Summary 2008 WY 58

Summary of Decision issued May 29, 2008

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

Case Name: Carothers v. State

Citation: 2008 WY 58

Docket Number: S-07-0240

Appeal from the District Court of Campbell County, the Honorable Dan R. Price, II, Judge.

Representing Appellant (Defendant): Nicholas H. Carter and Miles A. Jacoby of the Nick Carter Law Firm, PC, Gillette, Wyoming.

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

Facts/Discussion: Carothers was convicted of aggravated homicide by vehicle after she caused the death of a child in a motor vehicle collision in Gillette.

Juror Challenges: The Court reviewed the totality of the voir dire process and determined it had been a careful and deliberative process. The record showed that the district court did not ignore bias challenges and it clearly stated its decision making as to individual jurors based upon the perception by the court whether the juror could or would set aside any improper influences.
Change of Venue: A hearing on the motion for change of venue was held. The two-part test for determining whether there should be a change of venue includes the nature and extent of the publicity and the difficulty or ease in selecting a jury along with the amount of prejudice which actually appears during voir dire. The first part was not included in the record so the Court was unable to determine if the publicity was anything but factual. A sufficient number of jurors declared themselves to be able to determine the matter based solely upon the evidence they heard in court and the instructions given them by the judge.
Prosecutor’s Statements: Carothers contended that statements made by the prosecutor during closing argument violated her right to remain silent and that the prosecutor attempted to shift the burden of proof to the defendant. The State argued that the statements were legitimate responses to defense counsel’s arguments. The Court reviewed the comments within the context of the arguments and determined that the remarks were directed at refuting defense counsel’s allegations.
PSI: A PSI is mandated for all felony cases. After reviewing the record, the Court stated that there was no showing that the district court relied upon the comments in deciding upon the sentence; the comments repeated what was already contained in the victim impact portion of the report and in the mother’s comments; and the sentence imposed was less than that requested by the State, which suggested the court was not “inflamed” by the comments.

Holding: Sufficient evidence in the record supported the district court’s decision to not excuse certain jurors. A venue change was not necessary because a local jury was seated without undue difficulty. The prosecutor’s challenged statements were responsive to arguments made by defense counsel or were comments upon the evidence that was presented. It was not shown that the district court relied upon or that Carothers was prejudiced by the inclusion of the statements in the PSI.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5os8gj .

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