Earll v. State

• Decision Date: 31 July 2001
• Docket Number: No. 99-295.,99-295.
• Citation: 2001 WY 66,29 P.3d 787
• Parties: Hawley A. EARLL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

29 P.3d 787

2001 WY 66

Hawley A. EARLL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-295.

Supreme Court of Wyoming.

July 31, 2001.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Hughes, Assistant Appellate Counsel. Argument by Ms. Hughes.

Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robin Sessions Cooley, Senior Assistant Attorney General. Argument by Ms. Cooley.

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

GOLDEN, Justice.

[¶ 1] Appellant Hawley Anthony Earll, convicted as an accessory after the fact to the manufacture of methamphetamine in violation of Wyo. Stat. Ann. § 6-5-202(a)(b)(i) and § 35-7-1031(a)(i), contends that prosecutorial misconduct, a confrontation violation of the Sixth Amendment, and a violation of Kwallek v. State, 596 P.2d 1372 (Wyo.1979), require that we reverse his conviction. We hold that a reasonable possibility exists that the accused's right to a fair trial was affected by the error. The conviction cannot stand, and we reverse and remand for a new trial.

ISSUES

[¶ 2] Earll presents the following issues for our review:

I. Did the prosecutor commit prosecutorial misconduct in her cross examination of Appellant, wherein she referenced alleged statements of Appellant's girlfriend that were never made?

II. Did the state's use of out of court statements of Appellant's girlfriend violate Appellant's Sixth Amendment right to confrontation?

III. Did the trial court err in refusing to order a new trial?

IV. Did the state's offer and the admission of testimony of Bunnie Larson and Samuel (Catfish) Yates that they were convicted of offenses arising out of the same circumstances leading to Appellant's trial, and the state's argument concerning those convictions, violate Appellant's right to have a trial on its own merits, constituting plain error?

The State rephrases the issues to be:

I. Whether Appellant was denied a fair trial because of the prosecutor's improper questions?

II. Whether Appellant's Sixth Amendment right of confrontation was violated and whether the trial court erred in denying Appellant's motion for reconsideration on the issue?

III. Whether the State improperly elicited testimony from Appellant's associates that they had been convicted of crimes similar to those for which Appellant was on trial?

FACTS

[¶ 3] On December 31, 1998, Earll was a passenger in a car driven by Samuel "Catfish" Yates. Police suspected Yates of operating a methamphetamine lab in his trailer home and had him under surveillance. The police knew that Yates had a suspended driver's license, and when he was observed driving away from the trailer, the police pulled his vehicle over. Yates was arrested at that time for driving with a suspended license and not possessing proof of insurance or registration. Earll was not arrested. Instead, the police warned Earll to avoid Yates and to stay away from the trailer because of the suspected drug activity.

[¶ 4] Immediately after leaving Yates and the police, Earll returned to the trailer. Two individuals were at the trailer at that time: Bunnie Larson, Yate's girlfriend, and Tracy Cox, Earll's girlfriend. Shortly thereafter, the police, who were still watching the trailer, observed Earll and the two women leave the trailer with several bags. After loading the bags into a vehicle, the three attempted to drive off but the police quickly stopped them. The vehicle's owner, Cox, gave the police permission to search the vehicle, and Larson gave permission to search her bags. In a bag Earll had carried out of the trailer, the police found a Pyrex dish containing a fresh batch of methamphetamine. Based on that discovery, Earll was arrested.

[¶ 5] At his trial on the charge of accessory after the fact to the manufacture of methamphetamine, Earll's fate came down to a determination of his credibility versus Yates' and Larson's credibility. The State called both Yates and Larson as witnesses. They testified that they had known Earll for several months and that he was aware of the existence of the methamphetamine lab. Both stated that Earll had not only smoked some methamphetamine, but had purchased some, the morning of the arrests. Larson testified that Earll had been the one who packed the bag containing the Pyrex dish.

[¶ 6] Against that damaging testimony, Earll took the stand. Earll claimed that Yates was only a casual acquaintance and that he was with them the day of the arrests only because a mutual friend had asked him to help Yates fix his car. Earll denied any knowledge of the methamphetamine lab, let alone that he had smoked or purchased any that day. Similarly, Earll denied that he had packed the bag, disclaiming all knowledge of its contents. He claimed that since Larson had three bags to carry, he was being a gentleman and carried the largest bag for her. During the prosecutor's cross-examination of Earll, the prosecutor engaged in the following questioning which, the State concedes, misrepresented testimony by Earll's girlfriend, Tracy Cox, at an earlier hearing:

[Prosecutor]: Tracy is your girlfriend, is that right?

[Earll]: That's correct.

Q: And you claim you didn't — how long have you been, I guess, with Tracy?

A: Approximately, five years.

Q: In fact, she was involved in this other crime with you; is that right?

A: Yeah. She kind of was a victim of it, yes.

Q: She was convicted?

A: Yes, of conspiracy.

Q: Trust Tracy?

A: Yeah, I have to. I've been with her long enough.

Q: Would it surprise you to know that Tracy in another court hearing has already told the Court under oath that you, in fact, did smoke methamphetamine with her and Catfish and Bunnie that morning on December 31?

A: I don't know anything about that, no.

Q: Would it surprise you? Would you think she's lying, too?

A: I—I would be surprised she would say something like that because it didn't happen.

Q: So she must be lying, too?

A: If she said that, I—I don't under—I don't know why she was—

[Defense Counsel]: I object, your Honor. I don't think she said that. I think she admitted she, Tracy, smoked. I don't think she said that [Earll] had smoked.

[Prosecutor]: Yes, she did.

[Defense Counsel]: I would like to see it in the transcript because I don't think she did and I was there.

Q: Did you and Catfish—

[The Court]: Are you two wanting to be placed under oath, both of you?

[Prosecutor]: No, Judge. We'll move on.

[The Court]: If you want to give testimony, we'll put you both under oath and then I'll cross-examine you. (Laughter.)

[Prosecutor]: We'll move on.

Six short questions later, this exchange occurred:

[Prosecutor]: [Y]ou claim that you weren't smoking that morning, even though everyone else that was there says you were?

A: That's right. I was not.

Later, during closing argument, the prosecutor made the following statements:

The police asked [Earll] if he knew of anything funny going on in the trailer. "Oh, no, huh-uh. Don't know anything about drugs." But the testimony was, folks, that he was smoking the methamphetamine that morning. He was smoking it with his girlfriend, Tracy. He was smoking it with Catfish. And he was smoking it with Bunnie. The only person that says he wasn't is the Defendant.

[¶ 7] After a two-day trial, the jury rejected Earll's version of the events and returned a guilty verdict. Before sentencing, Earll filed a motion for a new trial based on the prosecutor's misrepresentation of the testimony of Tracy Cox at the earlier hearing and the prosecutor's reference to that testimony during closing argument.

[¶ 8] The trial court, while acknowledging that the prosecutor had indeed misrepresented Cox's testimony, nevertheless denied the motion on the grounds that the jury had been instructed at the beginning of trial and before deliberations after the close of evidence that comments of counsel regarding the alleged testimony were not evidence. Subsequently, Earll filed a motion to reconsider the denial of the motion for a new trial in light of the decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Earll claimed that, pursuant to Lilly, the misuse of Cox's testimony had violated his constitutional right to confrontation. After concluding that Earll had received a fair trial, the trial court denied the motion for reconsideration. Earll has now appealed.

DISCUSSION

Prosecutorial Misconduct

[¶ 9] Prosecutorial misconduct "has always been condemned in this state." Valerio v. State, 527 P.2d 154, 156 (Wyo. 1974). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error, as the State concedes exists in this case, affected the accused's "substantial rights." The accused's right to a fair trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10; and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo. 1978)

. Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Jones v. State, 735 P.2d 699, 703 (Wyo.1987). We read this standard to be in consonance with the standard followed by the United States Supreme Court:

Some aids to right judgment may be stated more safely in negative than in affirmative form. Thus, it is not the appellate court's function to determine guilt or innocence. Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out. Appellate judges cannot escape such impressions. But they may not make them sole criteria for reversal or affirmance. Those

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