Browder v. State

• Decision Date: 29 January 1982
• Docket Number: No. 5596,5596
• Citation: 639 P.2d 889
• Parties: Cecil BROWDER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 889

639 P.2d 889

Cecil BROWDER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5596.

Supreme Court of Wyoming.

Jan. 29, 1982.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program (argued), Michael H. Schilling, Appellate Counsel, and Dann D. McLean, Student Intern, Laramie, for appellant.

Sharon A. Lyman, Asst. Atty. Gen. (argued), Steven F. Freudenthal, Atty. Gen., for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

This appeal is from a judgment and sentence based upon appellant's conviction of first-degree sexual assault in violation of § 6-4-302, W.S.1977. ¹ The issue he raises on appeal is whether the prosecutor's comments during closing argument constituted plain error. ²

We will reverse.

On appeal, when presented with a challenge to the trier of fact's findings, we are required to accept the evidence of the prevailing party-in this instance the prosecution-as true, and leave out of consideration entirely the evidence of the appellant in conflict therewith. McCarty v. State, Wyo., 616 P.2d 782 (1980). But in this appeal no challenge is made to the sufficiency of the evidence; a reversal is sought because the evidence was close, and allegedly the improper comments contained in the prosecutor's closing may have tipped the scales and denied appellant his right to a fair trial. Accordingly we must consider all the evidence in considering what harm was done and whether appellant was denied a fair trial. Ordinarily we do not examine the evidence as closely as we do here and are confined to consideration of just the State's case; the exception being when substantial evidence is an issue. However, here the issue raised concerns whether, without the misconduct of the prosecutor, the jury would have arrived at a verdict of guilty. We do this as a prelude to considering plain error.

The incident underlying appellant's conviction occurred on or about January 14, 1981 in Uinta County. The supposed victim, whom we shall refer to as "J," was then living there in a trailer also occupied by a male friend. During the afternoon of the day in question the appellant, along with his companion Trenton Frith, knocked on the door of the trailer in which J resided. When J answered the door, appellant introduced himself and Frith, and asked J if she could help them find the trailer in which one "Zac" and his wife were living. J indicated that, though she knew Zac, she did not know where he resided. However, she offered to look his name up in the telephone directory; meanwhile she invited appellant and his companion into the trailer.

Once inside, the three individuals began conversing about themselves, explaining who they were and what they did. The men showed J their job I.D.'s and offered to try and help her get a job with their employer. Appellant, who had entered with a beer in his hand, finished it, and was offered another one by J. His companion noticed a guitar in the trailer and asked if he could play. J turned off the record player so that she and appellant could listen to Frith's music.

Soon appellant asked if J was interested in going with them to the P.C.C. Man Camp, where the men lived and worked. The State's evidence was that appellant said he needed to go there to pick something up, while the men claimed that the purpose of the trip was to get marijuana to smoke, and that J knew that. In any event, J agreed to go; and all three of them hopped into a station wagon driven by appellant.

During the drive to the camp, the three engaged in conversation while consuming beer. When they reached the camp's entrance, J got into the backseat and hid beneath a coat. This was necessary because no women were supposed to be allowed past the guard station. Once inside the camp, appellant drove to the building in which Frith lived. The three exited the vehicle and went inside to Frith's room where it was discovered that the room had been ransacked. A guard was summoned. He stepped into the room and told Frith he would need to make a list of what was missing. The guard then left saying he would go back to the front guard shack and report the incident. Though the guard and J both saw each other, nothing was said between them.

After the guard's departure, marijuana cigarettes were smoked. J claimed she was pressured into smoking a little of one; appellant and Frith contended that she joined in smoking several quite readily. All three admitted to a continued consumption of beer.

Next, J asserted that appellant placed a hand on her crotch. With this, she became upset and asked to be taken home because she loved her boyfriend. J next testified that appellant told her to watch out or he would rape her right there, and that then Frith told him to shut up and took him away into the bathroom for awhile. Both appellant and Frith denied that appellant ever did or said anything along the lines of J's claim.

Soon all three returned to the car and started back to the trailer in which J lived. Everyone agreed at trial that, during this ride, J got chummier with Frith. J explained this was because he promised to protect her from appellant. Back at her trailer, J either invited or allowed appellant and Frith back in, depending upon who was telling the story. She then went and started folding clothes which were in the dryer. Frith assisted her in this endeavor. According to the men's testimony, this ended with Frith and J kissing.

Next, J announced she needed to take a shower. She claimed that she went into the bathroom and locked the door, and then took her shower. When she got out, she grabbed a towel and noticed the bathroom door ajar. Appellant and Frith testified that they understood her announcement, about taking a shower, to be an invitation. Frith walked to the bathroom and found the door unlocked. He undressed while appellant walked into the bathroom.

J testified that appellant grabbed her towel away from her and sat on the toilet while she screamed for him to get out and grabbed the towel back and covered herself. Appellant commented on how pretty J was, and then Frith walked into the bathroom and told appellant to leave J alone. The other version of the incident was that J was wrapped in a towel when appellant walked in and sat on the toilet. As Frith walked in, appellant told J how pretty she was and asked if she wanted to make it. When she declined, appellant left her alone with Frith.

What followed was, forced sex according to J, and consensual sex according to Frith. While it was going on, appellant testified that he was in the living room when someone knocked at the door looking for either J's boyfriend-Roger-or her roommate-Benny-supposedly to buy some drugs. After this person left, appellant went back to the bathroom, took his clothes off, and watched. When Frith and J finished, Frith took a shower and appellant indicated that he was interested in having sex with J too. When she told him emphatically she wasn't interested, he left. When the men were dressed, J suddenly slammed the bathroom door shut and told them to leave. According to their testimony, Frith tried to talk to J; but, when this failed, they left.

J's version of what occurred differed from the men's. She stated that after Frith was finished, appellant also forced her to submit to him sexually. While this was occurring, she heard someone knock on the door and Frith answer it and talk with a visitor for a short time. J claimed she screamed for help, but none came. Finally appellant finished and left the bathroom. She got up, shut the door, locked it, and then screamed for them to leave, which they did.

Other evidence was introduced that appellant went around bragging about having forced some girl to have sex with him. However, some damaging impeachment was done. It was alleged that most of the witnesses against appellant and Frith were involved in a lot of drug dealings and that they thought Frith had stolen some drugs from them. Also, it was suggested that these witnesses were not too happy with appellant and Frith for making so many allegations about who was involved in dealing in drugs during the course of their defense. It should also be noted that no one succeeded in finding who had knocked on J's door while the men were there.

Some evidence was admitted to demonstrate that a forced entry may have, at some point in time, been made into the bathroom, but the evidence was not particularly overwhelming. Moreover, no fingerprints were taken; and thus, there was nothing but J's testimony indicating that it was appellant and Frith who forced open the bathroom door.

Clearly the evidence was close; it would have been easy for a jury to go either way. With that in mind, we must consider appellant's argument that the prosecutor's closing statements constituted plain error.

Closing arguments are meant to be just that, arguments premised upon the evidence already submitted to the jury. Prosecutors are no more limited in their closing than defense counsel. They may review the evidence and suggest to the jury inferences based thereon. The purpose of closing arguments is to allow counsel to offer ways of viewing the significance of the evidence. Hopkinson v. State, Wyo., 632 P.2d 79, 145 (1981); Ross v. State, 8 Wyo. 351, 57 P. 924 (1899). However, there are limits, not only on prosecutors, but on all attorneys.

These limits are designed to insure the fairness of trial. Prosecutors, as well as defense counsel, must be held to abide by these rules or else the whole judicial system fails. Granted, courts have moved to protect the defendant and thus have made the prosecutor's job a difficult one. Convictions are hard to come by; however, we should not forget that the aim of the system is the attainment of justice. We must not allow the occasional prosecutor who becomes overzealous in his job to forget, either. The role of the prosecuting attorney in a criminal case "differs from...