Summary 2008 WY 23

Summary of Decision issued March 3, 2008

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Harris v. State

Citation: 2008 WY 23

Docket Number: S-07-0131

URL for Full Text : http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=451301

Appeal from the District Court of Laramie County, Honorable Nicholas Kalokathis, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Deputy Attorney General.

Date of Decision: March 3, 2008

Issues: Whether the district court abused its discretion by admitting uncharged misconduct evidence. Whether prosecutorial misconduct occurred when the prosecutor misstated the evidence in the State's proffer of the uncharged misconduct evidence. Whether prosecutorial misconduct occurred when the prosecutor argued in rebuttal that the jury should ignore the State's burden of proof and should not penalize the community if the State had not met its burden of proof.

Holdings: Because uncharged misconduct evidence carries an inherent danger for prejudice, a mandatory procedure for testing its admissibility has been adopted: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Prior to trial in the present action, the State filed a Notice of State's Intent to Introduce Evidence That May Be Considered 404(b) Evidence. The identified evidence was (1) the appellant had been terminated from employment with for suspected theft; (2) at the time of her termination from employment, the appellant had threatened retaliation; and (3) as seen in the surveillance video of the burglary, the coat being worn by the burglar appeared to be identical to a coat allegedly stolen by the appellant at the time she was terminated. The State justified admission of this evidence as proof of res gestae, knowledge of the layout of the store, motive, and identity. The district court conducted a pre-trial hearing to determine whether the State's uncharged misconduct evidence would be admitted. In doing so, the court required the State to analyze in detail its proferred evidence under the aforementioned factors and it allowed the appellant's counsel to challenge each of those factors. In the end, the court declared the evidence admissible, finding it relevant to prove both motive and identity. The court did, however, limit the extent to which the State could characterize the appellant's conduct at the time of her termination as being a theft.

Appellant contends that evidence of prior criminal acts is more likely than any other evidence to be unfairly prejudicial to a defendant and that the evidence admitted was not the same as the evidence proferred. Specifically, the appellant notes that only one of the State's witnesses identified the appellant as being the burglar in part by describing the burglar's coat as being identical to the one allegedly stolen when the appellant was terminated. Other employee witnesses identified the person in the surveillance video as being the appellant by recognizing her hair style, her stocking cap, her clothing, and her boots, and by recognizing the coat as one she customarily wore, rather than the one allegedly stolen.

The district court did not abuse its discretion in admitting this uncharged misconduct evidence. The court performed an exhaustive pre-trial analysis of the evidence, applied the appropriate test, limited its admissibility to prove particular matters, and limited the extent to which the State could emphasize the alleged theft underlying the termination. Under the particular facts of this case, the alleged theft of the coat, the resultant termination, and the alleged threat of retaliation, were especially probative of motive and identity, and the district court reasonably could have concluded that the evidence was more probative than prejudicial. Furthermore, the district court gave the jury a limiting instruction in regard to the evidence that limited the jury's permissible use of the evidence. As instructed, the jury could only consider the evidence to such extent that it might prove that the appellant had a motive to commit the burglary.

Additionally, in the present action, there are transcripts of both the motion hearing and the trial, allowing comparison of the proffer and the actual testimony. The gist of the proffer that evolved was that evidence of the uncharged misconduct-the alleged theft and termination-was probative of both motive and identity. While the trial testimony turned out to be less than what the State had expected, there is no indication that the State intentionally misrepresented what the testimony would be. Admittedly, only one fellow employee identified the appellant as the burglar on the basis of the suspect coat. But the import of all the testimony about the uncharged misconduct was "as advertised"; that is, it all tended to prove that the appellant had the motive to commit the burglary, and it helped to identify her as the burglar. The appellant has failed to prove prosecutorial misconduct in this instance.

Appellant also contends that the following passage from that argument (1) diluted the State's burden of proof; (2) argued facts not in evidence; (3) was not based on reasonable inferences from the evidence; (4) presented a community protection or community outrage argument; and (5) sought conviction for a reason other than the evidence:

Their stories don't add up, folks, especially in light of common sense. When I was preparing this case I had a discussion with an individual who was a prior juror. She said that in her jury service it was a drug case. The defendant was charged with three counts of selling drugs. I said, Well, did you convict? She said, We convicted on two out of three. I said, Well, what about the third? She said, Well, we knew that he did it. I was like, Why didn't you convict then? And she said, Well, we just didn't think that the State did enough or law enforcement did enough. I said, Well, okay.

Folks, don't penalize the State of Wyoming for what I have or haven't done. Don't penalize the State of Wyoming, don't penalize this community for what Detective Dafoe has or has not done. I submit to you if you know the defendant did it, then the State has proven the case beyond a reasonable doubt. Look at everything, all of it, what the State did, what Jay said, what the defendant said. I think there's only one reasonable and logical conclusion. I ask you to use your common sense and to find the defendant guilty of burglary. Thank you all very much.

The prosecutor's statements can be divided into two parts: (1) a story about a jury that, despite knowing a defendant "did it," acquitted him because the State did not "do enough;" and (2) a plea to this jury not to acquit the appellant, if it "knows" she "did it," just because the jury thinks the prosecutor or the investigator did not "do enough." The appellant's first contention is that these statements "diluted [the] burden of proof." It is, of course, axiomatic that the State bears the burden of proof in a criminal case, and that the prosecutor may not, during argument, attempt to shift that burden to the defendant. However, in this case, the essence of the prosecutor's statement was that, if the jury was convinced by the evidence that the appellant was guilty, it should not acquit him on the theory that the State could have presented more evidence. Furthermore, when this portion of the State's closing argument is read in the context of the arguments presented by both sides, and in the context of the entire trial, it appears that the appellant "opened the door" to a discussion of the quality and extent of the investigation. The major focus of defense counsel's questioning of the State's investigator, and of defense counsel's closing argument, was upon what the investigator had not done. The prosecutor's statement is little more than an attempt to re-focus the jury's attention upon the evidence that was presented. This is not a case where the prosecutor, by saying "if you know he did it," attempted to define the State's burden of proof as anything less than "beyond a reasonable doubt."

The balance of the appellant's contentions were not developed much beyond the accusatory stage. The record indicates that the State did argue facts which were in evidence; that the State's argument was based on reasonable inferences from the evidence; that the State did not present a community protection or community outrage argument; and that the State did not seek a conviction for any reason other than the evidence. It is not enough for the appellant to make allegations. She must follow up the allegations with concrete examples of how these rules of law were violated. For instance, what facts not in evidence did the State argue? That some other jury had reached a not guilty verdict based on an expectation of more evidence? The purpose of closing argument is to allow counsel, including the prosecutor, to offer ways for the jury to view the evidence, and to draw reasonable inferences therefrom. There are innumerable ways for counsel to approach closing argument, including comparison by "story-telling." Where there has been no trial objection, and where the trial court has not exercised its discretion to limit the argument, conviction will not be reversed without a more substantial showing of error and prejudice than has been provided in this case.

The uncharged misconduct evidence admitted in this case was subjected to appropriate pre-trial analysis, was admitted for proper purposes, and has not been shown to have been more unfairly prejudicial than probative. The prosecutor was not guilty of prosecutorial misconduct either in proffering the uncharged misconduct evidence, or in giving its rebuttal argument.

Affirmed.

C.J. Voigt delivered the opinion for the court.

HILL, J. specially concurred, with whom KITE, J. joined.

It is my conviction that the argument made by the prosecutor was improper and it should be positively identified as such. Whether "the story" used by the prosecutor was truly anecdotal, or if it was in the nature of a parable, or if it was a part of the lore of prosecutorial experience, it was directly aimed at diluting and undermining both the prosecution's burden to prove guilt beyond a reasonable doubt and the defendant's right to the presumption of innocence. Therefore, I would prefer that the Court identify it as erroneous. Because it is reviewed under the plain error standard, my conclusion would be that, although the record clearly presents the incident alleged to be error, and that the incident violated a clear and unequivocal rule of law, in a clear and obvious, not merely arguable way, Appellant was not able to demonstrate that the error denied her a substantial right resulting in material prejudice to her. In addition, I am uncomfortable in justifying such an error, even in part, on the basis that the defense "opened the door" to it, because it cross-examined witnesses, and argued to the jury, that the evidence is not sufficient to meet the "beyond a reasonable doubt" standard. The result I prefer would have the salutary effect of deterring, rather than encouraging, the further use of this particular "story" in future cases, alerting defense counsel that such argument is error to which they should object, as well as in guiding the district courts in the always-difficult task of gleaning what this Court views as error in the context of closing argument.