Thursday, September 29, 2011

Summary 2011 WY 138

Summary of Decision September 29, 2011

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

Case Name:  Stastny v. State of Wyo.

Citation:  2011 WY 138

Docket Number: S-10-0206

Appeal from the District Court of County, Honorable , Judge

Representing Appellant (Defendant):  Gregory J. Blenkinsop, Senior Assistant Public Defender; Elisabeth M. W. Trefonas, Assistant Public Defender.  Argument by Ms. Trefonas.

Representing Appellee (Plaintiff): Gregory A. Phillips, 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: September 29, 2011

Facts:  The appellant was convicted of one count of sexual abuse of a minor and one count of attempted sexual abuse of a minor. As to details of the encounter, when allegations of the appellant’s alleged misconduct with the 12-year old victim were made known, the appellant was forcefully ejected from the house and beaten by several men who were present.  Police officers responded to reports of the beating, and the appellant spoke briefly with them before he was taken to the hospital.

The officers continued to investigate the matter and at some point during that same day, they obtained a search warrant for the purpose of obtaining a “sexual assault kit” body search of the appellant.  They picked up the appellant later that evening and took him to the local hospital for that purpose, where the requisite evidence was collected by a nurse. 

A couple days later, the appellant was formally interviewed by the police just before going to a bond hearing.  During that interview, he told the police essentially the same version of events to which he would testify at trial, namely that he had been drinking heavily and had passed out in the victim’s room, and that he twice briefly became conscious, noticing someone, the victim, seemingly sexually assaulting him.

The appellant filed a pretrial motion seeking disclosure by the State of any evidence it intended to introduce under W.R.E. 404(b) or under W.R.E. 609.  The State’s response indicated the State’s intent to introduce evidence that the appellant had a prior conviction in Iowa for “lascivious acts with a child.”  The district court heard the motion during a pretrial conference but never ruled upon the matter, and it does not appear from the record that the appellant ever sought such a ruling.  The State rested its case with no mention of the prior conviction.  During direct examination by his own counsel, the conviction was raised. The State also mentioned the conviction on cross-examination.  The Iowa conviction was not again mentioned in the record until a discussion was had in chambers after a conference concerning jury instructions.  Defense counsel did not use the opportunity to place on the record any objection to admission of evidence of the prior conviction, and did not ask for an instruction limiting its use to its intended purposes under W.R.E. 609.  The State did not mention the prior conviction in its initial closing argument, nor in its rebuttal closing.

Also at trial, the State proved that DNA consistent with that of the appellant was found on the boy.  At trial, Appellant testified to the same version of events that he had told police. The prosecutor, during his closing statement, referenced the appellant’s self-serving explanation for the DNA results.

The appellant challenged the district court’s admission of evidence of a prior conviction, and he accused the prosecutor of committing misconduct during closing argument by alleging that Appellant fabricated his version of the events only after he learned of the DNA results.  Finally, Appellant relied upon the cumulative error doctrine. 

Issues:  1) Whether the doctrine of invited error bared the appellant from raising in this appeal issues concerning the admission of evidence of his prior conviction. 2) Whether plain error occurred as a result of prosecutorial misconduct during closing argument. 3) Whether  the doctrine of cumulative error required reversal of the appellant’s convictions.

Holdings:  The Court found no error and affirmed.  As to the first issue, the Court found that whether or not it was error for the evidence to be admitted, its admission was not just invited by defense counsel, it was accomplished by defense counsel.

As to the issue of prosecutorial misconduct, the Court found that the questioned statement by the prosecutor was not such a clear violation of a rule of law that the second element of plain error analysis was met.  The Court observed that the evidence was not just that the appellant had learned of the results of the “sexual assault kit” but the evidence also was that the appellant was aware from the start that the “sexual assault kit” was obtained for testing.  In other words, his need to explain away any results from those tests arose when the samples were collected, not just when the test results were reported.  Beyond that, and in the contest of the entire trial, the Court could not say that the appellant was unfairly prejudiced by the language at issue.

Finally, the Court concluded that there being no error, there was no cumulative error. 

Because the admission of evidence of the appellant’s prior felony conviction, if error at all, was invited error, and prosecutorial misconduct did not occur during closing argument, the Court affirmed.

J. VOIGT delivered the opinion for the court.

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