Summary 2008 WY 103

Summary of Decision issued September 3, 2008

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

Case Name: Proffit v. State

Citation: 2008 WY 103

Docket Number: S-07-0079

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Assistant Attorney General; James Michael Causey, Senior Assistant Attorney General.

Facts/Discussion: Proffit was convicted following a jury trial of first degree murder and conspiracy to commit first degree murder. He was sentenced to two consecutive terms of life imprisonment without the possibility of parole. On appeal, he challenged several evidentiary rulings of the district court and assails the prosecutor for misconduct during closing argument.
Evidentiary Rulings
Hearsay of Chris Hicks: At trial, Martinez testified that Hicks told him that he had arranged for a large quantity of marijuana to be delivered to Gillette for them to sell. Later Hicks told Martinez that the shipment had been lost and that he was being blamed for it. Proffit said he was connected and would take care of the problem. Proffit told Hicks and Martinez they owed him a favor which included the killing of Forquer. The Court noted that in Proffit v. State, 2008 WY 102, they decided that Hicks’ statements to Martinez would only be hearsay if they were being offered to prove the assertions being made by Hicks. The Court’s decision in that case was equally dispositive of Proffit’s claim in the instant case.
Exclusion of expert testimony: The State objected to the proposed testimony of defense expert witness Willard whom the defense intended to testify about the investigation conducted in the case, including the interviews and the crime scene evidence collection. Unable to determine whether the proposed testimony would be probative to any issue at trial or whether it was merely intended to impugn the credibility of the witnesses, the district court requested an offer of proof. For evidence to be admissible, it must be relevant. The Court agreed with the district court that Willard’s evidence was not relevant. The crux of Proffit’s trial defense was that he was not involved. Defense did not question the manner in which trace evidence was collected or processed or question whether the recording of the witnesses’ statements would have made a difference in the stories they told. Willard’s testimony would not have proved or disproved any fact of consequence to the determination of the case.
Hearsay statements of Jacob Martinez and Michael Seiser: Proffit next claimed the district court erred when it admitted the hearsay testimony of two law enforcement officers who recounted what two other witnesses, Martinez and Seiser, told them about Forquer’s murder. The district court admitted the out-of-court statements as admissible as “prior consistent statements” under W.R.E.801(d)(1)(B). The Rule allows for the use of a prior consistent statement to rehabilitate a witness whose credibility has been impeached. From opening statements to closing argument, Proffit vigorously attacked the men’s credibility and attempted to discredit every aspect of their account of the events surrounding Forquer’s death which opened the door for the State’s use of their prior statements for rehabilitative purposes. The prior statements were properly admitted under the Rules. The Court stated that Wilde v. State and Dike v. State were distinguishable from the instant case.
Prosecutorial Misconduct: Proffit contended that the prosecutor committed misconduct by objecting to the proposed testimony about a loan of $200.00 and then noting during closing argument that he had borrowed the money. Defense counsel chose to introduce the evidence that Proffit borrowed money. There was nothing wrong with the prosecutor commenting on that evidence. The prosecutor’s reference was brief and not intended to draw improper attention to any particular aspect of the case against Proffit. Considering the overwhelming evidence, the Court did not believe the isolated statement had a substantial effect on the jury’s determination of Proffit’s guilt.

Holding: Proffit failed to convince the Court that any reversible error existed with respect to the issues raised in the instant appeal.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/5aqwd8 .

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