Burton v. State

giving instruction, the Without the of this principal person A is a involved in it, something akin to for each of the three felony directly commission of a who actively constituting commits the act crimes, non-conspiracy we cannot .be sure crime. tending submitted facts give W.Cr.P.J.L. 7.01B or 7.01C. W.Cr.P.J.I. 7.01C reads as follows: ted is not sufficient conduct for the being committed or is about to be commit- Merely being present at the crime or merely knowing district court did not, however, scene crime is it with the crime ure to the fact to the prove test.3 We would never countenance the fail other [1 56] would reverse. crime, give appellant an and we should not countenance elements instruction with "beyond was an aiding a reasonable doubt" accessory abetting. before any accessory 'find that the defendant was an before the fact to that crime. The State prove knowingly

must the defendant

associated himself with the crime in some

way participant-someone as a who want-

ed the crime to be committed-and not as which is the elements given same cannot be said for W.Cr.P.J.I. Omission of that crime of fore the Fact to the a mere The elements of 1. case On or about the accessory spectator. particular before the fact: being Crime instruction for the not be error. The _ instruction in day Accessory of: 7.01B, are: any Be- ? Juan BURTON, Appellant Supreme The STATE of Appellee No.00-281. 2002 WY71 Court of v (Plaintiff). Wyoming, Wyoming. (Defendant), . May 2002. County, 2. Wyoming Defendant, 3. The Rehearing Denied June 2002. 4. Knowingly [aided or abetted another

person in {attempt {commission of} [counseled, the crime of ]

commit} hired,

encouraged, pro- commanded or

cured the crime of to be committed person}, another person That other [committed] [at-

tempted to commit] crime of you your

If find from consideration of all

the evidence that each of these elements proved beyond

has been a reasonable

doubt, you then should find the Defendant

guilty.

If, hand, you your on the other find from

consideration of all the evidence that proved these elements has not been

beyond doubt, a reasonable then guilty.

should find Defendant not given Virgilio fact instructions that were (Wyo. 3. See v. 834 P.2d 1125, 1128 elements 1992) Kavanaugh jury. (Wyo.1989) examples accessory for before the the trial plain error occur when I. Did closing ar- allowed the court jury passion and prey upon guments to to the facts prejudice, mislead law, outside of the issues and the introduce evidence, at- character charges, use bad strategy, and trial tack counsel's defense credibility; the witnesses' vouch for the its discretion when trial court also abused new motion for a it denied Mr. Burton's prejudicial pros- spite highly argu- closing comments made ecutorial ment? . Koski, Donna Public Kenneth Defqhder; permit- court err when II. Did the trial Kerin, Counsel; Domonkos, Tina Appellate opinions elicit from prosecution ted Counsel; Diane E. Cour- Appellate Assistant credibility of witness about State's Director, selle, Program; Kim- Defender Aid witness? another Intern; Grosshuesch, and berly Student discre- Did the court abuse its [trial] III. Wilson, Intern, Represent- Amanda Student untimely by allowing amendment of tion Appellant. Argument Ms. Wilson. ing change the date of the information to General; Woodhouse, Attorney Paul Gay crime, prejudice in charged which resulted General; Rehurek, Attorney D. Deputy S. Burton? to Mr. Attorney Pauling, Michael Senior Assistant Tibbetts, General; Georgia L. FACTS Assis- Senior mermans, pellee. tion tant HILL,KITE, VOIGT, Coleman, . Before Assistance Attorney Argument by LEHMAN,C.J., Interim Student and Clinic; General; Faculty Intern, Ms. and Timmermans. and Director, JJ. Representing Devon O'Connell Denise A. GOLDEN, Prosecuw- Tim- Ap- initially lived with a friend but moved out ton and their shared and ^[14] Casper thirty-six years old at the time. began living in moved into his Eighteen-year-old Kara during apartment after a the summer her car. apartment. Burton Jess of 1998. She disagreement Jess met Shortly moved Bur-

thereafter, acquainted became Jess Chief Justice. victim, sixteen-year-old female who awas LEHMAN, introduced the high school student. Jess appeals from Appellant Juan Burton [T411 to Burton. taking indecent liberties his conviction for victim child, Wyo. in Stat. Ann. with a violation of 28, 1998, picked the August Jess [15] On 2001). (LexisNexis § He claims 14-3-105 school, they went to Bur- up victim and have his conviction that he is entitled to Burton, Jess, and the vie- apartment. ton's . prosecutor engaged in reversed because illegal drugs. to music and used tim listened closingargument elic- in his and misconduct day, and the victim went to Later in the Jess improper opinion from a de- ited apartment, which was locat- Edwards' Lucas investigated the case. In addi- tective who Jess, apartment complex. ed in the same tion, that the trial court erred Burton claims Edwards, spent evening the victim and by allowing to amend the informa- the State beverages, listening to mu- drinking alcoholic change the date just prior to the trial to tion sic, watching victim even- movies. The and charged offenses. blow-up couch in Ed- tually passed out on a ^[12] We affirm. wards' nearby bed to living room. sleep. She later moved to a ISSUES victim, Burton lAccording [T6] apartment and told her to Edward's presents following issues Burton came [1.8] sleep apartment. The at his that she could appeal: on alone, apartment,. specific to Burton's facts relevant issues will be set went victim lay sleep large the floor in a down to on forth in our discussion of those issues. closet, usually slept. was where Burton which that, during DISCUSSION The victim testified sometime night, apartment returned to the Burton Closing A. Prosecutorial Misconduct in in lay down beside her the closet. She Argument find hand on her awoke later Burton's Burton [T10] contends The victim told Burton to leave stomach. by allowing court erred sleep. Throughout and went back to improper during make various comments his in night, the victim floated and out of con- closing argument. The State insists that the awoke, sciousness. Each time she she found appropriate comments were making increasingly more invasive that, event, prejudiced Burton was not contact with her. The victim resisted sexual by the remarks. by telling Burton that she was not interested wards testified jury testimony, ton "was tim's rebellious behavior. turned to Edward's intercourse that he had her mother had an pushing about she ment, had touched her mother that she had been ties Jess the trial er called the guilty had not received a fair trial because certain gree of 1999. At the conclusion of the closing argument cial. The comments made guilty acquittal and a motion for a new trial He claimed, child. Burton filed a motion for [T8]l [T9] Burton was thought behaving and sexual assault and returned a verdict the victim's mother asked her the victim's claim and Burton denied advances, A few The next in his motion for a new his hand court held trying a child. Edwards. trial taking first-degree with her. raped police that badly eventually court denied Burton's motions to do stuff with her" and that weeks genitals. by that rolling away were Burton she indecent liberties with a her, away. and morning, a argument apartment She and the victim told her jury charged he confronted Burton had been improper later, reported prosecutor during taking but admitted sexual assault told them that Bur- finding pled raped. engaged trial in During According the vietim and the victim re- from indecent liber- about the vie- with first de- and trial, raped. judgment the incident. Burton not September guilty, Her moth- in sexual him, trial, spoke why prejudi- that he that he to her argu- Ed- and and she the Metzger prosecutorial to result in the denial of a fair trial. ment, the court looks at the entire record to first statement verdict. The trial court sustained his so shaw v. determine whether the defendant's case was probability duced at the trial. Helm v. context of preme reversal considering the context of the statements and filing v. a motion for a new trial. When an patent 639 objection court's closing argument, we defer 957 P.2d also renewed his appellant 1. Standard of Review State, deny prejudiced by (Wyo.2000). abuse of comparing challenged at 910 Court abuse of discretion. ruling in a motion for a new trial is not warranted unless v. State, 12 P.3d Gayler, ^[112] is launched to a statement made the State, exists, reviews a trial court's decision discretion standard. . Similarly, misconduct have prosecutor's 860 10 P.3d them with the evidence comments are addressed Appellant objected at 860. See also 4 P.3d the objection the absence of a clear or absent (Wyo.1998). enjoyed reviewing improper 560, objection. Appellant 901, (Wyo.2000). after the trial State, entire a more favorable herein, 567 Gayler 910 error, Wyoming judged in closing argu comments as to the trial a reasonable a claim by applying (Wyo.2000); (Wyo.2000). Even 1 Metzger, argument, P.3d Marquez v. and the that the to the State, then, Cap pro 635, the Su by and, subsequently, entered a judgment ^[113] Burton did not object against appealed challenged him. statements at sentence remainder Wyoming Supreme Court. Additional trial; consequently, his claims we review Accordingly, improper pros v. it is for a applying plain error standard. Lane (Wyo.2000). To encourage a ecutor convict error, plain Burton "must show protect community demonstrate defendant order to clearly the record shows an error presented upon rather than the evidence at trial, transgressed unequivocal rule of a clear e.g., Gayler, See 860-62. law which right." substantial court, conduct, conviction on Capshaw, 10 P.3d at 567 825P.2d Taylor v. which was not appropriate ¶ 16 risk adversely affected a substantial the basis of a miscarriage only challenged in (Wyo.1992)). prosecutorial when there is "a (quoting WY Reversal of 13, ¶ 16, justice." Dice mis various were involved. was, therefore, appropriate reasonable restatement of the evidence sented Jess, and Lucas world at trial drug-related activities in which In this had heard evidence about . Casper. Edwards case, prosecutor's The all because testified about victim, comment it was a stated Kara pre volvement and ment cutor just were involved 2. Comments young men, dies and hopefully, an unknown world that's on out there It's You heard a lot of [PROSECUTOR]: in the Drug the nity Sentiment improperly emphasized his introduced to [T14] the State understands kids and gentlemen, followingexchange Use right here in Burton claims that the world. appealed with. But ask Emphasizing the Appealing would Ladies and behavior completely community your community. they yourself, about these Burton's drug in Commu- ever gentle- prose and- senti going have they : get la- judge also stated that Burton had not shown motion, that he was ment was isolated and that he had sustained motion for a new trial. theless, Burton's structed the world is another matter. The trial ing that defense counsel's drugs if it were not for the "Juan Burtons" of apparently believed that comment was the trial court the trial the the Kids would not have access to objection to the comment and in- disregard prejudiced by jury improper prosecutor's judge to objection disregard the statement. Never- judge because noted that the comment. denying remark denied Burton's and instructed it. The trial he sustained the com- Burton's suggest- judge opportunity doing the to be these kinds of [118] Pursuant to W.R.Cr.P. things if not for the likes of the Juan may grant if the trial court a new trial it is Burtons of the world? "required in if the interest of Even justice." Honor, Your [DEFENSE COUNSEL]: prosecutor's we assume that the comment going object I'm to to that. think that's improper, conclude that the trial we - objectionable. did not abuse its discretion when it court COURT:; is, THE I think it and it's motion for a new trial. The denied Burton's objec- extremely improper. I'll the sustain properly trial court sustained defense coun jury disregard tion. should that. The objection jury and instructed the to sel's improper argument. In disregard the the closing argument, coun

[T15] contrary, indication absence to upon sel reflect the evidence admitted at must assume followed trial and draw reasonable from "Iwle inferences Marquez, court's curative instruction." 861; Gayler, at Arm that evidence. (quoting P.3d at 717 Burke v. 746 P.2d strong (Wyo. 1992). (Wyo.1987)). prosecutor The re Arguments are calculated to which spected ruling the trial did not appeal jury's passion court's prejudice are and inappropriate argument. line of improper return to the pose because a risk that Thus, conduct was not so wholly accused be convicted for reasons guilt Gayler, irrelevant to his or innocence. egregious require as to a new trial 861; justice, Armstrong, 957 P.2d at 826 P.2d at interests of and the trial court did not community by refusing grant appeal to Bur- to sentiment. Burton has its discretion abuse not, therefore, prong satisfied the second a new trial. ton's motion for argues that the appeal to community prosecutor made an On a related sentiment when he stat matter, Burton improper equivocal rule of law. shown a plain transgression error analysis of a clear and un- because he has not viction of the accused will have the incidental portunity, munity." Burton did to A inappropriate Hodgins v. ed: "You nity age the prosecutor: than the evidence at trial. See claim on our effect of 1998). of a [T21] protect jury's passion urge rather than plain error comment; consequently, larger protecting appeal. ladies and kids point e.g., Gayler, may, power for challenged convict to As we like upon standard to convict on a basis other however, against being [the victim] prosecutor to gentlemen not, however, object the evidencepresented prejudice say community if stated, protect comment the accused. See advanced that we are remark that con we will reviewing have the supra, in our and encour the commu appeal he does 860-62. going (Wyo. com apply part op statement when 3-105 ties with a child under stated crime of indecent equated drug ecutor committed misconduct before What was he for them? Or is it a man place him totally control by being improper, and Lucas Edwards deliberate, defendant, [PROSECUTOR]: Is it a man who is Indecent Liberties with a Child Description : (LexisNexis 2001). [123] Burton claims you go involved with these next to Kara immoral and indecent motives take a use with Juan doing them? And does he have back liberties and incorrectly Burton, long, with these kids? Ladies and Wyo. taking just providing drugs into that Crime of Jess, hard look at the Stat. Ann. who's indecent that the in his ask described [the young Gentlemen, improperly room and trying yourself: mentally Taking victim], closing § 14- liber pros kids? Burton also asserts that the com- gentleman op- You ladies and have the mitted further misconduct attempted say portunity, that we are power issues, inject of his other than the issue guilt going protect [the kids like victim] innocence, he made the into the community, The our State wishes following statements: you a victim that could have introduced to responsi- is the adult with the [Burton] roll, was on the honor that was the best bility place providing minors] in not a [the team, volleyball athlete on the and that drugs, providing with the to do them was the A-1 Americankid the world. adult,. gentle- drugs. He is the ladies and going But to kind we are never see those men, supposed take that is not indecent testifying things to the that [the of kids a liberties with child. testify had to to. Because those victim] aren't the kind of kids that find themselves ^[124] The erime of taking indecent liber in that situation. Wyo. in Ann. ties with a child is set out Stat. 2001): 14-3-105(a) (LexisNexis §. context, ap- reviewed in it is [122] When (a) Except parent asking under circumstance constitut that was not first, jury any ing second or Burton on basis other sexual assault convict by specific sexually degree defined W.S. 6-2-302 than the evidence that he third as 6-2-304, any person knowingly through assaulted the victim. The was, simply pointing out that the victim immodest, be- lib taking immoral or indecent causing knowingly lifestyle, especially susceptible erties with child or cause of her encouraging any child to cause or en inappropriate advances and that to Burton's him courage child to commit with pro- in her situation are in need of another children guilty of a any immoral or indecent act is argument improper tection. This was not an stated, further,. Exeept provided by that sexual contact between felony. subsection (b) section, person a un- victim and Burton would constitute im- of this convicted addition, In shall be fined not less than moral and indecent liberties. der this section ($100.00) appropriately hundred dollars nor one the trial court instructed more ($1,000.00) thousand dollars jury one on the elements of the offense. Conse- than imprisoned penitentiary say in the not more quently, cannot that Burton has unequivocal (10) years, a violation of a shown than ten or both. clear prejudiced by the rule of law or that he was jury on the The trial court instructed the taking elements the crime of indecent comment. with a child in accordance with

liberties 4. Character Evidence 14-3-105(a). § suggests Burton that inject tangential lieve that liberties statute. providing the which may, under certain do other providing drugs Burton's guilt denied." without ties statute closing argument, we are not convineed that tor properly mon sense the accused's conduct. conduct with children. "immodest, Consequently, It See modest, 105 would be incorrect. Instead, ly cireumstances "immodest, court should have defined the [126] After is, however, taking refused drugs jury. repeatedly prosecutor e.g., Chapman thereby plants portions prejudices providing immoral or indecent instructed the Jones v. children with the This court was indecent by immoral immoral or indecent punishes pertaining prosecutor ¶ 28 of his looking clear that the indecent a misstates the law to a was precisely carefully reviewing a to children violates 14-3- innocence, issues, statement In violation a definition of the v. cireumstances, (Wyo.2001); allowed an erroneous informing liberties State, has, however, addition, argument, or indecent defendant, at the inappropriate drugs 1034-35 case, beyond "[Where Chapman, Chapman, define 2001 WY into the case. of suggesting on the elements with a the trial court attempting and a we do not be- totality apply the the indecent liberties" for culpability phrase "im Sorenson (Wyo.1979). a fair trial conception have been the entire liberties." liberties." repeated prosecu- prosecu place issue of its com § at phrase phrase minor, sexual liber jury, ¶ 28. ¶ 28, ¶ that v. W.R.E. badcharacter.Brower prohibits use of evidence of other bad acts to prove was evidenced ing tieswiththe victim. showing inadmissible. Burton 1213 for character. He does of his evidence cutor state proof ration, plan, knowledge, sence mistake is not conformity a will admissible for other Evidence trial for right about his character. Character has a lot conformity asked his person prosecutor asked the Now, the evidence of his (Wyo.2000). say "get away try drug apparently asserts 404(b). person's of now, well, admissible [127] Burton bad character that he acted presented about what these kids. Wyoming Rule of Evidence motive, furnishing in order to show that he acted in and not of know activities was evidence of bad therewith. with his bad other violated W.R.E. character for the with" That opportunity, to infer that Burton acted or you're the defendant against try crimes, a accident. not, however, drugs But prove taking argues, rule person-what next rather It purposes, conformity drug jury probably it has a lot to may, activities, him. The provides: character, identity, or ab- the character to these minors get wrongs, d: complains indecent liber- to conviet him intent, activities was instead, than the evidence 404(b) however, away purpose is not on ' such as thinking with his contend by or on prepa- a man 404(b) prose which with. acts try- say be of very prosecutor's [T29] tor made clear that Burton was not on choice of lan- was, prosecutor obviously, guage trial for his activities. The was not artful. .He 4.97). 4-7.8, p. English, also 982 P.2d at See objection the term courting when he used an (Wyo.1999). Nevertheless, prose- when "character." cutor's comment is reviewed in the context of ^[182] In his own closing argument, de- that he closing argument, it is clear his entire repeatedly that the tes- fense counsel stated that Burton witnesses, asking the to infer was not timony given by the in- State's simply charged crimes had committed Jess, Edwards, victim, cluding and the by had committed other bad acts because he and unreliable. Defense counsel inconsistent drugs place minors with and supplying witness, argued also that defense's alibi Considering record on Kidd, them. the entire testimony. use was truthful in her Alexa say appeal, cannot that Burton has shown prosecutor's in rebuttal comments were unequivocal of a clear error a violation obviously countering aimed at defense coun- and substantially.prejudiced him. law that suggestions sel's that Kidd was credible and Moreover, witnesses were not. State's 5. Attack on Defense Counsel trying he was that the wit- emphasize by called the State were Burton's nesses Burton maintains that [§30] friends rather than friends the State. prosecutor improperly attacked defense context, Taken in comments trial tactics when he made the fol counsel's personal cannot be classified as attacks on lowing portion in the of his remarks rebuttal counsel, and there is no indication defense closing argument: improperly that intended angry, you a little bit Doesn't it make passions prejudices of the inflame gentlemen, coun- [defense ladies and jury against Burton or defense counsel. basically makes reference to Alexa sell two Kidd, credible witness Lucas Edwards State's witnesses. days? their only witness, And then he testified Kara as wants being Jess to refer to the most the last as the following statement of the ecutor Vouching improperly State's witnesses when he made the for vouched for Credibility the rebuttal claims of Witnesses. credibility portion pros jury. Leiker v. personal inflame the ulated S.Ct. (Wyo.1999); English v. United witnesses They're friends of the defendant. personal peculiarities proper, and the counsel] should abstain from It attacks is opposing (Wyo.1999). The So don't be 1038,1043,84 L.Ed.2d 1 prosecutor the State is by States v. firmly attacks conjure up anger the United States obviously reciprocal. counsel. as our passions A established that Young, angry. against defense counsel to on defense counsel is im- duty witnesses, trying general A 470 U.S. personal 994 P.2d Don't abstain prejudices idiosyncrasies allusion to the (1985): rule was artic as rely Supreme in let [defense our your not launch from such 1, 10, attack on these friends. lawyer mind witnesses. sonally (Wyo.2000); Harper v. They had to admit tor is persuaded by by bility ly tor, ion: drugs.... al correct carries closing argument: When But factor is that counsel honest with responding to defense an perception vouch injected into the case. This addition- [T34] [the greater because of his important personal Lane v. members of the State's That's for the A by the weight that counsel's prosecutor may State, belief, witnesses] authority credibility state official hard about evidence, than their own position 12 P.3d asserts his eredi- an additional arguments, per thing jury might lot of whose were blatant- of the State's be were opinions are but rather perceived to admit. entrusted not, prosecu- opinion things. doing opin- even fac- be enforcing laws of a sover- the eriminal Young, 470 105 S.Ct. at 1043 U.S. (quoting ABA for Criminal Justice prosecutor expect- Standards eign state. While the is advocate, exploit he not believe that was in evidence. I think it

ed to be position disregard highly inappropriate. his to induce a was misapply the evidence or the law. You continue.

Lane, ing the fact that it was difficult to discuss by pointing forthright the witnesses. did not ^[1385] 12 P.3d at 1065 personally vouch for the out about this their The case, 83-84 were not drug the comments made witnesses (Wyo.1990)). (quoting use notwithstand- improper. credibility was Barela v. had been simply He just-object perhaps ence to don't know. THE I evidence testified to [PROSECUTOR]: Your [DEFENSE COUNSEL]: Your guess COURT: we can look on the record. charges. [the to that in that I do recall that I'm prosecutor] I believetherewasa refer- not sure. But as to by their witness. And Honor, convictions, I referring Honor, I was Ms. Kidd's admission that she had been public in a forum. He drew a those matters drug felony. convicted of a reasonable inference from the evidence that I'm [PROSECUTOR]: That's what refer- by would have no motive to lie witnesses to, ring Judge. confessing their use use of because thought drugs illegal accepted gener- I and is not [DEFENSE COUNSEL]: society. prosecutor's al comment was defendant, referring to the Your Hon- improper. or. referring

[PROSECUTOR]: No. I was Misrepresentation of Facts witness, Kidd, their Alexa Your Honor. the record to relevant felon" even ecutor committed misconduct cutor senting closing argument. throw all [the to believe the one that out, [PROSECUTOR:] You're suggested ladies and a fact in the rebuttal portion though support spent Burton that Burton was a "convicted States' Alexa Kidd and that she was of the trial gentleman, He claims that the there was no evidence in witnesses'] asserts night transcript going statement. if portion by misrepre in the closet. you're going to have to testimony states: prose of his pros was to. my ruling aside. Ms. Kidd and her reference was recall time. tion, THE know correctly. She testified. You To the extent that it was a I'll overrule COURT: specifically may proceed. I apologize that was clear as to where the And I'll leave it to the being Okay. what counsel's reference any objection. testimony, if I did not made at that With that clarifica- reference then I'll set point hear I don't being, [PROSECUTOR]: Point ladies and says the one that [Kidd is] [she and gentlemen, you want believe just friends, yet are] but she loves Alexa Kidd-she was the one that was the defendant and doesn't even know the referring to-over all of the other wit- age, defendant's a convicted felon dis- for trying provide nesses in an alibi for the tributing illegal drugs. they're asking And defendant, somebody that she's indicated you to believe her over these that she loves. other kids. referring to? what is this convictedfelon? Who are improper. ness. [PROSECUTOR:] [DEFENSE [DEFENSE COUNSEL:] That's COUNSEL:] I'm referring | Your to the wit- entirely Honor, present ment about argument. entire fact. passage quoted did not Although See evidentiary the "convicted felon" was not generally A prosecutor may intentionally misrepresent above reveals that the facts Miller v. Our review of the not misre closing com TPI is. And very clearly, THE I think it COURT: articulated the matter was clari I don't comment, during ensuing strike the colloquy among Counsel. fied last [¶ 39] The State called Detective Kirken- counsel, court. and the prosecutor, defense testify at Burton's trial The detec place in front of dall to exchange, which took Their investigated report that Bur very prosecu- that the tive victim's jury, made it clear Kidd, sexually not ton had assaulted her. The State referring to Alexa was tor following testimony Burton, That elicited the from Detec being a "convicted felon." as entirely keeping direct examination: in with tive Kirkendall on reference trial,. testi- presented at the Kidd evidence Q. Okay. you your begin How did investi- direct, as follows: fied on gation? Now, you've Q. you've done told us A. I on [the victim] contacted October drugs. quite a few 20th of '98 and asked her to come down for Yes, A. siv. taped-transeribed I an interview. took a eventually you in trou- Q. got That some statement as far as her recollection of the ble, it? didn't facts and what occurred there. had felony intent to deliver got A. Yes. I interview, Q. Okay. taped awas And April on 6th. correct? guilty Q. Okay. you pled to that? And Yes, A. it was. A. Yeah. Q. you testlfy today? her And heard The trial court error did commit A. Yes. resolving at trial. this matter testimony Q. Okay. her con- What-Was Testimony Opinion B. provided sistent with she the information Burton claims that [¶ 38] you on October 20th? back permitted when it the State trial court erred Yes, testimony A. There was additional testimony from Detective Kirkendall to elicit today. out The other times that came concerning opinion his of the victim's eredi- today she indicated the stand that she on bility. responsibility has the awoke, that. it was the first heard of issues, judge the credibili resolve the factual Q. Okay. generally hap- But to what witnesses, ultimately ty determine assault, pened the sexual to her with guilty innocent. whether the accused is that the same? (Wyo. P.2d Newport v. 860; 1999); Gayler, 957 at Zabel v. A. Yes. Testi questioning of De- redirect [¥40] his witness, mony by expert concerning his elicited the tectlve KJrkendall guilty the defendant is belief following testimony: | province of the offense invades the «BY[PROSECUTOR]: of the convie reversal generally'mandates Stephens v. 67- tion. See Kirkendall, Q. say, would Detective You (Wyo.1989); Newport, see also at 1215-16. a lot more victim] elaborated [the Therefore, general Wyoming rule under you today spoke to her and than when per law that it is error se for the State tape-recorded back Oc- her conversation expert con from an witness elicit tober? guilt ac cerning opinion of the A. Yes. 68; Stephens, Metzger v. cused. at see also you say Q. Okay. that I asked Would not, however, State, 4 P.3d at 905. We do specific questions lot more and detailed reviewing apply per standard in the error se your interview? than did improperly that a witness vouched a claim through inter- taken A. She's been credibility In for the of another witness. Perhaps stead, object process several times now. did not view when the defendant ap- helped her recollection. She that's testimony, apply plain the influence of pears out from under to be that one error standard to review assertions Perhaps she was then. credibility the nareotics that for the of anoth witness vouched a clearer head. at 1215. she has Newport, er. change may of the date "skew" the case.

Q. You didn't find her statements to be not, however, compared to did inaccurate the statements she Defense counsel elaborate October, provided you though in the. Bur- back did on how amendment would "skew" ton's case. The district court referred to you? . Wyoming Rule Criminal Procedure 3 and A. No. amending ruled that the information to Q. just more information? She added change alleged the date of the offenses would A. Correct. prejudice not result in substantial that, by testifying Burton claims [T41] defendant. testimony that the victim's at trial con- was Wyoming Rule of Pro- [1 48] Criminal provided sistent with the statement she dur- 3(e) governs cedure amendments of informa- investigation, ing the Detective Kirkendall tion. That states: rule impermissibly credibility vouched for the (e) Amendment or Cita- gave impression the victim and that he of Information court, tion. Without leave of the the attor- guilty believed Burton was of the sexual as- ney for the state amend an informa- disagree interpreta- sault. with We Burton's days or until tion citation five before a testimony. tion of the detective's The detec- preliminary required examination a case merely tive stated that the victim's rendition to be tried district court or until five harmony of the events at trial was in days required before for a trial case not her earlier statements. He did not state that be tried in district court. The court he believed the victim's of the events version permit an information or citation to be guilty or that he believed Burton was of the though offenses. Even testi- detective's amended: (1) mony may consent, any have had the incidental effect of With the defendant's bolstering credibility, sentencing. the victim's the trial time before unequivocal court did not violate a clear and (2) Whether or not the defendant con- rule of law when it allowed into sents: 369, evidence at trial. Curl v. (A) any At if time before trial sub- (Wyo.1995);Newport, at 1215. rights stantial of the defendant are the date of the assault. Defense counsel motion. The State asserted that tion and been confusion over the date of the amendment would objected assault since the State discovered that commencement of the trial on tion to amend the information the trial commenced. He claims that the trial court erred about filed motion to a defense. On amendment change the "on or about C. Amendment of Information the trial court heard August [142] Burton maintains to the that, date prejudiced September while September amendment, claiming by granting beginning of the sexual amend 1998." Just prejudice preparing August 5, 17, 1999, arguments ability 1998" to "on or the State's mo- information shortly September 28, 1998, the defense. assault from prior there had investiga- the State case, that the present alleged on to the before whether court not the trial court review W R.Cr.P. ally court could the State our abuse of discretion standard. See dure deciding trial capricious." (Wyo0.2000)(quoting Vaughn W.R.Cr.P. 3(e) grants must the defendant are not ing if no additional or different offense not (B) the trial court's decision should be whether or not a motion charged Wyoming prejudiced. 3(0). anyAt reasonably amend the information facet "determine (Wyo0.1998)). 3(e). Cook v. discretion to a trial granted. and if substantial time before verdict or find- of its abused Rule of conclude ruling deciding whether its Consequently, preJudmed Criminal discretion, was by applying whether brought by it did just prior arbitrary rights judge Proce- gener- 58- showing Defense counsel the defense [T45] asserted has made no present prejudiced by had an alibi witness and that the he was amendment vjctim witness, testimony; of and her mother. The presented his alibi He information. ability in its Kidd, Although she could defense hindered at the trial. Alexis witnesses, date, the impeach Kidd testified State’s identify the exact not substantially prej- August shown that he was night end not a at the of has that she recalled by 1998, in amendment. spent night udiced the victim the the . when of complex Burton resid- apartment where the testimony, to In the victim’s

ed. contrast CONCLUSION stayed in Lucas that the victim Kidd testified The not commit 47] did [¶ than Burton’s apartment rather at Edwards’ closing argument in his because misconduct testified, in Kidd relevant apartment. also appropriate statements did his were part, as follows: Moreover, Detective prejudice not Burton. Now, Okay. going back PROSECUTOR: testimony did not include Kirkendall’s 1998, I August was con- of of to end opinion concerning improper statement day of week you know what fused. Do crédibility-'of the victim or Burton’s to the August is? 28th Finally, by not err guilt. the trial court did that, just she No. I know when [JESS]: information allowing the to amend the State (cid:127) Friday there, was it was close—It like was prior to the'trial. Saturday. It on the was weekend.. We affirm Burton’s conviction. [¶ 48] testimony Q: your vic- Okay. And is [the spend night at did tim] did or not VOIGT, Justice, dissenting, with which apartment? [Burton’s] GOLDEN, Justice, joins. A. not. She did prose- I would reverse because [¶ 49] Q. spent night there? She never . argument closing misconduct was cutorial No, my—No. A. not to po- filled with simply egregious too too Now, you spent Q. telling us that are prejudice to allow this conviction to tential every night [Burton]— with majority’s agree with the stand. While A. Yes. review, I of would recitation the standard of n Q. August of 1998? —back through applica- its result reach different And .if I wasn’t A. Yes. I lived there. prosecutorial misconduct tion. The. (cid:127) there, my was with me at mother’s. he. miscarriage a substantial risk of case created n (cid:127) you? Q. constantly So he justice. A. Yes. repeatedly recognized the We have [¶ 50]' ” “ Kidd have There is no indication that would in closing ‘great latitude’ allowed counsel any more pinpoint the daté been able to 635, 1 argument. v. P.3d Helm precisely if the information had not been State, 971 (Wyo.2000)' {quoting Montoya v. Au- charge The of “on about amended. (Wyo.1998)). At the same P.2d 28,1998” ability gust did hinder Burton’s not time, argument must cautioned that have present his alibi defense. evidence, and kept be within “ inflame, preju- ‘[statements amended [¶46] Burton claims calculated ” permitted.’ not ability to dice or mislead the are also interfered with his information Helm, Montoya, (quoting regarding mother 1 P.3d at 639-40 the victim’s cross-examine 136). not, prosecutors And are while the date the offense. The record does are defense however, closing limited in than out Burton’s assertion. no more bear counsel, duty prosecutors have “out of parents victim that her were testified additional justice, just to seek a conviction. The de- to seek not town” the offense occurred. n Browder n (Wyo. v. from the fense was able elicit 1982). particular, and her husband victim’s mother she duty help law jury’s sense of August appeal “in on were town” the weekend able, therefore, convicting the defendant nor defense enforcement jury’s passion appeal through victim’s cross-examination of the its State,-957 mother, prejudice. Gayler inconsistencies to show between (Wyo.1998). A closing argu- about his character. Character has a lot inject ment must not issues into the trial that say about person-what what a a man guilt are broader than the or innocence of the try will try get and not away with. law, accused under controlling thereby 404(a) provides [¶ 54] W.R.E. that "[elvi- diverting duty from its to decide the person's dence of a character or a trait of his case on the evidence. Jeschke v. character is not purpose admissible for the A proving that conformity he acted in therewith urge "is not allowed to convict an particular on a purpose oceasion[.]" The accused on basis other than that prevent this rule is jury the from conviet- guilt beyond shows evidence reasonable ing a defendant based assumption on the Gayler, doubt." 957 P.2d at 861. he must have acted in conformity with his The [¶ 51] central theme of these admoni " character,'" 'bad proof rather than on of tions is closing arguments must be the elements State, of the crime. Solis v. 981 premised upon the evidence. McLaughlin v. (Wyo.1999) 30 (quoting Brown v. (Wyo.1989) (quoting State, 953 P.2d (Wyo.1998)). 1175-76 Schmunk v. (Wyo. Character only evidence is admissible if it 1986)). purpose The closing argument falls within one exceptions of the found to allow counsel to review the evidence and is, W.R.E. 404-that if prove tends to suggest jury reasonable inferences something propensity other than to commit can be drawn from that evidence. charged the if relevancy crime-and its out McLaughlin, 780 P.2d at 970 (quoting weighs prejudice. Solis, the risk of Schmunk, 742); P.2d at Leiker v. Brown, at 30 (quoting 1175-76). 953 P.2d at 994P.2d Surely, what a accomplish cannot Despite [¶ 52] these clear principles of with evidence, the introduction of he cannot law, the in the instant began case accomplish through closing argument. closing argument with following the state f charged [¶ 55] The ments: crimes this case first-degree were sexual assault and indecent gentlemen, Ladies and the State under- liberties with a minor. While the just stands that we have introduced to had right the to alert jury the proper completely and hopefully, an unknown inferences that could be drawn from the cir world going that's onout right there here cumstances surrounding crimes, alleged the in our community. drug It's the world. including ._ the temporally related activi You heard a lot of testimony about these ties of the victim, defendant and the young kids and the did they behavior not right have the to ask the to convict were involved with. yourself, But ask la- (1) the help eradicate appellant "drug the dies gentlemen, would get ever world," (2) appellant's because of char the opportunity the doing be these kinds of acter. In the prosecutor's context of the things if not for the likes of the Juan closing entire argument, especially including Burtons of the world? portions the other closing argument argument [¶ 53] This was a direct invita quoted in majority the opinion, I would con tion to to convict appellant, not clude that attempt this was an to convict the because the elements of the crimes had been appellant for reasons other than commission proved, but because community needed charged crimes. protected to be people from appel like the lant. The impropriety of argument Finally, [¶ 56] I would reverse because magnified when, then shortly thereafter, there is a possibility reasonable that the ver prosecutor added following equally trou dict have been more favorable to the : blesome statement appellant had improper arguments these not Now, you're I know probably thinking been made. Gayler, See 957 P.2d at 862 and

Tight now, well, the defendant Browder, is not on 689 P.2d at 895. There was no trial for furnishing drugs to physical these minors alleged evidence of the crimes and 'and to these kids. But it say has a lot to greatly varied from one wit- right to a fair appellant's [¶ 58] appel- found the next. ness be and his prejudiced assault, first-degree sexual guilty should conviction lant a minor. reversed. liberties of indecent guilty but necessarily incon- is not such a verdiet While case in the instant flag

sistent, a red it raises tendency in clos- prosecutor's

because inde- line between to blur

ing argument minors. drugs to providing liberties

cent recently described have We

[¶ 57] evaluating WY73 considered to. be factors misconduct: prosecutorial claims of LIVESTOCK, a AND LAND KAYCEE are considered factors to be Among Appellant partnership, Wyoming error, the gravity (Plaintiff), nature justice and refrain duty to do likely impact methods, improper from FLAHIVE, Appellee (Defendant). quality of juror, average Roger on the case, and the closeness prosecution's 00-328. No. case. Court Wyoming. Supreme ¶ 23, 67, 28 2001 WY Warner May 2001 Earll v. (citing (Wyo.2001) 29 66, ¶ 16, (Wyo.2001)). WY tend case, factors all of these present

In the conviction. reversal support inabili our case, hide behind we cannot

such misconduct certain

ty know for the verdict.

influenced done, convie-

"If, all is said not influence did the error

tion is sure effect, the. very slight jury, had but stand, should judgment verdict and is departure perhaps where

except specific aor norm

from a constitutional if one But Congress. command cannot all pondering after say, fair assurance the erro- stripping happened without whole, judg- that the from the action

neous swayed substantially ment was conclude

error, impossible to affected. rights were not substantial there merely whether be

inquiry cannot result, apart support enough to It is by the error. affected phase from itself error

rather, so, whether even so, one If or if influence.

had substantial doubt, cannot the conviction grave

is left

stand." ¶ 22,

Warner, 2001 WY States, U.S. v. United Kotteakos (quoting 1247-48, L.Ed.

750, 763-65, S.Ct. (1946)).

Case Details

Case Name: Burton v. State

Court Name: Wyoming Supreme Court

Date Published: May 14, 2002

Citation: 46 P.3d 309

Docket Number: 00-281

Court Abbreviation: Wyo.