Burton v. State

VOIGT, Justice,

dissenting, with which GOLDEN, Justice, joins.

[¶ 49] I would reverse because the prose-cutorial misconduct in closing argument was simply too egregious and too filled with potential prejudice to allow this conviction to stand. While I agree with the majority’s recitation of the standard of review, I would reach a different result through its application. The. prosecutorial misconduct in this case created a substantial risk of miscarriage of justice. ■ •

[¶ 50]' We have repeatedly recognized the “ ‘great latitude’ ” allowed counsel in closing argument. Helm v. State, 1 P.3d 635, 639 (Wyo.2000)' {quoting Montoya v. State, 971 P.2d 134, 136 (Wyo.1998)). At the same time, we have cautioned that argument must be kept within the evidence, and that “ ‘[statements calculated to inflame, prejudice or mislead the jury are not permitted.’ ” Helm, 1 P.3d at 639 -40 (quoting Montoya, 971 P.2d at 136 ). And while prosecutors are no more limited in closing than are defense counsel, prosecutors have the additional duty to seek justice, not just to seek a conviction. Browder■ v. State, 639 P.2d 889 , 893 ■ (Wyo. 1982). In particular, a prosecutor may not appeal to the jury’s sense of duty to help law enforcement by convicting the defendant nor may he appeal to the jury’s passion and prejudice. Gayler v. State,- 957 P.2d 855, 861 *322 (Wyo.1998). A prosecutor's closing argument must not inject issues into the trial that are broader than the guilt or innocence of the accused under the controlling law, thereby diverting the jury from its duty to decide the case on the evidence. Jeschke v. State, 642 P.2d 1298, 1302 (Wyo.1982). A prosecutor "is not allowed to urge the jury to convict an accused on any basis other than that the evidence shows guilt beyond a reasonable doubt." Gayler, 957 P.2d at 861 .

[¶ 51] The central theme of these admonitions is that closing arguments must be premised upon the evidence. McLaughlin v. State, 780 P.2d 964, 970 (Wyo.1989) (quoting Schmunk v. State, 714 P.2d 724, 742 (Wyo.1986)). The purpose of closing argument is to allow counsel to review the evidence and to suggest to the jury reasonable inferences that can be drawn from that evidence. McLaughlin, 780 P.2d at 970 (quoting Schmunk, 714 P.2d at 742 ); Leiker v. State, 994 P.2d 917, 919 (Wyo.1999).

[¶ 52] Despite these clear principles of law, the prosecutor in the instant case began his closing argument with the following statements: f

Ladies and gentlemen, the State understands that we have just introduced to you a completely and hopefully, an unknown world that's going on out there right here in our community. It's the drug world.

._ You heard a lot of testimony about these young kids and the behavior that they were involved with. But ask yourself, ladies and gentlemen, would they ever get the opportunity to be doing these kinds of things if not for the likes of the Juan Burtons of the world?

[¶ 53] This argument was a direct invitation to the jury to convict the appellant, not because the elements of the crimes had been proved, but because the community needed to be protected from people like the appellant. The impropriety of this argument was then magnified when, shortly thereafter, the prosecutor added the following equally troublesome statement:

Now, I know you're probably thinking Tight now, well, the defendant is not on trial for furnishing drugs to these minors 'and to these kids. But it has a lot to say about his character. Character has a lot to say about what a person-what a man will try and not try to get away with.

[¶ 54] W.R.E. 404(a) provides that "[elvi-dence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular oceasion[.]" The purpose of this rule is to prevent the jury from conviet-ing a defendant based on the assumption that he must have acted in conformity with his " 'bad character,'" rather than on proof of the elements of the crime. Solis v. State, 981 P.2d 28, 30 (Wyo.1999) (quoting Brown v. State, 953 P.2d 1170, 1175-76 (Wyo.1998)). Character evidence is only admissible if it falls within one of the exceptions found in W.R.E. 404-that is, if it tends to prove something other than propensity to commit the charged crime-and if its relevancy outweighs the risk of prejudice. Solis, 981 P.2d at 30 (quoting Brown, 953 P.2d at 1175-76 ). Surely, what a prosecutor cannot accomplish with the introduction of evidence, he cannot accomplish through closing argument.

[¶ 55] The charged crimes in this case were first-degree sexual assault and indecent liberties with a minor. While the prosecutor had the right to alert the jury to proper inferences that could be drawn from the circumstances surrounding the alleged crimes, including the temporally related drug activities of the defendant and the victim, he did not have the right to ask the jury to convict the appellant (1) to help eradicate the "drug world," or (2) because of the appellant's character. In the context of the prosecutor's entire closing argument, especially including the other portions of that closing argument quoted in the majority opinion, I would conclude that this was an attempt to convict the appellant for reasons other than commission of the charged crimes.

[¶ 56] Finally, I would reverse because there is a reasonable possibility that the verdict may have been more favorable to the appellant had these improper arguments not been made. See Gayler, 957 P.2d at 862 and Browder, 689 P.2d at 895. There was no physical evidence of the alleged crimes and the testimony varied greatly from one wit *323 ness to the next. The jury found the appellant not guilty of first-degree sexual assault, but guilty of indecent liberties with a minor. While such a verdiet is not necessarily inconsistent, it raises a red flag in the instant case because of the prosecutor's tendency in closing argument to blur the line between indecent liberties and providing drugs to minors.

[¶ 57] We have recently described the factors to. be considered when evaluating claims of prosecutorial misconduct:

Among the factors to be considered are the nature and gravity of the error, the prosecutor's duty to do justice and refrain from improper methods, the likely impact on the average juror, the quality of the prosecution's case, and the closeness of the case.

Warner v. State, 2001 WY 67, ¶ 23 , 28 P.3d 21, 29 (Wyo.2001) (citing Earll v. State, 2001 WY 66, ¶ 16 , 29 P.3d 787, 792 (Wyo.2001)). In the present case, all of these factors tend to support reversal of the conviction. In such case, we cannot hide behind our inability to know for certain that the misconduct influenced the verdict.

"If, when all is said and done, the convietion is sure that the error did not influence the jury, or had but very slight effect, the. verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

Warner, 2001 WY 67, ¶ 22 , 28 P.3d at 28 (quoting Kotteakos v. United States, 328 U.S. 750, 763-65 , 66 S.Ct. 1239, 1247-48 , 90 L.Ed. 1557 (1946)).

[¶ 58] The appellant's right to a fair trial was prejudiced and his conviction should be reversed.