Jeschke v. State

• Decision Date: 06 April 1982
• Docket Number: No. 5602,5602
• Parties: Paul D. JESCHKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1298

642 P.2d 1298

Paul D. JESCHKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5602.

Supreme Court of Wyoming.

April 6, 1982.

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, and Sylvia Lee Hackl, Asst. Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Cr. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., Michael L. Hubbard, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

ROSE, Chief Justice.

Mr. Jeschke appeals his conviction for involuntary manslaughter pursuant to § 6-4-107, W.S.1977. ¹ Appellant was found guilty of causing the death of two and one-half-year-old Andrew Halverson through acts amounting to "criminal carelessness" or "culpable neglect." He now asks us to reverse the conviction, and raises the following issues for our review:

(1) Did the prosecutor's comments, in his closing argument, amount to plain error so that appellant was denied his constitutional right to a fair trial?

(2) Did the trial court err in refusing to give appellant's offered instructions?

We will affirm.

FACTS

Carmen Linderman and her son Andrew Halverson arrived at appellant's trailer house in Gillette, Wyoming during the early morning hours of December 20, 1980. Ms. Linderman was the appellant Jeschke's second cousin, and had been in Wyoming for a couple of weeks prior to this visit.

A few days after their arrival, Ms. Linderman and Andrew slipped on the steps leading into appellant's trailer. This occurred on December 24, 1980. As a result of the fall, Andrew suffered a bruise on his chin and nausea throughout the evening hours of the 24th. Only a month earlier Andrew had been hospitalized in Minnesota because he had complained of headaches and nausea. Although tests failed to develop any conclusive cause, Andrew was apparently suffering from some form of trauma to the head which was affecting his nervous system. The testimony does not reflect, however, that upon his return to Wyoming the child's condition was improving and the headaches and nausea had ceased. Due to Andrew's somewhat unstable condition, Ms. Linderman inquired of the Minnesota hospital as to whether the incident might aggravate the child's recovery. She was informed that most likely the fall would have no effect on Andrew's recovery, and to watch him carefully.

On December 25, 1980, Ms. Linderman left the trailer house at approximately 1:30 p. m. to run some errands. At the time she left, Andrew seemed fine and was playing in his room alone. Upon arriving back at the trailer some forty-five minutes later, Ms. Linderman discovered her son lying down on his bed, face up, in a comatose state. Mr. Jeschke gave Ms. Linderman no information on what had happened to the child, but he did, after several requests, assist her in taking Andrew to the hospital.

The child never regained consciousness and, on December 27, 1980, was officially pronounced dead at Denver Children's Hospital. The doctor at the hospital testified that upon admittance Andrew showed no signs of life and his body was covered with numerous bruises and abrasions.

Approximately one month after the incident, officers of the Campbell County sheriff's office requested appellant to come to their office because of their belief that appellant was implicated in Andrew's death. Appellant voluntarily appeared and, after being read his rights, related to the officers

that on December 25, 1980 he had pushed Andrew because the child had disturbed him while he was on the phone. The push, which appellant admitted was too hard, caused Andrew to strike his head severely on the floor. Appellant was then arrested and charged with the crime for which he was later convicted.

IMPROPER CLOSING ARGUMENT

Mr. Jeschke complains that the prosecutor, in his closing argument, interjected improper comment which reflected a personal opinion with respect to his guilt, and which was designed to inflame the passions of the jurors. Appellant's counsel did not, however, object at the time these allegedly improper statements were made. The following comprise the complained-of statements:

"And I want to submit to you the State's theory of the case. And my theory of the case is that Paul Jeschke never just shoved that little boy down. I think Paul Jeschke-and I think the evidence supports this theory-beat that little boy. I think he beat him unmercifully. I think that's what those bruises are. There's bruises all over that little boy, and he died as a result."

and,

"The only thing ... that we haven't done, talking in the trial or talking right now, is to consider Andrew Halverson's side of this story ...

I submit to you that Paul Jeschke beat this child unmercifully, and I want you to consider what went through that little boy's mind while it was going on. I want you to think about being three foot, one inch tall and 38 pounds and two-and-a-half years old and being assaulted as viciously as this little baby was. I want you to think about the terror that must have gone through his mind, and I want you to look at Paul Jeschke. I want you to look at him closely, and I want you to ask yourself if he should be punished for what he has done.

And I submit to you that he should be. And I submit to you that the only justification for Andrew Halverson's death is that Paul Jeschke won't be allowed to do this again."

We note that, since appellant's counsel failed to object at the time the comments were made, the rule of Oldham v. State, Wyo., 534 P.2d 107 (1975) controls. There we made it clear:

"It is to be noted that defendant made no objection to statements of the prosecutor at the time of the argument, but relied upon an objection made and a motion for mistrial after the close thereof. This court has long adhered to the rule that timely objection must be made, Horn v. State, 12 Wyo. 80, 73 P. 705, 727; Cavaness v. State, Wyo., 358 P.2d 355, 359; State v. Spears, 76 Wyo. 82, 300 P.2d 551, 562; and it is our view that objections should be made at the time of such statements so that the trial court might correct the same by admonition." 534 P.2d at 112.

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, thus requiring reversal. Jones v. State, Wyo., 580 P.2d 1150, 1153 (1978). In order for appellant to succeed he must, therefore, show not only that the comments were improper but also that they amounted to "plain error."

As we have noted on many occasions, the plain-error doctrine will only be applied when there has been a transgression of a clear and unequivocal rule of law, in a clear and obvious way, which adversely affects a substantial right of the accused. See: Browder v. State, Wyo., 639 P.2d 889 (1982); Hampton v. State, Wyo., 558 P.2d 504 (1977); Hays v. State, Wyo., 522 P.2d 1004 (1974). Since no objection was logged in this case, we will review each statement separately in light of the above rule.

We do not agree with appellant that the first comment by the prosecutor was improper. In presenting a closing argument, the prosecutor is entitled to reflect upon the evidence and to draw reasonable In this case, we cannot view the first complained-of comment as anything but a permissible comment on the evidence properly interjected by the prosecutor. Not only did the county attorney preface the statement with the fact that he was relating the State's theory of the case, but he was, of course, also free to draw inferences from the medical testimony that the bruises on the boy's body were caused by the appellant. He was commenting on evidence which was contained in the record, and was not interjecting his personal opinion as to the guilt of the accused. In our view, the first of the allegedly improper comments falls well within the latitude given prosecutors in presenting the State's case to the jury through closing argument.

inferences from that evidence in order to assist the jury in its function. Hopkinson v. State, Wyo., 632 P.2d 79 (1981); State v. Morgan, 128 Ariz. 362, 625 P.2d 951 (1981); Bowen v. State, Okl.Cr., 606 P.2d 589 (1980). The purpose of closing argument is to give both the prosecution and defense counsel the opportunity to explain the significance of the evidence and how it should be viewed. Hopkinson v. State, supra; Mayer v. State, Wyo., 618 P.2d 127 (1980). Finally, we have previously said that the scope of permissible argument, as well as the injury caused by misconduct, are best determined by the trial judge. Hopkinson v. State, supra; Mayer v. State, supra; Oldham v. State, supra.

In regard to the second alleged improper comment, we agree with the appellant that in requesting the jury to put themselves in the place of the victim the prosecutor overstepped the bounds of permissible argument. We do not, however, believe that the impermissible comment rose to the level of plain error.

Notwithstanding the rules, outlined above, which reflect the ability of prosecutors to reflect on the evidence and draw inferences during closing argument, there is also a well-recognized rule which says that closing arguments should not be designed to inflame the passion and prejudice of the jury. Hopkinson v. State, supra. Likewise, in arguing to the jury, the prosecutor should refrain from argument designed to inject issues into the trial which are broader than the guilt or innocence of the accused under the controlling law. Jones v. State, supra. In Jones, 580 P.2d at 1154, we cited with approval ABA...