Proffit v. State

Citation191 P.3d 974,2008 WY 103
Decision Date03 September 2008
Docket NumberNo. S-07-0079.,S-07-0079.
PartiesKent Alan PROFFIT, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Senior Assistant Attorney General. Argument by Mr. Causey.


GOLDEN, Justice.

[¶ 1] Appellant Kent Alan Proffit, Sr. ("Proffit") was convicted following a jury trial of first degree murder and conspiracy to commit first degree murder. He was sentenced to two consecutive terms of life imprisonment without the possibility of parole. On appeal, Proffit challenges several evidentiary rulings of the district court and assails the prosecutor for misconduct during closing argument. Finding no reversible error, we affirm.


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

I. Did the trial court err in admitting hearsay statements of Chris Hicks?

II. Did the trial court commit reversible error when it did not allow defense expert witness Roger Willard to testify at the trial?

III. Did the trial court incorrectly allow law enforcement to offer hearsay statements of Jacob Martinez and Michael Seiser?

IV. Did the prosecutor commit misconduct when he objected to proposed defense evidence, and then mischaracterized the defense evidence in closing argument?


[¶ 3] During the fall of 2005, Proffit lived in a trailer home in Gillette with his son, Kent Proffit, Jr. Also living there were three young men, Chris Hicks, Jacob Martinez, and Jeremy Forquer. A frequent visitor to the trailer was Michael Seiser.

[¶ 4] In early September, Hicks told Martinez about a plot to bring a large quantity of marijuana, valued at around $500,000.00, to Gillette. Martinez agreed to help Hicks sell it. However, in mid-September something went wrong with the deal. Hicks received a telephone call advising him that the shipment of marijuana had been "lost," and that he would be held responsible for it. Hicks became visibly upset by this news, so much that he attempted to kill himself. When Martinez attempted to intervene in that effort, a fight ensued and the others in the trailer became alarmed. Recognizing their alarm, Hicks and Martinez explained what had happened. Proffit told the young men that he had "connections" and could take care of the problem for them. After making a telephone call, Proffit assured the men that the situation had been resolved. Proffit also told them that they "owed him favors" for his involvement in and solution of the problem.

[¶ 5] Approximately a week later, Hicks and Martinez learned that their debt to Proffit would involve the murder of Forquer. At that time, Proffit told Hicks and Martinez that Forquer was "working for the cops" and that he needed to be eliminated. Over the next several weeks, Proffit, Hicks and Martinez discussed various ways the murder could be accomplished. Around mid-October, Proffit devised a plan in which Forquer would be tricked into a lethal chokehold by Hicks. According to the plan, Proffit would ask Hicks to show him a chokehold that would incapacitate a person; Hicks would agree to show him; they would get Forquer to volunteer for the demonstration; and Hicks would apply the chokehold on Forquer and continue to strangle him until he was dead.

[¶ 6] On October 28, Proffit decided to put the plan into action.1 Around midnight, in accordance with the plan, Proffit asked Hicks to show him a chokehold that he could use to take a person down. When Hicks stated that he needed a demonstration partner, Forquer volunteered.2 Hicks placed his arms around Forquer and choked him until he lost consciousness. Shortly thereafter, both men slumped to the floor. When Hicks indicated that he was tiring, Proffit directed Martinez to get a rope, which Martinez then tightened around Forquer's neck for several minutes until he was dead. Martinez also punched Forquer in his throat several times to ensure that Forquer could not regain his breath.

[¶ 7] After talking and laughing about the murder, specifically the fact that Forquer had urinated on himself, Proffit, Hicks, Martinez, and Seiser began the process of cleaning the trailer and disposing of Forquer's personal belongings and any evidence related to his murder. Proffit directed Hicks and Martinez to clean the area and wipe down Forquer's body with a bleach solution, while he and Seiser gathered Forquer's personal belongings. At Proffit's direction, the young men then lined the trunk of Hicks' Dodge Intrepid with several large trash bags and placed Forquer's body inside, along with Forquer's personal belongings.

[¶ 8] The four men then got into the vehicle and drove away. At Proffit's direction, Hicks proceeded westbound on Interstate 90 toward Buffalo, Wyoming, to find a ravine wherein Forquer's body could be dumped. During the drive, Martinez tossed Forquer's wallet and cellular telephone out of the window. Before reaching Buffalo, they turned around and headed back toward Gillette. Eventually, Proffit found the perfect location. At Proffit's direction, the young men concealed Forquer's body under a large pine tree not too far from the highway. They then resumed their journey back to Gillette, disposing of the rest of Forquer's belongings at various locations along the highway.

[¶ 9] Forquer's murder came to light on December 23, 2005, when Martinez, who was incarcerated on charges relating to another murder, spoke to Lieutenant Eric Seeman of the Campbell County Sheriff's Department. Martinez explained how he, Hicks and Proffit killed Forquer and disposed of Forquer's body and personal belongings. He also directed law enforcement to the location where Forquer's body had been secreted.3

[¶ 10] Following his arrest on December 24, 2005, Proffit spoke with Lieutenant Seeman. Proffit admitted to being in the trailer at the time of Forquer's murder, and confirmed the manner in which Forquer was killed, including the use of the rope. He also admitted accompanying Hicks and Martinez on the excursion to dispose of Forquer's body. Proffit, however, insisted that Forquer's death was an accident and that he tried to convince Hicks and Martinez to report it to the sheriff's office.

[¶ 11] Additional facts will be set forth as necessary to address the issues raised by Proffit.

A. Evidentiary Rulings
Standard of Review

[¶ 12] We recently reiterated the standard for reviewing challenges to the admission of evidence:

Generally, decisions regarding the admissibility of evidence are entrusted to the sound discretion of the district court. Law v. State, 2004 WY 111, ¶ 14, 98 P.3d 181, 187 (Wyo.2004). We afford considerable deference to the district court's decision and, as long as a legitimate basis exists for the district court's ruling, it will not be reversed on appeal. Id. Under the abuse of discretion standard, our primary consideration is the reasonableness of the district court's decision. Martin v. State, 2007 WY 76, ¶ 20, 157 P.3d 923, 928 (Wyo.2007); Wilde v. State, 2003 WY 93, ¶ 13, 74 P.3d 699, 707 (Wyo.2003). The burden of establishing an abuse of discretion rests with the appellant. Martin, ¶ 20, 157 P.3d at 928.

If we find that the district court erred in admitting the evidence, we must then determine whether or not the error affected [the appellant's] substantial rights, providing grounds for reversal, or whether the error was harmless. See Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758, 766-67 (Wyo.2001); W.R.A.P. 9.04; W.R.Cr.P. 52. The error is harmful if there is a reasonable possibility that the verdict might have been more favorable to [the appellant] if the error had never occurred. Skinner, ¶ 25, 33 P.3d at 767. To demonstrate harmful error, [the appellant] must prove prejudice under "circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Id. (quoting Johnson v. State, 790 P.2d 231, 232 (Wyo.1990)).

To the extent no objection is made at trial to the evidence challenged on appeal, our review is limited to determining whether plain error occurred. We will not find plain error unless: (1) the record clearly reflects the error; (2) the party claiming the error demonstrates that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way; and (3) the party proves that the violation adversely affected a substantial right resulting in material prejudice. Lessard v. State, 2007 WY 89, ¶ 14, 158 P.3d 698, 702 (Wyo.2007); Cazier v. State, 2006 WY 153, ¶ 10, 148 P.3d 23, 28 (Wyo.2006); Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, 274 (Wyo.2001).

Humphrey v. State, 2008 WY 67, ¶¶ 44-46, 185 P.3d 1236, 1249-50 (Wyo.2008).

Issue I — Hearsay statements of Chris Hicks

[¶ 13] At trial, Martinez testified, without objection, that Hicks told him in early September 2005 that he had arranged for a large quantity of marijuana, valued at approximately $500,000.00, to be delivered to Gillette for them to sell; Hicks subsequently received a telephone call around mid-September, during which he heard Hicks ask "not to be killed or not to be blamed for something he didn't do"; Hicks told Martinez that the shipment of marijuana had been "lost" and the supplier was holding him responsible for it; after Hicks told Proffit about the situation, Proffit informed them that he was "connected" and would take care of it; a day or two later, Proffit told them that they "owed him favors" for taking care of the problem; and Proffit later told them that one of the favors would be the killing of Forquer.

[¶ 14] Proffit now contends that plain error occurred when the district...

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