Summary 2008 WY 37

Summary of Decision issued April 8, 2008

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

Case Name: Bustos v. State

Citation: 2008 WY 37

Docket Number: S-07-0130

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina M. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; and David E. Westling, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, Prosecution Assistance Program; Brian J. Hunter, Student Director; and Holli Austin-Belaski, Student Intern.

Facts/Discussion: Bustos was convicted of attempting to cause, or intentionally or knowingly causing bodily injury to another with a deadly weapon. Bustos was involved in an altercation in a bar with a patron, Campbell, the bartender Stratton, and another bar employee, Ondler.
Prosecutor misconduct: facts not in evidence: Claims of prosecutorial misconduct are settled by reference to the entire record and hinge upon whether a defendant’s case has been prejudiced as to constitute denial of a fair trial. Campbell testified he was thrown onto a table during the scuffle. A photo of that table showing damage was admitted into evidence. The prosecutor argued the reasonable inference that the table was damaged by Campbell being thrown upon it. It was left for the jury to determine whether or not such inference should be drawn from the photo and testimony. The Court stated that it did not matter to Bustos’ defense whether Campbell was thrown onto the table or whether or not he damaged it.
Prosecutor misconduct: improper remarks: Bustos argued there was prosecutorial misconduct as a result of comments made in closing argument about defense counsel and the defense theory of the case. The remarks clearly appear in the trial transcript. The State argued that the remarks did not violate a clearly established rule of law because it is the role of the jury in a credibility contest to determine who is telling the truth and the prosecutor was merely emphasizing for the jury the two different versions of the events presented. The Court agreed with the State. The Court stated the standard had not been met.
District Court err: presentence investigation report: The PSI contained a statutorily required substance abuse assessment. The Court recently analyzed this question in Janpol v. State. The information, when used for the express purpose for which it was disclosed, provides no confidentiality breach.
District Court err: ordered appellant to pay costs: Wyoming case law is clear that institutional costs including jury fees may not be assessed against a criminal defendant as costs. The Court stated that the information provided in the record was an insufficient basis on which to impose sanctions.

Holding: The prosecutor did not commit misconduct and it was not error for the district court to consider the psychiatric information contained in the presentence investigation report. The judgment and sentence is affirmed in that regard. The record does not contain sufficient evidence to sustain the imposition of sanctions against the appellant in the form of the jury costs from the aborted trial and that portion of the judgment and sentence is reversed.

Affirmed in part, reversed in part.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5kep4s .

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