Smethurst v. State

KAIL, District Judge.

Gerald Smethurst was tried and found guilty of first degree sexual assault in violation of § 6-2-302(a)(i), W.S.1977 (June 1983 Replacement). Smethurst was sentenced to incarceration at the Wyoming State Penitentiary for a period of not less than twelve nor more than thirty years. Smethurst appeals his conviction and sentence.

Smethurst raises the following issues on appeal:

1. Whether appellant’s right to trial before an impartial jury was denied.

2. Whether it was error to admit a cumulative medical report into evidence over the objection of defense counsel.

We will affirm.

FACTS

In October of 1986, appellant and co-defendant, Jeff Doles, were incarcerated in the juvenile section of the Campbell County Detention Center. On October 30, 1986, the victim, fifteen year-old M.G., was placed in the same cell block. The three boys spent most of the afternoon watching television together.

Sometime during the early evening or late afternoon of October 30, Smethurst and Doles went into Smethurst’s cell to talk. Shortly thereafter, Smethurst and Doles returned to where the victim was watching television. Doles then jumped on the victim’s back and made the victim carry him up the stairs. Doles grabbed the vie-tim’s arms and held him. Smethurst and Doles then proceeded to beat the victim.

The beating lasted approximately one and one-half hours. During the course of the beating Doles forced the victim to his knees. Smethurst pulled his pants down and put his penis in the victim’s mouth. Smethurst and Doles threatened to kill the victim if he reported the occurrence.

ISSUES

During the voir dire process, a prospective juror realized that he was familiar with some of the facts of the case. The juror asked to approach the bench, where the following exchange occurred:

“[JUROR]: Judge, I’ve sat back there through this whole proceeding, and I— and I — and I have every intention of serving and fulfilling my responsibility here.

“However, I feel I would not be fulfilling if I didn’t let you know that through the process I have remembered this case. I have remembered discussions, and I feel I am — well, I am prejudiced right now. In my judgment. And I — I don’t feel I have as — I am as open because of information I know now.

“THE COURT: What — with whom did you discuss it?

“[JUROR]: Just with — just with different jailers and some of the — you know, I recognized the face as I was sitting there. I didn’t recall things at first, but I remember seeing a face now in the facility.

“And I remember — things have been coming back to me as I — even as we were sitting and talking.

“THE COURT: Okay.

“Do you have any questions?

“MS. PATTON: Isn’t the critical issue whether you could put aside your prior knowledge and sit as a juror only with what’s presented in court? And, if you could do that, couldn’t he be a juror? “[JUROR]: Are you asking that of me, then?

“MS. PATTON: If His Honor is permitting me to.

“THE COURT: Sure.

“[JUROR]: It’s — I guess that’s why I came up here is because I felt that — that previous to that I wanted to make it known, you know, I sat there and did bring back — and did have the feeling of the judge of this witness — or of this defendant.

“I feel that same way I did — I would hope I could. However, there’s a question in this particular case, and which, in my working closely with the jail and through its construction—

“MS. PATTON: If you were instructed by the Court only to consider evidence produced in court, could you base your decision on only that evidence? “[JUROR]: Yeah, I feel I could make my decision only on that.

“MS. PATTON: Okay. Thank you.

“MR. SKAGGS: Okay.

“Now, the follow-up question to that is, seeing’s how we’re forced to look prospectively into the future and possibly sitting in the jury room, is there a possibility that, based upon your prior knowledge of this particular case, based upon your discussions, based upon your experience in the jail, is there a possibility that you could not be fair and unbiased and not follow the Judge’s instructions? Is there that possibility?

“[JUROR]: Yeah, that’s — that’s why I came up here, questioning of myself, and I felt I’d better bring this — at least to my attention before — again, I — I feel that I could make a fair and impartial judgment of the — of what’s presented if I really put aside everything that I do know prior to this point.

“MR. SKAGGS: Is there a possibility that you would not be able to put that aside?

“THE COURT: Well, let’s — he’s answered the question.

“[JUROR]: Yes, I would — I hope I’ve answered it as much as possible. I have knowledge. I am going to do my best to insulate that, to put that aside. However, I felt I needed to make it a — both of you aware.

“THE COURT: I think that's appropriate. And let me ask the question a little more neutrally than perhaps it’s been put to you.

“As I — the same thing applies with respect to the newspaper accounts. As I explained to the panel, we don’t want jurors who don’t read the newspapers, who don’t listen to the radio because they’re uninformed. And probably unintelligent.

“So that’s not the test of jurors. If we have those kinds of jurors, we wouldn’t get anywhere.

“[JUROR]: Uh-huh.

“THE COURT: The question is whether or not, having read or heard something, you can — you can disregard it. And there’s no one that can look into your mind except for you. And the real question is — and I recognize that it’s prospective and that makes it difficult — but the question is, are you able to listen to the testimony offered in court and decide on that basis or have you formed a judgment now which would prevent you from doing that?

“And it’s okay if you have. But you’re the only one who really can answer that question.

“[JUROR]: Okay. I feel that — and I came up here to say I felt I had a — was slanted. I did have a judgment, not a hard-core judgment but a leaning sort of decision. However, I feel I could put that aside. And hear the case.

“THE COURT: Are there other questions?

“MS. PATTON: No, Your Honor.

“MR. SKAGGS: I don’t have any other questions. You may be seated. I’m going to put the objection on the record. “THE COURT: Thank you.”

The court denied defendant’s motion to challenge the juror for cause.

The right to an impartial jury is guaranteed by the Wyoming and United States Constitutions. U.S. Constitution, Amendment VI; Wyo. Const. Art. 1, § 10. Appellant contends he was denied this constitutional right when the trial court denied his motion to challenge the juror for cause.

The Wyoming Rules of Criminal Procedure and §§ 7-11-101 through 7-11-107, W.S.1977, addressed the procedural and substantive aspects of the voir dire process.

Appellant asserts that the prospective juror should have been dismissed for cause pursuant to § 7-ll-105(a)(ii), W.S.1977, which provided:

“(a) The following is good cause for challenge to any person called as a juror in a criminal case:

[[Image here]]

“(ii) That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused;”

Appellant contends that merely showing a juror has knowledge of some facts of the case constitutes prejudice. The contention is not correct.

The defendant in a criminal prosecution is entitled to an impartial jury, not a sympathetic one. Jahnke v. State, Wyo., 682 P.2d 991, 999-1000 (1984). A corollary to that rule is that a defendant is not entitled to a jury ignorant of current events. See, e.g., Collins v. State, Wyo., 589 P.2d 1283, 1289 (1979).

A fact of life in a rural state is that members of a community often discuss events occurring within the community. This court has held that mere knowledge of the facts of a case does not taint a jury or prospective juror. Id. The Wyoming legislature has likewise recognized that mere knowledge of the facts of a case, whether garnered through newspaper account or rumor, is not sufficient cause for challenge if the juror can “lay aside his impression or opinion and render a verdict based on the evidence presented in court;” (7-11-106, W.S.1977) and the trial judge is satisfied regarding the juror’s ability to do just that.

The foregoing is exactly the situation we have in the present case. The prospective juror had, prior to trial, discussed the case. The juror expressed concerns about his ability to be impartial. The juror explained that the bases for his concerns were his earlier discussions.

The juror was then asked three times in three different ways by three different persons if he could lay aside his prior knowledge and render a verdict based solely upon evidence produced in court. Each time the juror answered affirmatively.

We have recognized that “ ‘courts put great, though not absolute faith, in the juror’s statement that he will give the defendant a fair and impartial trial.’ ” Summers v. State, Wyo., 725 P.2d 1033, 1041 (1986), affirmed on reh. 731 P.2d 558 (1987), (quoting 2 C. Wright, Federal Practice and Procedure, § 383 (2d ed.1982)).

The trial judge was satisfied that the prospective juror could lay aside his prior knowledge. The trial judge is vested with a “duty to determine if any of the prospective jurors were so biased and prejudiced that they could not have rendered a fair and impartial verdict.” Gresham v. State, Wyo., 708 P.2d 49, 56 (1985). The trial judge is afforded a fair degree of discretion in the exercise of that duty. Id. It has not been shown, nor can it be said, that the trial judge acted unreasonably in this case.

As the trial judge sagely observed:

“My experience from these kind of cases tell me that the — the voir dire process often causes people to be very, very circumspect into their affairs and doubt their own sense of judgment and fairness.”

Once the mandates of § 7-11-106 are satisfied, it becomes incumbent upon the defendant to demonstrate impartiality or bias. Lopez v. State, Wyo., 544 P.2d 855, 862 (1976). Appellant has failed to carry his burden.

The second issue presented for review concerns the admittance into evidence of a medical report.

During trial, an emergency room record was admitted into evidence over appellant's objection. The basis of the objection was:

“ * * * on the ground and for the reasons that there are simply highlights of oral testimony and goes against the Supreme Court dictates — that doctor’s case, and the name just slips me right offhand —but barring the admission of written evidence which simply highlights oral testimony and gives more — greater— weight to the reasoning of the case, gives greater weight to the testimony than would otherwise be given to the admission of the written.”

The “doctor’s case” referred to by appellant is Schmunk v. State, Wyo., 714 P.2d 724 (1986). Appellant’s reliance upon Schmunk is misplaced.

In Schmunk, the issue presented on appeal was “whether several errors occurring during the course of trial, when considered together, created sufficient prejudice to deprive appellant of a fair trial.” Id., at 726.

One of the errors committed in Schmunk was allowing the jury, during deliberations, to view a highly prejudicial videotape. We noted in Schmunk that videotaped testimony is unique, and that videotaped testimony possesses the danger of unduly emphasizing testimony. Id., at 732.

The emergency room record does not carry with it the same potential for prejudice. There is no showing that the record would unduly emphasize the treating doctor’s testimony. There is no showing that the record was filed or made by the treating doctor. The exhibit tended only to corroborate the testimony of the doctor.

The trial court has broad discretion with respect to admissibility of evidence. The burden is upon the appellant to show that the trial court abused its discretion by admitting the evidence. See, e.g., Carey v. State, Wyo., 715 P.2d 244, 247-248, cert. denied — U.S. -, 107 S.Ct. 270, 93 L.Ed.2d 247 (1986), and authorities cited therein. Additionally, the appellant must show a reasonable possibility that the verdict might have been more favorable to him if the evidence had been excluded. Ramirez v. State, Wyo., 739 P.2d 1214, 1220 (1987) (citing Bishop v. State, Wyo., 687 P.2d 242 (1984), cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985)). Appellant has failed to meet these requirements.

Affirmed.

URBIGKIT and MACY, JJ., each filed a dissenting opinion.