Emerson v. State

• Decision Date: 15 October 1999
• Docket Number: No. 98-305.,98-305.
• Parties: James EMERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

988 P.2d 518

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

No. 98-305.

Supreme Court of Wyoming.

October 15, 1999.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Michael Dinnerstein, Assistant Appellate Counsel. Argument by Mr. Dinnerstein.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Brian Hanify, Student Intern. Argument by Mr. Hanify.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Appellant James Emerson was charged with aggravated burglary following the theft of several items from property located outside of Casper. At trial, the jury found him guilty of the lesser offense of burglary. Appellant claims he was denied a fair trial because the prosecutor improperly inferred that the jury could find Appellant guilty even without finding guilt beyond a reasonable doubt. Appellant further claims error in the trial court's refusal to admit allegedly crucial evidence and in its denial of a continuance in light of the State's failure to timely produce evidence. We find no reversible error and affirm.

ISSUES

Appellant presents the following issues:

I. Did the prosecutor deprive Appellant of his due process right to a fair trial by indicating to the jury in numerous different ways that Appellant could be convicted even if his guilt was not established beyond a reasonable doubt?

II. Did the court deprive Appellant of his constitutional rights to confront the witnesses against him and to present a defense by barring evidence that a prosecution witness had stolen evidence exculpating Appellant and that the police were motivated to prepare a case against Appellant for reasons other than Appellant's guilt?

III. Did the court deprive Appellant of his due process right to a fair trial by refusing to remedy the prosecution's failure to produce material needed to prepare Appellant's defense?

Appellee, State of Wyoming, phrases the issues as follows:

I. Did counsel for the State improperly argue to the jury that Appellant could be convicted even if his guilt was not established beyond a reasonable doubt?

II. Did the district court abuse its discretion in excluding evidence tendered by Appellant that a State's witness was suspected of having burglarized Appellant's residence, or in excluding evidence of the disposition of prior criminal charges against Appellant?

III. Did the district court abuse its discretion in denying Appellant's requested sanctions for alleged prosecutorial failure to disclose evidence to Appellant, or in denying Appellant's motion for a new trial?

FACTS

Although their home was in Casper, David and Debra Miles kept a variety of personal property in several buildings located on 10 acres north of town. On September 24, 1997, they discovered that the barn and quanset hut had been broken into, and a large amount of property was gone. Upon investigation, police officers learned that a three-wheeler similar to one reported stolen was in the possession of Michael Harmon. During an interview, Harmon stated that he, Chris Weir, and Appellant went to the Miles' property in Weir's mother's van to "load stuff." An Information was filed against Appellant on October 30, 1997, charging him with aggravated burglary and conspiracy to commit burglary.

At trial, the State's main witnesses, Weir and Harmon, recounted what had occurred when the three men went to the Miles' property in late September. Weir testified that he had received permission from Justin Ludke, who had told Weir that he owned the place, to take a lathe from the shop to satisfy a debt. When Weir, Appellant, and Harmon arrived, they backed the van to the door of the shop. Weir was "pretty sure" that Appellant used Harmon's bolt cutters to break the lock. After loading the lathe into the van, they "just kind of went crazy, started loading all kinds of stuff." Weir also stated that Appellant took a rifle from the property. Weir further testified that after they left the property, they placed some of the items in Harmon's storage unit and then unloaded the remainder of the items at Appellant's house. Harmon's testimony essentially corroborated that of Weir, but differed as to whether bolt cutters were used to gain entry.

Testifying on his own behalf, Appellant stated that he believed that 18-year-old Justin Ludke owned the Miles' property and had given permission for the removal of any items which Weir felt would satisfy Ludke's debt. The defense argued that Emerson, therefore, did not have the requisite intent for burglary. The defense also attacked the credibility of the State's witnesses through the presentation of evidence that Weir and the police officers were "out to get" Appellant. While this theory apparently was unpersuasive, the jury found Appellant not guilty of aggravated burglary, but guilty of the lesser charge of burglary. This timely appeal followed.

STANDARD OF REVIEW

Appellant alleges seven instances of prosecutorial misconduct; six of which occurred without objection. We, therefore, will review these six allegations for plain error. To show plain error, Appellant must demonstrate:

First, the record must be clear as to the incident which is alleged error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, the party must prove that a substantial right has been denied him and as a result he has been materially prejudiced.

Dudley v. State, 951 P.2d 1176, 1179 (Wyo. 1998). In regard to the remaining allegation that the prosecutor improperly commented on Appellant's right to remain silent, we have stated that direct prosecutorial comment upon a defendant's exercise of his right to silence will entitle the defendant to reversal. Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995). However, a mere reference to his silence will not require reversal absent a showing of prejudice to the defendant. Id.

The trial court's decision to admit or exclude evidence is discretionary. Jahnke v. State, 682 P.2d 991, 1005 (Wyo. 1984). Similarly, an abuse of discretion standard applies to the trial court's determination regarding the appropriate remedy for alleged discovery violations. W.R.Cr.P. 16(d)(2) provides that if "it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances." An abuse of discretion means that the court could not reasonably have concluded as it did, or that it acted in a manner which exceeds the bounds of reason under the circumstances. Vaughn v. State, 962 P.2d 149, 151-52 (Wyo.1998).

When reviewing a claim that an appellant has been denied his due process rights by failure to produce evidence, we consider: (a) whether there has been "suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence." Jones v. State, 568 P.2d 837, 847 (Wyo.1977).

DISCUSSION

1. Prosecutor's Statements

Appellant claims that the prosecutor informed the jury in his opening statement that they need not find beyond a reasonable doubt Appellant's intention to burglarize, but instead inferred that a guilty verdict could be forthcoming even if Appellant thought he had permission to remove the items. Appellant points to the following portion of the prosecutor's opening statement to support this argument:

They're going to tell you that J.D. Emerson got permission from Justin Ludke to go out there and take all that property from the Miles' buildings; that, in his mind, he had permission because Justin Ludke, an 18-year-old dropout, gave him permission to do so.

And that's, ladies and gentlemen, what you have to decide for yourself. Is that something that a 30-year-old defendant should or can believe? Or is it just something of mere convenience for him to say, let's go out there and take all this property; I've been given permission from an 18-year-old and haven't even confirmed if this land belongs to him? That's the excuse you're going to hear from the defendant.

In fact, you're going to hear a lot of excuses. But we think that we're going to be able to provide you with enough information to convince you that it just certainly is not acceptable; that it's too coincidental for him to have an explanation for everything. So test for yourself.

Appellant also points to closing remarks where the prosecutor asked the jury if the State's testimony was more plausible than the Appellant's explanation, and suggested that the discrepancies in the testimony should "bother" the jury and cause them to be suspicious. Appellant argues that, taken together, these statements impermissibly suggested to the jury that the State's burden of proof was merely a preponderance of the evidence. We disagree.

This Court considers the prosecutor's argument in its entirety, not just the sentences and phrases taken out of context. Armstrong v. State, 826 P.2d 1106, 1115-16 (Wyo.1992). Reading the opening and closing statements as a whole, it is clear that the prosecutor's opening statement urged the jury to consider Appellant's anticipated explanation of his conduct in light of the facts and circumstances demonstrated by the evidence. The closing statement contained but one reference to the prosecutor's personal rejection of the Appellant's excuses—"I don't buy it"—and otherwise was an acceptable reflection on the evidence and the reasonable inferences to be drawn therefrom. We find no indication that the statements misled the jury...