Gayler v. State

MR. CORPENING: Drugs, Ladies and Gentleman, is there a more insidious or terrible disease that affects our society today? It tears families apart; steals away our youth. It's ripping the seams of our nation. Costs the taxpayers millions of dollars.

You heard Deputy Clark and Deputy Hansen testify right there on that witness stand. They're both in the courtroom here today. And they are good, honest, decent, family men. And they are on the front line of the war on drugs in Lincoln County. Unfortunately, the battle is being fought here, too. It's just not in the bigger areas, it's in our small county.

They told you that there is a problem here in our county. And they told you that there is a problem with methamphetamine in our county. Methamphetamine appears to be the drug of choice these days. And they gave you some reasons for that. It's cheap. It's readily available. It's what the children seem to choose these days when they use drugs.

* * *

And if it gets to that, Ladies and Gentleman, this case isn't entrapment. Absolutely not entrapment. She knew exactly what she was doing. You can hear it and you can hear it from the witnesses on the stand. She knew what she was doing. She knew she could get in trouble. She has experience in this area. She knew it. She could get in trouble. She was merely presented with the opportunity to commit the crime. And that, absolutely, is not entrapment. These type of cases are not entrapment cases. (Pause.)

Ladies and Gentleman, Lincoln County Law Enforcement is taking the war on drugs dead serious. They are not going to tolerate the delivery of methamphetamine or any drugs in this county. It doesn't matter if it's a small amount, like what we had here, or a large amount. We are not going to tolerate it. Absolutely not. Part of that war on drugs is using individuals like Glen Prows. You don't have to like Glen Prows. But people you like and people that I like can't go up to a drug dealer and make a buy from that drug dealer. IfPage 863you're going to put drug dealers out of business, you have to use people like Glen Prows.

This is your opportunity, as a jury, to take a stand with Lincoln County Law Enforcement and say that we will not tolerate drug dealers in our county. We will not tolerate it.

MR. CARROLL: I'm going to object, your Honor. That places a different standard before the Jury than the Jury's standard of proof in this case. It also argues that they should look at something other than the evidence in this case in making the decision. I think that's improper argument in closing. (Pause.)

THE COURT: The objection is sustained.

MR. CORPENING: Ladies and Gentleman, in closing, I will just ask you to take a stand with law enforcement, take a zero tolerance approach —

MR. CARROLL: Objection, your Honor. It's the same objection.

MR. CORPENING: It's an argument, your Honor. It's closing argument. That's why it's called closing argument. I'm arguing the case.

THE COURT: You're asking them to do something besides consider the evidence, Mr. Corpening. The objection is sustained.

MR. CORPENING: Ladies and Gentleman, in closing, I'll just ask you to send the message, find the Defendant, Pamela D. Gayler, guilty of delivering methamphetamine to Glen Prows. Send that message to the citizens of Lincoln County. Send it to Ms. Prows — or Ms. Gayler. Find her guilty of the crime.

Finally, while we agree the comment was improper as a misstatement of the facts, we find no prejudice in the prosecutor's statement that appellant had spent four years corrupting the victim. The trial court sustained appellant's objection to the comment and immediately declared it a misstatement of the facts. Finding no prejudice in the statement, we find no reversible error.See Tennant[v. State,786 P.2d 339(Wyo. 1990)], 786 P.2d at 346.

In the present case, the prosecutor began his closing argument by carefully informing the jury that one of its duties was to weigh and consider the evidence and the credibility of the witnesses. He emphasized that it was the jury's function to decide whom to believe. He then asked the jury to keep in mind that nothing said by counsel was evidence. After appellant's objection to the prosecutor's statement that he did not think the State's witnesses lied, the court ruled that the remark was improper. However, in light of other remarks in both opening and closing arguments, the trial court did not find that the remark required a mistrial. The court, instead, cautioned the prosecutor that if any further expressions of personal belief were made during closing arguments, a directed verdict would be entered in favor of appellant. Thereafter, the prosecutor's comments were entirely proper.

The scope of permissible argument, as well as the injury caused by improper argument, is best left to the trial court.Hopkinson v.State, Wyo.,632 P.2d 79(1981), cert. denied455 U.S. 922,102 S.Ct. 1280,71 L.Ed.2d 463(1982). We will not reverse the trial court's determination absent a showing that it was without legitimate basis.Hopkinson v. State, supra. Under the circumstances presented here, we find that the trial court's determination to not grant appellant's motion for a mistrial was legitimate, and we, therefore, find no abuse of discretion.

Appellant's position in this area hangs upon a tenuous thread. Although he arguesPage 864that immaterial and prejudicial evidence was introduced which inflamed the passion and prejudice of the jury, it is notable that all objections were sustained thereto. The brief of appellant further does not allege or make any statement or assertion that defendant did not know of these photographs or the matters of the drugs about which complaint was made the drugs having been taken, by the way, from the billfold of defendant at the time of his arrest, and the film from the camera.

The questioning which appellant now alleges was prejudicial is contained in the testimony of Edward R. McAuslin, an investigator with the Riverton Police Department, that at the time of the arrest there was found among appellant's possessions a package of amphetamines. No objection or motion to strike this testimony was made. The only objection made to a following question was aimed at the witness's identification of these as being based upon the analysis by Jim Bonnel and that it was hearsay. Appellant did move and ask that this evidence be stricken and that the jury be advised to disregard it because the opinion was based upon hearsay. The court sustained this motion and directed the jury to disregard this testimony. No further motion was made with regard to the preceding testimony, nor was a mistrial requested. We must assume that in absence of further objection this admonition satisfied counsel,Oldham v. State, Wyo.,534 P.2d 107,111.

Appellant points out and criticizes a number of passages from the closing argument of the State as prejudicial error. Before addressing ourselves to the merits of these criticisms we must consider whether defendant is in a position to complain. No formal objection was made except one at a point immediately before the close of the argument in chief when the speaker referred to the jury as being those who determine the standards of the community and spoke of the growing crime rate in the Nation. The court sustained the objection, but there was no motion to have the statement stricken or to instruct the jury to disregard it. Earlier in the opinion, when we alluded to the prosecuting attorney's opening statement, we noted the necessity of preserving objection to any error relied upon as prejudicial and reversible, and we at that time called attention toMurdock v.State, supra, 351 P.2d at 679, discussing a similar problem but applying specifically to the taking of testimony. On the same rationale, the necessity of an objection to a closing argument is a point which has often been separately discussed by the court. Perhaps the first time was inHorn v. State,12 Wyo. 80,73 P. 705,727, where it was said that 'to entitle such a matter as improper remarks of counsel to consideration in an appellate court, the record must show that proper objection thereto was made at the time, and overruled * * *.' The ruling was reiterated inBennett v. State, Wyo.,377 P.2d 634,639;Cavaness v. State, Wyo.,358 P.2d 355,358-359; andState v.Spears,76 Wyo. 82,300 P.2d 551,562. Its basis is well known, i.e., the chance for mistrial ought not to be encouraged by permitting counsel to remain silent in the face of what he considers to be prejudicial misconduct of an adversary. We are not unaware of the difficulty attendant to any objection in open court, but we think that this can be minimized perhaps by prearrangement with the court for a recess and discussion outside the jury's hearing of any violation which may occur. Of course, there may be cases where the misconduct of a prosecuting attorney is so flagrant that an appellate court would be warranted in reversing even in the absence of such objection, as was noted inState v. Wilson,32 Wyo. 37,228 P. 803,809. We have, however, carefully read and reread the closing argument of the prosecuting attorney and find no such flagrant violation or fundamental error and from the rejection of the motion for new trial evidently neither did the trial court.

The trial judge is in a far superior position to assess the effect of any such occurrence upon the jury, as is the defendant's counsel. We must infer that the defendant's counsel considered the admonishment sufficient,Duran v. State, Wyo.,546 P.2d 434,435;Oldham v. State, Wyo.,534 P.2d 107,111. We have repeatedly held that after the verdict it is too late to raise objection, which must be made at the time of the trial,Wright v. State, Wyo.,466 P.2d 1014,1017.

An earlier case enunciated a general rule applicable to disturbances by the audience, which is applicable in this case. In that case we said the trial judge is responsible for the maintenance of decorum in the courtroom, but has 'A large measure of discretion * * * and its exercise will not be reviewed or disturbed on appeal unless it appears that prejudice resulted from the denial of a legal right,'State v. Spears,76 Wyo. 82,300 P.2d 551,560, citing 53 Am.Jur., Trial, § 42, p. 55. The trial judge having observed these proceedings and having determined an admonition was sufficient, we would be forced to speculate if we found this constituted prejudicial error,State v. Spears, supra. We have further repeatedly held it was necessary to raise such objections contemporaneously,Wright, supra. When defendant's counsel did not ask for further admonition or a mistrial, we cannot notice the same because to allow an attorney to sit silent and preserve a briefcase error for presentation at the appellate level is improper,Booth v. Hackney, Wyo.,516 P.2d 180,184. We have examined many of the authorities cited by appellant, which in most cases are based upon a denial of a motion for mistrial, not a failure to grant a mistrial sua sponte. We cannot allow defendant or his counsel to place the burden of the defense upon a trial judge.