*1 2001 WY66
Hawley EARLL, Appellant A.
(Defendant), Representing Appellant: Sylvia Lee - The STATE Wyoming, Hackl, Defender; Public Donna D. Do- Appellee (Plaintiff). monkos, Appellate Counsel; Tina Hughes, N. Assistant Appellate Argument Counsel. No. 99-295. Hughes. Ms. Supreme Court Wyoming. Representing Appellee: Gay Woodhouse, July 31, 2001. Wyoming Attorney General; Paul S. Rehu- rek, Deputy Attorney General; D. Michael
Pauling, Senior Assistant Attorney General; Robin Cooley, Sessions Senior At- Assistant torney Argument General. Cooley. Ms. LEHMAN, Before C.J., GOLDEN, HILL, KITE, JJ.
GOLDEN, Justice. Appellant
[€¥1] Hawley Anthony Earll, convicted as an accessory after the fact to the manufacture of methamphetamine in vio lation Wyo. 6-5-202(a)(b)@ § Stat. Ann. § 35-7-1081(a)(), contends prosecu- misconduct, torial a confrontation violation of Amendment, Sixth and a violation of Kwallek v. (Wyo.1979), P.2d 1372 require that we reverse his conviction. We hold that a reasonable exists that right to a fair trial was affected by the error. The stand, conviction cannot and we reverse and remand for a new trial. ISSUES
[T2] Earll presents following for our review: I. Did the prosecutori- commit al misconduct in her cross examination of Appellant, wherein she referenced Appellant's statements girlfriend that were never made?
II. Did the state's use of out of court statements of Appellant's girlfriend violate Appellant's Sixth Amendment to con- frontation?
III. Did the trial court err in refusing to order a new trial?
IV. Did the state's offer and the admis-
sion of testimony of Bunnie Larson and
(Catfish)
Samuel
Yates were con-
victed
cireumstances
and the
have
plain
convictions, violate
a
error?
of
trial on
state's
offenses
leading to
its
argument
arising out
own
Appellant's
merits,
Appellant's
concerning those
of
constituting
the same
fresh
that
ry after
amphetamine,
police
discovery, Earll was
batch
At
found
his trial
of
fact to
methamphetamine.
Earll's
a
Pyrex dish
on
fate
manufacture
arrested.
charge of
came down
*2
containing a
Based
of
accesso-
meth-
on
a
trial because
I. Whether
questions?
II Whether
ment
ing
and
III. Whether
that
trial?
similar
ed
testimony from
Appellant's
they had
right of
issue?
to those
rephrases
Appellant
Appellant's
confrontation
been
Appellant's
for
was
improperly
Appellant was
reconsideration
Sixth
erred
to be:
denied
was
associates
violated
Amend-
crimes
a
deny-
elicit-
testified
both
determination
and
methamphetamine,
that
al
existence
Yates was
bag
Earll
months
morning of
containingthe
Larson's
he was
Earll
Yates
took
that
that
Against
had been
and
Earll
and
with
credibility,. The State
the arrests.
methamphetamine
Larson
that
stand.
a
that
had
Pyrex dish.
casual
he was
known
damaging
had
one who
Earil
only
day of the
acquaintance
witnesses.
purchased
Larson
Earll
aware
versus
smoked
claimed
packed
testimony,
lab.
for sever-
arrests
called
some,
They
some
Both
and
passenger
fish"
home
police knew
ing away from
his vehicle
er's
ating a
time
police warned
tion.
stay away from
individuals
suspected
Bunnie
Cox,
possessing
police, Earli
police,
license,
Yates.
Earll's
Earll
Larson,
On
driving with
Immediately after
drug
in a car
over.
December
Police
proof of
him under
Earll
activity.
were still
returned
Yates
Yate's
at the
Yates
FACTS
suspected
trailer,
driven
arrested.
trailer
he was
suspended
had a
insurance
was
trailer
avoid
Shortly
watching the trail-
surveillance.
leaving Yates
lab
by Samuel
arrested
suspended
because
Yates of
observed
in his trailer
police
trailer.
Instead,
Earll was
license and
thereafter,
registra-
at that
pulled
Tracy
"Cat-
oper-
time:
driv-
driv-
Two
only because
knowledge of
packed
alone
had three
her.
tion of
following questioning
gentleman
cedes, misrepresented
girlfriend,
A: -
[Prosecutor]:
[Earll]:
Q: And
Q:
crime with
help Yates
contents.
day.
During the
Approximately,
right?
Earll,
fact,
Similarly, Earll denied
That's correct.
he
Tracy
bag,
bags to
been, guess, with
you claim
a mutual
you; is
had smoked
He elaimed
fix his
carried
disclaiming all
Tracy is
Cox,
methamphetamine
carry, he was
car.
which,
five
friend
you didn't-how
involved
testimony by Earll's
right?
an earlier
your girlfriend,
years.
Earll denied
largest
engaged
had
purchased
cross-examina-
Tracy?
knowledge of
since
in this
that he
asked
hearing:
being a
bag for
lab, let
Larson
other
long
con-
him
had
any
leave
it,
two women
er,
Earll
observed
a victim
of was
kind
She
A: Yeah.
loading
After
bags.
several
with
the trailer
yes.
attempted
vehicle,
three
bags into
convicted?
Q:
She
stopped
quickly
police
drive off but
Yes,
conspiracy.
A:
Cox,
owner,
gave the
them. The vehicle's
Tracy?
Q: Trust
-
vehicle, and
to search
permission
police
her
I've been
Yeah,
to.
I have
A:
bags.
her
to search
gave permission
Larson
enough.
trailer,
long
out
had carried
bag Earll
In a
Q:
surprise you
Would it
to know that
[17] After a two-day trial,
re-
Tracy in
hearing
another court
jected
already
Earll's version of the events and re-
told the Court under
you,
oath that
turned
verdict. Before sentencing,
did smoke methamphetamine with her
filed a
motion for a new trial based on
Catfish
Bunnie that morning
on De-
misrepresentation
of the tes-
*3
cember 317
timony
Tracy
Cox at the
hearing
earlier
and the prosecutor's reference to that testi-
A:
I don't
that,
know anything about
no.
mony during closing argument.
Q:
surprise
Would it
you?
you
Would
[18] The trial
while acknowledging
think
lying,
she's
too?
that the
had indeed misrepresen-
A:
I-I
surprised
would be
she would
ted Cox's testimony, nevertheless denied the
something like that because it
hap-
didn't
grounds
pen.
been instructed at the beginning of trial and
Q: So she
lying,
must be
too?
before deliberations after the close of evi-
A:
If
that,
she said
I-I
don't under-I
dence that comments of counsel regarding
don't
why
know
she was-
testimony were not evidence.
Earl]
Subsequently,
[Defense
object,
filed a motion to recon-
I
your
Counsel]:
Honor.
I don't
think she
sider the
said that.
I
denial
think
she
motion for a new trial
she,
light
admitted
in
Tracy,
smoked.
decision in Lilly
don't
Virginia,
116,
527
1887,
U.S.
119
think
S.Ct.
144L.Ed.2d 117
said that
[Earl] had
smoked.
(1999). Earl
that, pursuant
claimed
Lilly,
Yes,
[Prosecutor]:
she did.
the misuse of
had violated
[Defense Counsel]: I would like to see
init
his
right
constitutional
to confrontation. Af-
transcript
because I don't think she did
ter concluding that
had received a fair
and I was there.
the trial court denied the motion for
Q:
you
Did
and Catfish-
reconsideration. Earll has
appealed.
now
[The
you
Court]: Are
two wanting to be
placed
oath,
under
you?
both of
DISCUSSION
No, Judge.
[Prosecutor]:
We'll move on. Prosecutorial Misconduct
[The
you
Court]:
If
give
want to
testimo-
[19] Prosecutorial
misconduct
ny,
put you
we'll
both under oath and then
always
"has
been condemned in this state."
I'll
you.
cross-examine
(Laughter)
State,
Valerio v.
527 P.2d
(Wyo.
[Prosecutor]: We'll move on.
1974). Whether
such misconduct has been
questions
Six short
reviewed on
later,
the basis of
error,
this exchange
harmless
oc-
52(a)
curred:
W.R.Cr.P.
9.04,
and W.R.A.P.
or on the
plain error,
basis of
52(b)
W.R.Cr.P.
[Prosecutor]:
[Y¥Jouclaim that
weren't
9.05,
W.R.A.P.
this Court has focused on
smoking that morning, even though every-
error,
whether
such
as the State concedes
one else that
says you
was there
were?
case,
exists in this
affected the accused's
A:
right.
That's
I was not.
rights."
"substantial
The
right
Later, during closing argument,
prosecu-
a fair
is a
right.
substantial
Wyo.
tor made the following statements:
Const.
§§
art.
10;
see,
eg.,
police
The
asked [Earl]
if he
State,
knew of
Jones v.
580 P.2d
1154 (Wyo.
anything funny going on
1978).
in the trailer.
Before we hold that an error has
"Oh, no, hubh-wh. Don't know anything
affected an accused's
right,
substantial
about drugs." But the testimony was,
requiring reversal
conviction,
we folks, that he
smoking
the metham-
that,
conclude
based
record,
on the entire
phetamine that morning. He
smoking
reasonable possibility
that,
exists
in the ab
it with
Tracy. He was
error,
sence of the
might
verdict
smoking it with Catfish And he was
been more favorable to the accused.
Jones
smoking it with Bunnie.
person
(Wyo.1987).
says
he wasn't is the Defendant.
read this standard to
consonance with
the erro-
stripping
without
happened
States
United
followed
standard
judg-
whole, that the
action
neous
Court:
Supreme
substantially swayed
not
ment was
may be
aids
Some
conclude
impossible
it
in af-
than
negative
safely
more
affected.
rights
substantial
appel-
Thus,
it is
form.
firmative
there
merely whether
cannot
inquiry
guilt
determine
function
late
result, apart
support
enough to
speculate
Nor
innocence.
It is
error.
phase affected
according
decide
reconviction
probable
itself
so,
rather, even
Appel-
out.
comes
speculation
to how
so,
if one
If
influence.
had substantial
impres-
escape such
cannot
judges
late
doubt, the conviction
grave
is left
sole
may
make
sions.
stand.
*4
Those
affirmance.
or
reversal
criteria
giv-
jury,
exclusively
the
328 U.S.
judgments
Unmited
Kotteakos
necessary
1247-48,
minimum
L.Ed.
always the
763-65,
en
66 S.Ct.
conviction
omitted);
the
to sustain
(citations
(1946)
footnotes
legally sufficient
Abrahamson,
by the error.
see,
unaffected
e.g., Brecht
late court
the record
vacuum.
error's
account
is conviction.
judgment,
or
from
lished
taken
effect
The crucial
effect
on one's
ing
done
meant
happened.
regarded
reactions
ance
son.
verdict
tion
from
comes
command
exeept perhaps
But
This
judgment
If,
question
jury, or
alone,
easy to
is sure
for how
wrong
guilt
This is
a constitutional
strongly
must
effect
own,
them,
-In
generally
error
in fact.
regardless
but
without
does
all is said
can
thing is the
ignore when
And one
is, not were
take
had but
would
eriminal
others
Congress.
by his
This
judgment
from the
verdict.
not
had
escape
outcome,.
not
the error
where
important
account
upon the
relation
minds of
It is
be
relation
total
might react
singled
mean
very
own,
the entire
different,
causes
almost
norm or
acting without
reasonably
impact of the
guilt
altogether
they right
record.
setting.
the sense
It is rather
of what
done, the convic-
did
slight
that
to all
jury's decision.
To
out and
other
difference, but
laymen.
judge others'
in
should
that outcome
if one
to work
departure
error
the verdict
with
or
law,
weigh the
the
setting of
effect, the
else
men, not
influence
may
in their
may be
specific
taking
appel-
estab-
not be
stand-
or
allow-
stand,
thing
error
what
guilt
And
in a
rea-
be,
that she
(1993).
viewed
cutor
the accused's
concedes
her
sented
trial
about
jurisdiction
right by me.
light of
amine
Moreover,
habit
Tracy's trial
They ask
tions.
hear that
up lying then?"
so would
done....
impropriety
cross-examination
improper.
That's
surprise
court
said
that court's
testified
had not
They ask
that
the accused
lawyers
she
morning
have.
question
a witness
you to
testimony and
closing
and such?"
transcript
trial
had."
as
I didn't
candidly
testified
The court
person,
questions such
practicing
awareness
prosecutor's
concedes
"And
way that
know or
for new
smoking
of the
the arrest
argument
Moreover,
post-trial
and the
impeachment
another
did,
admitted
even
would
commented
other
123 L.Ed.2d
And
remarked:
found
way the
trial court
in that
aof
trial based
that
accused.
indeed,
to learn
methamphet-
it should
catch
jury
that"-"and
questioning
hearing has
following it
hearing on
person,
had
as, "Would
"just went
disturbing
reference
"[rleview
that
during
prose-
repre-
reveal
that."
about
ques-
or to
re-
ock
woodh
all
pondering
after
assurance
say, with
something
[It's been
I've
just
noticed in
personal knowledge of that
every
about
trial I have.
girlfriend's
trusted
sworn testimony.
mocok
[114] We consider these concerns in the
But I'm not going
try
to teach them context of the quality
prosecution's
they
because
resent that.
case
the accused. The State main-
tains, as
below,
[T11] The
presented
accused's counsel
was not a particularly close case. As the
the trial court the
position,
essence of his
prosecutor explained
to the trial
fundamental unfairness of
and Larson's statements "were
sufficient for
telling,
expressly
by innuendo,
to believe or not believe
Mr.
untruth that even the accused's trusted
Earll.
..."
disagree.
was a five-
contrary
to the accused's
felon,
time
and Larson
was his
version of the facts. The trial court
then
Both had benefited
bargains
expressed
dilemma,
"And the Court can't
prosecutors.
According to the
way
know one
or another can't know whether
judge, Yates had received "about the
sweet-
thought
significant
est deal
anybody-that
anybody could
pay any
didn't
attention to it at
have wanted." The
judge
had particu-
all."
In reply,
maintained
larly interesting
Yates,
view of
he
the error did not affect a substantial
*5
shared with
the
after it had
returned its
because Yates' and Larson's statements
verdict. The trial Judge observed:
"were
sufficient for the
to believe or not
role
community;
generally
ecutor.
verdict, the trial court denied the motion for
plain
cerns
ing that
a new trial.
believe Mr. Earli
and
accused.
quality
said, 'No,
as a
regarding
Jurors
the error did not affect
know
leader of law enforcement
Applying
of
they naturally regard
analysis,
One of our
I wasn't doing it.'
about a
recognize
... when he took the stand
prosecution's
either harmless error or
error in
we have several con
jury's
concerns is what we
view of a
question
case
"
the
Conclud-
in their
against
prose
jury's
pros
will remain a
was and is.
people. That was
we had three
tell
that's been in this courtroom in
long time. A little more
exception of one of the
of
Catfish was one of the worst
I
want
my opinion,
an
were
charged
eighteen
you
folks what
charged
to know that I thought that Mr.
bad actor.
individuals
with that
was worse
year
my
with the
one bad actor
old
opinion
crime,
than
in this courtroom
four
than a
girl.
just
brutal
Mr.
people
individuals
wanted
With the
year
that man
of
Catfish,
murder
and he
those
long,
ago,
to
mony of the
sworn testimony
ture of the
tion
ger
jurors
man,
dards for Criminal Justice Prosecution Func
commentary,
629, 633,79
tion
cutor
[1183]
Another concerns is the
of our and
and Defense
prosecutor.
as a
583 F.2d
United
regard
give significant
symbol
error in
accused's trusted
L.Ed.2d 1314
at 107
misrepresent
may impress
before the
of authority;
Function,
United States v. Herber
(8d
question.
ed.1993).
(6th
weight to the words
(1985);
Standard
Cir.1978);
to the
78, 88,
Not
jury,
that recogni
ABA Stan
the testi-
jury,
causing
3-5.8,
in an three of them on the morning in question,
Ber
na-
that,
told the
the case
cused smoked methamphetamine with the
ed
eyes
pitted Yates' and
cause of
cused. To bolster
change for
nesses were
accused's.
"sweet"
despite
jurors
their
jurors,
their
this
vulnerable to
Tracy Cox, testified under oath
the accused's
unsavory
even the accused's trust-
that bargains given them in ex-
prosecution,
testimony
Larson's word
and consequently bolster
their
accused,
eriminal
impeachment
denial,
two star wit-
history
against
prosecutor
prosecutor
the ac-
the ac-
in the
and
be-
impeach
effort
the accused's testimony,
permitting the inference to be drawn that the
but the
accused knew about Yates' and Larson's
also
declared to the
instruction
consideration,
disregard as
ure
weighed
make
curative
refrain
cise
dence
us.
judge others'
duties,
issue-what
relation
proper
Berger,
apt to
cially, assertions
the accused
judge's
judge.
the "sweetest"
amine
after
ously of
jury's verdict
nesses
defense.
justified
stances
accused
substantially swayed
sovereignty
weak,
record, we conclude
jurors follow
of our
In the
the fact.
came
appropriate
carry much
course
but
they should
was
bargain.
the accused's
295 U.S.
suggestions,
low
impeachable
say, with
factors
unfair
is so
instruction
From
This case
to the
rather
all else
quality
final
highly vulnerable
the start
hold We
opinion
will
the error
nature
assuming
was
long eriminal
reactions,
highly
to see
manufacturing
prejudice
duty as the
average
deal
The
true.
analysis, we
our
jury both
Yates
faithfully perform
instructions;
weight
only we
objections.
operation.
88,
personal
probable
urges us
insinuations
properly
main
character
trial;
careful
ever
strong. Earll was
by the error.
credibility of both
anything counsels
have,
meant to
counsel
properly
55 S.Ct.
him,
happened.
the accused
gravity
methods, the confi-
jury deliberation
assurance,
juror has that
this
justice is done
against
also benefited
being an
prosecution's
nonexistence.
testimony against
seen
record,
representative
in these
our
Yates'
the cause
the case
to attack
the start
must
issue,
examination
that we
knowledge are
at 633.
to take
carry none."
In the
methamphet-
presumption
characterized
own.
had received
by
urges
the accused
and, espe-
request
judge the
was
accessory
jurors in
we
the fail-
holdWe
was
the trial
trouble
against
cireum-
are not
"(Im-
by
these
exer-
case,
obvi-
into
wit-
we
that a
we
cause
Pleas
tion
new
Testimony
decision
son
jection was
introduction
cutor
1998.
Court's
bated
ment
tion;
claims
lished
Larson
search
versing and
2000)
Capshaw
grounds,
ever,
535-40
shaw
persons are
cused
fact that
ble
As
growing
at 911
Mr. Justice
urged as
that a substantial
was
equivocal
(1)
demonstrate
reverse
need
error.
regarding
events
we
(Wyo.1979), and
rule was
888
thus,
elicited
emphasized
the record
the accused's
we would
if:
to the
reasonable
(quoting
materially
(Wyo.2000).
decision
(quoting
He claims
also based
recently
on this
right to
out of
we
and Sixth
(Wyo.1997)).
"We
v.
plain error
and
The conviction
our
Mazurek
taken
Regarding
made
rule of
the other'
Jackson:
remanding for
error;
need not
of such
State,
discussions
testimony from
consider
indicted
review would
set forth
issue.
remand
violation
Seymour
in Kwallek
the same
refer
clearly
Kwallek,
noted,
abridged.
a fair trial
pleaded
to the
their
morning of
law;
11 P.3d
(2)
contends
long held that
pleas which
Amendment
testimony was exacer
right of
decide
"
punishment.
reflects
appellant
Because
progeny.
jury that Yates
of this issue
Witnesses'
many years
associated
Capshaw,
cireumstances,
contravened
new trial
separate offenses
a new
on
rationale behind
would
be confined
State,
exists
(8)
December
clear and
P.2d at
the denial
closing argu
the incidents
light of
arose
is inadmissi
affected
issue; how
it is shown
we
stand, and
trial, Be-
confronta-
is able
911
Earl
'when
appellant
949
on other
11 P.8d.
No ob
Guilty
prose
ago
estab
error,
out of
(Wyo.
ques
1375).
Lar
Cap
P.2d
*6
to a
our
un-
two
ac
re
by
It is difficult for the individual to make his
part
was
small
of the trial and does not rise
own case stand on its own merits in the
prejudice
level of
by
accorded
jurors
minds
ready
who are
to believe majority. Therefore, I must respectfully dis-
plain error at
Krulewitch v. United
nonexhaustive factors to be considered when was that Earll
evaluating whether
(1949) (Jackson, J., concurring in judgment
that birds of a feather are
each
er.
(2) whether the
(1)
opinion);
prodded
if,
remarks
extensive;
If he is
other,
as often
In
degree
Masgurek,
they convict each other.
Capshaw,
(4) whether
the comments were deliber-
ately placed
before the
to divert
In addition to the testimony of Cat-
attention to
matters;
extraneous
Bunnie,
fish and
was instructed
(5)
presence
or absence of a limiting
regarding
by
statements made
counsel. The
instruction;
prosecutor's misrepresentations
quickly
(6)
countered and
denied not
there was a
defense
proper purpose
counsel but
for introducing
defendant
conviction;
himself.
judge
The trial
immediately made it clear
(7) whether the conviction
*7
improper-
the comments
evidence,
were not
as
ly emphasized;
by
indicated
intimations that if counsel
(8) whether
the conviction was used as
continue,
wanted to
put
would be
under
substantive
guilt;
evidence of
Rather,
oath.
given
instruction
(9) whether the error was
invited
de-
trial court was specificallycreated for situa-
counsel;
fense
tions such as this one. In the
any
absence of
(10) whether
object
failure to
could
evidence to
contrary,
we should assume
have been the result of tactical deci-
ability
to follow instruc-
sions; and
does,
tions
fact,
abide
those in-
(11) whether,
light
evidence,
all the
structions.
ment did not constitute misconduct. The
Mazurek,
misstatement counsel and contradicted corrected, Here, the defendant it. The might as soon made, ridiculed, himself both the defense immediately vigorously counsel,