Black v. State

• Citation: 405 P.3d 1045
• Decision Date: 17 November 2017
• Docket Number: S-15-0295
• Parties: Joshua Roy Delbert BLACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

405 P.3d 1045

Joshua Roy Delbert BLACK, Appellant (Defendant),

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

S-15-0295

Supreme Court of Wyoming.

November 17, 2017

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Patricia L. Bennett^* , Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Harper, Assistant Attorney General; Becket B. Hinckley, Special Assistant Attorney General. Argument by Mr. Hinckley.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

BURKE, Chief Justice.

[¶1] Appellant, Joshua Roy Delbert Black, challenges his conviction for aggravated assault, in violation of Wyo. Stat. Ann. § 6-2-502(a)(i).¹ He contends he was denied a fair trial as a result of prosecutorial misconduct. He also claims that his due process rights were violated because he was required to wear a leg restraint during trial. We find that prosecutorial misconduct occurred when the State failed to comply with the district court's discovery order and when the prosecutor made improper comments during closing argument. We also find that the district court abused its discretion in requiring Appellant to wear a leg restraint at trial without conducting a hearing to evaluate the necessity for the restraint. The cumulative impact of those errors deprived Appellant of a fair trial. Accordingly, we reverse and remand for a new trial.

ISSUES

[¶2] Appellant presents the following issues:

1. Did the prosecutor commit misconduct when he failed to comply with the court's discovery order?

2. Did the trial court abuse its discretion when it denied Appellant's motion to restrict witness testimony?

3. Did prosecutorial misconduct occur during trial?

4. Was Appellant denied due process of law when he was restrained during trial without an appropriate hearing to determine if restraints were necessary?

5. Was Appellant deprived of a fair trial due to the cumulative impact of the alleged errors?

FACTS

[¶3] Appellant and Kelli Windsor² began dating in California in June 2014. In July, Ms. Windsor moved to Jackson, Wyoming to work as a horse-trainer and riding instructor for the children of Jake and Patricia Nichols. The relationship continued after the move and, in October, Appellant moved to Wyoming to live with Ms. Windsor. They had lived together for a week before the incident at issue in this case occurred.

[¶4] On the night of October 26, Ms. Windsor received significant injuries to her head and face.³ She claimed her injuries were caused when she was attacked by Appellant in their residence. Ms. Windsor did not report the incident to police.⁴ She did, however, take pictures and videos of her injuries with her cell phone. Later that evening, she sent text messages to Molly Hufford, nanny for the Nichols children. She provided pictures of her injuries along with the statement: "What Josh did to me tonight so there's witnesses. I can't come in tomorrow." In addition to sending the pictures to Ms. Hufford, Ms. Windsor sent text messages and photos to Appellant and Appellant's friend. Those messages also indicated that Appellant had caused Ms. Windsor's injuries.

[¶5] Ms. Hufford did not see the message until the next morning when she was at the Nichols residence. When she saw the message, she notified her employers. Mr. Nichols went to the residence, and Mrs. Nichols notified the police. When he arrived at the residence, Mr. Nichols found Appellant and Ms. Windsor sleeping in the bedroom and the apartment in disarray. He observed broken furnishings and overturned furniture. Law enforcement arrived a short time later and detained Appellant. Ms. Windsor was transported to the emergency room.

[¶6] Appellant was arrested and charged with one count of aggravated assault causing serious bodily injury in violation of Wyo. Stat. Ann. § 6-2-502(a)(i) (LexisNexis 2013). The Information also contained a "Notice of Enhanced Penalties" and alleged that Appellant was a habitual criminal under Wyo. Stat. Ann. § 6-10-201(a)(ii) with three prior felony convictions. Trial was initially scheduled for April 21, 2015 but was continued and rescheduled to June 22, 2015 at the request of the State. It was subsequently rescheduled to September 28, 2015 at the request of Appellant after his original defense counsel withdrew and the Public Defender's office was appointed to represent him. New defense counsel filed several discovery motions, including a "Motion to Compel the Discovery of Facebook and Cell Phone Records."

[¶7] The motion to compel was filed on July 8 and alleged:

[I]t is known that [Ms. Windsor] sent various pictures, text messages, and information prior to, during, and after the alleged event. This evidence may go directly to [Ms. Windsor's] credibility as to her expected testimony; she is the State's most important witness in this case. ... It is believed that some of these records were deleted by [Ms. Windsor] or others[.] [O]btaining records from [Ms. Windsor] is not sufficient and may be inaccurate.

The motion also alleged that:

It is believed that it is much easier and more convenient for the State to obtain these requested records than the Defendant. It is known, in fact, that such a request for Facebook to provide records is made frequently by law enforcement in Teton County, Wyoming. See Records Request at www.facebook.com/records/login (stating that "If you are a law enforcement agent who is authorized to gather evidence in connection with an official investigation, you may request records from Facebook through this system."). Whereas, it is unduly cumbersome and costly, both in time and resources for the Office of the State Public Defender to obtain these records via court subpoena, or subpoena duces tecum, and the required modes of providing notice and service.

The motion requested Facebook and Verizon records from June 1, 2014 through November 30, 2014.

[¶8] A hearing on the motion was held on August 7. At the hearing, the prosecutor advised the court that the State had no objection to the motion. The court granted the motion and entered an order providing that the "State shall exercise due diligence to obtain the requested information and shall promptly request the information from Facebook and Verizon Wireless and provide it to Defendant's counsel."

[¶9] The State subsequently provided an extraction record of text messages from one of Ms. Windsor's cell phones indicating that some messages had been deleted. However, the State did not attempt to contact Verizon or Facebook at any time following the court's order. As a result, on August 28, 2015, Appellant filed a "Motion to Restrict Witness Testimony for Failure to Comply with Discovery and Court Order." In the motion, Appellant sought to exclude the testimony of Ms. Windsor and all law enforcement officers as a sanction for the State's failure to comply with the discovery order.

[¶10] The motion was addressed at a pretrial conference held on September 14 and at a subsequent hearing held on September 16. Following the hearings, the district court entered an order denying the motion for sanctions. In the order, the court stated that it would entertain a defense motion for a continuance and would expedite a new trial setting if Appellant wished to attempt to obtain the information by other means. The defense did not seek a continuance.

[¶11] Appellant also filed a pretrial motion to appear at trial in plain clothes and without restraints. In response, the State advised the court that it had no objection to the motion. The district court granted the motion in part. It ruled that Appellant could appear at trial in plain clothes but indicated that it would reserve a decision on whether Appellant should be restrained in the courtroom until it had an opportunity to hear from the Teton County Sheriff's Office. No additional pretrial hearing on the issue of restraints occurred, and Appellant was required to wear a leg restraint during trial.

[¶12] After a five-day jury trial, Appellant was found guilty of aggravated assault under Wyo. Stat. Ann. § 6-2-502(a)(i). The jury also found Appellant to be a habitual criminal under Wyo. Stat. Ann. § 6-10-201(a)(ii). The district court sentenced Appellant to life in prison. This appeal followed. Additional facts will be presented as necessary in the discussion below.

DISCUSSION

I. Prosecutorial Misconduct

[¶13] Appellant alleges that the prosecutor committed misconduct by failing to comply with the district court's discovery order and by making improper statements and arguments during trial. The State concedes some instances of prosecutorial misconduct but asserts that the misconduct did not prejudice Appellant. We review allegations of prosecutorial misconduct under the plain error standard if there has been no objection at trial. Carroll v. State, 2015 WY 87, ¶ 31, 352 P.3d 251, 259 (Wyo. 2015). Where there has been an objection below, claims of prosecutorial misconduct are reviewed under a harmless error standard.

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. Wyo. Const. art. 1, §§ 6, 9, and 10 ; and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo. 1978). 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.

McGinn v. State, 2015 WY 140, ¶ 13, 361 P.3d 295, 299 (Wyo. 2015) (quoting White v. State, 2003 WY 163, ¶ 7, 80 P.3d 642, 646 (Wyo. 2003) ). "To...