Summary 2008 WY 24

Summary of Decision issued March 5, 2008

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Case Name: Evenson v. State

Citation: 2008 WY 24

Docket Number: S-07-0163

URL for Full Text:
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=451320

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

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

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; Cathleen D. Parker, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: March 5, 2008

Issues: Whether the prosecutor committed prosecutorial misconduct when he elicited opinion testimony, argued facts not in evidence, misstated the law, and argued community protection. Whether the trial court abused its discretion in admitting the treating physician's testimony as to the nature, extent, and cause of the victim's injuries, as such testimony was not relevant under W.R.E. 401 and 402, and such testimony was unfairly prejudicial, confusing, and misleading to the jury under W.R.E. 403.

Holdings: Because no objections were made to the alleged incidents of prosecutorial at trial, the Appellant must show plain error. He must demonstrate that: "1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. Reversal will be had only if there is a reasonable probability that the verdict would have been more favorable to the appellant if the error had not occurred. Allegations of prosecutorial misconduct are evaluated within the context of the entire record and the argument as a whole.

Appellant asserts that an opinion of guilt was elicited by the prosecutor. Opinions of guilt are improper, and inadmissible as evidence. He argues that it was error per se, requiring a reversal of his conviction even without a showing of prejudice. However, if the challenged question is read literally - "what did you do?" - it asked the witness what he did, not what his opinion was. Therefore, the prosecutor did not elicit opinion testimony. Further, an opinion of guilt, whether elicited by the prosecutor or not, must still be prejudicial before it justifies reversal.

Appellant's claim that the testimony by the officer that once they "were able to determine who the individual was that was responsible for the assault, we tried to locate that individual who would be [Appellant]" amounted to an opinion of guilt is also rejected. Being "responsible for the assault" is not the equivalent of being "guilty of aggravated assault." The police officer's testimony described the course of his investigation and how he became aware of Appellant's involvement in the fight. It did not assert that the officer believed Appellant was guilty of the crime charged. Moreover, even if the testimony had been improperly admitted, it was not prejudicial when evaluated in the context of this case. Appellant never disputed that he had been involved in the fight, or that he was the person who attacked and cut the victim. The officer's identification of Appellant was therefore harmless. Additionally, Appellant asserted that he acted in self-defense, and as is pointed out, "The obvious nature or quality of the plea of self-defense is that of justification or excuse for an otherwise unlawful homicide or assault and battery." The basis of Appellant's self-defense argument was that his actions were justified or excused. The officer's testimony contained no opinion about whether Appellant acted in self-defense, or whether his actions were justified or excused on that basis. Appellant has not demonstrated that the testimony was admitted in transgression of a clear and unequivocal rule of law, or that it denied him a substantial right to his material prejudice. There is no plain error.

Next, Appellant challenges a statement made by the prosecutor in his closing argument. Evidence at trial indicated that Appellant had been hit in the face by the victim. Appellant was knocked to the ground, and his mouth was severely injured. Two witnesses testified that they had seen some metal object, perhaps brass knuckles, in the victim's hand when he hit Appellant. Other witnesses, including the victim, denied that he was carrying brass knuckles or any other metal object. Commenting on the conflicting evidence, the prosecutor asked the jury to use its common sense to determine that whether the victim had worn a pair of brass knuckles by considering the level of injury would have sustained had barass knuckles been used. Appellant asserts that there was no evidence about the effect of being hit by a person wearing brass knuckles, and in particular, no evidence that being hit by someone wearing brass knuckles would incapacitate the victim or knock out all of his front teeth. He relies on the "well-settled law that a prosecutor must restrict his argument to the evidence presented to the jury." However, the prosecutor did not ask them to trust his knowledge, experience, or opinion about the effects of getting hit with brass knuckles, which would have been improper. The jury knew that the victim was an athlete and considerably larger than Appellant. The prosecutor asked the jury to consider, based on their own common sense, whether a blow from the victim without brass knuckles could have knocked Appellant to the ground and injured his mouth, and whether a blow with brass knuckles might have caused more severe damage. Based on these considerations, the prosecutor asked the jury to infer that the victim was not wearing brass knuckles. Prosecutors, like defense counsel, are allowed latitude during closing argument to assist the jury by suggesting reasonable inferences from the evidence introduced at trial. There was no error in the prosecutor's argument.

The right to defend oneself, and the amount and type of force used, is relative to what is reasonably necessary under the circumstances. It is for the jury to determine whether a defendant reasonably perceived a threat of immediate bodily injury under the circumstances and whether the defendant defended himself in a reasonable manner. Thus, the jury must evaluate the totality of the circumstances and evaluate all of the defendant's options in protecting himself from such a perceived threat of harm. Under this formulation, the presence or absence of a weapon is relevant as part of the totality of the circumstances, but it is not determinative. Therefore, the prosecutor misstated the law when he said that Appellant could not assert self-defense if he could not prove that the victim had a weapon. However, while the Appellant has shown error, he has not demonstrated prejudice. Correct statements of the law of self-defense were emphasized in subsequent arguments by the prosecution, the closing argument by the defense counsel, and the jury instructions given by the trial court. The effect of the prosecutor's single misstatement was so thoroughly diluted that the error can only be interpreted as harmless.

Arguments which are calculated to appeal to the jury's prejudice or passion are improper because they pose a risk that the accused may be convicted for reasons wholly irrelevant to his guilt or innocence. Accordingly, it is improper for a prosecutor to encourage the jury to convict a defendant in order to protect the community rather than upon the evidence presented at trial. However, it is not improper for the prosecutor to remark that conviction of the accused will have the incidental effect of protecting the community if he does not urge the jury to convict on a basis other than the evidence against the accused. In the present case the prosecutor's comment about having "a lot of people killed, injured seriously in the community" treads close to the line. However, the prosecutor did not exhort the jury to take a stand or send a message. The prosecutor asked the jury if it was reasonable to use a knife in a fist fight, and that was the precise question raised by Appellant's self-defense claim. In the context of Appellant's trial, the prosecutor's argument did not improperly distract or mislead the jury into finding guilt for reasons beyond the evidence. There was no transgression of a clear and unequivocal rule of law, and accordingly, no plain error.

One of the prosecution's witnesses was the physician who treated the victim and another individual at the hospital after the fight. The physician provided details about the nature and extent of the victim's injuries, and related how he had treated them. He was then asked about treating the other individial and about the nature, extent, and possible cause of his injuries. Defense counsel objected that this testimony was not relevant, but the trial court overruled the objection and allowed the evidence. On appeal, Appellant continues to object that this testimony was not relevant and should not have been admitted into evidence. Appellant was tried for one count of aggravated assault for his attack on the victim. He was not charged with assaulting the other individual. Indeed, that individual testified unequivocally that someone other than Appellant had attacked him. Thus, testimony about that individual's injuries had no tendency to prove any element of the crime charged, or to make Appellant's claim of self-defense any more or less probable. It was not relevant evidence and should not have been admitted into evidence. However, the fact that this testimony concerned an undisputed and irrelevant topic is, however, also part of the reason it was harmless error to admit such testimony. This individual made it clear that Appellant did not attack him or cause his injuries. Testimony about the extent of his injuries could not, therefore, reflect badly on Appellant or unfairly turn the jury against him. Moreover, the record shows that the physician's testimony was straightforward, professional, and unemotional. There was nothing gruesome or sensational that might have upset or inflamed the jury. In all, the challenged testimony took only a few minutes in the course of a three-day trial. There is no reasonable possibility that the jury's verdict might have been different if this testimony had been excluded. Because admission of the challenged testimony was harmless error, there is no reversible error.

In all respects, Appellant either failed to demonstrate error or, where error was shown, failed to demonstrate prejudice. His conviction is affirmed.

J. Burke delivered the opinion for the court.