Summary 2010 WY 136

Summary of Decision issued October 14, 2010

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Case Name: Carter v. State

Citation: 2010 WY 136

URL: http://tinyurl.com/33gjpad

Docket Number: S-09-0181

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Michael H. Reese, Cheyenne, Wyoming.

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

Date of Decision: October 14, 2010

Facts: Appellant was tried by a jury and convicted for second-degree. Appellant appeals from the Judgment and Sentence, arguing prosecutorial misconduct and ineffective assistance of trial counsel.

Issues: Whether the prosecutor committed misconduct by referring to Appellant as the “black guy” and the victim as the “white guy”. Whether trial counsel was ineffective for (1) failing to object to the “white guy” and “black guy” comments; (2) failing to file a motion to suppress Appellant’s statements made to the police and replayed to the jury; and (3) calling a defense witness who was impeached by the State.

Holdings: Appellant’s claim of prosecutorial misconduct regarding the use of the phrases “white guy” and “black guy” fails because the phrases were a legitimate means to describe the parties involved in this case. Furthermore, the phrases were not used in a way that was intended to prejudice Appellant, nor could Appellant demonstrate any prejudice. Appellant’s ineffective assistance of trial counsel claim based on counsel’s failure to object to those comments fails for the same reasons. Likewise, Appellant’s ineffective assistance claim based on his trial counsel’s failure to file a motion to suppress his statements fails because Appellant’s will was not overborne due to sleep deprivation or intoxication, and no showing was made of police misconduct during the interview, meaning his statements were voluntarily given to detectives. Finally, Appellant’s claim of ineffective assistance of trial counsel based upon the calling of E.W. as a witness fails because it cannot be shown that such was not part of counsel’s limited trial strategy options. Affirmed.