Guy v. State

• Citation: 184 P.3d 687,2008 WY 56
• Decision Date: 22 May 2008
• Docket Number: No. 06-151.,06-151.
• Parties: Jonmichael GUY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

184 P.3d 687

2008 WY 56

Jonmichael GUY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-151.

Supreme Court of Wyoming.

May 22, 2008.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.

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

BURKE, Justice.

[¶ 1] Jonmichael Guy seeks to overturn his conviction for attempted second-degree murder. He asserts numerous claims of error. Finding no prejudicial error, we affirm.

ISSUES

[¶ 2] Mr. Guy presents the following issues. Slightly reworded, they are:

1. Did prosecutorial misconduct deprive Mr. Guy of his constitutional right to a fair trial?

2. Did Mr. Guy receive ineffective assistance of trial counsel?

3. Was there sufficient evidence to sustain Mr. Guy's conviction?

4. Did the district court allow excessive security in the courtroom?

5. Are Wyo. Stat. Ann. §§ 6-1-301, attempt, and 6-2-104, murder in the second degree, unconstitutional as applied to Mr. Guy?

6. Does cumulative error exist, warranting reversal?

FACTS

[¶ 3] On the evening of December 4, 2004, Jacob Riske visited several Laramie bars with his friends, Cody Schuelke, and Joseph and Amanda Faycosh. Sometime near midnight, the group left a bar called the "Ice Haus." The four individuals then began to walk toward Elmer Lovejoy's, a restaurant-bar only a few blocks west. As Mr. Riske and his friends reached the halfway point of the first full block of their walk, they observed a black Chevrolet Camaro pull partway into the alley just behind them. Mr. Guy exited the vehicle and verbally accosted a group of people walking near Mr. Riske and his friends. Mr. Guy yelled at the group. He used profanity and confrontational language, was aggressive in his demeanor, and generally acted in a manner likely to result in a physical altercation. Stephen Schwartz was the Camaro's driver. While he also exited the car, his behavior was not belligerent. Mr. Riske and those in his party did not know anyone in the group Mr. Guy was accosting, but nevertheless stopped and helped persuade Mr. Guy and Mr. Schwartz to return to the vehicle and leave. They did so without a physical confrontation.

[¶ 4] The Camaro did not go very far, however. It was stopped at the next intersection as Mr. Riske's group crossed. They had to pass the Camaro, which was partially obstructing the crosswalk, and Mr. Schuelke testified that he "rubbed [his] hand across the spoiler of the car just in case they did start backing up." After Mr. Riske's group reached the corner, the Camaro turned sharply into their path and stopped, blocking the other crosswalk at that corner. Joseph and Amanda Faycosh went around the Camaro to cross the street, followed closely by Mr. Schuelke. Mr. Riske was still on the corner when Mr. Guy exited the Camaro and confronted him. Mr. Riske tried to calm Mr. Guy. Mr. Schwartz exited the vehicle as well, but again did not join in Mr. Guy's confrontational behavior. Mr. Schuelke returned to assist Mr. Riske. At some point, Mr. Schuelke pinned Mr. Guy against a building or a nearby pole and urged him to leave. He then released Mr. Guy, who returned to the Camaro via a route that led behind Mr. Riske. At this time, Mr. Riske felt a "bump" or "sucker punch" to his back. He testified that Mr. Guy was the only person within range to have delivered the blow. Mr. Guy or Mr. Schwartz then yelled something to the effect of, "Let's go!" or "Let's get out of here!" and the two men ran to the Camaro and drove away at a high speed.

[¶ 5] Mr. Riske and Mr. Schuelke rejoined the Faycoshes, and they continued down the street. In short order, however, someone in the group observed blood on Mr. Riske's back and determined that he was bleeding significantly. Mr. Riske sat in a nearby doorway, and the others flagged down a police officer. Mr. Riske was taken to the hospital, where he was treated for a stab wound. Against medical advice, he chose to leave the hospital that night. He returned to the hospital the next day, however, and doctors determined that he had suffered a perforated liver from the stabbing.

[¶ 6] Mr. Guy was arrested at his home several hours after the attack. He was charged with attempted second-degree murder in violation of Wyo. Stat. Ann. §§ 6-1-301(a)(i) and 6-2-104 (LexisNexis 2007). At trial, Mr. Riske, Mr. Schuelke, and the Faycoshes testified with minor variation to the version of facts set out above. None of them testified that they observed the stabbing. Mr. Schwartz was also called as a witness for the State. He testified that he and Mr. Guy were together that night, identified the Camaro as his, and testified that Mr. Guy had carried a knife in the past, but had lost it prior to the night of the stabbing. Evidence introduced by the State established that the attack occurred within a few minutes of midnight.

[¶ 7] In his defense case, Mr. Guy presented several witnesses. His first witness, Joseph Nichols, testified that he was at the scene of the second altercation, and that the confrontation between Mr. Guy and Mr. Riske was mutual. He also testified that he did not observe the stabbing. Joseph Pitchford was also called to testify by Mr. Guy. Mr. Pitchford testified that he had come upon the fight after he had left the Ice Haus bar at 2:00 a.m., and that the altercation was mutual. He did not testify regarding whether he saw the stabbing, but did state that he did not observe a knife in Mr. Guy's possession. Mr. Guy did not testify.

[¶ 8] The jury returned a guilty verdict and Mr. Guy was sentenced to 30-45 years in the state penitentiary. He then initiated this appeal. While his appeal was pending, Mr. Guy filed a motion with this Court seeking a limited remand to develop evidence of ineffective assistance of trial counsel pursuant to our decision in Calene v. State, 846 P.2d 679 (Wyo.1993). We granted the motion, and the district court held an evidentiary hearing. The district court determined that Mr. Guy had failed to prove that he had received ineffective assistance from trial counsel. This appeal then proceeded to briefing and argument.

DISCUSSION

Prosecutorial Misconduct

[¶ 9] Mr. Guy alleges numerous instances of prosecutorial misconduct. With one exception, discussed below, defense counsel did not object to any of the prosecution statements that Mr. Guy now alleges were improper. Absent an objection, we review for plain error. Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo.2007). "Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Id. We do not reverse the judgment "unless a reasonable probability exists, absent the error, that the appellant may have enjoyed a more favorable verdict." Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000) (quoting English v. State, 982 P.2d 139, 143 (Wyo.1999)).

[¶ 10] We review allegations of prosecutorial misconduct in light of the entire record. Talley, ¶ 9, 153 P.3d at 260. In this case, all of Mr. Guy's claims of prosecutorial misconduct that we address occurred during closing arguments. Where the purported misconduct was a part of a closing argument, we also consider it in the context of the argument as a whole. Id. Furthermore, we are generally "reluctant to find plain error in closing arguments lest `the trial court become[ ] charged with an adversary responsibility to control argument even when objection is not taken by the opposing attorney.'" Sanderson v. State, 2007 WY 127, ¶ 37, 165 P.3d 83, 93 (Wyo.2007) (quoting Farmer v. State, 2005 WY 162, ¶ 26, 124 P.3d 699, 709 (Wyo.2005)).

Comment on Right to Silence

[¶ 11] Mr. Guy claims two prosecution statements constituted improper comment on his right to remain silent as guaranteed by the Fifth Amendment to the United States Constitution.¹ We have previously stated that "direct prosecutorial comment upon a defendant's exercise of his right to silence will entitle the defendant to reversal." Emerson v. State, 988 P.2d 518, 521 (Wyo.1999). But we have also recognized that "a mere reference to his silence will not require reversal absent a showing of prejudice to the defendant." Id. In evaluating whether a comment is an indirect reference to the defendant's silence, we have stated:

"the test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.... It is not improper for the government to draw attention to the failure or lack of evidence on a point if it is not intended to call attention to the failure of the defendant to testify."

Oldham v. State, 534 P.2d 107, 112 (Wyo. 1975) (quoting Knowles v. United States, 224 F.2d 168, 170 (10th Cir.1955)).

[¶ 12] The first statement that Mr. Guy claims is error is the emphasized portion of the following excerpt from the State's closing argument:

[Y]ou've already been told by the judge the law says that you can infer the existence of malice and an attempt to kill. Why do we tell you that? Because we're not mind readers. And we rarely have the luxury of bringing you cases where everything was on video tape. After it happened, everybody sat down, including the perpetrators, confessed, told us what they were thinking clearly, enunciated their intent, and elaborated on what they hoped had happened. It hasn't happened to me yet. I have been doing this long enough to know that if it was going to happen, I think I would know about it. So we get back to inference.

(Emphasis added.)

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