Hamilton v. State

• Decision Date: 15 June 2017
• Docket Number: S-16-0214
• Citation: 396 P.3d 1009
• Parties: Shaun Kenneth HAMILTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

396 P.3d 1009

Shaun Kenneth HAMILTON, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-16-0214

Supreme Court of Wyoming.

June 15, 2017

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Eva La, Assistant Attorney General. Argument by Ms. La.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶1] A jury found Shaun Kenneth Hamilton guilty of five counts of sexual assault and sexual abuse of a minor for acts involving two victims. He appeals his conviction, claiming that there was prosecutorial misconduct amounting to cumulative error when the prosecutor, during closing argument, defined the burden of proof, denigrated Mr. Hamilton's defense, and shifted the burden of proof. We affirm.

ISSUE

[¶2] We rephrase the issue as follows: Was Mr. Hamilton denied his right to a fair trial by the cumulative error of two or more instances of prosecutorial misconduct?

FACTS

[¶3] There are two victims in this case, JP and KB. Mr. Hamilton is KB's stepfather, and lived with KB and her mother. KB testified that in 2015, when she was fourteen, Mr. Hamilton sexually assaulted her in her bedroom. The following day, KB went to school and told a friend about the incident, and the friend reported it to the school principal. The principal called the Wyoming Department of Family Services (DFS), and then called KB out of class. After speaking to the principal about the incident, KB left with a DFS caseworker. The DFS caseworker took KB to the Children's Project Center for a forensic interview and then to the hospital for a sexual assault kit examination. During the sexual assault kit exam, the nurse collected oral swabs from KB and DNA swabs from KB's abdomen. The Casper Police Department (CPD) obtained a search warrant for KB's residence, where they collected KB's mattress topper from her bed, a blanket, a pair of panties, a pair of sports pants, a black shirt, and a white towel. CPD also served Mr. Hamilton with a search warrant to perform a biological evidence kit exam on him. DNA tests confirmed that DNA collected from KB's abdomen swabs and mattress topper was consistent with Mr. Hamilton's semen, and Mr. Hamilton's penile swabs were consistent with the DNA profiles of both KB and Mr. Hamilton.

[¶4] When it began investigating KB's case, CPD re-opened an earlier case involving charges of sexual assault of JP, the child of a woman Mr. Hamilton dated in 2009. JP testified that Mr. Hamilton sexually assaulted her three different times when she was five or six years old. JP's mother reported the incidents to DFS and CPD, but no charges were filed against Mr. Hamilton at that time.

[¶5] The State combined KB's and JP's cases, and charged Mr. Hamilton with one count of first-degree sexual assault in violation of Wyo. Stat. Ann. §§ 6-2-302(a)(i) and 6-2-306(a)(i), one count of first-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. §§ 6-2-314(a)(iii) and (b), for the incident related to KB; and one count of second-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. §§ 6-2-314(a)(i) and (c), and two counts of second-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. §§ 6-2-315(a)(ii) and (b) for the incidents related to JP.

[¶6] After a four-day trial, the jury convicted Mr. Hamilton on all five counts. On the two counts related to KB, he was sentenced to a term of not less than 32 years nor more than 36 years, and a term of not less than 10 years nor more than 15 years, to be served concurrently. On the three counts related to JP, he was sentenced to not less than 18 years nor more than 20 years on each count, to be served concurrently and consecutively to the counts related to KB. Mr. Hamilton timely filed his notice of appeal. Additional facts, testimony, and argument will be set forth below, as necessary.

STANDARD OF REVIEW

[¶7] Mr. Hamilton failed to object to the prosecutor's statements during his closing argument at trial. Our review is therefore limited to a search for plain error. Watts v. State , 2016 WY 40, ¶ 6, 370 P.3d 104, 106 (Wyo. 2016). "Normally, we would determine whether each incident of alleged misconduct by the prosecutor caused sufficient prejudice to require a reversal." Id . at ¶ 7, 370 P.3d at 106. Mr. Hamilton, however, argues that it was the cumulative effect of all three instances of alleged prosecutorial misconduct that denied him his right to a fair trial. Our plain error review is therefore: 1) whether the record is clear about each incident alleged to be misconduct; 2) whether each instance of alleged misconduct actually transgressed a clear and unequivocal rule of law; and 3) if two or more instances of alleged misconduct violate clear and unequivocal rules of law, whether the cumulative effect of the misconduct prejudiced Mr. Hamilton to such an extent that his trial was other than fair and impartial. Id .

DISCUSSION

Was Mr. Hamilton denied his right to a fair trial by the cumulative error of two or more instances of prosecutorial misconduct?

[¶8] Mr. Hamilton contends that there were three instances of prosecutorial misconduct during the prosecutor's closing argument: 1) the prosecutor defined reasonable doubt for the jury; 2) the prosecutor denigrated the defense; and 3) the prosecutor shifted the burden of proof from the State to the defendant. Prosecutorial misconduct is "[a] prosecutor's improper or illegal act (or failure to act), esp[ecially] involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Watts , 2016 WY 40, ¶ 8, 370 P.3d at 107 (quoting Craft v. State , 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo. 2013) ). "Allegations of prosecutorial misconduct are reviewed by reference to the entire record and hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial." Talley v. State , 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo. 2007). Although it was prosecutorial misconduct for the prosecutor to attempt to define reasonable doubt and to suggest that Mr. Hamilton carried any burden of proof, Mr. Hamilton failed to prove cumulative error. Applying our standard of review, we will find that Mr. Hamilton was not prejudiced to such an extent that his trial was anything other than fair and impartial.

A. Reasonable doubt

[¶9] Mr. Hamilton argues that the prosecutor attempted to define reasonable doubt to the jury, in violation of the law, when the prosecutor made the following statements during his closing argument:

Before I get to the overwhelming evidence against [Mr. Hamilton] in this case, I want to discuss with you the burden of proof. I want to talk to you about what it is and also what it is not . It is proof beyond a reasonable doubt, a burden the State welcomes. We welcome that. We're talking about a man's freedom. We should be held to that burden, and we ask you to hold us to that burden. But it is not proof beyond any possible doubt. You heard a lot of possibilities coming from [defense counsel]. Well, could it have possibly been this, could it have possibly been that. The burden is not proof beyond any possible doubt. The burden of proof is beyond a reasonable doubt. And a reasonable doubt doesn't just come from any lame excuse the defense can come up with to try to explain the overwhelming evidence in this case. It only comes from a reasonable argument, one that makes sense, one that matches with your common sense.

....

They argue masturbation, because it's a penetration womb [sic]. It started out with a bike; but when that got debunked, it became masturbation. Well, remember, we're not talking about what is possible. We're talking about what is reasonable . Also, we don't consider evidence in isolation. We take it all together. So look at the whole picture.

(Emphasis added.) The record is clear about the alleged incident; therefore, Mr. Hamilton has met the first prong of the plain error test. We next address whether the prosecutor's statements transgressed a clear and unequivocal rule of law.

[¶10] A prosecutor is afforded "[g]reat latitude in arguing the case to the jury[,] ... [h]owever, there are boundaries the prosecutor may not cross." Carroll v. State , 2015 WY 87, ¶ 32, 352 P.3d 251, 259 (Wyo. 2015) (internal quotation marks and citations omitted). This Court recently addressed the issue of defining reasonable doubt in Watts , 2016 WY 40, ¶ 22, 370 P.3d at 112. Recognizing the inconsistencies in our precedent, we provided a detailed analysis of prior case law and clarified that it is error for a prosecutor to attempt to define ‘reasonable doubt’ for the jury. Id . Here, the prosecutor's comments are similar to those the prosecutor made in Watts :

Ladies and gentlemen, the State does have to prove its case beyond a reasonable doubt, but it is not beyond all doubt. It is not an impossible burden. It is the same burden in every State in the nation, Federal Court, State Courts. We know people are convicted fairly frequently on this burden of proof beyond a reasonable doubt.

....

But the doubt has to be reasonable. It has to be based on what arose out of this trial. It can't be a hunch it [sic]. It can't be well a possibility.

....

A hunch is [not] a reasonable doubt. A vague possibility is not reasonable doubt.

2016 WY 40, ¶ 13, 370 P.3d at 108. We held that the prosecutor in Watts "crossed well into the territory of defining reasonable doubt when he stated: ‘But the doubt has to be reasonable. It has to be based on what arose out of this trial. It can't be a hunch it [sic]. It can't be well a possibility.’ " Id . at ¶ 22, 370 P.3d at 111. Similarly, prosecutorial misconduct occurred here when the prosecutor attempted to define reasonable doubt by stating: "The burden is...