*1
Thereafter,
appeal
may
to the district
There
something
have been
wrong-
ful
zoning
jurisdiction
court,
was dismissed
as the
about the
of
court
inasmuch
legislative
wrongful
appellee
of
a
act
was
decision
was
about the is-
suance
preliminary injunction.
of the
appeal
which an
would not
lie.
was issued
when
City
Laramie,
of
of
at a time
City
McGann v.
Council
district court
was
properly considering a
case
Appellants
tion to a court general issue from is,
jurisdiction, he upon when sued
bond, estopped say that court
granting injunction jur- was without upon
isdiction. They proceed
theory
it does not lie in the mouth of one
jurisdiction
who has affirmed the
of a
BROWDER, Appellant
(Defendant),
Cecil
matter,
particular
court
in a
to accom-
plish
purpose,
deny
to afterward
such
jurisdiction
escape
penalty.’
Wyoming, Appellee
The STATE of
avoid basis of lack of Likewise,
jurisdiction in the court. the one jurisdiction
who invoked the of the court enforce
should be entitled to bond liabil-
ity solely on the that the court lacked basis jurisdiction invoked. which he bonding complaint. company party was named after service of the summons defendant, appearance but it enter an The district to be in failed to court found default. *2 Gallivan, Director, Wyoming
Gerald M. Program (argued), Defender Aid Michael H. Schilling, Counsel, Appellate and Dann D. McLean, Intern, Laramie, Student for pellant. Lyman, A. Atty. (ar-
Sharon Asst. Gen. gued), Freudenthal, Gen., Steven F. Atty. appellee. ROSE, J., RAPER, Before C. THOM- AS, BROWN, ROONEY and JJ. RAPER, Justice. appeal
This
judgment
is from a
and sen-
upon appellant’s
tence based
conviction of
first-degree sexual assault
in violation of
6-4-302,
W.S.1977.1
issue he raises
§
4-302,
provides:
anyone
reasonably
1. Section
W.S.1977
inflicted on
and the victim
6—
present ability
“(a) Any
believes that the actor has
penetra-
actor who inflicts sexual
threats;
to execute
or
tion or sexual intrusion on a victim commits
these
“(iii)
physically
degree
helpless,
The victim is
a sexual assault in the first
if:
“(i)
reasonably
The actor causes submission of the
the actor knows or should
the victim is
know
through
application,
physically helpless
victim
the actual
reason-
and the vic-
ably
consented;
calculated to cause submission of the
tim has not
[or]
victim,
ment;
physical
“(iv)
force or forcible confine-
knows
actor
or should reason-
ably
illness,
through
or
know that the victim
a mental
“(U)
deficiency
developmental
The actor causes submission of the
mental
or
death,
bodily inju-
disability
incapable
appraising
victim threat of
ry,
serious
the na-
physical pain
kidnapping
extreme
or
to be
ture of the victim’s conduct.”
appeal is whether the
com-
offered to look
name
the telephone
during
argument
closing
ments
constituted
directory; meanwhile she
invited
error.2
companion
and his
into the trailer.
We will reverse.
inside,
Once
the three individuals began
conversing
themselves,
about
explaining
presented
appeal,
On
when
with a
*3
they
who
were
what
they
and
did. The
challenge to
findings,
the trier of fact’s
we
men showed J
job
their
I.D.’s and offered
required
the
to
accept
to
evidence of the
try
help
job
and
her
a
get
with
prevailing party
instance
their em-
prose
this
the
—in
ployer.
true,
Appellant, who had
cution —as
out of
entered
leave
considera
with a
hand,
beer
it,
in his
entirely
appellant
tion.
the evidence of the
finished
and was of-
conflict
fered
McCarty
in
therewith.
another one
J. His companion
guitar
ly the improper comments in contained the appellant Soon asked if J was interested prosecutor’s closing may tipped the going in them P.C.C. Man appellant right scales and denied to a Camp, where the men lived and worked. Accordingly fair trial. we must consider all The State’s was appellant evidence considering evidence the in what harm was said he go pick needed to there to some- appellant done was denied a thing up, while the men claimed that the trial. Ordinarily fair do not examine purpose trip get of the marijuana was as closely the we do here and smoke, event, and that J In any knew that. confined just to consideration of agreed J go; and all three of them case; being the exception State’s when sub hopped wagon into a station driven by ap- However, stantial evidence an issue. pellant. whether, here issue raised concerns During the the camp, drive to prosecutor, without three misconduct engaged in conversation while consuming would have arrived at a verdict of prelude We beer. guilty. camp’s do this as a to consider When reached the en- ing plain trance, got error. J into backseat and hid necessary beneath a coat. This because The underlying appellant’s incident con- no women supposed past to be allowed January viction occurred on or about guard inside camp, station. Once in Uinta County. supposed vic- appellant building drove to the in which tim, “J,” whom we to as shall refer Frith lived. The exited the three vehicle living occupied then there in a trailer also and went inside to Frith’s room where it During a male friend. the afternoon of was discovered that the room had been ran- day appellant, question along A guard sacked. was summoned. He Frith, companion with his Trenton knocked stepped into the and told room Frith he the door on of the trailer which J resided. would need to make a list of what was door, appellant When J answered the intro- missing. then Frith, guard saying left he himself and duced asked J if she go would guard back to the front shack help could them find trailer in which report Though guard “Zac” the incident. living. one and his wife were J indi- other, that, Zac, though knew J both saw each cated she she did said know where he resided. she between them. interesting judge appellant giving It is that the trial fence as well as note credit on both appellant years sentenced and a to minimum of five the minimum and sentences for time maximum years spent county jail during pendency and four maximum of five months prison, suspended years four case. then both the minimum and maximum of that sen- departure, marijuana in and sat on the toilet. As Frith walked guard’s After the in, appellant she was J how she cigarettes pretty were smoked. J claimed told was and one; ap- smoking a little asked if she wanted to make it. When she pressured into joined declined, that she pellant appellant and Frith contended left her alone with readily. All three smoking quite several Frith. consumption of admitted to a continued was, according What followed forced sex beer. J, according and consensual sex to Frith. Next, appellant placed on, going J asserted that appellant While it was testified this, With she became living hand on her crotch. some- that he was in the room when be taken home because upset looking and asked to for either one knocked at the door J next testified boyfriend. she loved her boyfriend Roger—or J’s her roommate— — out or he appellant told her to watch Benny supposedly buy drugs. some Af- — there, right left, and that then rape person would her went back to ter this *4 bathroom, and took him off, Frith told him to shut took his clothes Both away finished, into the for awhile. bathroom watched. When and J Frith Frith appellant appellant and Frith denied that appellant a shower indicated that took anything along or said the lines of having ever did J he was interested in sex with too. J’s claim. emphatically When she told him she wasn’t interested, he left. When the were men to the car and all three returned Soon dressed, suddenly J slammed the bathroom in which J lived. started back to the trailer shut door and told them to leave. Accord- that, Everyone agreed during at trial ing testimony, to their Frith tried to talk to ride, J ex- got J chummier with Frith. J; but, failed, they when this left. promised plained this was because he appellant. Back at her protect her from J’s version of what occurred differed trailer, appellant J invited or allowed either from the men’s. She stated that after in, depending upon finished, Frith back who was appellant Frith was also forced her telling story. then went and start- She sexually. to submit to him While this was folding dryer. which were in the ed clothes occurring, she heard someone knock on the her in this endeavor. Accord- Frith assisted door and Frith answer it and talk with a testimony, this ended with ing to the men’s visitor for a short time. J claimed she kissing. Frith and J help, Finally for but none came. screamed appellant finished and left the bathroom. Next, she needed to take a J announced door, it, got locked up, shut She went into the shower. claimed that she She leave, for which then screamed them to door, and locked the and then bathroom they did. out, got took her shower. When she she grabbed a towel and noticed the bathroom ap- Other evidence was introduced that ajar. Appellant door and Frith testified pellant bragging having went around about announcement, understood her girl forced some to have sex with him. shower, taking a to be an invitation. about damaging impeachment some Frith walked to the bathroom and found alleged was done. It was that most of the He while the door unlocked. undressed against appellant witnesses and Frith were pellant walked into the bathroom. drug dealings involved in a lot of they thought drugs Frith had stolen some grabbed her appellant J testified that Also, suggested them. from was away from her and sat on the toilet towel happy these witnesses were not too get for him to out and while she screamed making many so appellant and Frith for grabbed the and covered herself. towel back allegations about who was involved in deal- was, pretty how J Appellant commented on ing drugs during the course of their in bathroom and then Frith walked into the It should also be noted that no defense. appellant and told to leave J alone. finding who had knocked J was one succeeded other version of the incident was that were there. walked on J’s door while men wrapped appellant in a towel when
«93 First, by. evidence admitted to demon- abide it is Some was well established have, entry may impermissible prosecutors that a forced at it is strate time, assert their point credibility been made into the own some basis for bathroom, conviction of particu- but the evidence was not defendants. United Herrera, Moreover, (5th 1976). larly overwhelming. finger- no F.2d second, And taken; thus, unprofessional conduct prints “[i]t for the testimony express his indicating J’s or her personal belief opinion or as to the open and Frith who forced truth or falsity testimony of any or evidence the bathroom door. guilt of the defendant.” ABA Standards close; Clearly the it would Justice, for Criminal The Prosecution Func- easy go been for a either way. tion, (1980). Prosecutors, Standard 3-5.8 as mind, appel- With that in we must consider well attorneys general, acting as coun- argument lant’s clos- cases, sel particular prohibited ing statements error. constituted attesting asserting to facts or as fact their Closing arguments are meant to be personal relating beliefs to matters in issue. that, just arguments premised upon the evi Wyo. Ross v. supra, at P. already jury. dence submitted to the Pros 924. They are not to be testify- witnesses closing ecutors no more limited their ing through closing. Berger their v. United They may defense review than counsel. States, U.S. S.Ct. 79 L.Ed. suggest evidence and inferences purpose closing based thereon. The ar *5 In the case us the prosecuting now before is to guments ways allow counsel to offer of attorney repeatedly overstepped ig- viewing significance of the evidence. pursuit nored these victory. rules in State, Hopkinson 145 During closing-in-chief, argued: he (1981); Wyo. Ross v. 57 P. 14, 1981, January “The story began limits, only not happened County. Uinta What on that prosecutors, attorneys. but on all day thirty in the around three afternoon? designed These limits are to insure the up at the trailer home Two men showed Prosecutors, fairness of trial. as well as men, living in. Those two that [J] counsel, defense must held to abide by be I Trenton Frith —and Cecil Browder and judicial rules system these or else the whole Gentlemen, that you tell Ladies and ” Granted, * * * pro- fails. courts have moved to (Emphasis was not an accident. the defendant tect and thus have made the added.) job prosecutor’s a difficult one. Convic- “ * * * target was a you I tell [J] however, by; tions are hard to come they walked into the minute forget ” sys- should not the aim of the * * * (Emphasis added.) that door. justice. is the tem attainment We must “ * * * Trenton Frith and Ce- There was allow the occasional who be- cil a beer in their hands Browder with job forget, comes overzealous in his to ei- they because weren’t there for drinks. ther. The role of the prosecuting attorney purpose another They were there for in a criminal case from that “differs don’t they you believe it if tell it was advocate; is duty justice, usual to seek else, anything They it’s not so. because merely to convict.” ABA Code of Pro- targetted they had knew [J] [sic] Responsibility, fessional EC 7-13 ” * * * (Em- happen. going what was to up just. is to what is decide But phasis added.) correct, insure that the decision jury’s is “ * * * happened what you Do know attorneys by the must abide rules estab- plan. the bathroom? More More discus- quest justice. lished aid the in its firming up sion. More about what was happened what Appellant going to our on. That’s in the calls attention exactly happened he contends bathroom. That’s what rules that the failed (No closing. had been only in the rebuttal Were we consider bathroom.” in the showing happened prosecutor’s closing point, plain what to this introduced probably comment error would not have been bathroom. The facts.) manufacturing present. essence is “ * * * girl little coy, the kind of Is that But, closing, prosecu- in his rebuttal towel going to walk with her that’s clearly boundary tor went over the in mak- They done a and smile? No. haven’t ing the assertions italicized: “ story good job coming up with their you But the officers have told not what is.” because that’s [J] they they didn’t are the why do it and “ * * * you want They to believe [J] epxerts [experts]. I satisfied Trenton, in, came fondled because Tren- explanations brought their I be- happened, ton what took the says that’s you, you yourselves.” so it fore look at down, towel laid on the bathroom floor (Emphasis added.) right and had and laid down sex with him prefer rebuttal, “I not to do this in but I they you there. what want That’s feel, again that I have to and feel in a believe. not so and not the It’s that’s only certain sense that not the State’s way added.) happened.” (Emphasis I, credibility our myself, witnesses “Now, way it you to tell going I’m There is brought question. into has been really itway This is the really happened. an inference Phillips that Joe sells drugs. ” * * * added.) happened. (Emphasis There Phillips inference that Joe “ * * * Now, believe, you want had a reason to come here ‘Yeah. one and I this, We found at the bar that the had Prosecution some kind Ha, Ha, drag her out the hair.’ That’s absolutely of deal. not so. That’s Ha, What happened. not what Ha. It’s Now, that, you not so. believe then way told the happened is [J] you have to throw me out as a liar be- story happened, and that’s what way I said it then he said it and it’s cause story.” told (Emphasis added.) [J] not so. Not so. (Emphasis add- “ * * * you’re hearing today ed.) What is rare “ * * * because State usually doesn’t have Again, don’t only throw Joe’s sto- *6 good this case present a to to you. We window, mine but throw out ry out ” * * * don’t have the fortunate circumstances because that’s happened. what ” * * * have, we now the corroboration. added.) (Emphasis “ * * * “ *** on, the idea is that now So they knew that I believe [J] you’re if to take going rape, commit a a my personal and I own upon draw you you’ll friend with because be then that, say reasonable infer- inferences you in able to come and the two of will ences, because of what I see happening. ” * * * going you you’re didn’t do it. If (Emphasis added.) “ * * * gang commit That rape, rape. commit gu£ that'g think, I what that’s story, if would be the moral of the we I what believe. But I also believe [J] ” * * * way. were to let it be that she when said it happened because I be- lieve story. I believed story objections [J’s] to any No of these statements [J’s] from the they instant that came counsel, However, were recorded. defense story.” her thoroughly door. I believe during closing, pointed his out to the (Emphasis added.) prosecutor had failed present “ mind that in support they I evidence to his bald assertions. believe plain Presumably any they going this would have cured were to have intercourse with point. error to that It should further be her I they believe that didn’t care reading consent, noted that counsel’s by rape defense whether was or closing improprieties shows no which could they did have that in mind. But that’s be an to statements were (Emphasis invitation which I believe. what add- forthcoming prosecutor during ed.) from the his
«95
“ * * *
you
When
look
all the
set
at
evi-
defense counsel’s astute observation
have,
dence,
during
closing
will conclude as
you
Defendants,
unsupported
comments were
two
Cecil Browder
evi-
Frith,
dence amongst other telling
Trenton
did
degree
commit
first
observations
So,
January
rebuttal,
about the
case.
on
State’s
sexual assault
[J]
he in
you
essence told the
added.)
don’t
(Emphasis
1981.”
convict
people you
calling
these
“me” a
Again,
objections
recorded
no
liar.
While
inclusion
occasional
these
that is not nec-
comments.
phrases like “I believe” or “I think” in an
essary
plain
where the error constitutes
er-
United States
argument
prejudicial,
is not
7.05, W.R.A.P.,
provided
ror. As
in Rule
v. Murphy,
(2nd
1967);
F.2d 651
Cir.
affecting
“Plain errors or defects
substan-
Johnson,
United
v.
(2nd
trial —because of miscon- Pamela Parker and is of the crime punishment charged.’ duct —will not be ordered as Defendant now contends that misdeeds, prosecutor’s only but agree be- this was reversible error. We cause such misdeeds denied the improper. accused a statement was State * * * McClain, 602, 607, fair trial. Jones v. 216 Kan. P.2d [Citations.] State, (1975). A inject should not personal opinion argument. into the Here, clumsy the comments were so contemporaneous objection no likely they it is more eroded the State’s made, although repre- defendant was sophisticat- case. Defense counsel here was sented counsel stage at that ed, experienced, highly regarded very proceedings, long and it has been our rule knowledgeable. prosecutor, on the oth- predicated reversible error cannot be hand, trying major er his first case. upon complaint of misconduct of coun- support There is no in the record for the closing argument sel in where majority’s “prosecutors statement ”* * objection lodged. no [Citations.] very respected society,” members of our reading sup- the entire record lends some
port my lawyers characterization of the Idaho took a similar in this case. If defense counsel had view: thought for a moment that the “ * * * Our review of the record discloses client, prejudicial comments were to his he misconduct the prosecuting attorney objected could have immediately. In that in his closing argument. The liter- event,
fortuitous judge the trial would language al prosecuting attorney objection, sustained the administered an ad- herein, need not be set enough forth it is otherwise, monition at the bench or closing argument that his referred that would have been the end of that non- to facts which were not in evidence and sense. urged part conclusions on “ * * * Objection should be made at the which would have been relevant to a allegedly prejudicial time of comments so charge of degree first por- murder. He that the trial opportu- court will have an trayed the defendant as having deliber- nity to take corrective action. [Cita- ately planned and carried out the murder Goodman v. Wyo., 601 tions.]” of her husband in a cold and calculated P.2d manner, continuing to fire shots into the purpose Another objection served body of her husband while he was in a would have judge been that the trial would helpless position and pleading for mercy. have had an opportunity give an instruc- “While such might statements constitute tion, thus possibly curing any error. De- prosecutorial license, if based on some counsel, however, fense objecting, peripheral view of the facts in a first prosecu- played enough rope out so that the degree case, murder the statements were “hang” did, tor could himself —which he improper in the case at bar were unsus- *8 level, at the trial as defense proba- counsel * * * by record. tained the bly expected, appellate but in the court. Defense counsel served his client well assume, however, if “Even we the not objecting. misconduct of the in the case
Other courts usually require that defense at egregious, bar is unprofessional and counsel objection make an at the time im- reprehensible, it alone is not sufficient to * * * proper comments are made. In State v. warrant reversal. [Citations.]
897 * * Griffiths, 163, v. Idaho P.2d prosecution 101 610 State Harris v. (1980). 522 Wyo., 487 (1971). P.2d “ oft-repeated ‘The rule by we which test Supreme The Colorado Court summarized sufficiency the of evidence on appeal the the of a improper some of comments criminal matter prosecutor as is follows: examine and accept as true the prose- evidence of the prosecutor made com- “1. The several cution, leaving out of consideration en- .credibility on the ments defendant tirely the of evidence the witness, defendant specifically with to respect therewith, conflict give and we to he the defendant’s claim that suffered a prosecution evidence of the memory every loss could favor- and not recall the shooting People Sepeda, able inference may reasonably incident.” v. which fairly be 196 Colo. drawn P.2d therefrom. an- Stated way other is not whether the evidence prosecutor appealed “2. The —it guilt beyond establishes ‘conscience the reasonable community’ the of us, for doubt rather admonished them to convict it is defendant sufficient to the safety community.” for the form basis for a reasona- guilt beyond ble inference of a reasonable The then held: Court to be doubt drawn the jury when the improprieties “The first two above noted evidence is light viewed the most fa- trial, objected were not at and we have ’ ” vorable to the State. [Citations.] prosecu- held on numerous occasions that State, Wyo., Grabill v. closing arguments torial misconduct ever, egregious is rarely, so as to con plain error, meaning majority great The sets out in stitute within the of detail evi- 52(b), appellant. may quite Crim.P. so that we consider it dence favorable to is appeal contemporaneous absent a ob obvious to me that majority the did fact See, Plotner, consider, jection. e.g., People weigh v. evaluate evi- defense 791; People against evidence, Colo. P.2d despite Símbo dence the State’s lo, 49, 532 Colo. P.2d 962. no protestations We find contrary. example, the For flagrant misconduct so as to majority constitute said: People Sepeda, supra, error.” at trailer, “Back at her J either invited or appellant back, allowed and Frith de- pending telling story. who majority repeatedly states ****** case, evidence was close in this prejudicial; comments therefore were this “Other evidence was introduced that part is company majority. where with the pellant bragging went about about hav- is majority trying Methinks it- talk ing girl forced some have sex self something. only into This case is close damaging impeach- him. some produced by appellant if the evidence is ment was done. considered, weighed evaluated “Some evidence was admitted demon- Supreme court. That is to Court say, if entry that a strate forced had been máde though views the evidence as it were the bathroom, particu- but it into was not fact, trier of then it a close case and overwhelming. Moreover, larly no fin- This, go either way. could taken; thus, gerprints were course, appellate violates the most basic indicating testimony but J’s rules, following stated the two cases: appellant it was and Frith who passing upon “In sufficiency forced the bathroom door.” to support guilty, evidence a verdict of majority’s justification appellate weigh conflicting court will not delineat- credibility ing nor evidence is that evidence consider the favorable witnesses; necessary must evi- and it view the to show light prosecutor’s closing in a dence most favorable to was close and that “The *9 898 651, Murphy, I read into In v. tipped the scales.” United States 374 F.2d
may have
suggestion
(2nd
1967)
the court
reasoning the
655
Cir.
stated:
the
the comments
not been a close case
general
prosecutor may
“As a
rule a
prejudicial,
not have been
prosecutor would
express
personal
belief in the testimo-
say again
I
the
requiring a reversal.
thus
White,
ny of witnesses. United
v.
States
majority evaluated
the
case is close because
814,
(2
1963); Greenberg
F.2d
816
324
Cir.
favorable to
weighed the evidence
States,
(1
v. United
899 prosecutor here prejudicial, determining the went “In plain error has occurred, suggests “Occasional” more the the overboard.” facts of case must be majority say not light than once. The does how viewed of the trial record think,” prosecutor may times a “I many whole not any as to whether one nor should it. That is a fine line which is single standing incident alone be would by trial judge. best drawn the Grunberger, reversible. United (2nd 1062 1970). F.2d This were stitute fact attached considerable object trying to about divides harmless and In ing here, (1) hearing “We This Hopkinson cold the case that defense counsel did not not plain agree Court, plain on necessary try identify error in plain with prosecutor’s here, error,” questionable as well as appellant’s State, error. Courts the the prevent “that “where Hopkinson. II plain but trial supra, court said significance others, comments. counsel did noth- hazy error.” Jones v. it judge comments the at 147. said errors line agonize Instead, objections blows hot where, to the always which from * con- facts not in evidence. jority the Court in was used flattery cumulative effect approach plied L.Ed. “You remember bribe In suggesting cumulative error ed Goo ney “Hopkinson States, [*] [*] alludes was beaten in numerous poor In years. Berger, supra. by [*] [*] old to the prosecutor mentioning controlled in summation said: when that didn’t the United States (1935)].” U.S. J.R. Goo that up.” [*] cases. [Hopkinson] [*] [*] the county Hopkinson, supra, [Berger In with S.Ct. has been particular, [*] [*] loans and work the v. Unit tried to attor- [*] [*] J.R. ma- ap it “Hopkinson Decisions are on a moving ‘illegal made case case basis had been (cid:127) any guidelines. without would items.’ solid pear weighs ments sidered If think highly competent discretion of the trial superior position is at trial more prejudicial. least court and which should be con- should heavily propensity some indication give greater weight counsel than n is A determine silence factor considered any judge, does other factor. not who is in counsel. object, Court com- “Hopkinson the information har ney, “Hopkinson trolled ney.” [******] [******] investigation Gary Greenhalgh, lawyer. knew had Goo beaten exactly stood because he had where the Green’s attor- county attor- con- Ve- is being client not harmed. It is also some foregoing prosecu- comments not being indication that the client Hopkinson tor were counsel, competent harmed when after cool objected trial. Defense counsel to some reflection, post still does not make convic- appeal these comments and asserted on tion a new motion for a mistrial or for trial prejudicial these er- comments amounted based Both comments. Hopkinson court Apparently the ror. things happened Apparently of those here. so in- foregoing considered comments time the first it dawned on they nocuous that even mentioned prejudiced he had been was when he wrote in the opinion. appellate brief. Courts resort to the doctrine of cumula- tive when several majority here also talks about error have identified prej- conjunction misgivings errors about their
cumulative error in predilection udicial effect. If a court has a error: error, says any being prejudicial reversed on a matter that it did not to find standing may prej- on, alone not be single given opportunity error act and was not *11 cumulative effect of numer- udicial but the might glean message act on. The Bar appellant prejudicial to ous errors was from this case that it is better to be silent hand, him a fair trial. On the other denied object. Appellant Hopkinson, than harmless predisposed if a court is to find supra, objected repeatedly profited and it error, says cumulative error is a nothing. Appellant object here did him demonstrate, concept nebulous difficult to Supreme and the Court bailed him out. has not demonstrated Appellant beneficiary special is the of a that the cumulative effect of the errors has dispensation. appeared propi- He here at a prejudicial. been time when the was in an un- tious Court characteristic commiserative mood. explanations of cumulative error Both uninspirational totally superficial, I would affirm. unsatisfactory.
Whether remarks made counsel in prejudicial discretionary
summation are is a judge
matter with the trial court. The trial position
is in a better to determine what
prejudicial impermissible effect statements jury appellate
have on the than the court.
Hopkinson supra, at 145. judge jury: trial CYRUS, The here instructed Appellant (Defendant), Kim judges “You are the exclusive of the facts and of the effect and value of the evi- Wyoming, Appellee The STATE of dence, you must determine the facts (Plaintiff). produced from the evidence here in any As to statement Court. made No. 5567. your presence concerning counsel in Wyoming. case, regard you the facts of the must not as evidence such statement Feb. jury must assume that the followed We
the court’s instructions. I would further jury intelligence that the more
assume judgment majority than the seems to jury
credit it with. The knows that in the believes State’s case.
jury knows that the and defense given hyperbole.
counsel are I would be
surprised if a convicted because the
prosecutor thought something. Juries intelligent, sophisticated
more fair and than
that. The members of the are not
marionettes, swayed to and fro the fer- protestations ju-
vid We of counsel. trust person’s property;
ries with a life therefore, must, juries credit with more
discernment and trust them to follow the by disregarding inept
court’s instructions
comments counsel. manifestly
The result of case is un- judge. trial
fair to the trial court