Mazurek v. State

• Citation: 10 P.3d 531
• Decision Date: 16 August 2000
• Docket Number: No. 98-185.,98-185.
• Parties: William Charles MAZUREK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

10 P.3d 531

William Charles MAZUREK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-185.

Supreme Court of Wyoming.

August 16, 2000.

Representing Appellant: Tina N. Hughes, Cheyenne, Wyoming.

Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney General. Argument by Ms. Baker.

Before LEHMAN, C.J., and THOMAS, MACY,¹ GOLDEN and HILL, JJ.

GOLDEN, Justice.

A jury convicted Appellant William Charles Mazurek (Mazurek) of conspiracy to commit burglary, burglary, and interference with a peace officer, in violation of Wyo. Stat. Ann. §§ 6-1-303, 6-3-301, and 6-5-204 (Lexis 1999), respectively. Mazurek appeals from the conspiracy to commit burglary and burglary convictions, complaining that admission of inadmissible testimony, ineffective assistance of counsel, and prosecutorial misconduct denied him a fair trial. He also claims that plea bargains with two of the State's witnesses against him violated 18 U.S.C. 201(c)(2) and Wyo. Stat. Ann. § 6-5-102(a)(ii), requiring reversal of his conviction. He does not, however, appeal from the conviction for interference with a peace officer.

Contrary to Mazurek's contentions, plea agreements do not violate 18 U.S.C. 201(c)(2) or Wyo. Stat. Ann. § 6-5-102(a)(ii) (LEXIS 1999). However, on direct examination, the prosecutor elicited inadmissible testimony from the alleged accomplices involved in the crime. Although Mazurek did not object to the testimony or the prosecutor's improper use of that testimony during the trial and in closing arguments, we hold the error committed rises to the level of plain error because the prosecutor's conduct effectively denied Mazurek his right to a trial on the merits. Therefore, we reverse.

ISSUES

Appellant presents the following issues for review:

1. Did the State's offer, and the admission of, two witnesses' testimony that they were convicted of offenses arising out of the circumstances leading to Appellant's trial, and the State's repeated argument concerning those convictions, violate Appellant's right to have a trial on its own merits, and did such testimony constitute plain error?

2. Did Appellant's trial counsel's failure to object to the above testimony and the prosecution's repeated references to "accomplices" constitute ineffective assistance of counsel?

3. Did the prosecution's argument concerning the severance of the charge of interference with a police officer constitute prosecutorial misconduct, in that the prosecution represented to the trial court that it would be offering evidence of incriminating statements that could not be separated from the incident of interference, and then no such evidence was offered?

4. Did the trial court err in admitting testimony of a threat allegedly made by Appellant to a witness outside the courtroom?

5. Did the prosecution's statements in closing arguments concerning the weight and credibility of the testimony and evidence constitute prosecutorial misconduct which resulted in plain error?

6. Did the plea bargains and subsequent testimony of witnesses Jamie Scheschi and Aaron Morran violate 18 U.S.C. 201(c)(2) and W.S. 6-5-102(a)(ii), and result in reversible error?

Appellee phrases the issues as follows:

I. Whether plea agreements with two witnesses who testified against Appellant require reversal of Appellant's conviction?

II. Whether plain error was committed when two witnesses testified they were convicted of offenses arising out of the same circumstances which led to Appellant's trial?

III. Whether statements made by the prosecutor deprived Appellant of a fair trial?

IV. Whether Appellant received effective assistance of counsel?

V. Whether the trial court erred when it admitted testimony by a witness whom Appellant had threatened outside the courtroom?

FACTS

On July 8, 1997, Mazurek, Jamie Scheschi and Aaron Morran were at the home of Tammy Wade. After spending several hours drinking, the three left Wade's home. At Mazurek's trial, Scheschi and Morran testified that Mazurek accompanied them while they drove around town, then returned to Wade's house to store some pallets they had retrieved from the Country General store. After storing the pallets in Wade's garage, the three broke into the victim's garage and removed numerous items. They then drove to Scheschi's where they slept for awhile. Upon awaking, they began to drive to Colorado, but Scheschi's truck broke down, preventing further travel. Mazurek hitched a ride back to town and borrowed Wade's vehicle. When he returned to where his friends were stranded, they loaded the stolen items into that vehicle and drove to Greeley, Colorado. After stopping to talk to friends in Greeley, they drove to Loveland, Colorado, where the three then pawned several of the items for about $300. They split the money and returned to Cheyenne.

Several weeks later, Detective Greg Way questioned Mazurek at the police station about the burglary of the victim's garage. After the interview, Detective Way told Mazurek he was under arrest and handcuffed him. Mazurek asked Detective Way to give him another chance, saying, "Ok, I was there, please give me another chance." As Detective Way unlocked the car door to transport him to the jail, Mazurek fled. Detective Way chased and caught Mazurek within a short distance and, after subduing him, transported him to the jail.

Mazurek was charged with conspiracy to commit burglary, burglary, and interference with a peace officer. Mazurek's theory of defense was that Scheschi and Morran dropped him off before returning to Wade's house. When he returned to Wade's house the next day, the two men asked him to accompany them to Colorado, where Scheschi's truck had broken down. When the three arrived at the truck, they unloaded what Mazurek believed to be Scheschi's property, which Scheschi pawned in Loveland, Colorado.

During deliberations, the jury informed the district court that it was deadlocked on the counts of conspiracy to commit burglary and burglary. They were given an Allen instruction and continued to deliberate. The next morning, they found Mazurek guilty of all charges. He was sentenced on April 3, 1998, and filed this appeal shortly thereafter.

DISCUSSION

Testimony of Guilty Plea Solicited by the Prosecution

During voir dire, examination of witnesses and closing argument, the prosecutor referred to the witnesses as "accomplices" and emphasized the witnesses' convictions. Mazurek contends that under our holding in Kwallek v. State, 596 P.2d 1372, 1375 (Wyo.1979), the prosecution's solicitation of Scheschi's testimony that he entered a plea of guilty to conspiracy and burglary, and Morran's testimony that he entered a plea of guilty to burglary, was plain error requiring reversal of his conviction. In Kwallek, we held that the admission of the testimony of a co-conspirator, that he had entered a plea of guilty to conspiracy, over the objection of counsel, was reversible error. "[T]he rationale of the rule holding the admission of such evidence to be prejudicial error is said to be that it is irrelevant and incompetent because it suggests that since the confederate is guilty, the defendant must also be guilty, and this inference violates the defendant's right to have his trial on its own merits." Kwallek, 596 P.2d at 1375-76 (citing State v. McCarthy, 567 S.W.2d 722 (Mo.App.1978)).

At the outset, we note that Mazurek raised no objection to these activities. Therefore, we consider these claims under a plain error standard of review. "Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Yetter v. State, 987 P.2d 666, 668 (Wyo.1999) (quoting Sandy v. State, 870 P.2d 352, 358 (Wyo.1994)); see also Mora v. State, 984 P.2d 477, 480 (Wyo.1999).

We need spend little time on the first two prongs of our plain error analysis. It is clearly shown in the record that at the end of his direct examination, the prosecutor asked Scheschi and Morran if they had entered guilty pleas to charges arising from the burglary of the victim's garage, to which each gave an affirmative response. It is also clearly improper for the prosecutor to elicit such testimony. See Kwallek, 596 P.2d at 1375-76, and the cases and annotation cited therein; Ross v. State, 930 P.2d 965, 968 (Wyo.1996). We presumed Kwallek made it clear, to prosecutors and defense counsel alike, that prosecutors are not permitted to elicit this type of testimony on direct examination. Such testimony is inadmissible evidence because it is irrelevant and incompetent evidence which the jury may use improperly. See id. In Ross, we opined:

The State's opening statement promised the jury evidence that Ross' wife had previously admitted guilt to a misdemeanor charge of failing to protect her son from his father. When that promise was fulfilled, the absence of a timely objection by Ross' trial counsel would not appear sufficient to save the State's case from reversal, predicated on the rule of Kwallek v. State, 596 P.2d 1372 (Wyo.1979). Kwallek, as reaffirmed by Urrutia, [v. State, 924 P.2d 965 (Wyo.1996)] contemplates situations in which two individuals are prosecuted for different offenses arising out of the same circumstance, rendering "the fact that one has pleaded guilty * * * inadmissible against the other." Kwallek, 596 P.2d at 1375.

Ross, 930 P.2d at 968.

Whether the third prong of our plain error test is satisfied requires more in depth analysis, however. In order to show that the error was prejudicial, Mazurek must demonstrate that he was not allowed a trial on its own merits. In Kwallek, we did not find the defendant was prejudiced merely because testimony of a guilty plea was...