424 P.3d 1272
Wyo.2018Background
- Defendant Jacob Alan Buszkiewic was convicted by a jury of two counts of strangulation of a household member arising from an April 30, 2016 incident with his on-again/off-again girlfriend, Sarah Oakland, after a night at bars; Oakland suffered facial injuries, a hoarse voice, and petechiae consistent with strangulation.
- Police interviewed both parties; Buszkiewic first denied physical violence, later admitted retaliating after she hit him.
- At trial the defense focused on undermining Oakland’s credibility by questioning inconsistencies and her responses during/after the incidents (e.g., number of slaps, why she left/returned, delay in seeking help).
- In closing, the prosecutor urged jurors to use common sense/life experience in assessing memory and credibility, referred to Oakland as the “victim,” characterized defense tactics as “victim blaming,” and discussed inconsistencies in defendant’s statements to police.
- Buszkiewic appealed, asserting prosecutorial misconduct (golden rule/reptilian-brain appeals, using “victim,” “victim blaming,” and commenting on his silence) and claimed cumulative prejudice; the Wyoming Supreme Court reviewed for plain error where objections were not timely preserved.
Issues
| Issue | Plaintiff's Argument (Buszkiewic) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether prosecutor made an improper “golden rule” argument | Prosecutor asked jurors to imagine themselves in Oakland’s position, inducing bias | Statements were rhetorical, asking jurors to apply common sense/reasonable-person inferences from evidence | No error; argument was proper use of jurors’ life experience and a response to defense strategy |
| Whether referring to the complaining witness as “victim” violated presumption of innocence | Use of “victim” implied State’s belief in guilt and undermined presumption | Term described alleged role and did not tell jurors to accept it as fact; jury instructions preserved presumption | No plain error; no clear rule prohibits calling a complaining witness a “victim” here |
| Whether labeling the defense theory “victim blaming” was inflammatory misconduct | “Victim blaming” is pejorative and improperly injected prosecutors’ opinion and prejudice | Term described a tactic of shifting focus from defendant’s actions to the complainant’s conduct; tied to evidence and fair argument | No plain error; context showed argument focused on evidence, not passion or prejudice |
| Whether prosecutor’s comments about what defendant did not tell police violated Fifth Amendment / shifted burden | Prosecutor’s references to defendant’s silence and questions about why he didn’t tell officers improperly commented on silence | Comments referenced defendant’s actual inconsistent statements to police and were rhetorical recounting of testified/evidentiary tapes | No error; context showed prosecutor commented on defendant’s statements in evidence, not impermissible comment on silence |
Key Cases Cited
- Brown v. State, 332 P.3d 1168 (Wyo. 2014) (defines and condemns improper "golden rule" jury arguments but recognizes limits)
- Webb v. State, 401 P.3d 914 (Wyo. 2017) (court reviews closing argument in context and hesitates to find plain error absent objection)
- Hamilton v. State, 396 P.3d 1009 (Wyo. 2017) (discusses plain-error standard and prosecutor’s latitude to draw reasonable inferences)
- Sanchez v. State, 253 P.3d 136 (Wyo. 2011) (addressed use of term “victim” in voir dire; not plain error)
- Collins v. State, 354 P.3d 55 (Wyo. 2015) (prosecutor may not argue from a defendant’s silence; must consider context)
- Hill v. State, 371 P.3d 553 (Wyo. 2016) (distinguishes permissible argument about evidence-based inferences and impermissible vouching; prosecutor may respond to defense attack on credibility)
- Carothers v. State, 185 P.3d 1 (Wyo. 2008) (prosecutor may comment on defendant’s statements admitted into evidence)