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O'Brien v. State4/24/2002
f Foster's injuries as allowed under the exception and did not testify O'Brien was guilty of causing those injuries.
[ ] Ordinarily, we use a two -part test for invoking this exception; however, although we believe that the trial court properly allowed Krininger's answer under the exception, the questions and answers that followed that decision were hearsay and were not properly admitted. Erroneous evidentiary rulings will not be disturbed on appeal if the error is harmless. Warner v. State, 2001 WY 67, , 28 P.3d 21, (Wyo. 2001). Generally, if other evidence properly established the defendant's guilt then we will find the error harmless. Id. at . Here, Krininger's hearsay testimony, that Foster had stated that the attack had been unprovoked, was in addition to testimony provided by eyewitnesses to the actual attack who described the attack as unprovoked and who also identified O'Brien as the attacker. The State did not refer to these statements of the nurse in its closing, and we find that the jury verdict would not have been different had this testimony been excluded. The error, therefore, is harmless and does not require reversal for a new trial.
Prosecutorial Misconduct
[ ] The prosecutor made the following statement during closing argument:
And what you need to do here is find Mr. O'Brien guilty and send a message to him and to people that might be like him or might have the same idea that they are not going to get away with this. And I think that you will do that, ladies and gentlemen. And I will ask you to do that.
This Court has explicitly disapproved such arguments, finding "the fear in allowing such appeals is that the accused will be convicted for reasons wholly irrelevant to her guilt or innocence." Trujillo v. State, 2002 WY 51, , 2002 WL 523156, (Wyo. 2002) (quoting Gayler v. State, 957 P.2d 855, 861 (Wyo. 1998)). "Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society's woes is far too heavy a burden for the individual criminal defendant to bear." Id.
Similarly, "send a message" arguments by prosecutors to juries are universally condemned. The Mississippi Supreme Court in Williams v. State, 522 So.2d 201, 209 (Miss. 1988), simply yet colorfully explained the problem with these arguments:
The jurors are representative of the community in one sense, but they are not to vote in a representative capacity. Each juror is to apply the law to the evidence and vote accordingly. The issue which each juror must resolve is not whether or not he or she wishes to "send a message" but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged. The jury is an arm of the State but it is not an arm of the prosecution. The State includes both the prosecution and the accused. The function of the jury is to weigh the evidence and determine the facts. When the prosecution wishes to send a message they should employ Western Union. Mississippi jurors are not messenger boys. Trujillo at (emphasis in Trujillo).
[ ] We notice that no objection to these remarks was made at O'Brien's trial; therefore, the error must rise to the level of plain error. "Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Mazurek v. State, 10 P.3d 531, 535 (Wyo . 2000) (quoting Yetter v. State, 987 P.2d 666, 668 (Wyo. 1999)). We agree with the State that O'Brien was not co
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