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Capshaw v. State9/29/2000
of the guilty pleas in closing argument, defense counsel again reminds the jury of Tisdale's plea in an effort to vitiate Tisdale's testimony:
[Tisdale] is charged as a conspirator. He could go back to prison, but by coming here and saying those two things [that he gave drugs to Mr. Capshaw and Mr. Capshaw gave him money], he doesn't go for prison, he goes back to California.
We agree with the State that there is sufficient evidence, in addition to the impermissible guilty plea evidence, to render the error harmless according to the rule of Urrutia. Furthermore, because Capshaw incorporated those guilty pleas into his trial strategy and invited the guilty plea testimony by his own opening statement, we cannot say that a substantial right was abridged in such a fashion as to require reversal under the plain error standard. Ross, 930 P.2d at 969; see also United States v. Dunn, 841 F.2d 1026, 1030-31 (10 th Cir. 1988); also see V. Woerner, Annotation, Prejudicial effect of prosecuting attorney's argument or disclosure during trial that another defendant has been convicted or has pleaded guilty. 48 A.L.R.2d 1016, esp. § 4 (1956 and Later Case Service).
Finally, we offer this additional suggestion for the trial courts so as to deter similar potentially fatal errors from occurring in future cases. As noted above, as a general rule, admission of evidence that a co-defendant or conspirator has pleaded guilty or been found guilty is not admissible in the trial of another co-defendant or conspirator. If such evidence is introduced by the prosecution, it is error. Recently, we were compelled to reverse a conviction on these very grounds because the prosecution improperly used evidence of guilty pleas by co-defendants. Mazurek v. State, 2000 WL 1156425, *3-*10 (Wyo.), ____ P.3d ___, ___ (Wyo. 2000). If no objection is interposed by the defense, we will review such an error under the plain error standard. Likewise, if an objection is made, the error is subject to review for harmless error. In either event, a clear and comprehensive instruction to the jury (whether requested by the defense or given by the trial court sua sponte) may have a salutary effect in either a plain error analysis or a harmless error analysis. Trial courts should be alert to this potential pitfall when a co-defendant or conspirator is called as a witness for the prosecution under circumstances similar to the instant case. The prosecution should be cautioned about introducing the subject of a guilty plea or conviction into another defendant's trial, and the trial court should be alert to properly instruct the jury to disregard any such testimony should it be called to the jury's attention. As can be gleaned from a review of the American Law Reports annotation cited above, there are many circumstances where prejudice is not found. One significant factor in such a finding may be the guidance provided by the trial court in such an instance.
CONCLUSION
Finding no error requiring reversal of Capshaw's conviction, we affirm the Judgment and Sentence of the district court in all respects.
THOMAS, Justice, concurring specially.
I am in accord with affirming Capshaw's conviction. I agree that there was no error committed in the admission of uncharged criminal conduct. I am also satisfied that there was no variance between the conspiracy that was charged and the conspiracy established by the evidence at trial.
I cannot, however, join in that aspect of the opinion that treats the claim of error under Kwallek v. State, 596 P.2d 1372 (Wyo. 1979). In Ross v. State, 930 P.2d 965, 972-73 (Wyo. 1996), I reiterated the analysis of Kwallek that I advanced in Urrutia v.
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