Belden v. State

• Decision Date: 31 July 2003
• Docket Number: No. 01-57.,01-57.
• Citation: 73 P.3d 1041,2003 WY 89
• Parties: Gary Lee BELDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

73 P.3d 1041

2003 WY 89

Gary Lee BELDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-57.

Supreme Court of Wyoming.

July 31, 2003.

Rehearing Denied August 26, 2003.

Kenneth M. Koski, Public Defender, and Donna D. Domonkos, Appellate Counsel, Representing Appellant. Argument presented by Ms. Domonkos.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Prosecution Assistance Program; and Charles L. Peters

and Kerry Gaines, Student Interns, Representing Appellee. Argument presented by Ms. Gaines.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] Gary Lee Belden (Belden) appeals convictions for first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) and first-degree murder in violation of Wyo. Stat. Ann. § 6-2-101(a). Belden asserts multiple errors in his trial including claims of judicial and prosecutorial misconduct, admission of prejudicial uncharged misconduct evidence, exclusion from an in camera hearing that was a critical stage of the trial proceedings, and a violation of the Wyoming Constitution through the appointment of an Assistant United States Attorney as a special prosecutor. We find no prejudicial error and affirm the convictions.

ISSUES

[¶ 2] Belden presents five issues for review:

Issue I

Whether the trial court committed judicial misconduct when he repeatedly interfered with the proceedings and usurped the roles of both trial counsel and the jury?

Issue II

Whether the trial court abused its discretion when it admitted evidence of two incidents of sexual assault allegedly committed by Belden?

Issue III

Whether the prosecutor committed prosecutorial misconduct when he solicited opinion testimony of Belden's guilt, argued propensity on prior bad acts, misstated the facts and shifted the burden of proof in closing argument and asked the jury to convict for reasons other than the evidence?

Issue IV

Whether Belden was deprived of his right to be present at a critical stage of the proceedings by not being present during a hearing concerning prosecutorial misconduct?

Issue V

Whether the district court violated the Wyoming Constitution by allowing an Assistant United States Attorney to function as special prosecutor?

The State's statement of the issues parallels Belden's but with slightly different language:

I. Did the district court commit judicial misconduct by repeatedly and unnecessarily interfering with the proceedings, and usurp the role of trial counsel and the jury?

II. Did the district court abuse its discretion when it admitted evidence of two prior charges of sexual assault against [Belden]?

III. Did the prosecutor commit prosecutorial misconduct when a witness gave unsolicited opinion testimony on [Belden's] guilt; or did the prosecutor in closing improperly argue propensity from [Belden's] prior acts of misconduct, misstate the facts, ask the jury to convict for reasons other than the evidence, or improperly shift the burden of proof to [Belden]?

IV. Did [Belden] have a constitutional right to be present at the hearing in camera on the objection to the State's closing argument, and does the record show that [Belden's] absence was other than knowing and voluntary?

V. Did the district court violate the Wyoming Constitution by allowing an Assistant United States Attorney to act as special prosecutor?

FACTS

[¶ 3] In August of 1985, Belden was employed as a baker at the ARA facility at the Shute Creek Exxon Plant near Diamondville, Wyoming. On August 29, 1985, Belden, using the pseudonym Richard Price, was scheduled to begin his shift at 9:30 p.m. Instead of punching in for work, however, Belden quit his job without notice. Various co-workers described Belden's appearance as "suspicious," "impatient and nervous," "real anxious," "real jittery," and "nasty, aggravated, upset." One co-worker noted Belden's nervousness as well as scratches on his chest, neck, and face. Belden proceeded to dispose of several personal items before leaving the facility in a co-worker's truck, which he did not have permission to use. Belden also left various items behind that he never attempted to recover, including a motorcycle and his final paycheck.

[¶ 4] Belden's co-worker in the bakery, Terrie Smith, returned to the mobile home she shared with her friend, Nancy Lane, after completing her shift early the next morning on August 30, 1985. Smith discovered the naked, battered body of Nancy Lane on the living room floor of the trailer. Lane had been brutally beaten and then strangled to death. Her body bore injuries indicating that she had been the victim of a sexual assault prior to death. Investigators were able to collect a semen sample along with scrapings from under Lane's fingernails and a hair found on her body.²

[¶ 5] Belden was not located until December of 1987 when he was arrested in Utah. Investigators went to Utah to question him. Belden claimed he had permission to use the truck that he had taken on the night of August 29, 1985. He also stated that he knew the victim through her roommate, who was also his co-worker at the bakery. Belden voluntarily provided the investigators with blood and hair samples. DNA analysis revealed that Belden was the source of the semen found in the victim's body. DNA tests of the fingernail scrapings were generally inconclusive but tended to exclude Belden as the source.³

[¶ 6] For reasons that remain unclear in the record, the investigation into the victim's death remained dormant until sometime in 1998. The re-opened investigation ultimately led to charges of sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i)⁴ and first-degree murder in violation of Wyo. Stat. Ann. § 6-2-101(a)⁵ against Belden. A jury trial was held from October 9, through October 17, 2000. Belden's defense was that he had consensual intercourse with the victim on the night of August 29 but that she was alive when he left her trailer. Belden suggested that either the victim's ex-boyfriend or her roommate's estranged husband might have been involved in her death. Nevertheless, the jury returned a guilty verdict on both charges. Additional facts will be set out in our discussion below, as necessary.

DISCUSSION

I. Judicial Misconduct

A. Standard of Review

[¶ 7] We have never explicitly established a standard for the appellate review of claims alleging judicial misconduct during a jury trial. Belden urges us to utilize the standard enunciated by the Supreme Court of Kansas:

Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct; and in order to warrant or require the granting of a new trial it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.

State v. Hamilton, 240 Kan. 539, 731 P.2d 863, 869 (1987). In addition to the standard set forth above and cited by Belden, the Kansas Supreme Court has further stated:

A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.

State v. Kleypas, 272 Kan. 894, 40 P.3d 139, 220 (2001) (quoting State v. Nguyen, 251 Kan. 69, 833 P.2d 937, 939 (1992)).

[¶ 8] The State, on the other hand, suggests that we have hinted in previous opinions that an abuse of discretion standard is appropriate:

It occasionally happens that some occurrence upon a trial will warrant and may require comment by the court upon the conduct of a witness by way of caution, admonition, or censure, and, when such comment is within due bounds, and appropriate to the character of the occurrence, it will not be subject to a valid exception.

Kendrick v. Healy, 27 Wyo. 123, 192 P. 601, 612 (1920). See also Kennedy v. State, 422 P.2d 88, 93-94 (Wyo.1967) (remark by trial court not in violation of the standard set forth in Kendrick "nor an abuse of discretion").

[¶ 9] In Jansen v. State, 892 P.2d 1131 (Wyo.1995), we confronted a claim that the trial court prejudiced the defendant when it rebuked his counsel for improperly marking an exhibit during closing argument:

The trial court acts as a referee of the contest between the parties. It should be fair and impartial as between the parties and their attorneys and allow them considerable freedom in the presentation of their respective cases in their own way.

....

Although we have said that the court must assiduously avoid any appearance of partiality, we recognize also that the court must be firm, maintain control of the proceeding and assure that what occurs is within the rules of law and procedure to the end that the jury receives and considers only lawful evidence conducive to its arriving at a just result. * * * [A]lthough where circumstances reasonably necessitate, it is within the province of the trial court to admonish or rebuke counsel. * * * Maintaining a semblance of order in those trials is left largely to the trial court and is not a basis for reversal absent a clear showing of prejudice. McCabe v. R.A. Manning Construction Co., Inc. 674 P.2d 699, 708-09 (Wyo. 1983).

The test for the clear showing of prejudice does not relate to the number of rulings in favor of each counsel, but rather assurance "that what occurs is within the rules of law and procedure to the end that the jury receives and considers only lawful evidence conducive to its arriving at a just result."

Jansen, 892 P.2d at 1142 (emphasis in original). In practical terms, there is no difference between the two standards proffered by Belden and the State. The trial court has a certain amount of discretion to control the proceedings before it. The court is constrained, however, by the requirement that all criminal defendants are entitled to...