Condra v. State

• Decision Date: 04 November 2004
• Docket Number: No. 03-158,03-158
• Citation: 100 P.3d 386,2004 WY 131
• Parties: RUSSELL CONDRA, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2004 WY 131

100 P.3d 386

RUSSELL CONDRA, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

No. 03-158

Supreme Court of Wyoming. OCTOBER TERM, A.D. 2004.

November 4, 2004

Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and WALDRIP, DJ.

KITE, Justice.

[¶1] Russell Condra sold two snowmobiles and a trailer he was storing for a friend and was convicted of larceny by bailee. Mr. Condra appeals his conviction claiming the prosecutor committed misconduct when he vouched for his own credibility and the credibility of his witnesses, suggested he would not have charged Mr. Condra with a crime unless Mr. Condra had done something wrong, relied on facts which were not in evidence, and attempted improper impeachment of Mr. Condra through the use of a prior conviction, thereby denying Mr. Condra a fair trial. We agree and reverse and remand for a new trial.

ISSUES

[¶2] Both parties agree the sole issue for review is whether Mr. Condra was denied a fair trial due to prosecutorial misconduct.

FACTS

[¶3] In July of 1999, Danny Cifers moved to Arizona and left two snowmobiles and a trailer with Mr. Condra, who agreed to store the machines and attempt to sell them. Over two years later, in September of 2001, Mr. Condra sold the snowmobiles and trailer for $1,700 to Kelly Donathan, but did not tell Mr. Cifers about the sale.

[¶4] When Mr. Cifers arrived in Thermopolis in late November 2001 to pick up his snowmobiles and trailer, Mr. Condra told him the snowmobiles were with a prospective buyer and would not be back for a couple of days. Mr. Cifers became suspicious and contacted the police, who located the snowmobiles and trailer at the home of Mr. Donathan. The State charged Mr. Condra with larceny by bailee in violation of Wyo. Stat. Ann. § 6-3-402(b) and (c)(i) (LexisNexis 2003), and although he claimed he sold the snowmobiles for late monthly storage fees, the jury found him guilty as charged on March 14, 2003. The court sentenced Mr. Condra to a term in the state penitentiary for a period of two to four (2-4) years, but suspended that sentence contingent upon his successful completion of five (5) years supervised probation.

STANDARD OF REVIEW

[¶5] Our standard for reviewing allegations of prosecutorial misconduct is well settled. As we stated in Simmons v. State, 2003 WY 84, ¶15, 72 P.3d 803, ¶15 (Wyo. 2003),

[p]rosecutorial misconduct "has always been condemned in this state." Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error affected the accused's" substantial rights." The accused's right to a fair trial is a substantial right. "Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused."

(citations omitted). The appellant bears the burden of establishing prosecutorial misconduct.

[¶6] Mr. Condra claims three distinct incidents of prosecutorial misconduct at different stages of the trial. Because Mr. Condra did not object at trial to two of the incidents, it is incumbent upon him to demonstrate plain error as to those instances of alleged misconduct. "Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Dysthe v. State, 2003 WY 20, ¶23, 63 P.3d 875, ¶23 (Wyo. 2003).

[¶7] Mr. Condra did object at trial to the third instance of alleged misconduct. We, therefore, review that incident for harmless error. Wyoming Rule of Appellate Procedure 9.04 states that "any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court." Wyoming Rule of Criminal Procedure 52(a) and Wyoming Rule of Evidence 103(a) contain similar provisions. The test for harmless error is as follows:

An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. To demonstrate harmful error, the defendant must show prejudice under "circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play.

Dysthe, ¶10 (citation omitted).

DISCUSSION

Vouching for Credibility and Ignoring the Burden of Proof

[¶8] Mr. Condra contends that the prosecutor committed misconduct during his closing argument first by using his position as an officer of the court to boost his own credibility, as well as the credibility of the State's witnesses, and second, by urging the jury to ignore the presumption of innocence and, thus, the State's burden of proof. The State insists the prosecutor did not vouch for the State's witnesses or assert his own credibility as a basis for conviction, and actually urged the jury to carefully review each witness's credibility.

[¶9] The prosecutor argued as follows during his rebuttal closing argument:

Defense counsel told you at the beginning of trial this would be a he said she said situation, and it really is. And all I have to sell you today is my credibility and that being an officer of this court, the credibility of my witnesses. Now as an officer of this court it's my duty to seek justice. It's not about prosecuting people, it's not about throwing them in jail. If what Mr. Condra did wasn't wrong, then we wouldn't be here today.

[¶10] Mr. Condra did not object to this argument at trial, so our review is confined to plain error. The incident alleged as error in this instance is clearly set forth in the record and, as such, the first requirement of our plain error standard is met. Thus, our focus will be on the second and third elements of plain error.

[¶11] We have often recognized the clear and unequivocal rule of law that a prosecuting attorney cannot personally vouch for the credibility of the State's witnesses. Harper v. State, 970 P.2d 400, 403 (Wyo. 1998). Furthermore, it is well established that a prosecutor cannot assert his or her own credibility as a basis for conviction of defendants. Browder v. State, 639 P.2d 889, 893 (Wyo. 1982). As we explained in Barela v. State, 787 P.2d 82, 83-84 (Wyo. 1990) (citation omitted),

[w]hen the prosecutor asserts his credibility or personal belief, an additional factor is injected into the case. This additional factor is that counsel may be perceived by the jury as an authority whose opinion carries greater weight than their own opinion; that members of the jury might be persuaded not by the evidence, but rather by a perception that counsel's opinions are correct because of his position as prosecutor, an important state official entrusted with enforcing the criminal laws of a sovereign state. While the prosecutor is expected to be an advocate, he may not exploit his position to induce a jury to disregard the evidence or misapply the law.

[¶12] As the State points out, the propriety of any comment within a closing argument is measured in the context of the entire argument. Mazurek v. State, 10 P.3d 531, 542 (Wyo. 2000). The State contends that, when viewed in context, the prosecutor's remarks were a proper response to defense counsel's argument and reminded the jury that witness credibility was a key issue. Defense counsel had argued the prosecutor was doing what should have been civil work on the State's dime, and was also working to conceal unlawful confiscation of the snowmobiles by law enforcement. The State argues the prosecutor merely explained why his witnesses were credible.

[¶13] While the prosecutor's review of the testimony of his witnesses was certainly appropriate, it does not excuse the prosecutor's unabashed claim that those witnesses were credible because he was credible. Irrespective of whether in response to defense arguments or not, a prosecuting attorney simply cannot vouch for the credibility of the State's witnesses. White v. State, 2003 WY 163, ¶28, 80 P.3d 642, ¶28 (Wyo. 2003). Stating that all he had to "sell" to the jury was "my credibility and that being an officer of this court, and the credibility of my witnesses" crossed the very clearly established line for prosecutors.

[¶14] The prosecutor's transgression in this case is similar to that found to be improper in Dysthe, ¶28. That prosecutor argued:

These witnesses, despite the fact that they are users, were credible. They were very credible. They were more credible because of the very fact that they have a relationship with this Defendant. More credible because, if you couldn't tell, I certainly could; they didn't like me asking them questions. They didn't want to be telling me anything.

He also stated he had worked with investigators on the case and could "guarantee" that their investigations were not" arbitrary," and that the witnesses "had no reason to lie." Id. This Court held those statements improperly gave the clear impression that the prosecutor believed the witnesses and so should the jury.

[¶15] In this instance, the prosecutor's comments are even more egregious than in Dysthe. Even though this prosecutor, at the end of his rebuttal closing argument, asked the jury to give "serious consideration as to the weight and credibility of every witness who testified," we cannot overlook the prosecutor's unequivocal vouching for the credibility of "his" witnesses, and then tying...