Summary 2013 WY 118

Summary of Decision October 1, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: GABRIEL R. DRENNEN v. THE STATE OF WYOMING

Docket Number: S-11-0199

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Fremont County the Honorable Norman E. Young, Judge

Representing Appellant: Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: October 1, 2013

Facts: After Gabriel R. Drennen appealed his convictions for first-degree murder and aggravated assault and battery, we remanded for a hearing on his assertion that defense counsel was ineffective. The district court found his trial counsels’ performance was deficient because they failed to present expert testimony in support of his self-defense claims. The court concluded, however, that Mr. Drennen was not prejudiced by the deficient performance.

Mr. Drennen argues on appeal that his convictions should be reversed because his trial was riddled with instances of prosecutorial misconduct, the district court improperly instructed the jury and he was prejudiced by his trial counsels’ deficient performance.

Issues: The issues in this case are: 1. Did the prosecutor engage in misconduct requiring the reversal of Mr. Drennen’s convictions? 2. Did the district court erroneously instruct the jury on self-defense with respect to the homicide charges? 3. Did the district court erroneously instruct the jury on self-defense with respect to the aggravated assault and battery charge? 4. Did the district court erroneously instruct the jury on the elements of first-degree murder, second-degree murder, and manslaughter? 5. Did the district court err in ruling on Mr. Drennen’s claim of ineffective assistance of counsel?

Holdings/Conclusion: We conclude the prosecutors committed misconduct and Mr. Drennen is entitled to reversal of his convictions. Because we are reversing for a new trial, we address Mr.
Drennen’s claims regarding the jury instructions and find they are wanting in certain respects. We will not analyze the ineffective assistance of counsel arguments with any degree of specificity because we assume any deficiencies will be corrected on remand. We reverse Mr. Drennen’s convictions and remand to the district court for retrial, consistent with this opinion.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 46

Summary of Decision April 19, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TRAVIS J. KOVACH v. THE STATE OF WYOMING

Docket Number: S-12-0150

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge.

Representing Appellant: Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY; and Tim Newcomb, Laramie, WY. Argument by Mr. Newcomb.

                       
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: April 19, 2013

Facts: Travis Kovach was a passenger in a vehicle traveling on a narrow backcountry road.  As the vehicle in which Kovach was traveling passed another oncoming vehicle, the two vehicles clipped each other.  Kovach pursued the other vehicle, and after catching up with it, he assaulted the vehicle’s seventy-three-year-old driver and sixty-seven-year-old passenger.  Kovach then forced the two men back to his hunting camp, where he again assaulted them. 

A jury found Kovach guilty of numerous charges, including false imprisonment, felonious restraint and aggravated assault and battery.  On appeal, Kovach contended the prosecutor suppressed exculpatory evidence in violation of his state and federal due process rights.  He also challenged the district court’s order requiring him to disclose witness statements and its imposition of sanctions related to that order; alleged misconduct in the prosecutor’s failure to correct false or misleading testimony; alleged the district court relied on impermissible information in sentencing; and alleged the district court erred in sua sponte issuing an amended judgment correcting the fine imposed against Kovach. 

Issues:    Kovach presents eight issues on appeal, which we consolidate and restate as follows:

1.      Did the prosecutor suppress exculpatory evidence in violation of Kovach’s federal and state due process rights?

2.      Did the district court abuse its discretion and violate Kovach’s federal and state constitutional rights when it ordered him to disclose witness statements and then limited his cross-examination of two prosecution witnesses as a sanction for failure to comply with that order? 

3.      Did the prosecutor commit plain error in violation of Kovach’s due process rights by failing to correct the testimony of two witnesses? 

 4.      Did the district court commit plain error in its sentencing of Kovach by relying on uncharged misconduct evidence and by sua sponte issuing an amended judgment correcting the fine imposed against Kovach?

Holdings: The Court found no violation of Kovach’s constitutional rights in the prosecutor’s failure to disclose information to the defense or in the district court’s discovery orders. The Court further found no prosecutorial misconduct, and no plain error in the court’s sentencing decisions and order. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 41

Summary of Decision April 9, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: DOUGLAS HOWARD CRAFT v. THE STATE OF WYOMING

Docket Number: S-12-0107

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge.

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; James Michael Causey, Senior Assistant Attorney General; Christyne M. Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: April 9, 2013

Facts: Douglas Howard Craft was convicted of two counts of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor upon his three daughters. He appealed, claiming the prosecutor committed misconduct when he questioned a witness about an exhibit that was not admitted as evidence, there was a fatal variance between the charges in the information and the charges proven at trial and the district court abused its discretion when it prohibited his expert witness from testifying about his opinion on what type of sexual abuse allegations were made in this case.

Issues: Mr. Craft presents the following issues on appeal:

1. Did prosecutorial misconduct occur when the prosecutor questioned witnesses on an exhibit he did not intend to submit into evidence?

2. Concerning two of the victims, PC and AXC, was there… a fatal variance between the charges alleged and the charges proven at trial?

3. Did the trial court abuse its discretion when it prohibited Mr. Craft’s expert witness from providing an opinion as to which class the allegation of sexual abuse falls within?

The State presents the same issues but phrased differently.

Holdings: The Court concluded that Mr. Craft was not prejudiced by the identification procedure because sufficient other evidence of Mr. Craft’s identity as the perpetrator was presented at trial. There was no variance between the charges alleged and the charges proven at trial; the evidence was sufficient to support the convictions. Lastly, the district court did not abuse its discretion in excluding the expert testimony, which fell outside the range of permissible opinion testimony. Finding no error, the Court affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 39

Summary of Decision April 3, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: DEON ALLEN LEONARD v. THE STATE OF WYOMING

Docket Number: S-12-0185

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sweetwater County, Honorable Jere A. Ryckman, Judge.

Representing Appellant: James P. Castberg, Sheridan, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Professor Darrell D. Jackson, Prosecution Assistance Clinic; Emily N. Thomas, Student Director; Caitlin Wallace, Student Intern. Argument by Ms. Wallace.

Date of Decision: April 3, 2013

Facts: Appellant Deon Allen Leonard, after being convicted of four counts of sexual abuse of a minor in the second degree, complained on appeal that prosecutorial misconduct occurred and that his trial’s counsel’s performance was deficient.

Issues: Leonard presents two issues:

The prosecuting attorney’s misconduct during the trial precluded [Leonard] from receiving a fair trial as guaranteed by the due process clause of the 14th amendment to the constitution.

[Leonard] was denied a fair trial as a result of the violation of his 5th amendment right against self-incrimination caused by the deficient assistance of counsel.

Holdings: The Court concluded that the alleged improper question asked by the prosecutor at trial was not improper and thus no prosecutorial conduct occurred. Furthermore, Leonard does not meet his burden of showing that defense counsel’s performance on his behalf was deficient. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 13

Summary of Decision January 31, 2013


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: LARRY EDWARD MAGNUS v. THE STATE OF WYOMING

Docket Number: S-12-0134

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Plaintiff/Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General.

Date of Decision: January 31, 2013

Facts: A jury convicted Larry Magnus of conspiracy to obtain property by false pretenses, and the district court sentenced him to a prison term of eight to ten years. On appeal, Magnus challenges the admission of uncharged misconduct evidence and alleges prosecutorial misconduct in the State’s sentencing recommendation. We affirm.

Issues: Magnus presents the following issues on appeal: Did the district court abuse its discretion in admitting into evidence testimony of a prior incident where Mr. Magnus had solicited money in a similar manner under W.R.E. 404(b)? Did prosecutorial misconduct occur when the State argued undocumented allegations in a Memorandum in Respect of Sentencing?

Holdings: The Court found no abuse of discretion in the district court’s admission of uncharged misconduct evidence and no plain error in the sentencing proceedings. Affirmed.

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 166

Summary of Decision December 28, 2012


Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: DOUGLAS HOWARD CRAFT v. THE STATE OF WYOMING

Docket Number: S‑12‑0030

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Plaintiff/Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel, Wyoming Public Defender Program. Argument by Mr. Morgan.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

Date of Decision: December 28, 2012

Facts: A jury convicted Appellant Douglas Craft of sexual exploitation of a child. Craft challenges that conviction on two discrete grounds. First, he claims the State presented insufficient evidence proving the elements of the charged crime, and he faults the district court for not granting his motion for judgment of acquittal at the close of the State’s case-in-chief. Craft also contends the jury’s verdict is tainted by prosecutorial misconduct.

Issues: Craft phrases his issues as follows:

I. Did the district court err when it denied Appellant’s motion for judgment of acquittal, for lack of sufficient evidence?

II. Did the prosecutor commit misconduct when he argued the jury should view an exhibit as substantive proof, after he had previously asserted to the hearsay objection that the exhibit was not being offered to prove the truth of the matter asserted?

Holdings: The Court found no reversible error with respect to the issues raised in this appeal and the Court affirms Craft’s conviction.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 119

Summary of Decision September 10, 2012

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: RICHARD DEAN YOUNGBERG  v. THE STATE OF WYOMING

Docket Number: S-11-0202

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Plaintiff/Defendant): Elisabeth M. W. Trefonas, Assistant Public Defender, Jackson, Wyoming

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua B. Taylor, Student Director, Kyle A. Ridgeway, Student Intern, Prosecution Assistance Program.

Date of Decision: September 10, 2012

Facts: The appellant, Richard Dean Youngberg, was convicted of one count of check fraud and was sentenced to seven to ten years of incarceration.  On appeal, the appellant claimed that the prosecutor committed misconduct when he told the jury in closing argument that the appellant was informed that there were problems with his checking account on March 17, 2010.  The appellant argued that the prosecutor’s statement was not consistent with the evidence presented at trial and, as a result, entitled to a new trial.

Issues: Did plain error occur when the prosecutor referred to the officer’s testimony regarding when the appellant was notified of problems with his checking account?

Holdings: Plain error did not occur when the prosecutor argued in his closing statement that the appellant was informed on March 17, 2010, of problems with his checking account, and despite that information, continued to write checks on the account.  This argument was consistent with the facts presented at the trial and, therefore, does not amount to prosecutorial misconduct.  The appellant’s conviction is affirmed.

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

[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.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

Summary 2012 WY 109

Summary of Decision August 9, 2012

Justice Hill delivered the opinion for the Court. Reversed and remanded.

Case Name: GARY LEE CARTER v. THE STATE OF WYOMING

Docket Number: S-11-0298

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge.

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Joshua Beau Taylor, Student Director; and Richard E. McKinnon, Student Intern. Argument presented by McKinnon.

Date of Decision: August 9, 2012

Facts: Gary Lee Carter was tried and convicted by a jury of a single felony charge of possessing, with intent to deliver, two grams of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031. The court sentenced Carter to twelve to fifteen years in the Wyoming State Penitentiary. On appeal, Carter contended that plain error occurred when the prosecutor elicited expert witness testimony that Carter was guilty of being a drug dealer. Also, Carter alleged that the prosecutor committed misconduct when arguing facts not in evidence during closing argument. The Court reversed.

Issues: Carter stated two issues for the Court’s consideration:

Plain error occurred when the prosecutor elicited expert witness testimony that Carter was guilty of being a drug dealer.

The prosecutor committed misconduct when he argued facts not in evidence in closing argument.

Holdings: The Court reversed Carter’s conviction and remanded this case for a new trial. Based upon an expert witness improperly testifying as to his opinion on Carter’s guilt and the prosecutor arguing facts not in evidence during closing, the Court could not say with confidence that Carter received a fair trial.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 91

Summary of Decision June 27, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: KEVIN EUGENE KIDWELL v. THE STATE OF WYOMING

Docket Number: S-11-0238

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

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

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: June 27, 2012

Facts: Kevin Eugene Kidwell challenged his convictions for false imprisonment and simple assault. He claimed the prosecutor committed misconduct by failing to give prior notice of evidence suggesting he had attempted to persuade a witness to testify falsely in his favor at trial in violation of W.R.E. 404(b).

Issues: Mr. Kidwell presented the following issue on appeal:

Did the prosecutor commit misconduct when he admitted [sic] 404(b) evidence without providing notice?

The State provided a more detailed statement of the issue:

Proposed defense witness, Andrew Scott, abandoned his plan to testify falsely on Kidwell’s behalf and advised the prosecution of both his plan and his change of heart shortly before the end of the noon recess on the third day of trial. Without first notifying defense counsel, the prosecutor called Scott, to repeat his story, as the second witness of the afternoon. Does the record as a whole support the district court’s conclusion that the prosecutor’s omission was neither misconduct nor prejudicial?

Holdings: Mr. Kidwell failed to demonstrate a clear violation of law or any prejudice. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 50

Summary of Decision April 5, 2012

[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.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  MIACHEL G. MAIER v. THE STATE OF WYOMING

Docket Number: S‑11‑0070

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465308

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff/Defendant):  Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.  Argument by Mr. Morgan.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua B. Taylor, Student Director, Gregory Asay, Student Intern, of the Prosecution Assistance Program.  Argument by Mr. Asay.

Date of Decision: April 5, 2012

Facts: Miachel G. Maier, the appellant, was convicted of both first-degree and attempted first-degree sexual assault.  He appealed those convictions, arguing that he was prejudiced by the admission of hearsay testimony and by prosecutorial misconduct in closing argument.  He also argued that he was denied his right to effective assistance of counsel at trial due to his attorney’s failure to object to either the hearsay testimony or the prosecutor’s closing remarks.

Issues: Whether the district court committed plain error by admitting hearsay testimony by one of the state’s witnesses.  Whether the prosecutor commit misconduct in the presentation of his closing argument. Whether defense counsel provided ineffective assistance by failing to object to the hearsay testimony and to the prosecutor’s statements in his closing argument.

Holdings:  The appellant argued his convictions should be reversed because he was prejudiced by the admission of hearsay testimony and by prosecutorial misconduct in closing argument.  Although the Court agreed that inadmissible hearsay was presented to the jury, the appellant was not prejudiced as a result.  The appellant’s own testimony provided the jury with sufficient evidence upon which to convict.  The prosecutor’s statements in his closing argument represented reasonable inferences drawn from the evidence as elicited at trial and fairly summarized the main facts of the case.  The appellant also argued that he was denied his right to effective assistance of counsel for failure to object to the hearsay testimony and to the prosecutor’s closing argument.  The appellant failed to demonstrate that his trial counsel’s performance was so deficient as to require reversal of his conviction.  Affirmed.

Justice Voigt delivered the opinion for the court.

Summary 2011 WY 147

Summary of Decision October 25, 2011

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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 2011 WY 138

Summary of Decision September 29, 2011

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464523

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.

Summary 2011 WY 92

Summary of Decision June 8, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Willoughby v. State of Wyoming

Citation: 2011 WY 92

Docket Number: S-10-0161

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462638

Appeal from the District Court of Sublette County, The Honorable Nancy J. Guthrie, Judge

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

Representing Appellee (Plaintiff): 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: June 8, 2011

Facts: The appellant was convicted of a 1984 murder in January, 2010. At some point during a party in 1984, the appellant sold drugs to the victim. The victim left the party, saying she would get the payment from her vehicle, and the appellant followed. The victim left in her car, and the appellant chased after the victim in his car. The appellant’s wife and a companion were also present. The appellant eventually caught up with the victim, pulled over in a turnout. The appellant dragged the victim from her vehicle, punched her in the face, and shot her twice. Later, the companion in the appellant’s vehicle made an anonymous call to law enforcement saying the appellant had killed the victim. At the time of the murder, however, insufficient evidence was developed with which to charge the appellant.

During the trial, several witnesses implicated the appellant in the victim’s murder. Much of the factual scenario came from the testimony of Appellant’s wife and companion, the eye witnesses, and from a fellow inmate with whom the appellant had discussed many aspects of the crime. In addition, another witness testified that during a hunting trip in 1984, the appellant had described how the victim was murdered, and that the appellant’s account scared the witness to the point that he eventually reported it to authorities.

The appellant’s trial defense was that of alibi. He claimed to have been at work at the time of the murder. The State presented expert testimony, corroborated by the hunting trip witness, that indicated forgery on the appellant’s work log. Beyond that, the appellant’s defense focused upon inconsistencies in the details of the testimony of the State’s witnesses. The jury found the defendant guilty of first-degree murder, and the appellant’s post-trial motion for a new trial was deemed denied when it was not determined by the district court within the time constraints of W.R.Cr.P. 33. The appellant appealed his conviction and the denial without a hearing of his motion for a new trial.

Issues: 1) Whether the district court abused its discretion by failing to grant the appellant’s motion for a new trial. 2) Whether the prosecutor committed misconduct by violating discovery orders, by violating a pre-trial order regarding uncharged misconduct evidence, and by eliciting testimony from a law enforcement officer that the officer believed a witness had lied during an interview?

Holdings: The judgment and sentence of the district court was affirmed.

In his motion for a new trial, the appellant raised eight issues. The first issue was whether the State had violated two court orders—one regarding uncharged misconduct evidence and one requiring the State to set forth the proposed testimony of witnesses—by eliciting testimony from the hunting trip witness that had not been revealed to defense counsel, specifically, that the appellant threatened to kill the witness if he ever talked again to the police. The Court found that in the context of the overwhelming evidence of the appellant’s guilt, and the district court’s detailed curative instruction, the appellant had not met his burden of showing that he was prejudiced in respect to the stricken testimony.

The second and third issues related to the testimony of two investigating officers, one from the sheriff’s office who had asked questions of the appellant’s companion regarding his anonymous telephone call to the police, and the other officer from the Wyoming Division of Criminal Investigation, who had spoken with the sheriff’s investigator about the call and later also questioned the companion about the call. The Court found that even if defense counsel was unaware before trial that the investigators had asked the companion about the telephone call, defense counsel knew about the alleged anonymous telephone call, who had placed the call, and that it had implicated the appellant. The Court could not conclude that such affected the outcome of the trial.

Appellant also challenged the pathologist’s testimony. The pathologist who performed the autopsy in 1984 was no longer physically able to testify. In his stead, the State called a forensic pathologist who had reviewed the original autopsy report and related materials. On appeal, Appellant objected to several aspects of the pathologist’s testimony, repeating his objections at trial: (1) the relative lateness of the report and the amended report; (2) the report’s contradiction of the original autopsy report; (3) The pathologist’s testimony as to the order of the wounds, which defense counsel characterized as “crime scene reconstruction”; and (4) that the testimony exceeded the scope of the pathologist’s expert designation. The appellant contends that this was a prejudicial discovery violation that left him without notice of what the pathologist’s testimony would be. The Court found that the district court had made extensive inquiry into the discovery process as it related to the pathologist’s report, amended report, and testimony. Eventually, while it did not grant the appellant’s motion to strike the expert’s testimony, the district court did limit the State to asking one additional question after the objection was interposed—that question being whether the chest wound or the head wound was the last wound. The appellant had not shown that he was unfairly prejudiced by the district court’s rulings.

The appellant further objected to the testimony of one of the detectives assigned to the re-opened investigation. Specifically, Appellant contended (1) that an officer of the law lied; and (2) that the State elicited the lie. The Court found nothing of such nature having occurred in regard to the detective’s testimony in this case, and further noted there was not one iota of evidence that the prosecutor committed any act of misconduct in this regard. The Court observed that defense counsel was allowed repeatedly to bring to the jury’s attention the appellant’s theory that the appellant’s companion had lied to obtain immunity.

Appellant also alleged the State’s failure to preserve two “sketches” apparently drawn during interviews of appellant’s wife and companion, both in 2008. The Court concluded that the State may have been negligent in not retaining the sketches, but that was not sufficient to show that the State acted in bad faith. The appellant had not shown that his right to the due process of law was violated, or supported the accusations made in his new trial motion.

During the trial, a transcriptionist discovered an audiotape of an interview with Appellant’s wife on the disk of a videotape interview of the wife. Upon learning of the existence of the audiotape, the prosecutors immediately provided a copy to defense counsel. The appellant motioned that the wife not be allowed to testify, as a sanction for the late disclosure. The district court took the motion under advisement, and later denied. In denying the motion, the district court noted that nothing appeared different on the audiotape from the videotape, but allowed the appellant to utilize it for cross-examination. Here the Court found that appellant failed, either before the district court, or in his appellate brief, to substantiate his allegations of a Brady violation.

Delineated as a separate issue, the appellant also contended that the State’s failure to comply with a discovery order in regards to the above issues might generally be recognized as prosecutorial misconduct. The Court found it had not been shown that the appellant was prejudiced by any of the prosecutor’s conduct described above, no less prejudiced to the substantial extent that would require reversal.

On the issue of whether the prosecutor committed misconduct by violating a pre-trial order regarding uncharged misconduct evidence, the Court found the witness’ comment at issue to be very general and relatively innocuous and not so unfairly prejudicial as to require a new trial. The Court observed that the district court granted defense counsel’s objection and struck the answer, and that the issue did not require further analysis.

On the issue as to whether the prosecutor committed misconduct by eliciting testimony from a law enforcement officer that the officer believed a witness was lying during an interview, the Court stated that no objection was interposed at trial, and so review was limited to review for plain error. In reviewing the factors for plain error, the Court noted that while there a clear and unequivocal rule of law forbids one witness to testify as to the credibility of another witness, here the violation of the rule when placed in context, was not so clear. The Court found this not to be a situation where the witness invaded the province of the jury by opining that another witness was lying, rather the witness merely commented upon something that the other witness had already admitted. The Court found it was not misconduct for the prosecutor to ask the witness about the other witness interview, as set forth above.

Affirmed. The appellant failed to show that the district court abused its discretion by failing to grant the appellant’s new trial motion, or that the prosecutor committed reversible misconduct.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 62

Summary of Decision April 13, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

Summary 2011 WY 46

Summary of Decision March 11, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

Summary 2010 WY 159

Summary of Decision November 22, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Holloway v. State

Citation: 2010 WY 150

Docket Number: S-09-0185

URL: http://tinyurl.com/32pm3lh

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

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

Date of Decision: November 22, 2010

Facts: Appellant was convicted after a jury trial of one count of second degree sexual abuse of a minor and sentenced to three to eight years in prison. He seeks reversal of that conviction on the basis of prosecutorial misconduct.

Issues: Whether Appellant was denied due process of law by the prosecutor’s misconduct in pursuing a charge she knew was not supported by any evidence.

Holdings: In addressing a claim of prosecutorial misconduct, the focus is on the prejudicial effect of the misconduct. When reviewing a claim of prosecutorial misconduct, the entire record must be considered. In the present action, Appellant insists that reversible error occurred when the prosecutor pursued one of the three counts for which he was charged, a charge he claims the prosecutor clearly knew was not supported by any evidence. He contends that the prosecutor’s actions violated several rules of professional conduct and resulted in a denial of his due process right to a fair trial. The State counters that the prosecutor had a reasonable belief that some incriminating evidence existed to support the charge – the victim’s initial statements to police – and, therefore, did not violate her ethical duties by pursuing it.

Applying the legal principles of prosecutorial misconduct, the court could not conclude that reversible error occurred in this instance. First, it was not persuaded under the facts of this case that the prosecutor violated her ethical responsibilities by prosecuting the charge. More importantly, a review of the entire record does not show that the prosecutor’s pursuit of that charge, even if deemed improper, resulted in substantial prejudice amounting to the denial of a fair trial. The prosecutor ultimately dismissed the charge, and the jury was told of its dismissal before the second day of trial. After that, there was only minimal reference to the facts relating to that charge at trial. Most importantly, the evidence of Appellant’s guilt on the charge for which he was convicted was quite strong. Considering the strength of the evidence in conjunction with what transpired at trial, the original inclusion of the charge in question did not have a deleterious effect on the jury’s verdict. It cannot be concluded that a reasonable possibility exists that the exclusion of that charge would have led to a more favorable verdict.

Affirmed.

J. Golden delivered the opinion for the court.