Kerns v. State
| Decision Date | 25 June 1996 |
| Docket Number | No. 95-94,95-94 |
| Citation | 920 P.2d 632 |
| Parties | James William KERNS, Appellant (Defendant), v. The STATE of Wyoming Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, State Public Defender; Deborah Cornia, Appellate Counsel, Cheyenne, for Appellant.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr., Assistant Attorney General; Kimberly A. Baker, Assistant Attorney General, Cheyenne, for Appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR, and LEHMAN, JJ.
Appellant James William Kerns appeals his conviction and sentence for first degree murder. His appeal challenges jury selection, witness immunity, failure to disclose evidence, hearsay, and various prosecutorial actions during trial.
We affirm.
Kerns presents these issues:
1. Did the trial court deny the Appellant his constitutional right to a fair and impartial jury when it abused its discretion during the jury selection process by requiring the Appellant to use a peremptory challenge on a biased jury member?
2. Did the prosecutor improperly grant immunity from prosecution to a material witness against the Appellant?
3. Was Appellant denied his constitutional right to confront a material witness against him?
4. Did prosecutorial misconduct deny Appellant a fair trial as guaranteed by the due process clauses of the United States and Wyoming Constitutions?
5. Did the trial court err when it admitted, over objection, the hearsay testimony of Officer Raitz?
6. Was the cumulative effect of the errors discussed above such that the Appellant was denied his right to a fair trial and substantial justice?
The State summarizes the issues as:
Whether appellant was denied his right to a fair trial?
On September 5, 1993, two fishermen discovered the body of Jose Henriquez 500 yards from the Sacajawea Campground near Big Piney. He had been beaten and stabbed once in the chest. Henriquez had last been seen on August 22, 1993, at the Silver Spur Bar in Big Piney. Henriquez, a Mexican national working for a company named Ranko in Sublette County, was reported missing by his employer on August 23, 1993.
After discovery of the body, the area was searched and witnesses were interviewed without result. Almost seven months later, on March 11, 1994, Casper resident Debar Green contacted the Sublette County Sheriff's Department and reported that she had information on a murder in Big Piney. In an interview by Division of Criminal Investigation agents in Casper, Green stated that her recently estranged boyfriend, James Kerns, told her he had killed a Mexican in Big Piney. Henriquez had approached Kerns in the Silver Spur Bar to buy drugs. Kerns saw that Henriquez had a substantial amount of cash, went home and took his roommate's knife and drove Henriquez to the mountains where he stabbed, kicked and robbed him.
At the time of the murder, Kerns had been living in Big Piney with Kenneth Lord. Lord, who has felony convictions for burglary, kidnapping, forcible rape with a knife, drug violations and aggravated assault, made numerous statements to the police during the course of their investigation. Eventually, under what the State characterizes as an agreement with the prosecutor not to exercise his discretion to prosecute, Lord testified that Kerns confessed to robbing and killing Henriquez with Lord's knife.
Witnesses placed Kerns in the Silver Spur Bar the night Henriquez disappeared and experts testified that dog hair found on Henriquez' pants and in Kerns' vehicle were similar in some respects. Although Lord testified that Kerns' dog was with Kerns the night he killed Henriquez, the State did not take hairs from the dog for comparison.
Kerns introduced alibi evidence in his defense to the charge. Kerns and several witnesses testified that the day before the murder (Saturday), Kerns left Big Piney, moved to Casper and began work the following Monday. Kerns denied any involvement in the murder and robbery of Henriquez. The jury returned a verdict of premeditated and felony murder and Kerns is presently serving a mandatory life sentence.
Kerns claims the trial court abused its discretion in denying a challenge for cause against a prospective juror. The venireperson was a cousin to a witness in the case and expressed concerns about drug dealer testimony. Defense counsel later exercised a peremptory challenge on the venireperson and objected to the jury panel as empaneled.
The test to be applied in determining whether a prospective juror should be dismissed for cause is whether that person would render a fair and impartial verdict based on the evidence presented at trial and the instructions given by the court. Munoz v. State, 849 P.2d 1299, 1302 (Wyo.1993). Whether a juror is biased is a question of fact for the trial judge. Jahnke v. State, 682 P.2d 991, 1000 (Wyo.1984). A trial judge's decision will only be reviewed for an abuse of discretion. Munoz, 849 P.2d at 1302. The failure to challenge a juror, and then later acceptance of the panel at trial, waives any objection to the service of a particular juror. Id. To establish reversible error, Kerns must show that he did not accept the jury and that he was prejudiced by a denial of a right to a peremptory challenge because he was forced to exercise it against another juror, and that he exhausted his peremptory challenges. Id. In this case, Kerns has properly preserved this issue for appeal.
The venireperson in question requested to be heard in chambers where he expressed concern in two areas: whether he could draw on personal experience to evaluate the truthfulness of the witness, his cousin; and whether any testimony would come from a drug dealer. In response, the trial court informed the juror that nothing prevented a juror from knowing a witness if the juror judged that witness's credibility based on the evidence at trial. When asked, the juror agreed that he could judge the witness's credibility based on trial evidence. The defense's challenge for cause was denied, the court noting the statute only permitted challenges to relatives of the parties and stating:
the vast majority of the people on this jury panel have acquaintanceship with [this witness]. He's going to be well known to a number of the people[,] whichever 12 people are on this jury, and that's just the way it is. This is a small county and a small community. People know each other, and the challenge is denied.
The defense then questioned the prospective juror about his concern with drug dealer testimony. The juror's statements revealed little more than that he believed that the fact the witness was a drug dealer would certainly bear on credibility. The court denied the defense's challenge for cause on this basis. When the defense challenged the empaneled jury, the court again denied, noting that two full days had been devoted to jury selection from fifty-one prospective jurors and that he had permitted an extensive and permissive voir dire by the defense. Numerous in-chamber inquiries into sensitive areas had been held resulting in many dismissals for cause.
Our review of the record indicates that the trial court did conduct a thorough voir dire and jury selection process, consistently dismissing those prospective jurors who felt they could not determine a verdict strictly from the evidence. Even from a cold record, it is clear that voir dire was conducted in an atmosphere which encouraged openness and honesty, but fully explored whether a juror's perceived bias actually would prevent rendering a fair and impartial verdict, all without coercion by the trial court. In the case of the particular juror in question, the trial court remained consistent in its manner of inquiry and elicited answers which satisfied the court that the juror did not have a bias or prejudice either because a witness was a relative or because drug dealers would testify which would prevent that prospective juror from rendering his verdict on the evidence. It is not error for a judge to take steps to make a prospective juror understand that a supposed bias will not be grounds for successful challenge for cause if the prospective juror is able to consider the case only on the evidence presented in court under the law as instructed by the court. Gresham v. State, 708 P.2d 49, 56 (Wyo.1985). It is the trial court's prerogative to give considerable weight to a potential juror's statement that the juror could fairly and impartially serve on the case. See Schwenke v. State, 768 P.2d 1031, 1033 (Wyo.1989); People v. Robinson, 874 P.2d 453, 457 (Colo.App.1993). We find no abuse of discretion.
After Division of Criminal Investigation (DCI) agents had conducted several unproductive interviews with Kenneth Lord, he and the prosecutor entered into a written agreement which read as follows:
This letter is intended as a memorandum of our agreement that the State of Wyoming will not prosecute Ken Lord for crimes committed or alleged to have been committed in Sublette County with reference to the murder on or about August 23, 1993, of Jose Henriquez. This agreement is made upon the condition that Mr. Lord cooperate fully with the investigators in the matter and testify to those matters elicited from him in the investigation and contained in his statement.
It is our understanding that Mr. Lord was not directly involved in the homicide and has information which has been discussed in my presence and which, combined with other information, tends to prove that the homicide was committed by the man presently charged with the same, James William Kerns.
Kerns contends that any grant of immunity not authorized by statute is improper and requires reversal. The State characterizes the agreement as an agreement within the prosecutor's discretion not to prosecute rather than a grant of immunity.
"A prosecuting attorney, solely by virtue of his office...
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