Summary 2011 WY 62

Summary of Decision April 13, 2011

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Case Name: Barnes v. State

Citation: 2011 WY 62

Docket Number: S-10-0078

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461968

Appeal from the District Court of Johnson County, Honorable John G. Fenn, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, Prosecution Assistance Program; and David R. Hopkinson, Student Intern.

Date of Decision: April 13, 2011

Facts: Appellant contends that his conviction for larceny should be reversed because the prosecuting attorney committed misconduct by questioning witnesses using a technique wherein the prosecutor repeatedly asked him if the witnesses against him were lying (or other similar words) when their testimony tended to contradict his. This tactic of the prosecutor persisted during closing argument. Appellant’s attorney did not object to the questions and did not ask for a curative instruction from the presiding judge.

Issues: Whether the prosecutor committed misconduct when he cross-examined Appellant as to whether other witnesses were lying or mistaken. Whether Appellant was provided effective assistance of counsel.

Holdings: It is error and misconduct for the prosecutor to cross-examine a defendant using the “lying” or “mistaken” technique. (i.e., well, then if “so-and-so” said “such-and-such,” was he “mistaken” or “lying. Such questions are improper because they require a defendant to comment on another witness’ veracity and invade the province of the jury. They create the risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witnesses lied. This distorts the state’s burden of proof. Although a defendant who testifies in a criminal case may be cross-examined regarding his credibility just like any other witness, there are limits placed upon the prosecutor. A witness may not comment on the truthfulness or veracity of another witness. It is the jury’s duty to resolve factual issues, judge the credibility of the witnesses, and determine the guilt or innocence of a criminal defendant. In the present case, the prosecutor repeated the error six times and intimated it many more. Appellant was the only witness called in the defense portion of the case. Given that his defense rested entirely on his own testimony, the questioning methodology used by the prosecutor was prejudicial under the facts and circumstances of this case. and we reverse his conviction on that basis. For this reason it is unnecessary for us to further consider the ineffective assistance of counsel issue.

Based upon the prosecutor’s misconduct, we reverse the Judgment and Sentence of the district court is reversed and the matter is remanded to the district court. For this reason it is unnecessary to further consider the ineffective assistance of counsel issue.

J. Hill delivered the opinion for the court.