Summary 2009 WY 111

Summary of Decision issued September 4, 2009

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

Case Name: Causey v. State

Citation: 2009 WY 111

Docket Number: S-08-0145

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel

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

Issues: Whether the district court properly instructed the jury regarding Appellant’s right of self-defense with the questions being whether the evidence was sufficient to support a finding that Appellant was the aggressor and whether the phrase “provoke the conflict” has a specialized meaning within the context of self-defense which requires an instruction to define the phrase in accordance with that specialized meaning. Whether the prosecutor improperly commented on Appellant’s right to silence.

Holdings: A trial court is given wide latitude in instructing the jury, and its decisions regarding instructions will be upheld if they are supported by any competent evidence. A review of the record discloses competent evidence to support the district court’s ruling. Key to this determination is the trial testimony of the victim in who’s version of the incident, Appellant was the aggressor. It is true that Appellant provided an alternative version, in which the victim was the aggressor, but the court’s task is not to weigh the evidence, only to determine whether the district court could reasonably conclude that there was competent evidence from which the jury might find that Appellant was the aggressor. If the jury believed the victim, that was enough. The district court did not err in overruling Appellant’s objection and giving instructions regarding aggression to the jury.

At trial, Appellant objected to the proposed instruction, but solely on the basis that there was insufficient proof that Appellant was the aggressor. He made no objection aimed at the phrase “provoking the conflict.” He presented no argument to the district court that the phrase had a specialized legal definition, and he offered no alternate instruction defining the phrase. An objection is not properly preserved on appeal unless the objection was made at trial. Although Appellant did not raise this objection at trial, still plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Plain error exists when: 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. The error that Appellant alleges was not an obvious transgression of any clear and unequivocal rule of law. He does not cite any Wyoming case establishing a clear-cut rule of law that the jury must be instructed on a specialized legal definition of provocation. A specialized legal definition of the phrase “provokes the conflict” can be derived only through a meticulous examination of the subtle discussions contained in a number of cases cited by Appellant. If the issue were properly before us, the court might well agree with Appellant’s thoughtful analysis of the definition of “provokes the conflict.” But even if that specialized definition were to be accepted on appeal, it would not establish that, during Appellant’s trial, the failure to define the phrase was so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue. Similarly, Appellant cites no Wyoming case establishing that verbal insults alone cannot constitute provocation. He relies solely on cases from other jurisdictions. Again, if the court were to follow those other jurisdictions at this point, that ruling would still not demonstrate that any clear and unequivocal rule of Wyoming law was violated during Appellant’s trial.

The self-defense instructions given by the district court were not plainly erroneous, and do not require reversal of Appellant’s conviction.

The right to remain silent when accused of a crime is founded on the Fifth Amendment to the United States Constitution and on Article 1, Section 11 of the Wyoming Constitution, and is one of the most fundamental rights accorded a defendant in our criminal justice system. This right is protected zealously. Thus, a prosecutor’s comments on a defendant’s silence are inherently prejudicial, and entitle the defendant to a reversal of his conviction. To determine if a prosecutor has made an improper comment on the right to silence, the record is reviewed as a whole and the prosecutor’s questions and statements placed in the context of the entire trial. In isolation, the prosecutor’s remarks in this case could appear to be an impermissible comment on Appellant’s post-arrest silence. However, when considered in context, the prosecutor was instead making a permissible argument about the evidence presented at trial. Appellant voluntarily gave extensive statements to law enforcement officers at the scene of the incident. His description of the events at that time was substantially different from the description he provided later at trial. The prosecutor highlighted the differences through the testimony of the law enforcement officers. Thus, the prosecutor’s questioning amounted to comments on what Appellant said or neglected to say rather than comments on the exercise of his right to silence. It was not improper for the prosecutor to question the witnesses as a way of highlighting inconsistencies in Appellant’s different versions of the events.

After evidence of the inconsistencies had been admitted, it was also appropriate for the prosecutor to point out the inconsistencies in closing argument. Placed in context with the evidence, the prosecutor’s closing argument appears more of an attempt to convince the jury that Appellant’s trial testimony was not credible, and less of an effort to convince the jury that Appellant’s silence was evidence of his guilt. Thus, the prosecutor’s closing argument was not an attempt to use Appellant’s silence to the State’s advantage, and was, therefore, not an impermissible comment on the right to silence.

Conclusion: Appellant has not demonstrated reversible error based on either of the issues he raises on appeal.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/n6yhmz .

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