Summary 2007 WY 165

Summary of Decision issued October 18, 2007

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Case Name: Teniente v. State

Citation: 2007 WY 165

Docket Number: 05-171

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 Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Issues: Whether reversible error occurred when the trial court failed to make inquiry into the effect of threats of retaliation made to the jurors. Whether prosecutorial misconduct occurred, warranting reversal. Whether the trial court erred in admitting irrelevant information of alleged gang activity. Whether Appellant was denied a fair trial due to the receipt of hearsay testimony. Whether the trial court denied Appellant’s motion for mistrial after the prosecutor commented on Appellant’s exercise of his right to silence. Whether Wyoming Statute § 6-2-101(c) unconstitutionally vague and violative of due process, and is it unconstitutional as applied to Appellant. Whether cumulative errors warrant reversal.

Facts/Discussion: The facts of the case are set out in detail in Magallanes v. State. A jury convicted Appellant of first-degree murder and conspiring to commit murder in the death of Joseph Lopez.
Juror Note: The jury sent a note to the court regarding contact of the jury by family members of Appellant. The Court noted that in Martinez v. State, they stated that the burden rests heavily upon the Government to establish that such contact with the juror was harmless to the defendant. After reviewing the record developed specifically to address the issue, the Court concluded that the district court’s actions regarding the note were appropriate.
Prosecutorial Misconduct: Appellant claimed several instances of prosecutorial misconduct. Where there was no objection below, claims are reviewed for plain error.
Appellant argued that reference to the conviction of a co-defendant during cross-exam and rebuttal closing argument was prejudicial. The Court weighed the factors as listed in Mazurek v. State to evaluate if prejudicial plain error occurred. The Court stated that in light of all the evidence the error was harmless and plain error did not occur.
Next the Court reviewed the prosecutor’s comments on Appellant’s right to remain silent during the State’s closing argument. Defense counsel objected to the remarks, prompting the Court’s review to be harmless error. A prosecutor has not “commented” where he does not attempt to use the silence to the state’s advantage, where he does not argue to the jury that the silence was evidence of guilt or an admission of guilt, and where the defendant does not show any prejudice. The Court reviewed the record and stated the prosecutor’s comments were made to point out what Appellant said and not his failure to speak. They concluded no prejudice was shown and that Appellant failed to demonstrate harmful error.
The Court reviewed the denial of a mistrial motion under an abuse of discretion standard. Given the Court’s discussion of why the statements at trial were not improper, they could not find abuse of discretion in the district court’s denial of Appellant’s motion for mistrial.
Appellant claimed that the prosecutor improperly vouched for several witnesses. Counsel is allowed wide latitude during closing argument. The Court interpreted the comments as arguing reasonable inferences as opposed to vouching for their credibility. When taken in context, there was no impropriety in the prosecutor’s comments. During cross-examination of witnesses, the prosecutor is allowed to suggest reasonable inferences that a witness has not been truthful.
A claim of a misstatement of evidence during closing argument is reviewed for harmless error. The Court stated that the prosecutor was offering a way to view the significant evidence heard by the jury suggesting reasonable inferences and staying within the bounds of acceptable argument.
Appellant argued that the prosecutor failed to give notice to the defense before introducing uncharged misconduct evidence. The Court reviewed the record and stated that in the limited situation and with the narrow scope of the prosecutor’s inquiry, no error was present.
Appellant claimed the prosecutor improperly impeached a witness violating an Order in Limine. The Court noted the testimony at issue was not covered by the Order nor by an on-the-record discussion between counsel. Since there was no objection, Appellant has the burden of proving plain error. The Court reviewed the testimony and noted the line of questioning was to show the contradictions between the witness’s statements to law enforcement, his statements on direct and during cross. No rule of law was violated materially prejudicing Appellant’s right to a fair trial.
Appellant next contends that the prosecutor improperly inquired into matters falling within the attorney-client privilege. The Court reviewed this contention for plain error as no objection appeared on the record. The Court’s review of the record revealed the exchange was for the purpose of showing a witness’s credibility.
Appellant contended the State used improper hearsay testimony to impeach a witness. The witness testified that he lied to a detective of his own accord. During cross, he stated his mother told him to lie. There was no objection on the record, so the Court reviewed for plain error. The Court stated the exchange was not hearsay. The reputation of a person’s character among his associates or in the community is an exception to the hearsay rule. The Court stated the prosecutor was not implying that a witness was unreliable, but that his reputation had preceded him.
Admission of Gang Related Evidence: The Court reviewed this issue under an abuse of discretion standard. The Court discussed what equals “relevant” evidence. The Court’s review of the record reflected that the prosecutor was trying to establish the witness’ bias toward Appellant and thus, his lack of credibility.
Hearsay: The Court reviews instances objected to under an abuse of discretion standard, determining whether the trial court abused its discretion by allowing the objected to testimony. When there is no objection, they utilize the plain error standard of review. The first testimony questioned by Appellant was objected to but not as hearsay. Appellant had to show the claimed error appeared in the record, the error violated a clear and unequivocal rule of law and he was deprived of a substantial right resulting in material prejudice. The testimony clearly appeared in the record. The alleged statements were not hearsay because they were not offered to prove the truth of the matter asserted. A clear rule of law was not violated eradicating any notion of plain error having occurred in this instance.
The Court considered the testimony of Magallenes reviewing in part for plain error and in part for abuse of discretion. The statements were not offered for the truth of the matter asserted but were exceptions to the hearsay rule as admissions by a party-opponent offered to prove what happened on the night in question. The next challenged statement qualified as a statement of Magallenes’ then-existing state of mind. It was not hearsay so the trial court did not abuse its discretion in admitting the statement.
Appellant contended the jury was able to find him guilty in part due to a chain of inferences from the so-called hearsay testimony above. The testimony regarding the series of events on that night and the ensuing days satisfied the Court that the jury could reasonably find Appellant guilty without basing that conclusion on inference upon inference.
Appellant claimed ineffective assistance of counsel to the extent that trial counsel failed to object to inadmissible hearsay. The burden rest on appellant and they must provide more than mere speculation or equivocal inferences. The Court rejected his claim because he failed to provide any legal analysis.
Right to Confront Witnesses: Appellant argued that his right to confront witnesses was compromised by the elicitation of testimonial hearsay. The statements at issue did not fall within the categories of testimonial evidence as described in Crawford. The Court did not address Appellant’s claim of ineffective assistance of counsel because the argument was not supported by legal arguments or citation to pertinent authority.
Wyo. Stat. Ann. § 6-2-101(c) is Unconstitutionally Vague: Appellant argued the statute was unconstitutionally vague on its face because of a lack of guidelines and as applied. He also argues his punishment is an enhanced punishment.
The Court reviews constitutional challenges de novo. The Appellant bears the burden of proving his contention with all reasonable doubt resolved in favor of the statute’s constitutionality. The Court referred to their opinion in Kenyon v. State. Taking all of Appellant’s arguments into consideration, they stood by their holding in Kenyon. The sentence of life without parole under the current statue is not a sentence enhancement under Apprendi and does not require further fact-finding. Life without parole is the upper limit of the range of non-capitol punishment available under § 6-2-101(c).
The next question before the Court was whether or not a person of ordinary intelligence would know that his conduct was prohibited under the statute. The Court answered yes. Appellant argued that Kenyon and Bhutto did not give him notice that his conduct would garner him two life sentences without parole. Appellant’s argument that his case differed substantially from the other two “life without parole” cases was insufficient to demonstrate that he suffered arbitrary and discriminatory enforcement.
Cumulative Error: Appellant was unable to establish error in the various issues he raised, so his claim of cumulative error failed.

Holding: Appellant’s conviction and sentence were affirmed in all respects.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/ypjrer .