Summary 2008 WY 114

Summary of Decision issued September 30, 2008

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

Case Name: Proffit v. State

Citation: 2008 WY 114

Docket Number: S-07-025

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

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

Representing Appellee: 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.

Facts/Discussion: Appellant Proffit raised five issues in the appeal of his conviction on eight counts of third-degree sexual assault.

State Witness Testimony Regarding Polygraph: The transcript from the trial provided the record of the exchange with the State’s witness who talked about Appellant’s decision to decline the polygraph test. Wyoming adheres to the rule that it is error for the State to introduce evidence that a defendant has refused to take a polygraph test.
Cross-Examination as to Whether Other Witnesses Lied: The Appellant raised the issue of improper questioning techniques in regard to the questioning of his expert witness and in regard to his own cross-examination. There were no trial objections to the line of questioning asking witnesses whether others were lying. The Court quoted extensively from Jensen v. State as well as Beaugureau v. State. The admonition against asking the appellant whether other witnesses lied applies equally to asking any witness whether another witness has lied. Such questions invade the province of the jury to determine witness credibility. By bringing in the testimony from the other trials, and quizzing the appellant as to whether those witnesses were lying, the prosecutor was allowed improperly to bolster B.C.’s credibility. The Court considered the errors together with all of the other errors that occurred in the trial of this case and in doing so, was not convinced that absent the errors, the verdict might not have been more favorable to the appellant.
Cross-Examination as to Prior Convictions: In Wyoming, the courts have given effect to the presumption in favor of exclusion where the witness is the accused by holding that a testifying defendant is required to give answers only as to whether he had previously been convicted of a felony, as to what the felony was, and as to when the conviction was had. A review of the record showed the prosecutor “hearsayed in” testimony from two murder trials, told the jury that the other juries had convicted Appellant of those crimes, and then told the jury that B.C. was murdered because he was going to be the witness in the present trial. The Court considered whether Appellant’s direct examination opened the door to the prosecutor’s questions. It determined that the jury’s focus was shifted from the facts of the present case to the facts of the two prior murders. The district court never made a determination that the probative value of the evidence of the prior convictions outweighed its prejudicial effect. The Court determined that was plain error requiring reversal.
Shifting the Burden of Proof to Appellant: The Court reviewed the prosecutor’s argument and stated it was not so far outside the realm of appropriate argument as to be misconduct. Appellant testified and the prosecutor’s statements were comments upon that testimony.
Ineffective Assistance of Counsel: The defendant must show that counsel’s performance was deficient. The defendant must also show that the deficient performance prejudiced the defense.
Failing to Make Appropriate Objections: The Court reviewed the record in the instant case observing the tenet that trial counsel is to be given the benefit of the doubt when considering whether a “failure” to object is actually a strategy. The Court could not accept counsel’s performance as adequate. It had no confidence that the guilty verdicts were based upon the admissible evidence and could not countenance defense counsel’s failure to object or the decision not to object to the highly prejudicial and objectionable testimony that was admitted.
Inquiring Into the Investigators’ Opinions as to Appellant’s Credibility: Appellant argued that not only did defense counsel fail to object when the prosecutor elicited the investigators’ opinions that Appellant was guilty, but that he emphasized those opinions by further inquiry about them during cross. The Court concluded the issue was part of the cumulative ineffectiveness of defense counsel.
Failure to Demand Notice of or Object to Uncharged Misconduct Evidence: The admissibility of uncharged misconduct evidence should be tested before trial – preferably via a defendant’s demand for notice of the State’s intent to introduce such evidence, the State’s identification of such evidence and a pretrial hearing. The State produced uncharged misconduct evidence at trial including the evidence of a sexual assault by Appellant upon B.C. outside Campbell County; evidence of a breach-of-the-peace incident at a convenience store; evidence of Appellant’s involvement in a homosexual child pornography ring; and evidence of the Forquer and B.C. murders. It was the Court’s perception that no reasonable attorney in the instant situation would forfeit the opportunity to prevent the jury from learning about the different instances of uncharged misconduct.
District Court’s Response to Jury Question: The jury asked the judge a question regarding State Exhibit 2 which was the Judgment Upon Jury Verdict holding Appellant guilty of conspiracy to commit first-degree murder of B.C. The district court responded stating that State’s Exhibit 2 was a piece of evidence which should be given as much weight as the jurors deemed appropriate. The district court’s response could only be justified if defense counsel’s failure or decision not to object made the document admissible beyond the limited purpose of impeaching credibility.

Holding: Plain error occurred when a State witness testified that Appellant had refused to take a polygraph examination, when the State questioned Appellant and one of Appellant’s witnesses as to whether other witnesses were lying, and when the State improperly used prior conviction evidence in the cross-examination of Appellant. Plain error did not occur when the State, during rebuttal closing argument pointed out the lack of evidence supporting Appellant’s theory of the case. Appellant received ineffective assistance of counsel when defense counsel failed to make numerous meritorious objections to evidence, when defense counsel invited prejudicial error by inquiring into the investigators’’ opinions as to Appellant’s credibility and guilt, by failing to demand notice of uncharged misconduct evidence and failing to object to the introduction of such evidence, and by failing to obtain a limiting instruction that would have prevented the jury from using prior conviction evidence as substantive evidence of guilt.

Reversed, remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3ml2ct .

[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 2007 WY 37

Summary of Decision issued March 6, 2007

[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 with a citation using the Universal Citation form, 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: Talley v. State

Citation: 2007 WY 37

Docket Number: 05-268

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.

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

Issues: Whether prosecutorial misconduct occurred when the prosecutor questioned Appellant about whether other witnesses were “lying.” Whether the prosecutor committed misconduct in closing argument by referring to an accomplice’s inability to testify.

Facts/Discussion: Appellant, her brother, Marco Lemus, and Mr. Rawle conspired sometime during their car trip from South Dakota to Arizona, to rob Mr. Leon-Leyva who was located in Kemmerer. They drove their car and that of Mr. Leon-Leyva to a remote area and set in on fire with the body inside. An investigation revealed that the victim had suffered numerous stab wounds. Appellant appealed her convictions for felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery.
Standard of Review: Allegations of prosecutorial misconduct are reviewed by reference to the entire record and hinge on whether a defendant’s case has been so prejudiced as to constitute denial of a fair trial. Appellant had the burden of demonstrating plain error because no objection was made at trial to either the prosecutor’s questioning or to the closing argument.
Improper Questioning: A prosecutor may not cross-examine a defendant using the “lying” or “mistaken” technique. Such questions are improper and use of them amounts to misconduct. The State conceded Appellant demonstrated a violation of a clear and unequivocal rule of law however they contended Appellant failed to prove prejudice to her right to a fair trial. To evaluate the prejudice of improper “were they lying” questions, courts weigh several factors including the severity and pervasiveness of the misconduct; the significance of the misconduct to the central issues in the case; the strength of the State’s evidence; the use of cautionary instructions; and the extent to which the defense invited the misconduct. After reviewing the entire record, the Court could not conclude that in the absence of the prosecutor’s misconduct a reasonable possibility existed that the verdict would have been more favorable to Appellant. Even taking into account the impropriety of the prosecutor’s cross-examination, the evidence was sufficient to sustain the conviction. Accordingly, the Court concluded Appellant failed to demonstrate prejudice from the prosecutor’s misconduct.
Closing Argument: Appellant challenged statements made by the prosecutor during his rebuttal argument that Marco Lemus did not testify because he would have invoked his Fifth Amendment privileges. The Court found the prosecutor’s statement concerning Marco improper because it referred to an extraneous matter that should not have been before the jury. It is well-settled law that a prosecutor must restrict his argument to the evidence presented to the jury. The Court considers the nature of the error in question within the context of the quality of the prosecution’s case against the accused. The Court also evaluates the gravity of the error, the likely impact on the average juror, whether the comment was deliberately place before the jury to divert attention to extraneous matters and whether the error was invited by defense counsel. When placed in context, the Court believed the prosecutor’s statement was not a deliberate attempt to inject extraneous matters for the jury’s consideration. The apparent motive was to respond to the argument of defense counsel which focused on Marco Lemus.
Holding: The evidence was sufficient to sustain Appellant’s convictions even taking into account the impropriety of the prosecutor’s cross-examination. The Court concluded Appellant failed to demonstrate prejudice from the prosecutor’s misconduct. The Court stated the nature of the prosecutor’s comment was an aside rather than a point of emphasis. The reference was fleeting and followed by an attempt to redirect the jury to the evidence in the case. The Court also found it significant that the prosecutor did not ask the jury to draw an inference from Marco’s absence. Even if the jury inferred that Marco did not testify because he was guilty of the robbery and murder, that inference was consistent with Appellant’s theory of the defense and was not prejudicial. Accordingly, the Court found the prosecutor’s comment did not amount to plain error requiring reversal.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/35fwej .