Talley v. State
| Decision Date | 06 March 2007 |
| Docket Number | No. 05-268.,05-268. |
| Citation | 153 P.3d 256,2007 WY 37 |
| Parties | Eyvette Marie TALLEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel.
Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.
Before VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE, JJ.
[¶ 1] Ms. Talley appeals her convictions for felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. She contends that prosecutorial misconduct denied her a fair trial. We affirm.
[¶ 2] Ms. Talley presents two issues:
1) Did prosecutorial misconduct occur when the prosecutor questioned Appellant about whether other witnesses were "lying"?
2) Did the prosecutor commit misconduct in closing argument by referring to an accomplice's inability to testify?
[¶ 3] In February of 2004, Ms. Talley traveled with her boyfriend, Brian Rawle, her brother, Marco Lemus, and Marco's wife, Tiffany Lemus, from South Dakota heading toward Arizona, where they expected to find employment. Ms. Talley brought her three children, including her teenage daughter, FT. The Lemus couple brought their three children. All ten individuals traveled in one vehicle, a 1989 Cadillac Deville. During the trip, the adults engaged in illegal drug use. On their way to Arizona, they made several stops including a planned stop in Kemmerer, Wyoming, where Mr. Rawle had previously lived for a short time.
[¶ 4] From his time spent in Kemmerer, Mr. Rawle had a connection with an alleged drug dealer, Manuel Leon-Leyva. The evidence presented by the State showed that Ms. Talley, her brother, and Mr. Rawle conspired sometime during their trip to rob Mr. Leon-Leyva. When they arrived in Kemmerer, Mr. Rawle called Mr. Leon-Leyva and arranged a meeting at a local grocery store. The three armed themselves with steak knives before the meeting. They parked the Cadillac behind the store. Ms. Talley and her two co-conspirators exited the vehicle and went to the other side of the building. Mr. Leon-Leyva arrived to meet them, driving his 1992 Isuzu Trooper. Mrs. Lemus and the children remained in the Cadillac.
[¶ 5] Some time later, the Isuzu pulled up and parked in front of the Cadillac. Mrs. Lemus observed the Isuzu rocking and moving, and one of the children said she thought that someone was being beat up. Mrs. Lemus approached the Isuzu to see what was happening. Ms. Talley emerged from the Isuzu covered in blood. She escorted Mrs. Lemus back to the Cadillac. Ms. Talley sat in the driver's seat and placed her knife between the front seat cushions. She then drove the Cadillac, following the Isuzu driven by Mr. Rawle, to a remote area outside of town. Ms. Talley, her boyfriend, and her brother set the Isuzu on fire with Mr. Leon-Leyva's body inside.
[¶ 6] The charred vehicle and remains were later discovered by an oilfield worker who contacted law enforcement. An investigation ensued, and it was discovered that Mr. Leon-Leyva had suffered numerous stab wounds. Ms. Talley was eventually charged with three counts: 1) felony murder in violation of Wyo. Stat. Ann. § 6-2-101(a) (Lexis-Nexis 2003); 2) attempted aggravated robbery in violation of Wyo. Stat. Ann. § 6-1-301 and § 6-2-401(c)(ii) (LexisNexis 2003); and 3) conspiracy to commit aggravated robbery in violation of Wyo. Stat. Ann. § 6-1-303(a) and § 6-2-401(c)(ii) (LexisNexis 2003).
[¶ 7] At trial, the State presented the testimony of several witnesses. In addition to testimony from witnesses regarding the discovery of Mr. Leon-Leyva's body and the criminal investigation, Tiffany Lemus and FT testified about the events they witnessed during the trip. Two other witnesses, James "JR" Rutledge and Cindy Sanchez, testified that Ms. Talley had bragged to them that she had cut the throat of a drug dealer in Wyoming and related details of the crime Ms. Talley shared with them. Brian Rawle and Marco Lemus did not testify, but incriminating statements they made to the police were discussed by several witnesses during the trial. Ms. Talley testified on her own behalf and admitted to being present but denied direct involvement in the robbery or murder of Mr. Leon-Leyva.
[¶ 8] The jury found Ms. Talley guilty on all three counts. She was sentenced to a prison term of eight to ten years on the conspiracy conviction. The attempt conviction merged with the felony murder conviction for sentencing, and the district court imposed a life sentence, to be served consecutive to the eight to ten year prison term. Ms. Talley timely appealed. Further facts will be discussed as needed in our review of Ms. Talley's claims of prosecutorial misconduct.
[¶ 9] Allegations of prosecutorial misconduct are reviewed by reference to the entire record and hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial. Similarly, the propriety of any comment within a closing argument is measured in the context of the entire argument. Dysthe v. State, 2003 WY 20, ¶ 22, 63 P.3d 875, 884 (Wyo.2003). Reversal is not warranted unless a reasonable probability exists, absent the error, that the appellant may have enjoyed a more favorable verdict. Id. Ms. Talley has the burden of demonstrating plain error because no objection was made at trial to either the prosecutor's questioning or to the closing argument. 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. Id., ¶ 23, 63 P.3d at 884.
Improper questioning
[¶ 10] Ms. Talley claims the prosecutor committed misconduct while cross-examining her, by asking her whether other witnesses were lying. Although a defendant who testifies in a criminal case may be cross-examined regarding his credibility just like any other witness, there are limits placed upon the prosecutor. Jensen v. State, 2005 WY 85, ¶ 20, 116 P.3d 1088, 1095 (Wyo.2005). A prosecutor may not cross-examine a defendant using the "lying" or "mistaken" technique. Such questions are improper, and use of them amounts to misconduct. Id.; Beaugureau v. State, 2002 WY 160, ¶ 17, 56 P.3d 626, 635-36 (Wyo.2002).
[¶ 11] Courts prohibit "were-they-lying" questions for several reasons: 1) they invade the province of the jury, as determinations of credibility are for the jury; 2) they are argumentative and have no probative value; 3) they create a risk that the jury may conclude that, in order to acquit the defendant, it must find that a contradictory witness has lied; 4) they are inherently unfair, as it is possible that neither the defendant nor the contradictory witness has deliberately misrepresented the truth; and 5) they create a "no-win" situation for the defendant: if the defendant states that a contradictory witness is not lying, the inference is that the defendant is lying, whereas if the defendant states that the witness is lying, the defendant risks alienating the jury. State v. Maluia, 107 Hawai`i 20, 108 P.3d 974, 978 (2005). Accord Jensen, ¶ 20, 116 P.3d at 1095-96; State v. Graves, 668 N.W.2d 860, 872-73 (Iowa 2003); and State v. Thompson, 266 Conn. 440, 832 A.2d 626, 648 (2003).
[¶ 12] The State agrees that Ms. Talley was subjected to cross-examination prohibited by Jensen and Beaugureau. At trial, she was questioned as follows:
[Prosecutor]: Never passed those knives out amongst the four of you like your daughter's testified to?
[Ms. Talley]: No, sir.
(Emphasis added.) Later in the cross-examination, similar questioning occurred:
. . .
(Emphasis added.) Accordingly, the State concedes that Ms. Talley has demonstrated a violation of a clear and unequivocal rule of law, thereby satisfying the first two prongs of the plain error standard. However, the State contends that Ms. Talley has failed to prove prejudice to her right to a fair trial.
[¶ 13] In support of her claim of prejudice, Ms. Talley contends that the State's evidence was not overwhelming and that to convict her, the jury had to believe the testimony of her daughter, FT, and Tiffany Lemus. FT was the only witness who testified concerning the conspiracy, and Mrs. Lemus was a key witness for the State. Ms. Talley points to inconsistencies in the testimony of these two witnesses in an attempt to demonstrate that the...
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