Summary 2011 WY 147

Summary of Decision October 25, 2011

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

Case Name:  Benjamin v. State of Wyo.

Citation:  2011 WY 147

Docket Number:  S-10-0204

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464668

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

Representing Appellant (Defendant):  Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.  Argument by Ms. Olson.

Representing Appellee (Plaintiff):  Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General; Stewart M. Young, Special Assistant Attorney General.  Argument by Mr. Young.

Date of Decision: October 25, 2011

Facts:  Appellant shot and killed the victim, her estranged husband, at her home.  The relevant events of that day began in the morning, when Appellant sent a text message to her husband, from whom she was separated and was soon to be divorced, asking whether he was coming to pick up their daughter.  Appellant knew that her daughter was at a friend’s house, but proceeded to leave numerous voicemails and text messages for her husband.  When the victim called to say he was on his way, Appellant told him that their daughter no longer wanted to go fishing.  The victim arrived a few minutes after this conversation.  At some point Appellant grabbed a pistol, and the victim was shot by Appellant.  At some point a glass shower door was shattered. The victim died approximately an hour after arriving.  Appellant turned herself in approximately 18 hours later.

Appellant was charged with first degree murder.  The State argued at trial that Appellant had purposely lured the victim to her home under the false pretense that their daughter was waiting for him.  It argued that this was a premeditated, purposeful, and malicious effort to harm the victim.  The State also presented evidence that contradicted Appellant’s version of the shooting, specifically Appellant’s version that her husband was shot while grabbing the pistol, and that the shower door had been shattered by an elbow. The state’s evidence indicated that the victim was shot at a distance and the shower door was shattered by a bullet.

Appellant never denied that she had shot the victim, but asserted that she had done so in self-defense.  Anticipating Appellant’s claim that she was a victim of domestic abuse, the State offered testimony indicating that she was actually the aggressor in the relationship.   

The jury acquitted Appellant on the charge of first degree murder, but also rejected her claim of self-defense, finding her guilty of the lesser included offense of second degree murder.  The district court sentenced her to twenty to thirty years in prison.  Appellant challenged her conviction in this appeal.

Issues:  1) Whether the trial court erred in not dismissing juror Blaney; 2) Whether the trial court erred in refusing Appellant’s proposed jury instructions G and H; 3) Whether the trial court erred in denying Appellant’s post-trial motion for judgment of acquittal; and 4) Whether reversible prosecutorial misconduct occurred.

Holdings:  Affirmed. 

As to the first issue, during voir dire, a potential juror was identified as the wife of as a possible rebuttable witness for the State.  Neither side exercised a peremptory challenge, and she was seated on the jury.  At the end of the day, and outside of the presence of the jury, the district court again raised the issue of the juror’s relationship to a listed witness.  Defense counsel confirmed the decision not to challenge.  Defense counsel later asked to have her removed from the jury, but the district court denied the request.  Appellant claims that the juror’s presence on the jury impinged upon her constitutional right to a fair and impartial trial, but did not contend that the juror was actually biased.  Instead, Appellant claimed that the juror should have been removed from the jury on the basis of implied bias.  The Court held from prior case law that not every question involving implied bias is subject to de novo review on appeal. The proper standard of review must be adapted to fit the context in which the question is presented.  Accordingly, The Court found here that Appellant had waived her implied bias objection during voir dire.  The Court concluded that the district court did not abuse its discretion when it denied Appellant’s request, late in the course of the trial, having concluded that the circumstances had not changed sufficiently to compel the removal of the juror.

 

As to the second issue, the Court observed that the “Eagan Rule” applies only if the witness’s “credibility has not been impeached” and “is not inconsistent with the facts and circumstances shown.”  The Court found that the rule did not apply in Appellant’s case, and the district court did not err in refusing the “Eagan Rule” instructions she proposed.

As to the third issue, Appellant claimed that the State failed to prove that she did not act in self-defense because it presented “no evidence of [her] state of mind at the time of the shooting.”  The Court’s review of the record confirmed Appellant’s claim that the State presented no direct evidence of her state of mind at the time of the shooting.  However, the Court found that the State provided sufficient evidence for a jury to make reasonable inferences about Appellant’s state of mind.  It provided an adequate basis for the jury to reject Appellant’s testimony that she believed she was in imminent danger of death or serious bodily harm at the time of the shooting.  The Court held that the district court did not err in denying Appellant’s motion for a judgment of acquittal. 

As to the last issue, the Court found that individually and collectively, the instances pointed out by Appellant did not constitute prosecutorial misconduct.

J. Burke delivered the opinion for the court.

Summary 2009 WY 77

Summary of Decision issued June 12, 2009

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

Case Name: Bloomer v. State

Citation: 2009 WY 77

Docket Number: S-08-0139

Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge.

Representing Appellant Bloomer: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling. Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Eric K. Thompson, Student Director; and Curtis H. Cheney, Student Intern.

Facts/Discussion: Bloomer was convicted of two counts of possession of methamphetamine with intent to deliver. He claimed the district court erred in denying his motion to quash the jury panel because the method used to select that panel violated principles associated with selecting a jury that represents a fair cross section of the community. In addition, he asserted that the district court refused to consider probation in violation of established legal principles.

Make-up of Jury Panel: The clerk’s method for jury selection: before each term of court, the clerk received a randomly selected list of 350 jurors’ names from the Secretary of State drawn from voter registration lists and driver’s license records. When a jury trial is scheduled, the district court clerk selects a number of jurors as recommended by the district judge. The names were chosen from the list in alphabetical order. Once the list is given to the district court as a jury panel, those names will not be subject to being called again, unless the clerk has gone through the entire list and it’s necessary to go back to the beginning of the list. The Court reviewed other jurisdictions’ decisions on this issue including Montana in State v. Azure, West Virginia, Arkansas in Henry v. State, Georgia, United States v. Eyster and United States v. Puleo from the 11th Circuit and Walker v. Goldsmith from the 9th Circuit. As was the case with other appellate courts, the Court does not approve of the method used because there are other more “tried and true” methods available that eliminate concerns raised by the instant appeal. The Court stated the method may not be used in any future cases. The only apparent reason for choosing the method used was so as not to inconvenience jurors. Bloomer failed to demonstrate that the method used by the district court clerk deprived him of a fair cross section of the community or that any distinctive group was systematically excluded from the jury panel. The Court concluded the district court did not err as a matter of law in denying Bloomer’s motion to quash the jury panel stating that if an error was made, it was harmless because the Court was unable to identify an irregularity that affected Bloomer’s substantial rights.
District Court’s refusal to Consider Probation: When Bloomer appeared at a Change of Plea and Sentencing Hearing, the district court stated that if he were found guilty on either one of the counts, there would be no request for probation. The Court found the district court’s comment troubling because it suggested that probation would not be considered if Bloomer opted for a trial. However, the Court measured the impropriety of the statement in the context of the entirety of the record on appeal. In the sentencing order, the district court considered the advisability of probation and rejected it as an option in sentencing given Bloomer’s offenses.

Conclusion: The Court stated that the method used in the instant case for seating a jury panel may not be used in any future cases but it concluded that because Bloomer failed to demonstrate the method deprived him of a fair cross-section of the community, the district court did not err. The Court was unable to conclude that the violation adversely affected a substantial right of Bloomer’s to his material prejudice. The district court clearly considered probation at sentencing despite his unfortunate remarks earlier in the proceedings.

Affirmed.

J. Hill delivered the decision.

C.J. Voigt, concurring in part and dissenting in part in which J. Burke joined in part: The Chief Justice concurred with the majority’s resolution of the jury panel issue but would have reversed on the second issue. He stated the facts were barely distinguishable from Guinn v. State where the Court reversed because the record left open the possibility that the sentencing decision was based in part upon the appellant’s exercise of his right to trial by jury.
J. Burke, dissenting: J. Burke disagreed with the majority’s resolution of the jury panel issue. The question was whether the jury selection process complied with Wyoming statutory requirements. The Justice stated it was unnecessary to rely on constitutional principles or decisions from other jurisdictions with different jury selection statutes. The procedures specified by statute insure a random selection process. The procedures used to select the jury panel for Bloomer did not result in a random selection from the set of 350 jurors on the base jury list.

Link: http://tinyurl.com/mt46ky .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 2

Summary of Decision issued January 13, 2009

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

Case Name: Smith v. Wyoming

Citation: 2009 WY 2

Docket Number: S-07-0267

Appeal from the District Court of Natrona County, the Honorable Keith G. Kautz, Judge.

Representing Appellant Smith: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Michael H. Reese, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham H. Smith, Assistant Attorney General.

Facts/Discussion: A jury found Smith guilty of second degree murder and concluded he was a habitual criminal. The district court sentenced him to life in prison. On appeal, he claimed there was insufficient evidence to convict him; the State violated his Fifth Amendment rights and engaged in prosecutorial misconduct by referring to his refusal to voluntarily submit a sample for DNA testing; the district court erred by excluding evidence of alternative subjects; the habitual criminal statute as applied to him violated the constitutional prohibition against ex post facto laws; and he should have been granted a change of venue.

Sufficiency of the Evidence: The trial evidence showed that Smith was not truthful about his relationship with Ms. Dively, the victim. The DNA evidence established he had engaged in sexual contact with her. It was reasonable for the jury to infer from the medical evidence that the timing of the sexual activity between the victim and Smith was just prior to her death, strongly suggesting that he murdered her. That inference was supported by the trial evidence that the victim got into a pickup like one Smith owned, with a man that resembled him, shortly before her death. The Court noted that cases from other jurisdictions supported their decision that there was sufficient evidence. The Georgia case, Walker v. State, contained similar facts. The court in Walker ruled that the role of interpreting the evidence belonged to the jury and the jury’s decision would be reversed only if it was unsupportable as a matter of law. In the instant case, there was no question that the evidence was sufficient to support the jury’s conclusion that the homicide was committed purposely and with malice.
Prosecutorial References to Defendant’s Refusal to Submit Sample for DNA Testing: The prosecutor referred to Smith’s refusal to submit a DNA sample in his opening and closing and also elicited testimony about Smith’s refusal from the lead investigator. The United States Supreme Court has expressly ruled that the Fifth Amendment right against self-incrimination only extends to testimonial or communicative evidence. In Schmerber v. California, the Supreme Court explained that blood evidence obtained from a suspect’s body is not testimonial or communicative evidence and does not fit within the Fifth Amendment privilege. In South Dakota v. Neville the Supreme Court recognized that protecting the defendant from being compelled to testify against himself is the lynchpin of the Fifth Amendment protection. Smith was asked to voluntarily give a DNA sample, when he refused, the State obtained a warrant. The sample and the associated test results were not testimonial or communicative evidence. The State did not coerce him and the evidence of his refusal did not fall within the Fifth Amendment protection. The prosecutor did not violate Smith’s privilege against self-incrimination or commit prosecutorial misconduct.
Alternative Suspect Evidence: The district court conducted a pre-trial hearing pursuant to W.R.T. 104 and concluded that some of the evidence was inadmissible under W.R.E. 403, some was inadmissible hearsay and that some was not admissible under Rule 403 because its probative value was very small while the possibility of confusion of the issues and misleading the jury was high. In Bush, the Court recognized that the district court should apply Wyoming’s standard rules of evidence in determining whether alternative suspect evidence is “legal” and therefore, admissible. The Court stated that the proffered evidence must demonstrate a direct nexus between the alternative suspect and the crime charged.
The district court did not apply a more stringent or different standard to Smith than it did to the State for admission of its evidence. It applied Wyoming’s typical rules of evidence in ruling that Smith’s proposed alternative suspect evidence was not admissible.
Habitual Criminal: Smith claimed that the application of the habitual criminal statute in his case was unconstitutional because the jury was allowed to consider crimes he committed after the instant offense. The jury determined that Smith was a habitual criminal and because he had been convicted of three other felonies, he was sentenced to serve life in prison. Two of the crimes considered by the jury in the habitual criminal phase of the trial occurred after the murder in 1986. The instant case is not a classic ex post facto case because the statute was adopted in 1983 and the crime occurred in 1986. The Court noted that in Green v. State, that the statute does not require that a crime be previously committed, only that there is a previous conviction. Under the language of the statute the district court properly allowed consideration of Smith’s prior convictions, despite the fact that two of these offenses were committed after he committed the murder. The habitual criminal statute does not create a separate offense but is a sentence enhancement for the offense at issue. The statute does not retroactively increase the punishment for conduct committed before its passage nor does it retroactively increase the punishment for prior convictions.
Change of Venue: The Court has developed a two-part test to determine whether a change of venue should be granted on the basis of pre-trial publicity. First the Court considers the nature and extent of the publicity and secondly, the Court analyzes the difficulty or ease encountered by the district court in selecting a jury. The defendant usually has the responsibility of proving actual prejudice on order to obtain a change of venue. There was apparently only one article but it contained information which could have potentially tainted the jury pool. The district court dismissed those members of the jury who stated that they were aware of the prior conviction. The jury was seated without any significant problems and the record did not demonstrate that the jury panel was actually prejudiced by the pretrial publicity.

Conclusion: There was sufficient evidence for the jury to find Smith guilty of second degree murder. The evidence that he was the perpetrator of the crime and committed it purposely and with malice was adequate under Wyoming law. The prosecutor did not violate Smith’s Fifth Amendment right to remain silent by eliciting testimony and commenting on his refusal to voluntarily provide a sample for DNA testing. The Fifth Amendment protection does not apply to non-testimonial evidence such as the DNA sample and Smith was not coerced into refusing to give the sample.
The district court properly applied Wyoming’s rules of evidence to exclude Smith’s alternative suspect evidence. The evidence that Mr. Myers potentially killed Ms. Dively was more prejudicial than probative under W.R.E.403. Smith’s proposed evidence that Mr. Wentz was the killer was properly excluded as hearsay and under Rule 403.
The application of Wyoming’s habitual criminal statute to enhance Smith’s sentence by using two convictions which occurred after he committed the crime in this case did not violate his constitutional protections against ex post facto laws. The district court did not abuse its discretion by denying Smith’s motion for a change of venue. He was unable to demonstrate the jury panel was prejudiced against him to justify a change of venue.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/8vrj4f .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 58

Summary of Decision issued May 29, 2008

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

Case Name: Carothers v. State

Citation: 2008 WY 58

Docket Number: S-07-0240

Appeal from the District Court of Campbell County, the Honorable Dan R. Price, II, Judge.

Representing Appellant (Defendant): Nicholas H. Carter and Miles A. Jacoby of the Nick Carter Law Firm, PC, Gillette, Wyoming.

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

Facts/Discussion: Carothers was convicted of aggravated homicide by vehicle after she caused the death of a child in a motor vehicle collision in Gillette.

Juror Challenges: The Court reviewed the totality of the voir dire process and determined it had been a careful and deliberative process. The record showed that the district court did not ignore bias challenges and it clearly stated its decision making as to individual jurors based upon the perception by the court whether the juror could or would set aside any improper influences.
Change of Venue: A hearing on the motion for change of venue was held. The two-part test for determining whether there should be a change of venue includes the nature and extent of the publicity and the difficulty or ease in selecting a jury along with the amount of prejudice which actually appears during voir dire. The first part was not included in the record so the Court was unable to determine if the publicity was anything but factual. A sufficient number of jurors declared themselves to be able to determine the matter based solely upon the evidence they heard in court and the instructions given them by the judge.
Prosecutor’s Statements: Carothers contended that statements made by the prosecutor during closing argument violated her right to remain silent and that the prosecutor attempted to shift the burden of proof to the defendant. The State argued that the statements were legitimate responses to defense counsel’s arguments. The Court reviewed the comments within the context of the arguments and determined that the remarks were directed at refuting defense counsel’s allegations.
PSI: A PSI is mandated for all felony cases. After reviewing the record, the Court stated that there was no showing that the district court relied upon the comments in deciding upon the sentence; the comments repeated what was already contained in the victim impact portion of the report and in the mother’s comments; and the sentence imposed was less than that requested by the State, which suggested the court was not “inflamed” by the comments.

Holding: Sufficient evidence in the record supported the district court’s decision to not excuse certain jurors. A venue change was not necessary because a local jury was seated without undue difficulty. The prosecutor’s challenged statements were responsive to arguments made by defense counsel or were comments upon the evidence that was presented. It was not shown that the district court relied upon or that Carothers was prejudiced by the inclusion of the statements in the PSI.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5os8gj .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]