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Phillips v. State6/11/1992
sexual assault.
The officer continued that he was aware that Harvey and Swazo were already under arrest, but the sergeant on duty informed him that it was not necessary to arrest Phillips at that time because Phillips had agreed to come to the police station voluntarily.
In Stephens, the statements found to rise to error per se came from a counselor/therapist, a social worker and a psychotherapist who all testified in a trial on a charge of sexual abuse that in their opinion the victim had been sexually abused and that the defendant was the perpetrator. 774 P.2d at 67. We held that allowing these witnesses to testify that defendant was the perpetrator amounted to an opinion as to his guilt and could have decided the case for the jury. Id.
The testimony elicited in Stephens contrasts greatly with the testimony here. The officer's statement that he wanted to place Phillips under arrest for investigation of a crime does not implicate his guilt but simply indicates that the officer thought that probable cause existed to investigate the matter further. Probable cause is something more than mere suspicion that a crime has been committed by a suspect but need not rise to the level of proof of guilt, nor even to the level of prima facie evidence of guilt. Jandro v. State, 781 P.2d 512, 518 (Wyo. 1989). The officer testified to the events showing why he had probable cause to arrest Phillips. We do not find that an officer's statement that he wished to place Phillips under arrest based on what he observed amounts to an opinion expressing guilt.
The prosecutor used the term "abduction" when asking a question to which Phillips lodged an objection. He asked another police officer:
Okay. I'm going to give you a red pen. Take a moment, if you need to, to orient yourself with the map. Can you locate on the map the approximate point where the abduction occurred?
The court sustained Phillips' objection and instructed the police officer that it was an "alleged abduction." The prosecutor's use of the term was not testimony. Thus, the use of the term does not fall under the error per se rule of Stephens. Phillips further complains that the court gave no curative or limiting instruction. However, although Phillips moved for mistrial based on these statements, we find no place in the record where such an instruction was requested. In fact, Phillips' counsel felt a limiting instruction would be ineffective and advocated against using a limiting instruction. We cannot find error for failure to give such an instruction if none is requested. Sybert v. State, 724 P.2d 463, 467 (Wyo. 1986).
7. Closing Argument
Phillips contends the following concluding remarks of the State's rebuttal argument prejudiced him:
Ladies and Gentlemen, remember that when you consider what the Defense said, you've got to consider all of those different points, all of those different coincidences, and it isn't enough that — it should not be enough for you to say, "Well, the Defense can explain this one or that one, so I guess there is a reasonable doubt" because the State isn't giving you these things one by one. The State is saying that when they are all added together, they take on a strength independent from what they would have alone. The old Roman example. You can take a stick and maybe break it easily. But if you get two sticks, it's a little harder. And if you get three and four and add them to the bundle, it gets harder and harder to break them.
Remember, when you deal with the Defense's concerns, you have to deal with all of the points the State has raised. The Defense. Did not try to do that. Most of the so-
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