Summary 2009 WY 2

Summary of Decision issued January 13, 2009

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

Case Name: Smith v. Wyoming

Citation: 2009 WY 2

Docket Number: S-07-0267

Appeal from the District Court of Natrona County, the Honorable Keith G. Kautz, Judge.

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

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham H. Smith, Assistant Attorney General.

Facts/Discussion: A jury found Smith guilty of second degree murder and concluded he was a habitual criminal. The district court sentenced him to life in prison. On appeal, he claimed there was insufficient evidence to convict him; the State violated his Fifth Amendment rights and engaged in prosecutorial misconduct by referring to his refusal to voluntarily submit a sample for DNA testing; the district court erred by excluding evidence of alternative subjects; the habitual criminal statute as applied to him violated the constitutional prohibition against ex post facto laws; and he should have been granted a change of venue.

Sufficiency of the Evidence: The trial evidence showed that Smith was not truthful about his relationship with Ms. Dively, the victim. The DNA evidence established he had engaged in sexual contact with her. It was reasonable for the jury to infer from the medical evidence that the timing of the sexual activity between the victim and Smith was just prior to her death, strongly suggesting that he murdered her. That inference was supported by the trial evidence that the victim got into a pickup like one Smith owned, with a man that resembled him, shortly before her death. The Court noted that cases from other jurisdictions supported their decision that there was sufficient evidence. The Georgia case, Walker v. State, contained similar facts. The court in Walker ruled that the role of interpreting the evidence belonged to the jury and the jury’s decision would be reversed only if it was unsupportable as a matter of law. In the instant case, there was no question that the evidence was sufficient to support the jury’s conclusion that the homicide was committed purposely and with malice.
Prosecutorial References to Defendant’s Refusal to Submit Sample for DNA Testing: The prosecutor referred to Smith’s refusal to submit a DNA sample in his opening and closing and also elicited testimony about Smith’s refusal from the lead investigator. The United States Supreme Court has expressly ruled that the Fifth Amendment right against self-incrimination only extends to testimonial or communicative evidence. In Schmerber v. California, the Supreme Court explained that blood evidence obtained from a suspect’s body is not testimonial or communicative evidence and does not fit within the Fifth Amendment privilege. In South Dakota v. Neville the Supreme Court recognized that protecting the defendant from being compelled to testify against himself is the lynchpin of the Fifth Amendment protection. Smith was asked to voluntarily give a DNA sample, when he refused, the State obtained a warrant. The sample and the associated test results were not testimonial or communicative evidence. The State did not coerce him and the evidence of his refusal did not fall within the Fifth Amendment protection. The prosecutor did not violate Smith’s privilege against self-incrimination or commit prosecutorial misconduct.
Alternative Suspect Evidence: The district court conducted a pre-trial hearing pursuant to W.R.T. 104 and concluded that some of the evidence was inadmissible under W.R.E. 403, some was inadmissible hearsay and that some was not admissible under Rule 403 because its probative value was very small while the possibility of confusion of the issues and misleading the jury was high. In Bush, the Court recognized that the district court should apply Wyoming’s standard rules of evidence in determining whether alternative suspect evidence is “legal” and therefore, admissible. The Court stated that the proffered evidence must demonstrate a direct nexus between the alternative suspect and the crime charged.
The district court did not apply a more stringent or different standard to Smith than it did to the State for admission of its evidence. It applied Wyoming’s typical rules of evidence in ruling that Smith’s proposed alternative suspect evidence was not admissible.
Habitual Criminal: Smith claimed that the application of the habitual criminal statute in his case was unconstitutional because the jury was allowed to consider crimes he committed after the instant offense. The jury determined that Smith was a habitual criminal and because he had been convicted of three other felonies, he was sentenced to serve life in prison. Two of the crimes considered by the jury in the habitual criminal phase of the trial occurred after the murder in 1986. The instant case is not a classic ex post facto case because the statute was adopted in 1983 and the crime occurred in 1986. The Court noted that in Green v. State, that the statute does not require that a crime be previously committed, only that there is a previous conviction. Under the language of the statute the district court properly allowed consideration of Smith’s prior convictions, despite the fact that two of these offenses were committed after he committed the murder. The habitual criminal statute does not create a separate offense but is a sentence enhancement for the offense at issue. The statute does not retroactively increase the punishment for conduct committed before its passage nor does it retroactively increase the punishment for prior convictions.
Change of Venue: The Court has developed a two-part test to determine whether a change of venue should be granted on the basis of pre-trial publicity. First the Court considers the nature and extent of the publicity and secondly, the Court analyzes the difficulty or ease encountered by the district court in selecting a jury. The defendant usually has the responsibility of proving actual prejudice on order to obtain a change of venue. There was apparently only one article but it contained information which could have potentially tainted the jury pool. The district court dismissed those members of the jury who stated that they were aware of the prior conviction. The jury was seated without any significant problems and the record did not demonstrate that the jury panel was actually prejudiced by the pretrial publicity.

Conclusion: There was sufficient evidence for the jury to find Smith guilty of second degree murder. The evidence that he was the perpetrator of the crime and committed it purposely and with malice was adequate under Wyoming law. The prosecutor did not violate Smith’s Fifth Amendment right to remain silent by eliciting testimony and commenting on his refusal to voluntarily provide a sample for DNA testing. The Fifth Amendment protection does not apply to non-testimonial evidence such as the DNA sample and Smith was not coerced into refusing to give the sample.
The district court properly applied Wyoming’s rules of evidence to exclude Smith’s alternative suspect evidence. The evidence that Mr. Myers potentially killed Ms. Dively was more prejudicial than probative under W.R.E.403. Smith’s proposed evidence that Mr. Wentz was the killer was properly excluded as hearsay and under Rule 403.
The application of Wyoming’s habitual criminal statute to enhance Smith’s sentence by using two convictions which occurred after he committed the crime in this case did not violate his constitutional protections against ex post facto laws. The district court did not abuse its discretion by denying Smith’s motion for a change of venue. He was unable to demonstrate the jury panel was prejudiced against him to justify a change of venue.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/8vrj4f .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]