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Lancaster v. State3/28/2002
oted facts the defendant did not include in his statements).
[ ] A prosecutor does not "comment" on a defendant's exercise of his right to silence where he does not attempt to use the silence to the state's advantage, where he does not argue to the jury that the silence was evidence of guilt or an admission of guilt, and where the defendant does not show any prejudice. Shipman, 2001 WY 11, 24, 17 P.3d at 39. Material prejudice is shown only where there is a reasonable possibility that the verdict would have been more favorable to the defendant if the evidence or prosecutorial comment had not been allowed. Emerson, 988 P.2d at 522. In analyzing right to silence cases, we will not single out or take words and phrases out of context. Robinson, 11 P.3d at 373. We will consider whether the prosecutor asked improper questions, whether he emphasized or followed up on the silence issue, and whether he attempted to exploit the issue in any way. Beartusk, 6 P.3d at 144.
[ ] In the case now before this Court, an Evansville police officer not directly involved in the murder investigation being conducted by the Casper Police Department, but knowing of the murder, happened to come across the appellant in somewhat unusual circumstances--walking along a dirt road in a rural area at about 6:00 a.m. In describing the suspicious nature of his encounter with the appellant, the officer testified as to the appellant's appearance and conduct, as well as what the appellant said. None of this was elicited from the officer as a comment on the appellant's exercise of his right to remain silent; rather, it was all part of the officer's explanation for his continuing contact with the appellant. Further, given all of the evidence against the appellant, there is no reasonable possibility that, absent this evidence, the verdict would have been more favorable to the appellant. Prejudicial error did not occur.
VICTIM IMPACT STATEMENTS
[ ] The appellant was convicted of killing Penn and attempting to kill Hanson. Hanson suffered a gunshot wound and numerous knife wounds. During his direct examination, Hanson described the effect of his many injuries:
Q: How long did it take you to recover, physically, from what had happened to you?
A: Oh, probably two - probably two or three weeks, I imagine, at least. I was in the hospital for five days. I was on morphine for three days. You know I was - I couldn't move for two days.
Q: What has been the emotional fallout from this incident for you?
A: It's been terrible. I mean, it's - it's unbelievable how bad it is. I mean, it's done - you just don't think stuff like that is going to happen.
In addition, Hanson's treating physician testified as follows:
Q: . . . Doctor, to your knowledge, Mr. Hanson has recovered physically from the wounds inflicted?
A: I have very little knowledge. I saw him a couple of weeks afterwards in my office, and I haven't seen him since. I know he's obviously here today.
Q: All right. And I guess one final question. And the jury has seen Mr. Hanson reference some scarring that has remained from surgery and from the stab wounds themselves and the slicing cuts. Is that consistent, from your medical training and experience, with long-lasting effects he'll have from these injuries?
A: Oh, the scars will resolve a little bit more; but by, basically, a year, that's basically what he's going to have; yes.
[ ] The appellant characterizes this testimony as inadmissible victim impact statements, offered for the sole purpose of garnering sympathy for Hanson. His plain error argument is that the admission of this evidence violated a clear rule that irrelevant
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