Watts v. State

• Decision Date: 31 March 2016
• Docket Number: No. S–15–0188.,S–15–0188.
• Citation: 370 P.3d 104
• Parties: Ernest Ray WATTS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

370 P.3d 104

Ernest Ray WATTS, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–15–0188.

Supreme Court of Wyoming.

March 31, 2016.

370 P.3d 105

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Bradford H. Coates, Student Director, Travis K. Wagman, Student Intern, of the Prosecution Assistance Program. Argument by Mr. Wagman.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

¶ 1] A jury convicted Ernest Ray Watts of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(i) (LexisNexis 2015), as a result of an altercation with his girlfriend. Mr. Watts appeals, arguing that the prosecutor's incorrect statement regarding the presumption of innocence and his attempt to define "reasonable doubt" in his closing argument constituted prosecutorial misconduct, the cumulative effect of which denied him his right to a fair trial. We affirm.

ISSUE

[¶ 2] We adopt the issue statement advanced by Mr. Watts:

[370 P.3d 106

Was Mr. Watts denied his right to a fair trial due to the cumulative effect of two acts of prosecutorial misconduct?

FACTS

¶ 3] At the time of the incident, Mr. Watts was living with his girlfriend, Diana Lynch, in a rental house outside of Cody, Wyoming. On January 9, 2014, Ms. Lynch was at home when Mr. Watts returned from work. The two argued when Ms. Lynch told Mr. Watts that she did not want him watching television in the same room in which she had been reading. Ms. Lynch testified that after a brief "hand skirmish" over the remote control, she walked to the telephone to call the television service provider and request that the service be disconnected. She explained that Mr. Watts followed her, and told her that if she had the service shut off, he was going to "knock me on my ... ass." Ms. Lynch responded, stating: "If you do that, you'd better make it a good one." At that point, according to Ms. Lynch, Mr. Watts punched her in the face. She then remembered being on the floor with Mr. Watts standing over her and taunting her while she asked him to stop. After the altercation, Ms. Lynch went to the bathroom to tend to her wounds. She asked Mr. Watts, "What happened?" to which Mr. Watts responded that she "had fallen into the plant." Ms. Lynch responded, stating: "Ernie [Mr. Watts], that isn't what happened. You did this to me." Ms. Lynch testified that she asked Mr. Watts to drive her to the hospital, but he refused, telling Ms. Lynch that she was fine. Ms. Lynch then drove herself to the hospital where she was treated. Ms. Lynch suffered a blow-out fracture to the right orbit which required surgery; nasal bone fractures ; a minor subarachnoid bleed; a concussion; and lacerations to her upper and lower lip and eyebrow, which required sutures.

[¶ 4] Mr. Watts took the stand and testified that after the argument over the television, he retreated to the basement of the house to do his laundry. Mr. Watts testified that he heard a crash in the upstairs area. When he came upstairs, he saw Ms. Lynch lying "slumped" in the corner of the kitchen with a "plant [ ] encompassing her face." Mr. Watts helped Ms. Lynch up and helped tend to her injuries. He then stated that he did not believe Ms. Lynch needed further care, so he went to bed, and when he woke the next morning, Ms. Lynch was gone.

[¶ 5] After a three-day trial, the jury convicted Mr. Watts of intentionally causing serious bodily injury to another in violation of Wyo. Stat. Ann. § 6–2–502(a)(i). Mr. Watts timely filed his notice of appeal. Additional facts, testimony, and argument will be set forth below, as necessary.

STANDARD OF REVIEW

[¶ 6] Mr. Watts failed to object to the prosecutor's allegedly improper statements at trial. Our review is therefore limited to a search for plain error. Brown v. State, 2014 WY 104, ¶ 19, 332 P.3d 1168, 1174–75 (Wyo.2014) (citing Leiker v. State, 994 P.2d 917, 918 (Wyo.1999) ). "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 resulting in material prejudice." Collins v. State, 2015 WY 92, ¶ 10, 354 P.3d 55, 57 (Wyo.2015) (citing Fennell v. State, 2015 WY 67, ¶ 23, 350 P.3d 710, 719 (Wyo.2015) ).

[¶ 7] Normally, we would determine whether each incident of alleged misconduct by the prosecutor caused sufficient prejudice to require a reversal. However, in this case, Mr. Watts does not argue that each isolated statement made by the prosecutor constituted plain error. Instead, Mr. Watts contends that it is only when the errors are considered in the aggregate that they create sufficient prejudice to warrant reversal of his conviction. As a result, we need not analyze the prejudice prong for each separate instance of alleged prosecutorial misconduct. Instead, we examine: 1) whether the record is clear about each incident alleged to be misconduct; 2) whether each instance of alleged misconduct actually transgressed a clear and unequivocal rule of law; and 3) if both instances of alleged misconduct violate clear and unequivocal rules of law, whether the cumulative effect of the misconduct prejudiced Mr. Watts to such an extent that his trial was

[370 P.3d 107

other than fair and impartial. McClelland v. State, 2007 WY 57, ¶ 27, 155 P.3d 1013, 1022 (Wyo.2007).

DISCUSSION

Was Mr. Watts denied his right to a fair trial due to the cumulative effect of two acts of prosecutorial misconduct?

[¶ 8] Mr. Watts alleges two instances of prosecutorial misconduct in the prosecutor's closing argument to the jury. Prosecutorial misconduct is "[a] prosecutor's improper or illegal act (or failure to act), esp. involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment." Craft v. State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo.2013) (citations omitted). "Prosecutorial misconduct claims are not intended to provide an avenue for tactical sandbagging of the trial courts, but rather, to address gross prosecutorial improprieties that have deprived a criminal defendant of his or her right to a fair trial." 21 Am. Jur. 2d Prosecutorial Misconduct § 429, at 545 (2008). Prosecutorial misconduct occurs when the prosecutor engages in conduct that he knew or should have known would deprive the defendant of the right to a fair trial. Id. at 544. It is against this backdrop that we examine Mr. Watts' allegations.

¶ 9] First, Mr. Watts contends that the prosecutor's remark concerning the presumption of innocence was an incorrect statement of law. Second, Mr. Watts asserts that the prosecutor attempted to define reasonable doubt in contravention of this Court's previous rulings. We address each of Mr. Watts' contentions in turn.

A. Presumption of Innocence

[¶ 10] Mr. Watts argues that the prosecutor incorrectly instructed the jury concerning the presumption of innocence when the prosecutor stated in his closing argument:

We have proven our case. We have proven every element of this case beyond a reasonable doubt. And now when you go back to deliberate, that presumption of innocence no longer exists. That veil in essence is lifted, and you are now perfectly able to find Mr. Watts guilty of the crime charged.

(Emphasis added.) Mr. Watts has met the first prong of the plain error test as the incident alleged as error is clearly reflected in the trial transcript. We next address whether the incident violated a clear and unequivocal rule of law.

[¶ 11] Prosecutors are afforded wide latitude in crafting their closing arguments. Burton v. State, 2002 WY 71, ¶ 50, 46 P.3d 309, 321 (Wyo.2002) (Voigt, J., dissenting). However, a prosecutor is not permitted to inhibit an accused's right to the presumption of innocence. Condra v. State, 2004 WY 131, ¶ 17, 100 P.3d 386, 390–91 (Wyo.2004). The defendant "retains a presumption of innocence throughout the trial process [,]" Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 162, 120 S.Ct. 684, 691, 145 L.Ed.2d 597 (2000), which "survives until a guilty verdict is returned." Portuondo v. Agard, 529 U.S. 61, 76, 120 S.Ct. 1119, 1129, 146 L.Ed.2d 47 (2000) (Stevens, J., concurring). It is the jury, not the prosecutor, which determines when the presumption of innocence has been rebutted by credible evidence establishing guilt beyond a reasonable doubt.

[¶ 12] The comments made by the prosecutor in this case are similar to those made by an Oklahoma prosecutor, who stated:

I submit to you, under the law and the evidence, that we are in a little different position today than we were when we first started this trial and it was your duty at that time, under the law of this land, as you were being selected as jurors, to actively in your minds presume that

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