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Wilks v. State7/3/2002
oul of the admonition against injecting issues broader than the guilt or innocence of the accused. See Standards for Criminal Justice 3-5.8(d), supra. When this statement is read in context, it is clear the prosecutor was not telling the jury that fulfillment of its duty could be achieved only through a first-degree murder conviction. Rather, the prosecutor explicitly encouraged the jury to do its duty and ascertain the truth and to apply the evidence to the given law. When the statement is reviewed in context, it is apparent there was not a transgression of a clear and unequivocal rule of law.
[ ] Mr. Wilks' second allegation of prosecutorial misconduct is not supported by any authority whatsoever. He claims the prosecutor erred in rebuttal by telling the jury the case was "about justice for [the vi ctim], and it's about justice in the larger sense, and to call what happened to [the victim] Manslaughter would be a disservice to both of those things." Without a proper plain error analysis, Mr. Wilks cannot satisfy his burden of establishing prosecutorial misconduct.
[ ] Next, he maintains the prosecutor misstated the evidence by stating, "[a]t some point, [Mr. Wilks] said, 'I am going to shoot this lady in the face.'" He claims nobody knows what occurred on the night in question and there is no evidence in the record to show he made such a calculated decision. While a prosecutor is not permitted to intentionally misstate the evidence or mislead the jury, he may reflect upon the evidence admitted at trial and draw reasonable inferences from that evidence. Burton, 2002 WY 71, . That he decided at some point to shoot the victim is a reasonable inference to be drawn from the evidence based upon the fact that he admitted aiming the gun, pulling the trigger, and shooting her. Mr. Wilks fails to establish the second prong of the plain error analysis.
[ ] His next claim of error arises when the prosecutor discussed from where Mr. Wilks retrieved the gun used in the murder. The prosecutor said, "He took a revolver, we don't know from where. There was a holster on his bed. He might have went all the way back there. 'Hold on a second. Let me get the money.' He came back with that revolver." He asserts the only evidence before the jury as to the location of the gun was introduced through his statement to the police when he said he kept the gun in the front of his waist the entire day. However, the police did find a gun holster on his bed that fit the gun used in the murder. The prosecutor is permitted to argue all reasonable inferences from the evidence. See Standards for Criminal Justice 3 -5.8(a), supra.
"'Closing arguments are meant to be just that, arguments premised upon the evidence already submitted to the jury. Prosecutors are no more limited in their closing than defense counsel. They may review the evidence and suggest to the jury inferences based thereon. The purpose of closing arguments is to allow counsel to offer ways of viewing the significance of the evidence. However, there are limits, not only on prosecutors, but on all attorneys.'" Schmunk v. State, 714 P.2d 724, 742 (Wyo. 1986) (quoting Browder v. State, 639 P.2d 889, 893 (Wyo. 1982) (emphasis in original)). McLaughlin v. State, 780 P.2d 964, 970 (Wyo. 1989).
The prosecutor was careful to say nobody knew where Mr. Wilks retrieved the gun from but one possible inference was that he retrieved it from his bed. The comment was well within the latitude given prosecutors in presenting the state's case; therefore, we find no error.
[ ] Mr. Wilks contends prosecutorial misconduct arose from the following statement: "[T]he Defense wants to tell you, this is Manslaughter. Well, that's getting away with murder."
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