405 P.3d 1045
Wyo.2017Background
- Joshua Black was convicted by a jury of aggravated assault and found to be a habitual offender; sentenced to life imprisonment. The victim, Kelli Windsor, suffered serious head and facial injuries and sent contemporaneous photos/texts identifying Black as the assailant.
- Defense moved to compel Facebook and Verizon records (June–Nov 2014). The prosecutor told the court he had no objection and the court ordered the State to exercise due diligence to obtain those records.
- The State never contacted Facebook or Verizon; it produced a phone-extraction report from Windsor’s phone but did not obtain provider/social‑media records. Defense moved to restrict witness testimony as sanction; the court denied the sanction and offered a continuance (which defense declined).
- Pretrial, Black moved to appear in plain clothes and without restraints; the State did not object. The court allowed civilian clothes but reserved ruling on restraints and later required Black to wear a leg brace at trial without holding an Asch hearing.
- At closing the prosecutor made multiple improper remarks (vouching for investigators, appeals to passion, and personal attacks on defense counsel). The State conceded several of these errors on appeal.
- The Wyoming Supreme Court found multiple errors (discovery noncompliance by prosecutor, improper closing argument, and imposition of restraints without an Asch hearing), concluded cumulative prejudice, reversed, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (Black) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1) Prosecutor’s failure to comply with court discovery order (Facebook/Verizon) | State violated court order and engaged in prosecutorial misconduct by never contacting providers, prejudicing defense impeachment/discovery | The order was improper; even if not, failure caused no prejudice because records might not contain exculpatory material and defense could have obtained them | Court: Prosecutor’s failure to comply was misconduct; district court abused discretion in sanctioning approach and shifting burden to defendant; error contributed to prejudice. |
| 2) Denial of motion to restrict witness testimony (sanction) | Denial was improper because State acted in bad faith and court should have imposed deterrent sanction rather than offer a continuance | Court’s order was adequate; continuance was feasible cure; sanction of precluding witnesses would eviscerate State’s case | Court: District court abused discretion—its findings of good faith were unsupported; offering a continuance without ensuring State compliance was inadequate. |
| 3) Prosecutorial misconduct during trial (closing argument) | Prosecutor improperly vouched for investigators, appealed to juror passion, and personally attacked defense counsel, warranting reversal | Some remarks were ill-advised but not sufficiently prejudicial given strong evidence; some comments fell short of clear misconduct (per Hamilton) | Court: Several statements violated clear rules (vouching, inflammatory appeals, personal attacks); misconduct occurred and contributed to unfair trial. |
| 4) Leg restraint during trial without Asch hearing (due process) | Imposition of leg restraint without State motion, hearing, or on‑the‑record findings violated Asch and denied due process | Restraint was essentially a knee brace under pants, not visibly a law‑enforcement shackle; any Asch error was harmless given the evidence | Court: Failure to hold Asch hearing was an abuse of discretion; State failed to prove beyond a reasonable doubt that the jury did not see the restraint; error contributed to prejudice. |
| 5) Cumulative error | Combined pretrial discovery misconduct, trial misconduct, and unlawful restraint deprived Black of a fair trial | Evidence was overwhelming; errors were harmless individually and cumulatively | Court: Cumulative effect of the errors denied a fair trial; conviction reversed and remanded for new trial. |
Key Cases Cited
- McGinn v. State, 361 P.3d 295 (Wyo. 2015) (standard for assessing whether error affected substantial rights and review standards for prosecutorial misconduct)
- Naple v. State, 143 P.3d 358 (Wyo. 2006) (factors for discovery‑sanction analysis and mandate to use least severe sanction to secure compliance)
- Lindsey v. State, 725 P.2d 649 (Wyo. 1986) (discovery noncompliance is serious and trial court sanction discretion)
- Asch v. State, 62 P.3d 945 (Wyo. 2003) (trial restraints require State motion, hearing, opportunity to contest, and on‑the‑record findings; least restrictive means)
- Fennell v. State, 350 P.3d 710 (Wyo. 2015) (prosecutor may not vouch for investigation or witnesses; such comments invade jury’s credibility function)
- Berger v. United States, 295 U.S. 78 (U.S. 1935) (prosecutor’s duty is to seek justice and refrain from improper methods)
- Estelle v. Williams, 425 U.S. 501 (U.S. 1976) (defendant’s appearance and garb implicate presumption of innocence and right to be free of prejudicial clothing)
- Holbrook v. Flynn, 475 U.S. 560 (U.S. 1986) (public display restraints like jail clothing or shackles are inherently prejudicial and can undermine presumption of innocence)