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O'Brien v. State4/24/2002
whether this conduct requires reversal upon appeal.
[ ] Prosecutorial misconduct "has always been condemned in this state." Earll v. State, 2001 WY 66, , 29 P.3d 787, (Wyo. 2001) (quoting 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." Id. "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)." Id. "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." Id.; Warner, .
[ ] In this case, the State's witnesses established that O'Brien had attacked Foster without provocation and severely beaten him. O'Brien contended that Foster was a mutual combatant because he confronted O'Brien. The jury had to determine whether this attack was unprovoked and whether the injuries inflicted were a serious bodily injury as that term is defined in the statute. The prosecutor's violation of the trial court's pretrial ruling was appropriately dealt with by the trial court. Based on the entire record, a reasonable possibility does not exist that, in the absence of the prosecutor's misconduct, the verdict might have been more favorable to the accused.
[ ] The conviction is affirmed.
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