefendants or to call them as witnesses on his behalf. In addition, contrary to an allegation stated in his brief, Appellant received copies of the transcripts of his codefendants’ trials.
As a general statement of the applicable rule, a defendant in a criminal case may be entitled to access to expert witnesses if there is a reasonable probability that an expert would aid in his defense and that the denial of an expert would result in an unfair trial.
Such decisions rest in the sound discretion of the trial court. At trial, Appellant asked for expert witnesses. He had a theory of the case that he attempted to present to the jury, even though it was not supported by any testimony or other evidence. Appellant wanted experts to testify on his behalf in order to bolster his contentions.
Before error in the nature of prosecutorial misconduct will be found to have affected an accused's substantial rights and require a reversal of a conviction, a review of the entire record must show a reasonable possibility exists that in the absence of the error, the verdict might have been more favorable to the accused. In reviewing a claim of prosecutorial misconduct in closing argument, the entire record will be examined to determine whether or not the defendant's case was so prejudiced by the improper comments as to result in the denial of a fair trial. The challenged comments are judged in the context of the prosecutor's entire argument, considering the context of the statements and comparing them with the evidence produced at the trial.
The burden of establishing prosecutorial misconduct rests upon the appellant who raises the issue. Appellant in the present action contends that a combination of errors/misconduct by the prosecutor in both opening argument and closing argument combined to deprive him of a fair trial and necessitates the reversal of his convictions. Appellant did not object to the arguments in either opening or closing. However, Appellant would have had no cause to object to the opening statement because it was merely the prosecutor summarizing the evidence that he intended to present. The “error” asserted here did not take on substance until the prosecutor “explained” in closing argument his reasons for not calling certain witnesses. The record clearly reflects the statement made by the prosecutor, but the error of it, if any, is not so patent. A prosecutor may not vouch for the credibility of the State’s witnesses, even in responding to defense arguments. However, that the rule was violated in a clear and obvious, not merely arguable, way is not so clear in the present action. The prosecutor did not directly vouch for the credibility of his witnesses, only that the evidence he did present sufficed to meet the burden that the State carries to prove its case beyond a reasonable doubt. Of course, the State’s principal witness was Appellant himself. All the other witnesses merely tied up loose ends. Misconduct by a prosecutor invokes a criminal defendant’s right to a fair trial and can be an error of constitutional magnitude. However, under the somewhat unique circumstances of this case the argument challenged did not violate the relevant rule in a clear and obvious way. Moreover, to the extent the argument could be said to have been ill advised, it did not serve to prejudice Appellant.
Appellant’s contention that the state used fake pictures and perjured testimony also has no support in the record. Appellant looked at the pictures offered by the State and contended that they had to be fakes because he was there and they did not correspond with his memory of the events he related in his confession. Because there is nothing in the record to support his contention that the pictures were “fakes,” it will not be considered. Likewise, Appellant says that witnesses perjured themselves because they said things that he did not agree with. This contention is unsupported by anything in the record.
It is unclear exactly what Appellant’s objections are to the state’s use of a substitute pathologist when the physician who performed the autopsy was not available at the time of the trial, but he voiced no objections at trial. Indeed, Appellant sought to use the substitute’s testimony to his advantage.
Appellant contends that the video tape of his confession should have been edited because it contained so much W.R.E. 404(b) evidence. The State contends that it is relevant because it tells the whole story that unfolded over the few days which bracket the crime. Although Appellant attempted to suppress his confession, once the district court determined it was admissible, he wanted the entirety of it to be presented to the jury. The district court allowed the entire tape to be played for the jury.
In addressing a claim of insufficiency of the evidence, it must be determined whether or not any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When considering a claim of the sufficiency of the evidence, that evidence is reviewed with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that may be reasonably drawn from the evidence. The evidence will not be reweighed nor will the credibility of the witnesses be reexamined.
A person who believes he is conspiring with another to commit a crime is a danger to the public regardless of whether the other person in fact has agreed to commit the crime. Appellant contends that the evidence is insufficient to sustain the conviction. However, when the evidence adduced at his trial is considered in light of the instructions, it is clear that the evidence does suffice. In addition to the fact that there is no testimony to that effect in the record, the jury could, of course, believe Appellant’s first story and disbelieve his proposed defense. However, the district court, in an abundance of caution, gave the jury self-defense instructions, and the jury was permitted to consider Appellant’s theory of the case. The evidence was sufficient to sustain the conspiracy conviction, as well as the conviction for felony murder.

Holdings: Applying the standard set by W.R.Cr.P. 21(a), the district court did not abuse its discretion in denying the motion for a change of venue. The record of the voir dire shows no irregularities of any sort. Appellant’s brief fails to present cogent argument or pertinent authority. For these reasons, the jury selection process is deemed not to be erroneous in any way. At no point in the record does Appellant complain that there was a witness, whose testimony was material to his trial, who he was unable to call to the witness stand. The district court did not abuse its discretion in any way with respect to requiring the issuance of subpoenas on Appellant’s behalf. The district court did not err in not ordering Appellant to have access to expert witnesses because of Appellant’s failure to establish any foundational facts that would have justified expert testimony. Appellant’s contention that the prosecutor threatened/intimidated witnesses has never been supported by any evidence admitted during the trial or in any pretrial proceeding. Because there is no material in the record to support it, it was not considered. Appellant’s contention that the state used fake pictures and perjured testimony also had no support in the record so the argument was not considered. Appellant’s contentions with respect to the substitute witness's testimony are not supported by cogent argument or pertinent authority. The district court fully considered all of Appellant’s objections to the confession and its content and determined that it was admissible even in light of Rule 404(b). There was no error in that ruling. However, under the circumstances presented here, the disputed evidence was not even Rule 404(b) evidence. The evidence was sufficient to sustain the conspiracy conviction, as well as the conviction for felony murder.

Affirmed.

J. Hill delivered the opinion for the court.

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