Freeze v. State
| Decision Date | 21 April 1983 |
| Docket Number | No. 5844,5844 |
| Citation | 662 P.2d 415 |
| Parties | Donald Ross FREEZE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., signed the brief on behalf of appellee. Ms. White appeared in oral argument.
Before ROONEY, C.J., and RAPER, THOMAS, ROSE, and BROWN, JJ.
A jury found appellant guilty of first degree sexual assault. 1 He was sentenced to serve not less than 25 nor more than 30 years 2 in the Wyoming State Penitentiary.
The only issue presented by appellant is whether appellant's right to a fair trial was infringed upon by the prosecutor's closing argument, during which the appellant asserts the prosecutor stated his personal belief as to the credibility of witnesses and weight of the evidence.
We will affirm.
In the early evening hours the seventeen-year-old victim was walking in a field near the trailer court where she lived. A car drove up behind her on the dirt road where she was walking and the driver asked if she wanted a ride, which she refused and kept walking. The driver of the car, a few minutes later, grabbed her, tore off some of her clothing then and there, and carried her into the field where she was severely beaten into submission and sexually assaulted. Three boys on a motor bike appeared nearby wondering what was going on. Appellant thereupon ran after them and, in his haste, forgot to come back for his automobile. That led to his identification and arrest.
No objections were made to any of the prosecutor's argument at the time the alleged prosecutorial misconduct took place. Appellant's counsel, apparently as a matter of choice after the jury had retired to deliberate, elected to move for a mistrial on the ground that the prosecutor repeatedly prefaced much of his argument with "in my opinion" and "I believe," citing Browder v. State, Wyo., 639 P.2d 889 (1982), and that plain error had thus been committed.
We shall take up each of the excised quoted parts of the argument of the prosecutor which appellant asserts to have been prejudicial to the point of being plain error. We will place them within the total context of the argument by before-and-after statements also made by the prosecutor.
Appellant argues that the prosecutor was attesting to the credibility of the State's witness when he argued: "[The victim] was very truthful to you." (R.A. Vol. II, page 211, line 6) However, after filling in appellant's omission, the full statement was:
The appellant also asserts that the prosecutor improperly commented on appellant's credibility and stated his personal belief as to the weight of the evidence when he argued:
Going now to the full text of the argument, he went on to explain wherein the inconsistencies existed and then commented:
Then, immediately after that explanation, the prosecutor went into other inconsistencies not included as offensive by appellant but worth repeating as illustrative of how misleading are appellant's contentions:
Then we find the following about which the appellant takes exception on the ground of commenting on the credibility of appellant and expressing a personal belief as to his guilt:
As the prosecutor was closing his argument in chief, we point out he again explained to the jury:
" * * * We want you to base your decision on the evidence that you have heard here, not on speculation or conjecture but on the evidence you in fact have heard from that witness stand, not what I have said, but what the witnesses said, and want you to look at all the evidence, photographs, whatever else we have. * * * " (R.A. Vol. II, page 218)
With respect to the prosecutor's closing in rebuttal, appellant contends that the following violated the Code of Professional Responsibility by arguing a matter not in evidence:
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