Summary 2011 WY 77

Summary of Decision May 5, 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: Sanchez v. State



Citation: 2011 WY 77



Docket Number: S-09-0113, S-10-0044



URL: http://www.blogger.com/goog_1360459507



Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge



Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel; Wyoming Public Defender Program; Timothy C. Kingston of the Law Office of Tim Kingston, Cheyenne, Wyoming.



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.



Date of Decision: May 5, 2011



Facts: A jury found Appellant guilty of attempted second degree murder, aggravated assault and battery, felony possession of a controlled substance, and interference with an emergency call. Appellant later sought a new trial, which the district court denied. He appealed both the judgment and sentence and the denial of his new trial motion, and the appeals were consolidated.



Issues: Whether the district court erred when it denied Appellant’s motion for judgment of acquittal, for lack of sufficient evidence, on the possession of a controlled substance charge. Whether the district court erred when it allowed in prejudicial hearsay testimony under W.R.E. 803(2). Whether the district court violated Appellant’s constitutional right to be presumed innocent and invade the province of the jury by referring to the complaining witness as “the victim.” Whethers Appellant was denied his constitutional right to a fair trial before an impartial jury when one of the jury members had knowledge that Appellant had previously been incarcerated at the Wyoming State Penitentiary, and failed to divulge this fact when asked on voir dire if he knew Appellant. Whether the Appellant received effective assistance of counsel from his attorneys in their representation of him in the court below.





Holdings: After the district court denied the motion for judgment of aquittal, Appellant introduced evidence in defense of the possession charge. The law is well established that a defendant’s introduction of evidence following the denial of a motion for judgment of acquittal at the end of the State’s case constitutes a waiver of that motion, thereby precluding appellate review of that denial. Thus, Appellant waived the right to challenge the district court’s ruling on appeal.



Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within a well-delineated exception. An exception is found for an excited utterance, which is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Five factors are to be considered in determining the admissibility of evidence under the excited utterance exception: (1) the nature of the startling event; (2) the declarant’s physical manifestation of excitement; (3) the declarant’s age; (4) the lapse of time between the event and the hearsay statement; and (5) whether the statement was made in response to an inquiry. The ultimate inquiry is whether the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. In the present action, a review of the statements in question show that the factors have been met and that the challenged statements were properly admitted as excited utterances under W.R.E. 803(2).



Viewing the challenged statement referring to the witness as “the victim” in proper context, it is clear the district court was simply describing the alleged roles of the major identified players in the case in an effort to ascertain if any of the potential jurors had knowledge of the case, or had any ties to it or the parties which might prevent them from being impartial or fair. The district court did not tell the panel that, as a matter of law, it had to consider the witness to be a victim, much less Appellant’s victim. Moreover, the district court’s statement did not materially prejudice Appellant. The district court’s description of the wtiness as the victim was a single, isolated incident that occurred at the beginning of a four-day trial. The jury was instructed that it was the sole judge of the facts of the case and that it was to disregard any comment the court made regarding the facts in assessing Appellant’s guilt or innocence on the charged offenses. Additionally, it was uncontested at trial that the witness was the victim of a vicious beating. The only real dispute concerned whether Appellant was her assailant and, if so, whether he was the first aggressor or acted in self-defense. Additionally, the evidence of Appellant’s guilt was substantial. After careful consideration of the record, there was no reasonable possibility that the jury’s verdict would have been more favorable to Appellant in the absence of that isolated statement.



For Appellant to prevail on a claim of ineffective assistance of counsel claim, he must first establish that trial counsel’s performance was deficient. This requires a showing that counsel failed to render such assistance as would have been offered by a reasonably competent attorney. Appellant then must demonstrate that counsel’s deficient performance prejudiced his defense. Under the prejudice prong, Appellant must demonstrate a reasonable probability exists that, but for counsel’s deficient performance, the outcome of his trial would have been different. The failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Appellant did not satisfy his burden on either prong of the ineffectiveness standard. First, Appellant’s ineffectiveness argument is devoid of any analysis establishing that counsel’s performance was legally deficient. More importantly, Appellant has made absolutely no showing of actual prejudice arising from counsel’s alleged deficient performance. That is, he does not explain, within the context of the facts of this case, how counsel’s alleged errors adversely affected the outcome of his trial.



Appellant also presented a motion requesting a partial remand in order for the district court to conduct an evidentiary hearing on the issue of whether his trial counsel provided legally effective assistance. The motion was denied. Appellant challenges that denial in his appellate brief and asks for a reconsideration. There are generally two types of ineffective assistance of counsel claims, those that are apparent in the trial record and those that are outside the record. An evidentiary hearing is necessary only on the latter type of claim, if an appellant can make a showing that his ineffectiveness claim has merit. Such remand shall be available only if the motion is accompanied by affidavits containing non-speculative allegations of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel’s representation was deficient and prejudiced the appellant. Appellant does not show how any of the claims of ineffectiveness being made prejudiced him or would have altered the outcome of his trial.



There are no reversible errors with respect to any of the issues raised in this appeal.



Affirmed.



J. Golden delivered the opinion for the court.

Summary 2007 WY 111

Summary of Decision issued July 17, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Lemus v. State

Citation: 2007 WY 111

Docket Number: 06-68

Appeal from the District Court of Lincoln County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Daniel G. Blythe and Karen Ashcraft Byrne, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General.

Date of Decision: July 17, 2007

Issues: Whether the prosecutor committed misconduct, sufficient to warrant reversal of Appellant’s convictions, in his opening and closing arguments, in his alleged threatening and intimidation of witnesses, or in his alleged use of “fake pictures” and perjured testimony. Whether the district court hindered Appellant’s right to present his defense when it allegedly did not offer him experts to assist with his defense, allegedly refused to allow him to speak with his coconspirators, and allegedly refused to allow him to issue his own subpoenas. Whether the district court committed error in allowing Appellant’s videotaped confession – which Appellant insists contained W.R.E. 404(b) evidence – to be played in its entirety, or in allowing the admission of testimony from an expert concerning the nature of the victim’s wounds. Whether the district court interfered with Appellant’s right to a trial by an impartial jury when it denied his motion for change of venue, or in its method of jury selection. Whether sufficient evidence supported Appellant’s conviction for conspiracy to commit aggravated robbery.

Facts/Discussion: Trial proceedings are transferred to another county as provided in W.R.Cr.P. 21(a). A two-part test has been adopted for determining whether a change of venue should be granted after voir dire because of pre-trial publicity: First, the nature and extent of the publicity; second, the difficulty or ease in selecting a jury along with the amount of prejudice which actually appears during voir dire examination. In the present action, Appellant made no attempt to demonstrate the level of pretrial publicity. Sixty-five jurors were summoned for Appellant’s trial. Of those, 12 had heard about the case in the media or from other sources, such as friends and co-workers. Each of those jurors was closely examined. At the close of voir dire, Appellant passed the jury for cause and had no objections to the jury selection process. At trial, Appellant had no objections to the jury selection process, and he passed the jury that was selected for cause. He exercised all of his peremptory challenges. The record of the voir dire shows no irregularities of any sort.
As a part of the lengthy and very complete warnings the district court gave Appellant with respect to disadvantages of representing himself at trial (with standby counsel), the district court specifically called Appellant’s attention to the circumstance that the district court could not aid Appellant in subpoenaing witnesses, and that he would be required to demonstrate the relevance of the testimony of all proposed witnesses. Moreover, the trial court emphasized that it could not aid Appellant in arranging interviews with witnesses from his jail cell, or with witnesses who were incarcerated elsewhere. However, the record supports only a conclusion that witnesses Appellant wanted to call either appeared voluntarily or were summoned by means of subpoena. It is unquestioned that a defendant in a criminal case has a constitutional right to a fair trial, and that includes the right to summon witnesses in his defense. It is, however, the defendant’s burden to ensure that the witnesses he wants are summoned. It is transparent in the record that Appellant’s concept of a “material witness” was very broad. However, the district court did allow Appellant to subpoena an employee of the State Crime Lab whose testimony appeared to be relevant. In addition, the clerk of the district court in Lincoln County met with Appellant in his cell in an effort to further identify, locate, and serve Appellant’s witnesses.
Neither in the trial court below, nor in this appeal, has Appellant articulated a desire to have his codefendants called as witnesses, nor has he provided any cogent argument to suggest that the district court abused its discretion with respect to a request made by Appellant to communicate with his codefendants or to call them as witnesses on his behalf. In addition, contrary to an allegation stated in his brief, Appellant received copies of the transcripts of his codefendants’ trials.
As a general statement of the applicable rule, a defendant in a criminal case may be entitled to access to expert witnesses if there is a reasonable probability that an expert would aid in his defense and that the denial of an expert would result in an unfair trial.
Such decisions rest in the sound discretion of the trial court. At trial, Appellant asked for expert witnesses. He had a theory of the case that he attempted to present to the jury, even though it was not supported by any testimony or other evidence. Appellant wanted experts to testify on his behalf in order to bolster his contentions.
Before error in the nature of prosecutorial misconduct will be found to have affected an accused's substantial rights and require a reversal of a conviction, a review of the entire record must show a reasonable possibility exists that in the absence of the error, the verdict might have been more favorable to the accused. In reviewing a claim of prosecutorial misconduct in closing argument, the entire record will be examined to determine whether or not the defendant's case was so prejudiced by the improper comments as to result in the denial of a fair trial. The challenged comments are judged in the context of the prosecutor's entire argument, considering the context of the statements and comparing them with the evidence produced at the trial.
The burden of establishing prosecutorial misconduct rests upon the appellant who raises the issue. Appellant in the present action contends that a combination of errors/misconduct by the prosecutor in both opening argument and closing argument combined to deprive him of a fair trial and necessitates the reversal of his convictions. Appellant did not object to the arguments in either opening or closing. However, Appellant would have had no cause to object to the opening statement because it was merely the prosecutor summarizing the evidence that he intended to present. The “error” asserted here did not take on substance until the prosecutor “explained” in closing argument his reasons for not calling certain witnesses. The record clearly reflects the statement made by the prosecutor, but the error of it, if any, is not so patent. A prosecutor may not vouch for the credibility of the State’s witnesses, even in responding to defense arguments. However, that the rule was violated in a clear and obvious, not merely arguable, way is not so clear in the present action. The prosecutor did not directly vouch for the credibility of his witnesses, only that the evidence he did present sufficed to meet the burden that the State carries to prove its case beyond a reasonable doubt. Of course, the State’s principal witness was Appellant himself. All the other witnesses merely tied up loose ends. Misconduct by a prosecutor invokes a criminal defendant’s right to a fair trial and can be an error of constitutional magnitude. However, under the somewhat unique circumstances of this case the argument challenged did not violate the relevant rule in a clear and obvious way. Moreover, to the extent the argument could be said to have been ill advised, it did not serve to prejudice Appellant.
Appellant’s contention that the state used fake pictures and perjured testimony also has no support in the record. Appellant looked at the pictures offered by the State and contended that they had to be fakes because he was there and they did not correspond with his memory of the events he related in his confession. Because there is nothing in the record to support his contention that the pictures were “fakes,” it will not be considered. Likewise, Appellant says that witnesses perjured themselves because they said things that he did not agree with. This contention is unsupported by anything in the record.
It is unclear exactly what Appellant’s objections are to the state’s use of a substitute pathologist when the physician who performed the autopsy was not available at the time of the trial, but he voiced no objections at trial. Indeed, Appellant sought to use the substitute’s testimony to his advantage.
Appellant contends that the video tape of his confession should have been edited because it contained so much W.R.E. 404(b) evidence. The State contends that it is relevant because it tells the whole story that unfolded over the few days which bracket the crime. Although Appellant attempted to suppress his confession, once the district court determined it was admissible, he wanted the entirety of it to be presented to the jury. The district court allowed the entire tape to be played for the jury.
In addressing a claim of insufficiency of the evidence, it must be determined whether or not any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. When considering a claim of the sufficiency of the evidence, that evidence is reviewed with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that may be reasonably drawn from the evidence. The evidence will not be reweighed nor will the credibility of the witnesses be reexamined.
A person who believes he is conspiring with another to commit a crime is a danger to the public regardless of whether the other person in fact has agreed to commit the crime. Appellant contends that the evidence is insufficient to sustain the conviction. However, when the evidence adduced at his trial is considered in light of the instructions, it is clear that the evidence does suffice. In addition to the fact that there is no testimony to that effect in the record, the jury could, of course, believe Appellant’s first story and disbelieve his proposed defense. However, the district court, in an abundance of caution, gave the jury self-defense instructions, and the jury was permitted to consider Appellant’s theory of the case. The evidence was sufficient to sustain the conspiracy conviction, as well as the conviction for felony murder.

Holdings: Applying the standard set by W.R.Cr.P. 21(a), the district court did not abuse its discretion in denying the motion for a change of venue. The record of the voir dire shows no irregularities of any sort. Appellant’s brief fails to present cogent argument or pertinent authority. For these reasons, the jury selection process is deemed not to be erroneous in any way. At no point in the record does Appellant complain that there was a witness, whose testimony was material to his trial, who he was unable to call to the witness stand. The district court did not abuse its discretion in any way with respect to requiring the issuance of subpoenas on Appellant’s behalf. The district court did not err in not ordering Appellant to have access to expert witnesses because of Appellant’s failure to establish any foundational facts that would have justified expert testimony. Appellant’s contention that the prosecutor threatened/intimidated witnesses has never been supported by any evidence admitted during the trial or in any pretrial proceeding. Because there is no material in the record to support it, it was not considered. Appellant’s contention that the state used fake pictures and perjured testimony also had no support in the record so the argument was not considered. Appellant’s contentions with respect to the substitute witness's testimony are not supported by cogent argument or pertinent authority. The district court fully considered all of Appellant’s objections to the confession and its content and determined that it was admissible even in light of Rule 404(b). There was no error in that ruling. However, under the circumstances presented here, the disputed evidence was not even Rule 404(b) evidence. The evidence was sufficient to sustain the conspiracy conviction, as well as the conviction for felony murder.

Affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/36r66a .