Summary 2011 WY 141

Summary of Decision October 12, 2011


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Case Name: Jenkins v. State

Citation: 2011 WY 141

Docket Number: S-11-0003

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464610

Original Proceeding
Petition for Writ of Review
District Court of Goshen County, Honorable Keith Kautz, Judge

Representing Appellant (Petitioner): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.

Representing Appellee (Respondent): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Jessica Y. Frint, Student Director, and Gregg Bonazinga, Student Intern, of the Prosecution Assistance Program.

Date of Decision: October 12, 2011

Facts: The petitioner was charged with misdemeanor animal cruelty after a horse he owned was discovered in very dire physical condition. He was convicted in circuit court and the district court affirmed that conviction. He now brings the matter to this Court on a petition for review, asserting that his trial counsel was ineffective and therefore the decision should be reversed.

Issues: Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object to testimony and argument regarding the arrest and incarceration of both the petitioner and his brother. Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object when the prosecutor elicited improper witness comment on another witness’s testimony. Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object to the prosecutor’s questions relating to irrelevant evidence.

Holdings: An appellant claiming ineffective assistance of counsel must demonstrate on the record that: 1) counsel’s performance was deficient and 2) prejudice resulted. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel’s deficiency prejudiced the defense of the case.

The references to the petitioner’s arrest and incarceration were made in passing and as a means of providing context and foundation for other testimony. There was no undue emphasis placed on the petitioner’s arrest or incarceration, and there is no indication that the prosecution elicited or attempted to use the testimony for any substantive purpose, such as to impeach the petitioner’s credibility or for another purpose impermissible under W.R.E. 404(b). It is doubtful that the jury would have been surprised to hear that the petitioner was arrested for the crime for which he was being tried, and that he was interviewed about that crime while in a detention facility. Additionally, any prejudice that might have resulted would have been mitigated by the instruction advising the jury that: “Citation in this case is only a formal charge and is not to be considered evidence of guilt on the part of the petitioner. Nothing is to be taken by implication against him.” Thus, the petitioner has failed to show material prejudice, and as a result failed to show ineffective assistance.

The petitioner’s sole defense at trial was that he had asked his brother to care for the horses. The petitioner’s brother testified on behalf of the State and directly denied the petitioner’s contention that the brother had agreed to care for the petitioner’s horse. Inasmuch as the brother’s testimony was directly adverse to the petitioner’s defense, it would be a reasonable tactical choice not to object to the brother’s appearance in prison attire and allow any resulting adverse inferences about the brother’s credibility. The burden is upon the defendant to overcome a presumption that, in light of the circumstances, the challenged action or failure of an attorney might be considered sound trial strategy. In the present action, the petitioner fails to show how allowing an adverse witness to testify in prison attire is not sound trial strategy, or how he was prejudiced by such.

It is clearly 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 invade the province of the jury, create a risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witness lied, and distort the state’s burden of proof. In the present action, the State concedes that the prosecutor’s questioning resulted in misconduct. The question then becomes whether prejudice resulted from the prosecutor’s misconduct.

To evaluate the prejudice of improper “were-they-lying” questions, several factors need to be weighed: 1) the severity and pervasiveness of the misconduct; 2) the significance of the misconduct to the central issues in the case; 3) the strength of the State’s evidence; 4) the use of cautionary instructions or other curative measures; and 5) the extent to which the defense invited the misconduct.

Prejudice doe not result where the questioning was very brief and the prosecutor did not emphasize the responses in closing argument. Given the brevity and lack of emphasis placed on the questions in the present action, it cannot be said that the misconduct was particularly pervasive or severe.

The central issue in the present action was whether the petitioner’s conduct resulted in “cruelty to animals” as defined in Wyo. Stat. 6-3-203(b) (2011). To establish this, the prosecutor had to show that the petitioner had charge and custody of the horse and that he failed to provide the horse with appropriate care when it suffered from immediate, obvious, and serious illness or injury. The prosecutor’s misconduct touched, at least peripherally, on this issue. However, it cannot be said that this misconduct had a significant impact on the central issue. Even if the jury had heard the testimony, untainted by the prosecutor’s inappropriate questioning, it still could reasonably have concluded, based on the evidence presented, that the petitioner was guilty of “cruelty to animals” as defined in the statute.

The evidence clearly showed, and it was virtually undisputed, that the petitioner owned the horse and that he was ultimately responsible for her care. There was also considerable evidence that the petitioner neglected that duty. Additionally, the State presented photographic evidence showing the horse’s condition. The quantum and quality of the State’s evidence cuts against the petitioner’s claim of prejudice

Although no objection was lodged and no cautionary or curative instruction was given, the jury instructions, given before opening statements and again prior to deliberation, did advise that “It is the exclusive province of the Jury to weigh and consider all evidence which is presented to it; to determine the credibility of all witnesses who testify before you, and from such evidence and testimony, to determine the issues of fact in this case” and that “The Jury is the sole judge of the credibility of the witnesses, and of the weight to be given their testimony.” Any prejudice that may have resulted from the prosecutor’s misconduct would have been ameliorated by these instructions.

Although he did not invite the misconduct, the petitioner may have otherwise mitigated the potential prejudicial impact when he stated that his girlfriend “might have made an error” in her testimony that he called his mother every day to check on the horses.

The petitioner failed to meet his burden of showing that he was prejudiced by the prosecutor’s misconduct. As a result, it cannot be said that he was prejudiced by his counsel’s failure to object to the improper questions.

In this final issue, the petitioner claims that he was materially prejudiced by his attorney’s failure to object to the prosecutor’s questions about irrelevant facts. The propriety of the admitted testimony need not be addressed because the petitioner has not met his burden of proving he was prejudiced thereby. His prejudice argument consists solely of a single sentence, concluding that “[h]ad defense counsel assertively advocated for [the petitioner], there is more than a ‘reasonable possibility’ that the outcome of the trial may have been different.” He does not discuss any specific prejudice arising from the admission of the questioned testimony and makes no attempt to explain, in light of the facts of the case, how the challenged statements adversely impacted his trial and, ultimately, the jury’s verdict. The petitioner’s assertion is utterly inadequate to satisfy his burden of showing material prejudice arising from the alleged ineffective assistance.

The petitioner has failed to show that he was materially prejudiced by the arrest and incarceration testimony elicited, the prosecutor’s improper questioning of a witness about the credibility of another witness, or the admission of the allegedly irrelevant testimony about the condition of other horses and the petitioner’s speeding ticket. The order entered by the district court affirming the judgment and sentence of the circuit court is affirmed.

J. Voigt delivered the opinion for the court.