McLaughlin v. State, 87-282
| Decision Date | 27 September 1989 |
| Docket Number | No. 87-282,87-282 |
| Citation | 780 P.2d 964 |
| Parties | Robert G. McLAUGHLIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender and Tom Sedar, Asst. Public Defender, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Hugh Kenny, Asst. Atty. Gen., for appellee.
Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and GRANT, District Judge.
Just before 11:00 p.m., December 19, 1986, on Interstate Highway 25 near the McKinley Street exit, Casper, Wyoming, Robbyn Malone was killed when the speeding car from which she was ejected rolled over her head inflicting a massive crushing trauma. The car's driver was Robbyn's boyfriend, the father of her child, and appellant, Robert McLaughlin. Appellant was drunk.
McLaughlin was charged with violating W.S. 6-2-106(b)(ii), aggravated homicide by vehicle, which required the State to prove that he operated or drove a vehicle in a reckless manner and his conduct was the proximate cause of the death of another person. The jury that convicted McLaughlin did so on evidence that established the facts to be related below, after a statement of the issues on appeal, which issues we decide against appellant in affirming the conviction.
The trial centered around appellant's intoxication, speed (as indicated by eyewitness testimony and expert analysis of the physical facts), and cause of the rollover--all going to the issue of whether appellant's conduct amounted to recklessness which caused the accident that indisputably took Robbyn Malone's life. Appellant says the conviction must be reversed because of prosecutorial misconduct in cross-examination and argument so egregious and which the trial court's failure to control was so erroneous that it cumulatively amounts to deprivation of appellant's right to fair trial; and, therefore, to plain error. The specifics of appellant's assertions and the issues raised, as well as this court's ruling on the latter, can be explained only in terms of the specific facts as developed from the trial evidence.
Appellant was home in Casper from Laramie where he had been attending a trade school. His friend, Dave Chilberg, who was visiting from California, was a passenger on the night of the accident and a witness at the trial. Chilberg had brought a large quantity of liquor as a gift to appellant but wanted to go out and hit the bars as a "warm up" before starting on the liquor. Appellant and Chilberg picked up Robbyn Malone in appellant's 1974 Datsun. The three of them, between 7:00 and 11:00 p.m., went to Bronco's where they each had a beer, a whiskey sour and a "blue blazer" (a drink made of one-half Southern Comfort and one-half Cream deMenthe), to Fran's where they each had a beer, and to Remington's where they again each consumed a beer, a whiskey sour and a blue blazer. They departed Remington's for the Avalon Club, and it was on the way there, on I-25 heading toward Douglas just beyond the McKinley Street off ramp, that the car skidded with locked wheels to the right side of the outside eastbound lane, veered left across both lanes, crashed into the "jersey barrier," skidded along the barrier, rolled once and landed on its wheels.
The section of interstate highway where the accident occurred was straight, flat, dry, well lit, and free of any obstruction or debris. The highway patrol responded and investigated. Officer Dye found appellant at the scene, apparently intoxicated. About 40 minutes after the accident a blood sample was drawn for a blood-alcohol test, which later produced a reading of .13 to .14. About 12:45 a.m., appellant was arrested and charged. At his trial, almost everything was contested.
There are several areas of evidence and conflict therein significant to the issues. They arise chiefly out of the respective parties' expert testimony interpreting the physical facts, the qualification, credentials and motives of the defense expert, the amount of alcohol consumed by appellant and the witness Chilberg, the relationship between blood-alcohol level and degree of alcohol-induced impairment, speed of the vehicle at the time of the accident and how these things relate to the issue of appellant's recklessness.
Appellant was charged under W.S. 6-2-106(b)(ii) and convicted of aggravated homicide by vehicle. Appellant seeks to overturn that conviction based on alleged prosecutorial misconduct denying his right to a fair trial. Three aspects of misconduct are alleged:
I. The cumulative effect of the prosecutor's misconduct during cross-examination and closing argument,
II. Repeated misconduct coupled with the judge's failure to control it, and
III. Repeated intentional misconduct requiring a mistrial as a punitive measure.
Appellant's first argument is that the cumulative effect of the prosecutor's misconduct was sufficient to deny a fair trial. Although appellant argues several individual instances of misconduct, his primary concerns are (1) a question asked of his witness, Chilberg, during recross-examination, and (2) the substance of the prosecution's closing argument.
We first examine the prosecutor's question to David Chilberg, the only other witness to the accident. In recross-examination, the prosecutor asked Chilberg:
Sir, you don't feel you were intoxicated even though your blood alcohol level was .13 at the Hospital?
In fact, although he had been drinking, Chilberg was not tested for blood-alcohol content. Only appellant had been so tested, and that result was .13. Defense counsel objected. The court sustained the objection, striking the question and instructing the jury to disregard the answer. Appellant characterizes this incident as an intentional statement of fact not in the record and asserts that this violated his right to a fair trial. He bases this on a "cat out of the bag syndrome," apparently meaning that instruction to disregard the answer is not enough.
Although the question was also stricken, appellant claims the question leaves the impression contrary to fact--that Chilberg's blood-alcohol level was established in evidence. The State argues the testimony was overwhelming that Mr. Chilberg had been drinking at least as much as appellant, and so any reference to Chilberg's blood alcohol should be considered harmless error.
This court considered an improper question asked in a murder trial many years ago in State v. Sorrentino, 31 Wyo. 129, 224 P. 420 (1924). There the prosecuting attorney asked the defendant about a prior crime. An objection was made and sustained, and a claim of misconduct was presented. The court said there was no doubt that the question assumed an affirmative fact that defendant was guilty of a different crime not connected with the immediate crime.
The Supreme Court of Pennsylvania, in Wagner v. Hazle Twp., 215 Pa. 219, 225, 64 Atl. 405, 407 [1906] speaking of a similar situation says:
"When an attorney in the trial of a cause willfully and intentionally makes an offer of wholly irrelevant and incompetent evidence, * * * it is the plain duty of the trial judge, of his own motion, to act promptly and effectively by reprimanding counsel * * *."
* * * Such misconduct cannot, however, be considered sufficient to require the granting of a new trial in all cases. It is said in 8 Cal.Jur. § 604:
"Misconduct of the district attorney in asking improper questions is ground for reversal when it results in miscarriage of justice, but not otherwise."
Sorrentino, 224 P. at 425. Although the question insinuated defendant's connection with the activity leading to the murder, other testimony had been properly introduced on that point. The question under consideration was, at most, cumulative in its effect. The court concluded that, in view of all the evidence, the question could not have had sufficient influence on the jury to materially affect their conclusion in reaching a verdict of manslaughter.
A more recent case involved a cross-examination question about settlement efforts. No objection was made until the subject again came up in redirect. The court properly exercised its discretion and correctly instructed the jury to disregard that evidence.
We must assume that the jury followed the court's corrective instruction that the evidence * * * was irrelevant. The court's corrective instruction cured whatever error occurred by the improper questioning and answer that slipped into the record.
Hursh Agency, Inc. v. Wigwam Homes, Inc., 664 P.2d 27, 36 (Wyo.1983) (citations omitted).
In the instant case, the trial judge ordered the question to Chilberg stricken and instructed the jury. We must assume the jury followed the instruction. In view of all the evidence, this one incident is unlikely to have affected the conviction.
"[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by doing so can it be determined whether the prosecutor's conduct affected the fairness of the trial."
Story v. State, 721 P.2d 1020, 1044 (Wyo.1986) (quoting United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)).
The remainder of appellant's first argument focuses on the added cumulative effect of misconduct in the prosecutor's closing argument. Specifically, appellant refers to "unsubstantiated testimony by the prosecutor," the prosecutor's "attack" on defendant's expert witness, and the use of social comment to "inflame" the jury. Appellant offers a number of examples (discussed below) which he insists are misconduct.
To begin, we state unequivocally that there was no misconduct in this case. A prosecutor cannot urge upon the jury his personal belief or opinion. Barnes v. State, 642 P.2d 1263 (Wyo.1982). However he is not precluded from commenting on evidence and...
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