Carothers v. State

• Decision Date: 29 May 2008
• Docket Number: No. S-07-0240.,S-07-0240.
• Citation: 185 P.3d 1,2008 WY 58
• Parties: Ladonna J. CAROTHERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

185 P.3d 1

2008 WY 58

Ladonna J. CAROTHERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0240.

Supreme Court of Wyoming.

May 29, 2008.

Appeal from the District Court of Campbell County, Dan R. Price II, J Representing Appellant: Nicholas H. Carter and Miles A. Jacoby of The Nick Carter Law Firm, P.C., Gillette, Wyoming. Argument by Mr. Carter.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

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

VOIGT, Chief Justice.

The appellant was convicted of aggravated homicide by vehicle after she caused the death of a ten-year-old girl in a motor vehicle collision in Gillette, Wyoming. The conviction was premised on the dual theories of driving with a blood-alcohol concentration in excess of 0.08%, and driving while under the influence of alcohol to a degree that rendered her incapable of safely driving. See Wyo. Stat. Ann. § 6-2-106(b) (LexisNexis 2007) and Wyo. Stat. Ann. § 31-5-233(b) (LexisNexis 2007). In this appeal, the appellant raises issues concerning jury selection, venue, prosecutorial misconduct, and the presentence investigation report (PSI). We affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion when it did not excuse certain jurors for cause?

2. Did the district court abuse its discretion when it denied the appellant's motion for a change of venue?

3. Did certain statements by the prosecutor during rebuttal closing argument constitute plain error?

4. Did the district court abuse its discretion when it denied the appellant's motion to strike from the PSI the recommendations of the probation and parole agent who prepared it?

FACTS

[¶ 3] The details of this tragic incident are not especially relevant to a determination of the issues presented. Suffice it to say that on October 17, 2006, the appellant caused a multi-vehicle collision that killed ten-year-old Madison Scalzo. The appellant, who had a blood-alcohol concentration in excess of 0.08% at the time, lost control of her vehicle while talking on her cellular phone and crashed into a parked car. The appellant admitted that she was also taking prescription medications that were not to be consumed with alcohol. Her unsuccessful trial defense was the collision was caused by "pedal error," rather than by alcohol use.

DISCUSSION

Did the district court abuse its discretion when it did not excuse certain jurors for cause?

[¶ 4] Prospective jurors are questioned during the voir dire process for the sole purpose of selecting "a panel of jurors who will fairly and impartially hear the evidence and render a just verdict."¹ W.R.Cr.P. 24(c)(1). For purposes of the present discussion, jurors may be excused "for cause" if they are biased or prejudiced against the defendant, or have formed or expressed an opinion as to guilt. Wyo. Stat. Ann. § 7-11-105(a)(ii) and (b) (LexisNexis 2007); Wyo. Stat. Ann. § 1-11-203(a)(vi) and (vii) (LexisNexis 2007).

The test we apply to determine if a prospective juror should be dismissed for cause is whether or not that juror would be able to render a fair and impartial verdict based upon the evidence adduced at trial and the court's instructions. Kerns v. State, 920 P.2d 632, 635 (Wyo.1996) (citing Munoz v. State, 849 P.2d 1299, 1302 (Wyo. 1993)). The question of whether a juror is biased is a question of fact reserved for the trial court. Id.; Jahnke v. State, 682 P.2d 991, 1000 (Wyo.1984) [overruled in part on other grounds by Vaughn v. State, 962 P.2d 149 (Wyo.1998)]. We review the trial court's decision for an abuse of discretion. Kerns, 920 P.2d at 635; Munoz, 849 P.2d at 1302.

Klahn v. State, 2004 WY 94, ¶ 9, 96 P.3d 472, 478 (Wyo.2004). We defer to the judgment of the district court because it can personally observe the demeanor of the jurors and the tenor of their responses. Schwenke v. State, 768 P.2d 1031, 1033 (Wyo.1989); Summers v. State, 725 P.2d 1033, 1041 (Wyo.1986). Even where a prospective juror has previously formed or stated an opinion as to the defendant's guilt, the ultimate question is whether the juror can set aside that opinion and impartially determine the case based upon the evidence. Wyo. Stat. Ann. § 7-11-106 (LexisNexis 2007); Duke v. State, 2004 WY 120, ¶ 23, 99 P.3d 928, 939 (Wyo.2004); Klahn, 2004 WY 94, ¶ 10, 96 P.3d at 479; Sides v. State, 963 P.2d 227, 231 (Wyo.1998).

[¶ 5] The appellant contends that the district court acted arbitrarily in the instant case by excusing some jurors, but seating others, when all gave similar responses when asked if they had formed an opinion as to the appellant's guilt. There were six jurors, three of whom were excused and three of whom were not, that the appellant finds particularly troubling. Because it is necessary to examine the questions and answers in full context when examining allegations of bias, we will set forth the challenged jurors' voir dire statements in detail, beginning with their initial responses to questions posed in regard to opinions they may have formulated. See Schwenke, 768 P.2d at 1034. So as not to call undue attention to the jurors, we will identify the three excused jurors as Mr. W., Ms. R., and Ms. E., and the three non-excused jurors as Mr. C., Ms. B., and Ms. C.:

[PROSECUTOR]:.....

Do any of you have any knowledge about those events and that collision that you bring with you to the courtroom today? And if you'd hold up your hands for just a minute and keep them up I'll visit with you one at a time.

Mr. [W.]?

MR. [W.]: Yes.

[PROSECUTOR]: Okay. The information that you have did it come from firsthand knowledge or individuals involved in those events?

MR. [W.]: No.

[PROSECUTOR]: Okay. Did it come from the newspaper?

MR. [W.]: Yes.

[PROSECUTOR]: Okay. Would you be able to set aside that information and base any decision that you make in this case on what you hear in the courtroom?

MR. [W.]: No.

....

[PROSECUTOR]:....

Is there anybody — Ms. [R.], did you have your hand up?

MS. [R.]: Yeah, I did. I read about it in the newspaper and my daughter was friends with the deceased and I heard a lot.

[PROSECUTOR]: From that information have you —

MS. [R.]: I don't think I can be fair.

. . . .

[PROSECUTOR]:.... Anybody else?

Okay, I'm going to start here.

MS. [E.]: I read it in the paper.

[PROSECUTOR]: All right. Did you receive any information other than what you read?

MS. [E.]: No.

[PROSECUTOR]: Have you formulated an opinion based on that?

MS. [E.]: Yes.

[PROSECUTOR]: Would you be able to set that aside? That was No. 1.

MS. [E.]: Yes.

....

[PROSECUTOR]: Okay. All right.

MR. [C.]: I've read like everybody else has the stuff that was in the paper. I do have two kids that do go to Wagonwheel School that bring me some other information that is relevant.

[PROSECUTOR]: Did the information in this paper that you read cause you to formulate an opinion about the facts in this case?

MR. [C.]: I'm afraid I probably would be pretty strong sided.

....

[PROSECUTOR]:.... Ms. [B.]?

MS. [B.]: I read about it in the newspaper.

[PROSECUTOR]: Okay. Did you formulate any opinions about it after reading it in the newspaper?

MS. [B.]: Yes.

[PROSECUTOR]: Would you be able to set aside those opinions and base your opinion on what you hear in the court room?

MS. [B.]: I don't know. I probably could but I'm just not sure.

....

[PROSECUTOR]: Ms. [C.]?

MS. [C.]: Read about it in the paper.

[PROSECUTOR]: Did you formulate any opinions after reading it?

MS. [C.]: Yes.

[PROSECUTOR]: Would you be able to set aside those opinions and that information and render a verdict on what you hear in the courtroom?

MS. [C.]: I can't honestly say that I would.

[¶ 6] It is these passages upon which the appellant focuses in contending that the district court was arbitrary in excusing some, but not all, of these jurors. There was, however, additional questioning that helped the district court analyze the jurors' ability to set aside any preconceived opinions:

[PROSECUTOR]: Would you be able to set aside those feelings and that information and render a verdict based upon what you hear in the courtroom if you're selected as a juror?

MR. [C.]: Yes, I believe I could. I was in a situation five or six years ago that was kind of one-sided and you know I knew it, both sides. I knew the people to both sides and I feel it wasn't fair to the other people involved.

[DEFENSE COUNSEL]: Do you come into the case as a potential juror with an opinion as to my client's guilt?

MR. [C.]: I guess, yeah.

[DEFENSE COUNSEL]: Okay. And what is that opinion?

MR. [C.]: Well, I guess — my guess is that the woman — I have the feeling that what if that was my child. Maybe I didn't understand your question.

[DEFENSE COUNSEL]: And I understand everybody would be upset about the death of a young child but the question is do you, would you take to the jury box, if you were selected as a juror, with an opinion as to my client's guilt as to these charges before you heard any evidence?

MR. [C.]: No, I don't believe I would. I would try to listen to the whole case.

[DEFENSE COUNSEL]: Okay. When you say try, would you follow the law that says you must presume her innocent and you must acquit if the State does not prove their case?

MR. [C.]: Yes, I believe so.

[DEFENSE COUNSEL]: Would you feel any pressure to convict my client based on your children or your knowledge of the case?

MR. [C.]: That's a possibility.

[DEFENSE COUNSEL]: Okay. What kind of possibility, if you could explain that to the court.

MR. [C.]: I'm not a good speaker but I don't know, I guess I would have to view all sides of the, both sides of the case.

[DEFENSE COUNSEL]: Do you think that the defendant would have to prove her innocence to you?

Mr. [C.]: Yes.

[DEFENSE COUNSEL]: Okay. I have no...