Burton v. State

• Decision Date: 14 May 2002
• Docket Number: No. 00-281.,00-281.
• Parties: Juan BURTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

46 P.3d 309

2002 WY 71

Juan BURTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-281.

Supreme Court of Wyoming.

May 14, 2002.

Rehearing Denied June 18, 2002.

Kenneth Koski, Public Defender; Donna Domonkos, Appellate Counsel; Tina Kerin, Assistant Appellate Counsel; Diane E. Courselle, Director, Defender Aid Program; Kimberly Grosshuesch, Student Intern; and Amanda Wilson, Student Intern, Representing Appellant. Argument by Ms. Wilson.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Devon O'Connell Coleman, Interim Faculty Director, Prosecution Assistance Clinic; and Denise A. Timmermans, Student Intern, Representing Appellee. Argument by Ms. Timmermans.

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

LEHMAN, Chief Justice.

[¶ 1] Appellant Juan Burton appeals from his conviction for taking indecent liberties with a child, in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2001). He claims that he is entitled to have his conviction reversed because the prosecutor engaged in misconduct in his closing argument and elicited improper opinion testimony from a detective who investigated the case. In addition, Burton claims that the trial court erred by allowing the State to amend the information just prior to the trial to change the date of the charged offenses.

[¶ 2] We affirm.

ISSUES

[¶ 3] Burton presents the following issues on appeal:

I. Did plain error occur when the trial court allowed the prosecutor's closing arguments to prey upon jury passion and prejudice, mislead the jury as to the facts and the law, introduce issues outside of the charges, use bad character evidence, attack defense counsel's trial strategy, and vouch for the witnesses' credibility; the trial court also abused its discretion when it denied Mr. Burton's motion for a new trial in spite of the highly prejudicial prosecutorial comments made in closing argument?

II. Did the trial court err when it permitted the prosecution to elicit opinions from the State's witness about the credibility of another witness?

III. Did the [trial] court abuse its discretion by allowing an untimely amendment of the information to change the date of the charged crime, which resulted in prejudice to Mr. Burton?

FACTS

[¶ 4] Eighteen-year-old Kara Jess moved to Casper during the summer of 1998. She initially lived with a friend but moved out of their shared apartment after a disagreement and began living in her car. Jess met Burton and moved into his apartment. Burton was thirty-six years old at the time. Shortly thereafter, Jess became acquainted with the victim, who was a sixteen-year-old female high school student. Jess introduced the victim to Burton.

[¶ 5] On August 28, 1998, Jess picked the victim up at school, and they went to Burton's apartment. Burton, Jess, and the victim listened to music and used illegal drugs. Later in the day, Jess and the victim went to Lucas Edwards' apartment, which was located in the same apartment complex. Jess, Edwards, and the victim spent the evening drinking alcoholic beverages, listening to music, and watching movies. The victim eventually passed out on a blow-up couch in Edwards' living room. She later moved to a nearby bed to sleep.

[¶ 6] According to the victim, Burton came to Edward's apartment and told her that she could sleep at his apartment. The victim went to Burton's apartment, alone, and lay down to sleep on the floor in a large closet, which was where Burton usually slept. The victim testified that, sometime during the night, Burton returned to the apartment and lay down beside her in the closet. She awoke later to find Burton's hand on her stomach. The victim told Burton to leave and went back to sleep. Throughout the night, the victim floated in and out of consciousness. Each time she awoke, she found Burton making increasingly more invasive sexual contact with her. The victim resisted by telling Burton that she was not interested in his advances, rolling away from him, and pushing his hand away. According to her testimony, he eventually engaged in sexual intercourse with her.

[¶ 7] The next morning, the victim returned to Edward's apartment and spoke to Jess and Edwards. She told them that Burton "was trying to do stuff with her" and that she thought that she had been raped. Edwards testified that he confronted Burton about the victim's claim and Burton denied that he had raped her, but admitted that he had touched her genitals.

[¶ 8] A few weeks later, the victim and her mother had an argument about the victim's rebellious behavior. During that argument, the victim's mother asked her why she was behaving badly and the victim told her mother that she had been raped. Her mother called the police and reported the incident.

[¶ 9] Burton was charged with first degree sexual assault and taking indecent liberties with a child. Burton pled not guilty, and the trial court held a jury trial in September of 1999. At the conclusion of the trial, the jury returned a verdict finding Burton not guilty of first-degree sexual assault and guilty of taking indecent liberties with a child. Burton filed a motion for judgment of acquittal and a motion for a new trial. He claimed, in his motion for a new trial, that he had not received a fair trial because certain comments made by the prosecutor during his closing argument were improper and prejudicial. The trial court denied Burton's motions and, subsequently, entered a judgment and sentence against him. Burton appealed to the Wyoming Supreme Court. Additional facts relevant to specific issues will be set forth in our discussion of those issues.

DISCUSSION

A. Prosecutorial Misconduct in Closing Argument

[¶ 10] Burton contends that the trial court erred by allowing the prosecutor to make various improper comments during his closing argument. The State insists that the prosecutor's comments were appropriate and that, in any event, Burton was not prejudiced by the remarks.

1. Standard of Review

[¶ 11] In reviewing a claim of prosecutorial misconduct in closing argument, the court looks at the entire record to determine whether the defendant's case was so prejudiced by the improper comments as to result in the denial of a fair trial. Capshaw v. State, 10 P.3d 560, 567 (Wyo.2000); Metzger v. State, 4 P.3d 901, 910 (Wyo.2000). The challenged comments are judged in the context of the prosecutor's entire argument, considering the context of the statements and comparing them with the evidence produced at the trial. Helm v. State, 1 P.3d 635, 639 (Wyo.2000).

[¶ 12] Appellant objected to the first statement addressed herein, and the trial court sustained his objection. Appellant also renewed his objection after the trial by filing a motion for a new trial. When an objection is launched to a statement made in closing argument, we defer to the trial court's ruling in the absence of a clear or patent abuse of discretion. Gayler v. State, 957 P.2d 855, 860 (Wyo.1998). Even then, reversal is not warranted unless a reasonable probability exists, absent the error, that the appellant may have enjoyed a more favorable verdict. Gayler, at 860. See also Metzger, 4 P.3d at 910. Similarly, the Wyoming Supreme Court reviews a trial court's decision to deny a motion for a new trial by applying the abuse of discretion standard. Marquez v. State, 12 P.3d 711, 718 (Wyo.2000).

[¶ 13] Burton did not object to the remainder of the challenged statements at trial; consequently, we review his claims by applying the plain error standard. Lane v. State, 12 P.3d 1057, 1064 (Wyo.2000). To demonstrate plain error, Burton "must show that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Taylor v. State, 2001 WY 13, ¶ 16, 17 P.3d 715, ¶ 16 (Wyo.2001). Reversal of a conviction on the basis of prosecutorial misconduct, which was not challenged in the trial court, is appropriate only when there is "a substantial risk of a miscarriage of justice." Capshaw, 10 P.3d at 567 (quoting Dice v. State, 825 P.2d 379, 384 (Wyo.1992)).

2. Comments Emphasizing Burton's Drug Use and Appealing to Community Sentiment

[¶ 14] Burton claims that the prosecutor improperly emphasized his drug involvement and appealed to community sentiment in the following exchange:

[PROSECUTOR]: Ladies and gentlemen, the State understands that we have just introduced to you a completely and—hopefully, an unknown world that's going on out there right here in your community. It's the drug world.

You heard a lot of testimony about these young kids and the behavior that they were involved with. But ask yourself, ladies and gentlemen, would they ever get the opportunity to be doing these kinds of things if not for the likes of the Juan Burtons of the world?

[DEFENSE COUNSEL]: Your Honor, I'm going to object to that. I think that's objectionable.

THE COURT: I think it is, and it's extremely improper. I'll sustain the objection. The jury should disregard that.

[¶ 15] In closing argument, counsel may reflect upon the evidence admitted at trial and draw reasonable inferences from that evidence. Gayler, 957 at 861; Armstrong v. State, 826 P.2d 1106, 1116 (Wyo.1992). Arguments which are calculated to appeal to the jury's prejudice or passion are improper because they pose a risk that the accused may be convicted for reasons wholly irrelevant to his guilt or innocence. Gayler, 957 P.2d at 861; Armstrong, 826 P.2d at 1116. Accordingly, it is improper for a prosecutor to encourage the jury to convict a defendant in order to protect the community rather than upon the evidence presented at trial. See e.g., Gayler, 957 P.2d at 860-62.

[¶ 16] In this case, the prosecutor stated that the jury had heard evidence about the drug world in Casper. The victim, Kara Jess, and Lucas Edwards...