Harper v. State, 97-47

• Citation: 970 P.2d 400
• Decision Date: 23 December 1998
• Docket Number: No. 97-47,97-47
• Parties: Dale E. HARPER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 400

970 P.2d 400

Dale E. HARPER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-47.

Supreme Court of Wyoming.

Dec. 23, 1998.

Sylvia L. Hackl, State Public Defender; and Donna D. Domonkos, Appellate Counsel, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, for Appellee.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, ^* JJ.

THOMAS, Justice.

The sole assertion of error in this case is that Dale E. Harper (Harper) was denied his constitutional right to a fair trial due to prosecutorial misconduct in making closing argument to the jury. In his brief, Harper argues multiple aspects of this contention: (1) vouching for the credibility of the witnesses; (2) injecting the prosecutor's opinion on the weight of the evidence; (3) shifting the burden of proof to Harper; (4) improper comment on Harper's exercise of his right to silence; (5) attacking the integrity of defense counsel; (6) improper comments concerning Harper that asserted facts not in evidence; and (7) cumulative error. No objection, with one insignificant exception, was lodged to the prosecutor's closing argument, and we must review Harper's case under the standard of plain error. The application of that standard, in light of our cases addressing claims of prosecutorial misconduct in closing argument, discloses no plain error. The Order Upon Jury Verdict, imposing a life sentence on Harper, is affirmed.

The issue articulated in the Brief of the Appellant, filed on behalf of Harper, is:

The appellant was denied a fair trial as guaranteed by the due process clauses of the United States and Wyoming Constitutions because of prosecutorial misconduct during the closing argument.

In the Brief of Appellee, the State of Wyoming states the issue in this way:

Was appellant denied a fair trial because of statements made by the prosecutor during closing arguments?

While Harper's contentions do not reach the evidence in this case, it is important to an understanding of the several assertions of prosecutorial misconduct in closing argument to have the facts in mind. On May 22, 1996, a construction crew was installing a fence east of Highway 30, approximately eight to ten miles north of Laramie, Wyoming. Between 6:00 and 6:30 p.m., the crew stopped their work on the fencing job and drove into Laramie for dinner. When they returned to the work site around 8:00 p.m., one of the members of the crew discovered a dead body in a ditch near their work site. The crew immediately called 911 to advise the Laramie Police Department of the discovery of the body. A Laramie pathologist later determined that the victim had died as a result of a close range shotgun blast to the back of the head.

Harper and the victim were partners in the distribution and sale of cocaine in Laramie and Colorado. James Mayo (Mayo), one of their customers, resided in Laramie. During May of 1996, Harper and the victim made two trips from Colorado to Laramie to sell cocaine to Mayo. On May 14, 1996, Harper and the victim visited Mayo at his residence. On that occasion, Harper "fronted" Mayo two ounces of cocaine at a cost of $1,000.00 per ounce. ¹ Mayo subsequently paid for the cocaine by wiring money to Harper in Colorado. On May 17, 1996, Harper and the victim returned to Laramie and engaged in another drug transaction with Mayo. On that occasion, Harper "fronted" Mayo three ounces of cocaine at a cost of $1,000.00 per ounce. On May 21, 1996, Mayo sent a $2,000.00 money order to Harper in Colorado via Western Union, as partial payment for that cocaine.

Between noon and 12:30 p.m. on May 22, 1996, the victim drove his silver 1985 Toyota Tercel to Harper's residence at the Silver Spruce Motel in Glenwood Springs, Colorado. Within a short time, Harper left his residence driving the victim's car, while the victim stayed at the motel to visit with Harper's two daughters, AH and FH. Harper went to the Safeway Store in Glenwood Springs where he picked up the $2,000.00 wired to him by Mayo the previous day. After he obtained that money, Harper went to Center Drug, where he purchased a .410 gauge shotgun and a box of three inch shotgun shells. He then crossed the street and purchased a hacksaw at the True Value Hardware Store. Around 3:00 p.m., Harper returned to the motel, and he then left with the victim in the victim's automobile for a trip to Laramie. At approximately 8:00 p.m., Harper arrived at Mayo's home driving the victim's silver 1985 Toyota Tercel. Harper delivered another ounce of cocaine to Mayo, and reminded Mayo that he still owed Harper money from the previous drug transaction. After he left Mayo's residence, Harper called a friend in Laramie, at approximately 8:30 p.m., to invite the friend to meet him for a drink at a local bar. The friend declined Harper's offer to meet for a drink, and Harper returned that evening to Glenwood Springs. Harper arrived alone, on foot, at the Silver Spruce Motel in the early morning hours of May 23, 1996. Harper had the victim's black bag containing cocaine and a sawed-off shotgun. Police later recovered the victim's silver 1985 Toyota Tercel from the parking lot at the Ramada Inn Hotel, located about one block from Harper's motel.

Harper was charged with one count of murder in the first degree. At the conclusion of a jury trial, Harper was found guilty of that charge. On December 17, 1996, an Order Upon Jury Verdict was entered, and Harper was sentenced to a life term of imprisonment in the Wyoming State Penitentiary. Harper takes this appeal from his conviction and sentence.

Harper contends that he was denied the constitutional right to a fair trial because of prosecutorial misconduct committed in the closing argument for the State. Harper essentially made no objection to that closing argument at trial. "The general rule in Wyoming is that a failure to interject a timely objection to an allegedly improper argument is treated as a waiver, unless the misconduct is so flagrant as to constitute plain error and require reversal." Armstrong v. State, 826 P.2d 1106, 1115 (Wyo.1992), followed by, Chavez-Becerra v. State, 924 P.2d 63, 69 (Wyo.1996). The plain error analysis that must be pursued in the absence of objection requires the party claiming error to demonstrate the violation of a clear and unequivocal rule of law, clearly reflected in the record, and resulting in the abridgment of a substantial right of the party to his material prejudice. Arevalo v. State, 939 P.2d 228, 232 (Wyo.1997); James v. State, 888 P.2d 200, 207 (Wyo.1994).

In Dice v. State, 825 P.2d 379, 385 (Wyo.1992), we articulated our policy with respect to claims of plain error occurring in closing arguments, saying:

Plain error in closing argument must remain hard to find because otherwise the trial court becomes charged with an adversary responsibility to control argument even when objection is not taken by the opposing attorney.

We have been consistent in our application of this concept. Smith v. State, 880 P.2d 573, 574 (Wyo.1994); Taul v. State, 862 P.2d 649, 659 (Wyo.1993); Miller v. State, 830 P.2d 419, 427 (Wyo.1992). When no objection has been made to an improper closing argument, the appellate threshold for reversal is "a substantial risk of a miscarriage of justice." Dice, 825 P.2d at 384; followed by, Sturgis v. State, 932 P.2d 199, 201-02 (Wyo.1997).

Our examination of specific claims that the prosecutor has gone beyond the bounds of permissible argument is made by evaluating the comment claimed to be improper in the context of the entire closing argument. Sturgis, 932 P.2d at 201; Hopkinson v. State, 632 P.2d 79, 166 (Wyo.1981); cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). The purpose of closing argument to the jury is to afford counsel the opportunity to offer ways of viewing the significance of the evidence heard by the jury. Virgilio v. State, 834 P.2d 1125, 1127 (Wyo.1992); Pearson v. State, 811 P.2d 704, 708 (Wyo.1991). The scope of permissible argument and the potential injury from any misconduct are best determined by the trial judge. Christian v. State, 883 P.2d 376, 381 (Wyo.1994); Dice, 825 P.2d at 384 (quoting Jeschke v. State, 642 P.2d 1298, 1301-02 (Wyo.1982)).

We turn then to consider the specific claims asserted by Harper. In the first of those, Harper contends that there was an improper vouching for the credibility of the State's witnesses. It is improper for the prosecuting attorney, even in responding to defense arguments, to personally vouch for the credibility of the State's witnesses. Arevalo, 939 P.2d at 231; Fales v. State, 908 P.2d 404, 410-11 (Wyo.1995). See also, ABA Standards for Criminal Justice Prosecution Function and Defense Function, Standard 3-5.8 (3rd ed.1993). In Barela v. State, 787 P.2d 82, 83-84 (Wyo.1990), we stated the rationale for this rule:

When the prosecutor asserts his credibility or personal belief, an additional factor is injected in the case. This additional factor is that counsel may be perceived by the jury as an authority whose opinion carries greater weight than their own opinion: that members of the jury might be persuaded not by the evidence, but rather by a perception that counsel's opinions are correct because of his position as prosecutor, an important state official entrusted with enforcing the criminal laws of a sovereign state. While the prosecutor is expected to be an advocate, he may not exploit his position to induce a jury to disregard the evidence or misapply the law.

Barela was followed in McCone v. State, 866 P.2d 740, 754 (Wyo.1993).

In arguing Harper's case to the jury, the prosecutor uttered several comments that alluded to the discrepancy in the stories that Harper's two daughters and one of their friends...