Duke v. State

• Decision Date: 25 October 2004
• Docket Number: No. 02-270.,02-270.
• Citation: 99 P.3d 928,2004 WY 120
• Parties: James Robert DUKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

99 P.3d 928

2004 WY 120

James Robert DUKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-270.

Supreme Court of Wyoming.

October 25, 2004.

Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General. Argument by Ms. Tibbetts.

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

GOLDEN, Justice.

[¶ 1] This is an appeal from the judgment and sentence of the district court for the Third Judicial District, Sweetwater County, Wyoming, entered on September 30, 2002, convicting James Robert Duke of two counts of first degree murder, in violation of Wyo. Stat. Ann. § 6-2-101(a), and four counts of solicitation of the felony of first degree murder, in violation of Wyo. Stat. Ann. § 6-1-302(a) and § 6-2-101(a). Duke assigns errors concerning the trial court's denial of his pretrial motion for a change of venue, the trial court's allowing him to appear before the jury in leg restraints and allowing excessive courtroom security during the trial, several instances of alleged ineffective assistance of counsel, the sufficiency of the evidence to sustain two convictions for first degree murder, the trial court's jury instructions, prosecutorial comment during closing argument, and the cumulative effect of these alleged errors on his right to a fair trial.

[¶ 2] We find no error and affirm.

ISSUES

[¶ 3] Duke and the State agree that the appellate issues are:

I. Did the trial court err in not granting Duke's pretrial motion for a change of venue?

II. Did the trial court err in allowing Duke to be tried in an atmosphere of excessive courtroom security and to appear before his jury in restraints, and has the State shown that such measures did not overcome the presumption of innocence or abridge the right to a fair trial due every defendant?

III. Was Duke denied the effective assistance of counsel during trial?

IV. Was sufficient evidence produced at trial to support Duke's first degree murder convictions?

V. Did the trial court commit reversible error in instructing the jury?

VI. Did the prosecutor's comments during closing arguments constitute reversible error?

VII. Was Duke deprived of a fair trial due to the cumulative effect of the alleged trial errors?

Procedural Background

[¶ 4] On October 11, 2001, a criminal Indictment was filed in the trial court, Docket No. CR-01-209-R, charging Duke with first degree murder in the August 10, 1996, deaths of his five-year-old son, Erik Robert Duke (Count I), and his wife, Liana Mae Duke (Count II), and the solicitation of their murders (Counts III and IV, respectively). Duke was later charged by Information on January 25, 2002, Docket No. CR-02-49-R, with soliciting the murders of his father, James Larry Duke (Count I), and his mother, Roberta Duke (Count II). On March 28, 2002, Duke was arraigned on the charges contained in the Indictment and entered pleas of not guilty. Following a preliminary hearing with respect to the charges contained in the Information, Duke was bound over to trial court, where he pled not guilty to those charges on April 8, 2002.

On March 28, 2002, Duke filed a motion for a change of venue. Relying on five newspaper articles published between January 24 and March 2, 2002, Duke alleged that excessive pretrial publicity made it impossible for him to receive a fair trial in Sweetwater County. On April 12, 2002, the State filed a motion to join the two criminal actions for purposes of trial. During a motion hearing on April 25, 2002, the trial court granted the State's motion for joinder after Duke stipulated to the joinder but deferred ruling on Duke's change of venue motion pending jury selection.

[¶ 6] Duke's jury trial began on August 12, 2002. At the conclusion of voir dire, Duke accepted the jury as empaneled and did not reassert or ask the trial court to rule on his request for a change of venue. On August 15, 2002, during the State's case-in-chief, the jury was permitted to view the area where the alleged murders of Liana and Erik Duke occurred. On August 23, 2002, after approximately eight days of testimony and eight hours of deliberations, the jury returned a verdict of guilty on all six charges.

[¶ 7] On August 29, 2002, Duke filed a motion to set aside his first degree murder convictions in Docket No. CR-01-209-R. Duke contended those convictions were void because the indictment upon which they were based was defective. A few days later, Duke filed a motion for judgment of acquittal, claiming the trial evidence was insufficient to sustain his murder convictions in Docket No. CR-01-209-R. During a hearing on September 4, 2002, the trial court denied Duke's motions.

[¶ 8] Duke was sentenced on September 25, 2002, to life imprisonment on all six counts. In Docket No. CR-01-209-R, the trial court ordered that Counts I and III be served concurrently with each other, but consecutive to Duke's existing federal sentence, and Counts II and IV be served concurrently with each other, but consecutive to the sentences imposed on Counts I and III. In Docket No. CR-02-409-R, the trial court ordered the life sentences on Counts I and II be served consecutive to each other and consecutive to the life sentences imposed in Docket No. CR-01-209-R. Duke filed his notice of appeal on October 3, 2002.

[¶ 9] On January 14, 2003, this Court, pursuant to a motion filed by Duke, remanded the case to the trial court for an evidentiary hearing, the purpose of which was to enable Duke to develop a record to support his claims that he was improperly restrained at trial and his trial counsel was ineffective for failing to properly object to the restraints. Following an evidentiary hearing on March 28, 2003, the trial court made findings of fact and conclusions of law and entered an order on April 11, 2003, finding that Duke was shackled during trial, the use of leg restraints was justified under the circumstances, trial counsel probably raised the propriety of the restraints before testimony was taken, and Duke suffered no prejudice as a result of having been shackled during trial.

General Background Facts

[¶ 10] Around 3:00 p.m. on August 10, 1996, Duke notified the dispatch center at the Sweetwater County Sheriff's Department that his wife and son had fallen from a cliff in the Lost Dog area south of Green River, Wyoming. Upon arriving at the scene, emergency personnel discovered the battered bodies of Duke's wife, Liana, and his five-year-old son, Erik, at the bottom of a two hundred foot cliff. Duke essentially reported that he and his family had stopped on the cliff after a period of four-wheeling in the Lost Dog area. He stated that, after walking around awhile, he went to his vehicle to get something to drink. Shortly thereafter, he heard Liana scream his name and, when he looked up, both his wife and child were gone. He stated he ran back to the area where he left them, saw them lying at the bottom of the cliff and tried, without success, to reach them. Although authorities had their suspicions about Duke and what actually occurred that day, Liana's and Erik's deaths were ruled accidental. Approximately two weeks after their deaths, Duke collected the $60,000 proceeds from the life insurance policies on Liana and Erik.

[¶ 11] Evidence of Duke's involvement in his wife's and child's deaths was provided to authorities on January 4, 1999. On that day, Roger Brauberger, a long-time friend of Duke's, told Lieutenant Mont Mecham of the Green River Police Department that Duke had been calling him from Houston, Texas, since October 1998 offering him money to kill his parents, Larry and Roberta Duke. Brauberger also informed Lieutenant Mecham that Duke had offered him $23,000 to kill Liana and Erik shortly before their deaths. Lieutenant Mecham contacted the F.B.I. and the Sweetwater County Sheriff's Department about what Brauberger had reported. The Sheriff's Department immediately reopened the investigation into Liana's and Erik's deaths.

[¶ 12] During the ensuing investigation, the Green River Police Department set up three recorded telephone calls between Brauberger and Duke. In each instance, the plans to kill Duke's parents were discussed. During a call on January 4, 1999, Duke informed Brauberger that his brother, Mike Duke, was going to do the job on January 24, 1999. Duke told Brauberger that he needed only to pick Mike up in Denver, act as a lookout while the job was being done, and then return Mike to Denver.

[¶ 13] The next recorded call occurred on January 7, 1999. During that call, Brauberger advised Duke that he was considering accepting Duke's earlier offer of $20,000 to kill his parents. When Brauberger asked for suggestions how it could be done, Duke suggested that a .22 caliber gun be used, since it was quiet and no louder than a door slam, and offered to provide Brauberger a key to the home. Duke further stated that the job needed to be done "ASAP," but the date had to be carefully chosen to ensure he and his brother had alibis for the time of the killings. Duke also indicated his parents had life insurance policies, and he might be willing to up the price by $5,000 if Brauberger was willing to do the job.

[¶ 14] During the last recorded call on January 8, 1999, Duke told Brauberger that the plot to kill the parents was his "brother's gig," and his brother had agreed to pay Brauberger the extra $5,000 to do the job. Duke offered to send Brauberger money to buy a .22 caliber gun but declined to send him a key to the house because he did not want the killings to appear planned. During that call, Brauberger tried, without success, to get Duke to admit killing Liana and Erik in 1996....