Buszkiewic v. State

• Decision Date: 23 August 2018
• Docket Number: S-17-0293
• Citation: 424 P.3d 1272
• Parties: Jacob Alan BUSZKIEWIC, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

424 P.3d 1272

Jacob Alan BUSZKIEWIC, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-17-0293

Supreme Court of Wyoming.

August 23, 2018

Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Christopher G. Humphrey, Assistant Appellate Counsel. Argument by Mr. Humphrey.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Rebecca J. Zisch, Assistant Attorney General. Argument by Ms. Zisch.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

KAUTZ, Justice.

[¶1] A jury found Jacob Alan Buszkiewic guilty of two counts of strangulation of a household member. Mr. Buszkiewic asserts the prosecutor made several statements during closing argument that amounted to misconduct and deprived him of a fair trial.

[¶2] Finding no error, we affirm.

ISSUES

[¶3] Mr. Buszkiewic states the following issues on appeal:

I. Did the prosecutor’s repeated use of the "golden rule" argument subvert the objectivity of the jury and materially prejudice Mr. Buszkiewic?

II. Did the prosecutor’s repeated reference to the complaining witness as being the "victim," referring to the defense theory as "victim blaming," and referring to what the defendant didn’t say to police, and didn’t explain, result in cumulative error and materially prejudice Mr. Buszkiewic?

FACTS

[¶4] Mr. Buszkiewic and Sarah Oakland were involved in an on-again-off-again romantic relationship. In April 2016, Ms. Oakland, who resided in Sheridan, Wyoming, spent a couple of weeks with Mr. Buszkiewic at his house in Laramie, Wyoming. On April 29, 2016, the couple visited several bars, with their final stop of the night being Bud’s Bar in West Laramie. They stayed at the bar after it closed and played cards with the bartender until approximately 5:00 a.m. on April 30, 2016.

[¶5] When Mr. Buszkiewic and Ms. Oakland returned to Mr. Buszkiewic’s house, he accused her of flirting with the bartender. He forced her into the bedroom where he placed her on the bed and slapped her several times. Mr. Buszkiewic then let her up, and she tried to reason with him. The same thing happened a few more times, with Mr. Buszkiewic taking Ms. Oakland into the bedroom, placing her on the bed, slapping her and then letting her up. During two of the slapping incidents, he also put his hands around her throat and squeezed, cutting off her airway and causing pressure in her eyes, nose and head.

[¶6] Ms. Oakland eventually ran out the front door and flagged down a neighbor who was pulling his car out of his driveway. She told the neighbor that someone was after her and she needed to get away. Mr. Buszkiewic left the house when Ms. Oakland did, so she asked the neighbor to take her back to the house to get her things. Mr. Buszkiewic returned to the house about the same time as Ms. Oakland. The neighbor initially parked in the driveway of Mr. Buszkiewic’s house to wait for Ms. Oakland, but then decided it was not safe to remain there, so he drove away and called 911. In the meantime, Mr. Buszkiewic took Ms. Oakland to the bedroom one more time and slapped her. She was able to gather her belongings and leave after the last incident. Ms. Oakland stopped at a convenience store for gas, and the attendant noticed that she looked frightened and watchful as she pumped the gas.

[¶7] Laramie police officers responded to the 911 call. They asked Mr. Buszkiewic what happened, and he said that he and his girlfriend had an argument but denied it had turned physical. The officers learned that Ms. Oakland had contacts in Sheridan, so they asked the authorities there for assistance in locating her.

[¶8] Ms. Oakland drove to Sheridan and went to an urgent care facility. A physician’s assistant took her history and examined her. Ms. Oakland had injuries to her face, eardrum and head, and bruising on her arms. Her voice was hoarse and she had petechiae

in one eye, which the physician assistant found consistent with Ms. Oakland’s report that she had been strangled. The medical staff contacted law enforcement, and Sheridan police officers interviewed Ms. Oakland and took photographs of her injuries.

[¶9] The Sheridan authorities reported the results of their investigation to the Laramie police, and Mr. Buszkiewic was arrested. At the time of his arrest, Mr. Buszkiewic admitted that his altercation with Ms. Oakland had turned physical, but claimed she struck him first and he had merely retaliated. The Albany County prosecutor charged Mr. Buszkiewic with two counts of strangulation of a household member in violation of Wyo. Stat. Ann. § 6-2-509(a)(i) (LexisNexis 2017). The matter was tried to a jury, which found him guilty of both counts. After the district court sentenced Mr. Buszkiewic, he appealed to this Court.

STANDARD OF REVIEW

[¶10] Mr. Buszkiewic claims the prosecutor committed several instances of misconduct during her closing argument to the jury. Because he did not properly object to the prosecutor’s statements during trial, our appellate review is limited to a search for plain error. Hamilton v. State, 2017 WY 72, ¶ 7, 396 P.3d 1009, 1011 (Wyo. 2017) (citing Watts v. State , 2016 WY 40, ¶ 6, 370 P.3d 104, 106 (Wyo. 2016) ). To establish the district court committed plain error, Mr. Buszkiewic must show: "1) the record is clear about the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) he was denied a substantial right resulting in material prejudice." Sindelar v. State, 2018 WY 29, ¶ 16, 416 P.3d 764, 768 (Wyo. 2018). See also , Johns v. State , 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018).

[¶11] This Court generally hesitates to find plain error in closing argument because the trial court should not be placed in " ‘a position of having to sua sponte challenge remarks of counsel when there is otherwise no objection thereto.’ " Webb v. State, 2017 WY 108, ¶ 28, 401 P.3d 914, 925 (Wyo. 2017) (quoting Solis v. State , 2013 WY 152, ¶ 40, 315 P.3d 622, 632 (Wyo. 2013) ). However, even though prosecutors are given wide latitude in arguing their cases, there are boundaries. Carroll v. State , 2015 WY 87, ¶ 32, 352 P.3d 251, 259 (Wyo. 2015). "When determining whether those boundaries have been crossed, we consider the entire argument, and not simply sentences and phrases that may be out of context." Webb, ¶ 28, 401 P.3d at 925.

DISCUSSION

Golden Rule Argument

[¶12] Mr. Buszkiewic claims the prosecutor made an improper "golden rule"¹ argument, by asking the jurors to place themselves in Ms. Oakland’s position, when she said:

... Where we’ve gotten into and off on a—on a tangent, so to speak, is how many times she was slapped. Well, I would submit to you, in your common affairs, if you were being slapped and you were in that situation, would you remember how many times and counting [sic] how many times? You think you know. Because it’s important when we come in to testify and talk to you, we’ve got to know how many times you got hit. You aren’t going to remember in your ordinary affairs the details, especially if you’ve been up all night and you had been drinking and then you come in here and you want me to recount how many times it happened.

[¶13] A golden rule² argument is " ‘[a] jury argument in which a lawyer asks the jurors to reach a verdict by imagining themselves or someone they care about in the place of the injured plaintiff or crime victim.’ " Brown v. State, 2014 WY 104, ¶ 18, n.5, 332 P.3d 1168, 1174, n.5 (Wyo. 2014) (quoting Black’s Law Dictionary 713 (8^th ed. 2004) ). See also, 75A Am. Jur. Trial § 547 (2018). "Golden rule arguments are widely recognized as improper." Brown, ¶ 20, 332 P.3d at 1175 (internal quotation marks omitted). See also, Law v. State, 2004 WY 111, ¶¶ 31-37, 98 P.3d 181, 192-94 (Wyo. 2004) (prosecutor improperly questioned the jury panel in voir dire about how they would feel in the victim’s place). A golden rule argument is "impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence." 75A Am. Jur. Trial § 547 (2018).

[¶14] However, an argument which asks the jurors to draw inferences from the evidence based on how a reasonable person would act if placed in the position of the victim is not an improper golden rule argument. Similarly, rhetorical questions which ask the jurors to use their common sense and life experiences to weigh the trial evidence do not violate the rule even though the prosecutor may ask the jury what they would do in similar circumstances. See State v. Williams, 172 Conn.App. 820, 162 A.3d 84, 94-95 (2017) ; State v. Bell, 283 Conn. 748, 931 A.2d 198, 212-15 (2007).

[¶15] For example, in Williams, 162 A.3d at 94-95, the court concluded that the prosecutor’s statements in closing argument about what the jury may or may not have done in the victim’s position was not an improper golden rule argument. The prosecutor’s comments were not designed to encourage the jury to decide the case based upon their sympathy for the victim, but to "remind the jurors that they must review the evidence objectively and from the perspective of a reasonable person[.]" Id. In Bell, 931 A.2d at 212-15, the Connecticut Supreme Court stated that the prosecutor’s request that the jurors put themselves in the place of a witness when evaluating her credibility was not an appeal to the jurors’ emotions or sympathies. Instead, the prosecutor was properly asking the jury to "draw inferences from the evidence that had been presented at trial ... based on the jurors’ judgment of how a reasonable person would act under the specified circumstances." Id. at 214-15.

[¶16] In this case, the prosecutor was not making an appeal for the jury to decide the case based upon sympathy or bias rather than the evidence. Instead, she requested...