Barela v. State , 1990 Wyo. LEXIS 16 ( 1990 )

CARDINE, Chief Justice.

Appellant John Richard Barela was convicted of first degree sexual assault after a jury trial and sentenced to a term of 14 to 19 years. He raises the following issues:

“1. Whether the prosecutor’s remarks during closing argument adversely affected the defendant’s substantial right to a fair trial.

“2. Whether the trial court judge erred in his use of generalizations in denying Appellant probation.”

We affirm.

FACTS

The victim of the sexual assault came home from work about midnight, lay down in her bed, and went to sleep. She was awakened by appellant pushing her down into the bed. Fearful, she struggled and tried to get away, but was unable to prevent appellant from having sexual intercourse with her. Appellant admitted the sexual intercourse but contended that it was consensual. He testified that he had gone to the victim’s home at approximately 3:30 a.m. and that she had let him in, led him to her bedroom, and consented to have sex with him.

DISCUSSION

Appellant first argues that comments made by the prosecutor during his opening and closing arguments denied him a fair trial. No objection was made to these comments at trial. We therefore apply the plain error standard of review in this appeal. Wheeler v. State, 691 P.2d 599 (Wyo.1984). To invoke the plain error doctrine, appellant must demonstrate that a clear and unequivocal rule of law has been violated, that he was denied a substantial right, and as a result has been materially prejudiced. Miller v. State, 784 P.2d 209 (Wyo.1989); Larsen v. State, 686 P.2d 583, 584 (Wyo.1984).

A review of our cases on the subject demonstrates the difficulty of determining what constitutes impermissible prosecutorial behavior. The question of the propriety of a given statement is not one that can be decided by reference to a judicial checklist of improper words or prohibited phrases to determine if error is present. Of necessity, each statement must be considered in the context in which it was made and in the context of the evidence produced at trial. Freeze v. State, 662 P.2d 415 (Wyo.1983). To invoke the plain error doctrine, it must first be established that a clear and unequivocal rule of law was violated. Therefore, we must identify the limits of permissible argument to determine if the prosecutor crossed the line.

In an often quoted opinion, the United States Supreme Court stated that a prosecutor should prosecute with earnestness and vigor but “while he may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). Determining the location of the line between fair and foul requires reference to the underlying reasons for limiting argument of counsel.

The purpose of limiting the argument of counsel is, fundamentally, to preserve the prerogatives of the jury. Cases involving the propriety of argument are analyzed in terms of protecting the jury from deciding the facts on a basis other than the evidence produced at trial. This analysis is seen in cases where the prosecutor alludes to information that he claims to possess but which has not been presented as evidence. See, e.g., Berger, 295 U.S. at 86-89, 55 S.Ct. at 633. The perceived risk is that the jury will consider the statements made by the prosecutor as evidence, subverting the controls that the law places on admission of evidence. When a prosecutor misstates the law concerning the burden of proof, the risk is that the jury will determine the facts with reference to the incorrect law. Stephens v. State, 774 P.2d 60 (Wyo.1989). A similar example is when a prosecutor asserts that his credibility is superior to that of a witness and that the jury is to choose between the prosecutor’s credibility and that of a witness. Browder v. State, 639 P.2d 889 (Wyo.1982).

When the prosecutor asserts his credibility or personal belief, an additional factor is injected into the case. This additional factor is that counsel may be perceived by the jury as an authority whose opinion carries greater weight than their own opinion: that members of the jury might be persuaded not by the evidence, but rather by a perception that counsel’s opinions are correct because of his position as prosecutor, an important state official entrusted with enforcing the criminal laws of a sovereign state. While the prosecutor is expected to be an advocate, he may not exploit his position to induce a jury to disregard the evidence or misapply the law. See Hopkinson v. State, 632 P.2d 79, 166 (Wyo.1981).

The trial court is in the best position to consider the propriety of argument that falls into the gray area between the permissible and the prohibited. United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1984). In the context of a particular trial, a statement may be objectionable even if the identical statement would be permitted in a different trial. These questions are best left to the discretion of the trial court. Jeschke v. State, 642 P.2d 1298 (Wyo.1982). For the purpose of review under the plain error standard, the limit on argument by the prosecutor is exceeded if the prosecutor’s argument states or implies that the jury should consider factors other than the evidence presented in determining the facts.

Appellant bases part of his claim of plain error on the following statements made by the prosecutor:

“When all else fails, when there is no other defense, you use consent; but there was none in this case.”

“Again, and again, and again we’re going to be asking the question, who was telling the truth? People can lie in Court and people do lie in Court * *

“Who do you believe in this particular situation? Do you believe the Plaintiff or the victim in this particular matter?”

“You saw Mr. Taylor and Mr. Gonzales, and you know what they testified to, and you know who’s telling the truth. If you lie long enough, and you lie, and you keep up with this story, and I contend that this is a story that Mr. Barela made up, you will lie * * *.”

“He lied throughout this, the court proceeding, and he has a real motive to lie * * * ))

Appellant contends that these statements constitute an attack on his credibility and were statements of the prosecutor’s personal belief as to the truth or falsity of the evidence presented. He argues that these statements were so egregiously prejudicial that they deprived him of a fair trial.

When these statements are read in the context of the complete argument, it is apparent that the prosecutor was not attempting to induce the jury to base their factual determination on his beliefs or opinions. Rather, he was articulating the State’s position upon inferences to be drawn from the evidence. It was argument pure and simple. The prosecutor was careful to make it clear that the decision was in the hands of the jury. As to the statement that defendant was lying, when there is express contradictory testimony, as there was here, the inference that at least one of the witnesses is lying is a reasonable one. Wheeler, 691 P.2d at 604-5. We have previously considered the effect of a similar statement in Barnes v. State, 642 P.2d 1263, 1265 (Wyo.1982), where we said that “calling a defendant a thief and a liar may not be in good taste,” but when the evidence supports a reasonable inference that such is in fact the case, it does not constitute reversible error to argue the question. Id. at 1266.

Appellant also argues that the prosecutor compared him to Ted Bundy and that the reference so inflamed the passions of the jury that he was denied a fair trial. The statement in question was made on rebuttal:

“A few years ago I met a lawyer representing a very famous rapist, who happened to be good looking, and he walked over to his client, stood behind him and said ‘Does Ted Bundy look like a rapist?’ I’m a little bit angered at some of the comments that were made, and I’m not going to get emotional, and just go for the facts of this particular case.”

It appears that this comment was made in response to the argument made by appellant’s counsel during his closing:

“He’s good looking. Now, obviously, ladies and gentlemen, the prosecutor can argue and will argue that good-looking people commit rapes too, but you take a person that’s known in this community, good looking as he is, obviously he could have many, many women if he wanted to. Is this a type of guy who commit [sic] a rape? Does he look like that type of guy?”

Closing arguments should not be designed to inflame the passion and prejudice of the jury. Jeschke, 642 P.2d at 1302. It seems clear enough in this case, however, that the remark was in response to defense counsel’s statement that the prosecutor would argue that good looking people do commit rapes. It was not an argument designed to inflame the jury. While reference to a notorious criminal in an attempt to inflame the passion of the jury is improper, Meggett v. State, 599 P.2d 1110 (Okla.Crim.App.1979), under the circumstances here, the comment was not so prejudicial as to affect appellant’s right to a fair trial. The prosecutor made only the single reference to Bundy, and no attempt to play on the notoriety of that case is shown by the record. Therefore, we find the comment not to be plain error.

In appellant’s second argument, he contends that the trial court improperly used “generalizations” when placing upon the record its reasons for denying probation. At sentencing, the trial court specifically indicated that it had considered the information in the presentence investigation report, appellant’s possible psychological problems, appellant’s inability to control his behavior at times, the seriousness of the specific offense, the violence exhibited in this particular case, the effect of the crime upon the victim, the need for societal deterrence, and the need for individual deterrence based on previous problems that appellant had with abusive behavior towards women. The trial court properly considered probation as an alternative. Cook v. State, 710 P.2d 824 (Wyo.1985). We do not agree with appellant’s characterization of the court’s decision as “capricious.”

The judgment and sentence is affirmed.