Lessard v. State

• Decision Date: 24 May 2007
• Docket Number: No. 05-295.,05-295.
• Citation: 158 P.3d 698,2007 WY 89
• Parties: Lonnie LESSARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

158 P.3d 698

2007 WY 89

Lonnie LESSARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-295.

Supreme Court of Wyoming.

May 24, 2007.

Representing Appellant: P. Craig Silva of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, Geoffrey L. Gunnerson, Student Director, and Jenny Staeben, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Gunnerson.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, JJ., and BROOKS, D.J.

GOLDEN, Justice.

[¶ 1] Appellant Lonnie Lessard appeals his convictions for burglary, first degree sexual assault, and attempted first degree sexual assault. He asserts error in the admission of evidence which he claims constituted improper comments on his right to remain silent. Lessard also faults the district court for not severing the criminal charges against him and accuses defense counsel of providing constitutionally ineffective assistance. We affirm.

ISSUES

[¶ 2] Lessard presents the following issues for our review:

A. The prosecution elicited testimony from two witnesses and admitted a transcribed statement of Lonnie Lessard which commented on Mr. Lessard's right to remain silent and violated his Fifth Amendment rights under the United States Constitution and the Wyoming Constitution, Art. 1, § 11.

B. The trial court abused its discretion when it did not sever the two sexual assault offenses against [SH] and [SG], denying Lonnie Lessard his right to a fair trial.

C. Lonnie Lessard was denied his Sixth Amendment right to effective assistance of counsel by trial counsel's deficient performance in defense of Appellant.

FACTS

[¶ 3] During the early morning hours of June 9, 2004, Lessard left his residence, driving a light blue Dodge minivan belonging to his girlfriend, Anna Mae Johnson. He drove to the residence of SH¹ and entered her home through a kitchen window. SH was awakened by the sound of the Venetian blinds hitting the window and a loud "thud." SH went to investigate the noise and saw Lessard standing in her kitchen next to the refrigerator. When she asked him why he was in her home, he responded, "I'm going to rape you. I'm going to rape you hard." As she turned to run, Lessard grabbed her around the neck and covered her mouth. He then dragged her down the hallway to the bedroom, removed her clothes, and sexually assaulted her.

[¶ 4] After the assault, Lessard left SH's presence momentarily to use the bathroom. SH seized upon that opportunity and escaped the confines of her home, wearing only a short, flannel-type jacket she found hanging by the front door. Once outside, she ran directly to the home of her neighbor and friend, Helen Markland, who lived across the street. After learning what had happened, Ms. Markland called 911. While talking to the 911 operator, Ms. Markland stepped outside and noticed the minivan Lessard had been driving for the last several months parked by SH's residence.² Shortly thereafter, she saw the minivan leave the area. Ms. Markland attempted to follow the van, but lost it a few blocks away.

[¶ 5] Within minutes of the 911 call, deputies from the Laramie County Sheriff's Department arrived at the scene. During the ensuing investigation, the deputies found Lessard's cell phone, which was under some spilled dog food on the kitchen floor, and one of his shoes, which was lying next to SH's bed. They also discovered that the clothing SH was wearing before the assault, as well as an afghan she kept by her bed, were missing. A description of the missing items was relayed to the deputies searching for Lessard.

[¶ 6] In an effort to locate Lessard, Deputies Mark Slovik and Terry Camery went to the residence of SG, Lessard's estranged wife.³ Upon arrival at SG's residence, Deputies Slovik and Camery found the minivan that Lessard had been driving. The deputies felt the tires and hood of the minivan and discovered they were still warm. They also noticed that the keys were still in the ignition and that there were some clothes in the van.

[¶ 7] The deputies knocked on the door of the residence and Lessard responded, wearing only gray sweatpants. As Lessard described his activities that night, the deputies observed SG shaking her head in the negative to his statements. The deputies asked Lessard to accompany them to the Sheriff's Office for a formal interview. Lessard ultimately agreed to do so, but said he wanted to get dressed before going with them. Lessard, however, could not locate any of his clothing in the residence and eventually told the deputies that his clothes were in the van. Deputy Slovik and Deputy Susan Sports, who had just arrived at the residence, then escorted Lessard to the van to retrieve his clothing.

[¶ 8] While they were outside, SG reported to Deputy Camery that she was awakened by Lessard covering her mouth and pulling her hair. Lessard was naked and demanding that she lay quietly in bed and do as he instructed. According to SG, Lessard told her that he was there to rape her and he then climbed on top of her. She stated that Lessard had been attempting to force her to perform oral sex on him when the deputies knocked on her door.

[¶ 9] After Lessard returned with his clothes, Deputy Camery confirmed his willingness to accompany the deputies to the Sheriff's Office. As he prepared to go, Lessard stated, "arrest me." When Deputy Camery responded that he was not under arrest and that they merely wanted to speak with him, Lessard stated, "Arrest me, I'm a sex offender." At this point, Deputy Sports informed Deputy Camery that she saw both an afghan and clothes matching those described by SH and a shoe that matched the one collected at SH's residence inside the van. Deputy Camery then placed Lessard under arrest.

[¶ 10] Lessard was later interviewed by Detective Linda Gesell. During that interview, Lessard denied being at SH's house. He also gave conflicting accounts as to his activities that morning and how he obtained possession of SH's afghan and clothes. The interview concluded when Lessard demanded the help of an attorney in obtaining a DNA test.

[¶ 11] The State charged Lessard with five felonies arising out the incidents on June 9: burglary of SH's residence (Count I), a violation of Wyo. Stat. Ann. § 6-3-301(a) (LexisNexis 2005); two counts of first degree sexual assault against SH (Counts II and III), a violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2005); attempted first degree sexual assault as to SH (Count IV), a violation of Wyo. Stat. Ann. §§ 6-1-301(a) (LexisNexis 2005) and 6-2-302(a)(i); and attempted first degree sexual assault as to SG (Count V), a violation of Wyo. Stat. Ann. §§ 6-1-301(a) and 6-2-302(a)(i). Prior to trial, Lessard filed several motions, including a motion in limine to exclude evidence of his prior convictions, a motion to sever the sexual assault cases, and two motions to suppress his statements to law enforcement. After hearing, the district court denied the motion to sever and the motions to suppress, but granted in part the motion in limine involving his prior criminal record.

[¶ 12] Lessard's jury trial began on December 7 and concluded on December 9, with a verdict of guilty on Counts I, II, III, and V. Before sentencing, Lessard sought a new trial on the basis of ineffective assistance of trial counsel and newly discovered evidence. After hearing, during which Lessard was represented by new counsel, the district court denied Lessard's new trial motions, concluding that Lessard had not met his burden of proving that the proffered evidence could not have been produced at trial and that trial counsel had provided deficient assistance.

[¶ 13] The district court sentenced Lessard to prison terms of 6 to 10 years on Count I, 12 to 28 years on Counts II and III, and 15 to 30 years on Count V. The district court ordered Counts II and III to run concurrent to each other, but consecutive to Count I, and Count V to run consecutive to Counts II and III. This appeal followed.

DISCUSSION

Comments on right to silence

[¶ 14] Lessard points to excerpts from the testimony of two prosecution witnesses, SG and Detective Gesell, and a transcript of his post-arrest statement to Detective Gesell that was introduced at trial, and asserts that they constituted improper comments on his constitutional right to remain silent. Lessard did not object to the alleged improper comments at trial. Therefore, we must review his claim under the plain error standard, which requires Lessard to show in the record an error that transgressed a clear and unequivocal rule of law resulting in material prejudice to a substantial right. Abeyta v. State, 2003 WY 136, ¶ 10, 78 P.3d 664, 667 (Wyo.2003); Spinner v. State, 2003 WY 106, ¶ 13, 75 P.3d 1016, 1019 (Wyo.2003).

[¶ 15] Art. 1, § 11 of the Wyoming Constitution provides that "[n]o person shall be compelled to testify against himself in any criminal case." In Tortolito v. State, 901 P.2d 387, 390 (Wyo.1995), we held that an individual's "constitutional right to silence exists at all times — before arrest, at arrest, and after arrest; before a Miranda warning and after it" — and is self-executing. We also held that a prosecutor's failure to respect the constitutional right of the defendant not to have his silence called to the attention of the jury will result in reversal of the defendant's conviction. Id. A "comment" on a defendant's exercise of his right to silence occurs when the prosecutor uses the silence to the state's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt. Lancaster v. State, 2002 WY 45, ¶¶ 39-40, 43 P.3d 80, 96-97 (Wyo.2002); Shipman v. State, 2001 WY 11, ¶ 24, 17 P.3d 34, 39 (Wyo.2001).

[¶ 16] In analyzing right-to-silence claims, we...