Lancaster v. State3/28/2002
have twice recently reiterated the appropriate standard for review of claims of prosecutorial misconduct:
Prosecutorial misconduct "has always been condemned in this state." Valerio v. State, 527 P.2d 154, 156 (Wyo.1974). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error . . . affected the accused's "substantial rights." The accused's right to a fair trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10; and see e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978). Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Jones v. State, 735 P.2d 699, 703 (Wyo.1987). We read this standard to be in consonance with the standard followed by the United States Supreme Court[.]" Earll v. State, 2001 WY 66, 9, 29 P.3d 787, 789-90 (Wyo. 2001). See also Warner v. State, 2001 WY 67, 18, 28 P.3d 21, 27 (Wyo. 2001).
[ ] The burden of establishing prosecutorial misconduct rests upon the appellant who raises the issue. Taylor v. State, 2001 WY 13, 19, 17 P.3d 715, 722 (Wyo. 2001). Because there were no objections at trial to any of the three alleged violations in the instant case, our analysis here will be under the plain error standard. The appellant must show that the record clearly reflects an error that transgressed a clear and unequivocal rule of law, and that such error materially prejudiced a substantial right of the appellant. Id. at 16, 17 P.3d at 721; Seymour v. State, 949 P.2d 881, 883 (Wyo. 1997).
COMMENT ON THE RIGHT TO SILENCE
[ ] After the incident with Hanson and Penn, the appellant left the Star Apartments. Law enforcement officers in the Casper area began to look for him. While on routine patrol early the following morning, an Evansville police officer noticed a man later identified as the appellant walking down a roadway. Having in mind the homicide report from the previous evening, the officer contacted the man. On direct examination, the officer testified as follows:
Q: Okay. So what, if anything, did you do, Officer?
A: Once I observed the male and I pulled up next to him, he was walking. He had his head down. He looked over at me, and he turned his head quick back to look at the ground. I rolled down my window, and I attempted to contact the male, where I began to ask him questions: Are you okay? Is everything all right? And he ignored me or at least I felt he ignored me. He didn't respond to me at all. I drove past him. I turned my vehicle around again. I attempted to contact him a second time, where I asked him similar questions: Where are you headed? Where are you coming from? And he responded.
Q: And what, if anything, did he tell you?
A: I asked him if - if everything was okay. And he said, Yes. I asked him if he lived in Casper. And he said, Yes. I asked him where he was coming from. He said, Casper.
Talking to the male, I observed his clothing was soaked. He was soaken [sic] from head to toe. His skin, in my opinion, was very pale looking, as if he had been out for a long period of time. He was cold. He acted like he was cold. His hands were in his pockets. And he was more or less shriveled up, you know, as he was walking. Concerned about his demeanor, his character, I asked if everything was okay. And he said, Yes. He asked me if I -
Q: What kind of clothing was he wearing?
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