Summary 2008 WY 4

Summary of Decision issued January 14, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Yellowbear, Jr. v. State

Citation: 2008 WY 4

Docket Number: 06-246

Appeal from the District Court of Hot Springs County, the Honorable David B. Park, Judge

Representing Appellant (Defendant): Sylvia Lee Hackl of Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; David L. Delicath, Assistant Attorney General.

Facts/Discussion: Appellant was convicted of two counts of felony murder, and two counts of being an accessory to felony murder, all based upon the physical abuse and death of his daughter. In this appeal, Appellant questions whether the State had jurisdiction to prosecute him, whether the jury was properly instructed and whether the prosecutor committed misconduct during rebuttal closing argument.
Whether the crime occurred in “Indian country” as defined in 18 U.S.C. § 1151, thereby depriving the State of jurisdiction over the appellant: The Court reviews subject matter jurisdiction de novo. The specific question of whether the scene of the crime was under the jurisdiction of the United States or the State of Wyoming was also reviewed de novo. The Court reviewed the post-treaty history of the Reservation as well as the federal jurisprudence that developed concerning federal and state jurisdiction in “diminished” reservations. The Court focused on the Surplus Land Act of 1905. The City of Riverton lies north of the Big Wind River on land that was ceded in that act. The Court next determined what intent the 1905 Act had as to the ceded lands by reviewing Supreme Court precedent. The Court applied the Supreme Court’s analytical construct to the 1905 Act and concluded that Congress intended a diminished reservation with the ceded lands losing their status as “Indian Country.” The Court noted that the facts in State v. Moss where the Court concluded that Congress had placed the ceded land outside the reservation and that it was no longer “Indian country” were nearly identical to those in the instant case. The Court concluded that it was the intent of Congress in passing the 1905 Act to diminish the Wind River Indian Reservation. While the City of Riverton may be located on lands that at one time were within the external boundaries of the reservation, those lands were no longer part of the reservation, and were not “Indian country.” Therefore, the State had jurisdiction in this criminal case.
Whether the district court committed reversible error by instructing the jury as to a parent’s duty to protect his or her child: The State charged Appellant with four theories of liability under one count. The verdict form and judgment and sentence made it appear as though Appellant were charged with and convicted of four separate crimes. Appellant was afforded a preliminary hearing on only one crime, was arraigned on only one crime, and entered a plea to only one crime, leading to the conclusion that he could be convicted of only one crime. The jury separately considered and determined each theory of guilt. The Court’s review of the record indicated that there was sufficient evidence to support each of the findings of guilt. Inclusion of the parental-duty instruction was erroneous but such error was harmless given the above circumstances. Prosecutors must be aware that they cannot charge both that a defendant acted as a principal and as an accessory before the fact, as two separate crimes, in one count.
Whether the prosecutor committed misconduct during rebuttal closing argument by inserting his own credibility and beliefs, by arguing facts not in evidence, and by presenting an argument that was not properly a rebuttal argument: The Court stated that review of the issue was not plain error because it was raised and decided by the court below. Rather, the Court was reviewing the denial of the motion for mistrial and the denial of the motion for a new trial. With specific regard to claims of prosecutorial misconduct during closing argument, the Court considers the alleged misconduct in the context of the entire argument, and the entire record, with the determinative factor being whether, in the absence of the error, the verdict might have been more favorable to the accused. The Court’s assessment was that it violated neither the spirit nor the letter of the ABA standards adopted as guidelines for prosecutorial argument.

Holding: The crime occurred in a location that was not part of the diminished Wind River Indian Reservation – a location no longer “Indian country” under guiding federal precedent. The State had jurisdiction to pursue the criminal charge. It was error for the district court to instruct the jury as to common law parental duties that were not encompassed within the charged crime. The error was harmless beyond a reasonable doubt because the completed verdict form revealed juror unanimity as to Appellant’s guilt on all of the theories properly alleged under the statutes. The Judgment and Sentence should be amended to reflect the fact that only one charge was brought and that he was only convicted of one charge. The State’s rebuttal closing argument did not constitute prosecutorial misconduct in that nothing said therein was unfairly prejudicial so as to deprive the appellant of his right to a fair trial or otherwise impinge upon his substantial rights.

Affirmed, but remanded for amendment of the Judgment and Sentence.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2gtn9k .

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