Bustos v. State

• Decision Date: 08 April 2008
• Docket Number: No. S-07-0130.,S-07-0130.
• Citation: 2008 WY 37,180 P.3d 904
• Parties: Leonard Luis BUSTOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

180 P.3d 904

2008 WY 37

Leonard Luis BUSTOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0130.

Supreme Court of Wyoming.

April 8, 2008.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; and David E. Westling, Senior Assistant Public Defender. Argument by Mr. Westling.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Brian Hunter, Student Director; and Holli Austin-Belaski, Student Intern. Argument by Ms. Austin-Belaski.

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

VOIGT, Chief Justice.

[¶ 1] The appellant was convicted of "[a]ttempt[ing] to cause, or intentionally or knowingly caus[ing] bodily injury to another with a deadly weapon," in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2007). He appeals that conviction, raising the various issues set forth below. We affirm in part and reverse in part.

ISSUES

[¶ 2] 1. Did the prosecutor commit misconduct by arguing facts not in evidence?

2. Did the prosecutor commit misconduct by making improper remarks about defense counsel and the defense theory of the case?

3. Did the district court err in considering psychiatric information contained in the presentence investigation report?

4. Did the district court err in ordering the appellant to pay for the cost of impaneling the jury when the appellant failed to appear for a trial setting?

FACTS

[¶ 3] During the evening of May 6-7, 2006, the appellant went with friends to the Parlor Bar in Laramie, Wyoming. Soon thereafter, a fight ensued, in which the appellant participated. A bar patron, Brad Campbell, intervened by grabbing the appellant and pushing him face-first into a corner and pinning him against a wall. At that point, the bartender, Grant Statton, attempted to break up the fight by shoving Campbell and the appellant apart. Campbell fell across a table, where the appellant again "went after" him. Statton then grabbed the appellant around the waist and began moving him toward the exit door. As he did so, Statton felt what he described as a "big break" in his thigh. He pushed the appellant away and saw that the appellant was holding a knife in his hand.

[¶ 4] The appellant stumbled partway down the stairs that led to the bar exit. Statton and another bar employee, Nick Ondler, pursued him. The appellant "took a swipe at" Ondler with the knife, but missed. Statton and Ondler then chased the appellant outside, where they tackled him and took the knife from him. A police officer was flagged down and the appellant was arrested.

[¶ 5] On May 8, 2006, the State filed a Felony Information charging the appellant with one count of possession of a deadly weapon with unlawful intent, one count of aggravated assault and battery for stabbing Statton, and one count of aggravated assault and battery for lashing out at Ondler with the knife. The appellant waived his right to a preliminary examination and was bound over to the district court for trial. An identical Felony Information was filed in the district court on May 19, 2006, and the appellant was arraigned on the three charges a little over a month later. He pled not guilty to each count.¹

[¶ 6] The appellant did not appear at the scheduled time for his jury trial on October 16, 2006, and the jury was dismissed. When he appeared an hour later, he was arrested under a bench warrant, his bond was revoked, and he remained in jail until the rescheduled trial, which began on November 6, 2006. After a two-day trial, the jury acquitted the appellant of possessing a deadly weapon with unlawful intent, and of attempting to cause bodily injury to Ondler, but convicted him of stabbing Statton.

[¶ 7] The district court adjudicated the appellant guilty of aggravated assault and battery and ordered a presentence investigation on November 17, 2006. The district court's order mandated inclusion in the presentence investigation report (PSI) of a substance abuse assessment pursuant to the Addicted Offender Accountability Act found at Wyo. Stat. Ann. §§ 7-13-1301 through 7-13-1304 (LexisNexis 2007). The PSI, including the substance abuse assessment, was completed and sent to the district court on January 4, 2007. After a sentencing hearing, the appellant was sentenced to the custody of the Wyoming Department of Corrections for a period of three to six years, with credit for pre-sentence confinement, and with a recommendation that he be considered for placement in the Wyoming Youthful Offender Program. In addition to other fees and costs, he was ordered to pay $1,440.00 to the Clerk of District Court for the costs incurred as a result of his failure timely to appear for his first trial setting. This appeal followed.

DISCUSSION

Did the prosecutor commit misconduct by arguing facts not in evidence?

[¶ 8] The standard of review that we will apply to this issue is affected by the nature of the question and the context in which it arose. During the State's rebuttal closing argument, the following colloquy occurred:

[PROSECUTOR]: Ladies and gentlemen of the jury, you go back into the jury room, pay close attention to this green table in this photograph, because that green table is the mere witness that corroborates the testimony of Mr. Campbell. Mr. Campbell told you that after he tried to pull this defendant off of Johnny Vigil; that Grant Statton came over, grabbed him, and threw him into the corner, and he landed across that green table. If you look at the green table, you can see where the top has been in [sic] from having somebody thrown on it. That's what we call physical evidence. That corroborates witness's testimony.

[DEFENSE COUNSEL]: I'm going to object. There was no testimony that that table was bent during that altercation, Your Honor.

THE COURT: Overruled. The jury can look at the photos.

[¶ 9] Defense counsel's objection was couched in terms of stating facts not in evidence, as opposed to prosecutorial misconduct. On appeal, the appellant does not characterize the issue as being an error on the part of the district court in overruling the objection, but as misconduct by the prosecutor in making the statement. While there may be some question whether the issue of prosecutorial misconduct was raised below, both parties presently treat the issue as such. Consequently, we will do the same, especially in view of our historical position that it is unethical for a prosecutor intentionally to misstate the evidence. See Butz v. State, 2007 WY 152, ¶ 28, 167 P.3d 650, 657 (Wyo.2007); Wilks v. State, 2002 WY 100, ¶ 30, 49 P.3d 975, 987 (Wyo.2002); Trujillo v. State, 2002 WY 51, ¶ 5, 44 P.3d 22, 24 (Wyo. 2002). Our standard of review where there has been an objection to a prosecutorial statement in closing argument is as follows:

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, [957 P.2d] at 860. See also Metzger [v. State], 4 P.3d [901], 910 [(Wyo.2000)].

Burton v. State, 2002 WY 71, ¶ 12, 46 P.3d 309, 313 (Wyo.2002). The allegedly offending statement is reviewed in the following context:

Claims of prosecutorial misconduct are settled by reference to the entire record and hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial. Similarly, the propriety of any comment within a closing argument is measured in the context of the entire argument.

Sanchez v. State, 2002 WY 31, ¶ 18, 41 P.3d 531, 535 (Wyo.2002) (quoting Metzger v. State, 4 P.3d 901, 910 (Wyo.2000)).

[¶ 10] The appellant contends that the prosecutor's statement was improper because no witness testified that the table was bent by Campbell being thrown upon it. The State counters that such is a reasonable inference that could be drawn from the photograph in evidence, and that such inference would be corroborative of Campbell's testimony.² We agree with the State. First, no distinction exists between direct evidence and circumstantial evidence, and reasonable inferences may be drawn from the latter, as well as from the former. Vanvorst v. State, 1 P.3d 1223, 1229 (Wyo.2000). Second, it is for the jury to draw, or not to draw, inferences from the evidence. Id.; Lovato v. State, 901 P.2d 1132, 1134 (Wyo.1995). Third, the prosecutor may argue all reasonable inferences from the evidence. Valerio v. State, 527 P.2d 154, 157 (Wyo.1974).

[¶ 11] All of that is what happened in this case. Campbell testified that he was thrown onto a table during the scuffle. A photograph of that table, showing damage, was admitted into evidence. The prosecutor argued the reasonable inference that the table was damaged by Campbell being thrown upon it. It was then appropriately left to the jury to determine whether or not such inference should be drawn from the photograph and the testimony.

[¶ 12] Finally, we cannot see how the appellant could have been prejudiced by this rather inconsequential piece of evidence. In his brief, the appellant suggests that the case was about conflicting stories, and that he was prejudiced by allowing an unfair inference to be used to corroborate a State witness. But the appellant did not dispute Campbell's statement that he had pinned the appellant up against the wall, nor the fact that Campbell was pulled off of him just before Statton began forcing him toward the exit. In short, it simply did not matter to the appellant's defense whether Campbell was thrown onto the table or whether he did or did not...