Summary 2011 WY 46

Summary of Decision March 11, 2011

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Case Name: Monty Sullivan v. State of Wyoming

Citation: 2011 WY 46

Docket Numbers: S-10-0099

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461816

Appeal from the District Court of Hot Springs County, The Honorable Robert E. Skar, Judge

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage; Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Date of Decision: March 11, 2011

Facts: After being found guilty of two counts of first degree sexual abuse of a minor, Appellant asserts that he was denied the right to a fair trial due to prosecutorial misconduct.

Issues: Whether Appellant was denied his right to a fair trial due to prosecutorial misconduct which occurred when the prosecutor solicited inappropriate testimony from its witness and informed the jury that Appellant did not take a polygraph test.

Holdings: Appellant argues that his right to a fair trial was violated by several instances of prosecutorial misconduct. Appellant contends that the Chief twice improperly commented on Appellant’s guilt, and during his testimony vouched for the victim. The Court held:

[I]t is impermissible for either a lay witness or an expert to vouch for the credibility of another witness, or to comment on the guilt of the accused. The question becomes whether the error requires reversal or whether the error was harmless under W.R.A.P. 9.04.

Regarding the Chief’s testimony, Appellant alleges that the Chief was improperly commenting on Appellant’s guilt and vouching for the credibility of the victim. The Court did not agree with the Appellant. Regarding opinion testimony, it is “the jury’s role, not the witness’s, to make this determination.” The record showed little, if any, harm occurred as a result of the challenged comments. In the context of the trial testimony as a whole, the statement that a polygraph was not given – not that Appellant refused one – was brief and spontaneous. The remark was not solicited. There was no prejudicial inference from the witness’s remarks, because there was no explicit statement that there was a “refusal” to take the polygraph. The polygraph was never referenced again, and the district court admonished the jury to disregard the question and the answer. Given the bulk of evidence in this case, the Court cannot speculate that the jury disregarded the court’s admonitions and placed any importance on the comments by the prosecutor and the Chief. The Court affirmed Appellant’s conviction, concluding that he received a fair trial, and that, in light of the evidence proven at trial, any error was harmless.

Justice Hill delivered the opinion for the court.

Justice Voigt filed a special concurrence.

This case exemplifies the fact that our admonitions to prosecutors and law enforcement officials too often fall on deaf ears. It is hard to believe that, with precedent being so clear, a criminal trial in Wyoming could include both the investigating officer giving his opinion that the victim’s interview “was very believable to me,” and that same officer and the prosecutor in tandem telling the jury that the defendant did not take a “lie detector test.”

The direct fault lies with the prosecutors. The indirect fault lies with the harmless error rule. So long as the system requires an appellant to prove that he or she was prejudiced by prosecutorial misconduct, some prosecutors will continue to act as they do.