dissenting.
- [¶63] The majority concludes that errors occurred .at trial in three areas, and the combined effect of those situations requires a new trial. I respectfully reach .different conclusions.
Compliance with the District Court’s Discovery Order
[¶54] Mr, Black’s primary claim in this case is that the prosecutor committed “prose-cutorial misconduct”, by failing .to comply with a discovery order entered late in the case, and based solely on the prosecutor’s agreement to provide the requested information, The majority opinion suggests there may be both a review of the district court’s decision about the discovery violation (under an abuse of discretion, standard of review), and .a separate review of the claim of prose-cutorial misconduct (under a. standard of review called harmless error). I do not believe that such separate reviews can exist, nor do I find that a de novo review for “harmless error” is appropriate where a trial judge has ruled on the claimed error. Further, I do not find that the trial court abused its discretion in dealing with the discovery problem in this case.
[¶55] Not every mistake made by a prosecutor qualifies as prosecutorial misconduct, and I conclude that the discovery problem in this case is not “prosecutorial misconduct.”
Prosecutorial misconduct is “[a] prosecutor’s improper or illegal act (or failure to act), esp. involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.” Craft v. State, 2013 WY 41, ¶ 13, 298 P.3d 825, 829 (Wyo.2013) (citations omitted). “Prosecuto-rial misconduct claims.are not intended to provide an avenue for tactical sandbagging of the trial courts, but rather, to address -gross prosecutorial improprieties that have deprived a criminal defendant of his or her right to a fair trial.” 21 Am. Jur. 2d Prose-cutorial Misconduct § 429, at 545 (2008). Prosecutorial misconduct occurs when the prosecutor engages in conduct that he knew, or should have known would deprive the defendant of the right to a fair trial. Id. at 544.
Watts v. State, 2016 WY 40, ¶ 8, 370 P.3d 104, 107 (Wyo. 2016). The prosecutor’s sloppiness or inattention to the discovery matter in this case falls far short of depriving the defendant of the right to' a fair trial.
[¶56] The district court considered, at two pretrial hearings, Mr. Black’s claim that the State had not complied with the discovery order. The district court made findings and exercised its discretion by making a ruling and fashioning a remedy.
[¶57] We review rulings on pretrial motions for an abuse of discretion. The “abuse of discretion” standard of review requires this Court to consider the reasonableness of the district court’s ruling. Ortiz v. State, 2014 WY 60, ¶ 92, 326 P.3d 883, 901 (Wyo. 2014); Schreibvogel v. State, 2010 WY 45, ¶ 12, 228 P.3d 874, 880 (Wyo. 2010). “Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner.” Lancaster v. State, 2002 WY 45, ¶ 11, 43 P.3d 80, 87 (Wyo. 2002) (citing Trujillo v. State, 2 P.3d 567, 571 (Wyo. 2000)).
[¶58] We previously applied the abuse of discretion standard to review a district court’s denial of a defendant’s motion in a circumstance analogous to this one. In Willoughby v. State, 2011 WY 92, 253 P.3d 157 (Wyo. 2011), the Appellant moved for a new trial based on claimed prosecutorial misconduct. This Court did not review the claim of prosecutorial misconduct de novo, but instead reviewed the district court’s denial of the motion for an abuse of discretion. In Yellowbear v. State, 2008 WY 4, 174 P.3d 1270 (Wyo. 2008), the Appellant asserted prosecu-torial misconduct in closing argument and moved for a mistrial/new trial. The district court conducted a hearing on the motion and denied the request for a new trial. In his appeal to this Court, Yellowbear simply claimed the prosecutor had committed misconduct in the closing argument. We noted that the district court had already heard and ruled on Yellowbearis claim, and stated “Consequently, what we are really doing here is reviewing the denial of the motion for mistrial and the denial of the motion for a new trial.” Yellowbear, ¶ 65, 174 P.3d at 1295. The Court then reviewed the district court’s decision for an abuse of discretion. Id. Mr. Black’s appeal presents the same situation. Although he labels his claim to us as one of prosecutorial misconduct, the district court already considered and ruled on that claim. We should only review the district court’s decision for an abuse of discretion. The law and the- facts demonstrate that the district court did not abuse its discretion on the discovery order issue.
[¶59] Wyoming Rule of Criminal Procedure 16(d)(1) permits a district court to make appropriate discovery orders, and W.R.Cr.P. 16(d)(2) addresses failure to comply with discovery. We adopted the federal standard for determining the appropriateness of a sanction for the State’s violation of its discovery obligations and said:
The district court’s decision regarding sanctions for discovery violations is subject to review for abuse of discretion. We agree with the federal precedent interpreting Rule 16(d)(2), which provides three factors for the court to consider in determining the appropriateness of a sanction: (1) the reasons the State delayed producing the requested materials, including whether or not the prosecutor acted in bad faith when it failed to comply with the discovery order; (2) the extent of prejudice to the defendant as a result of the delay; and (3) the feasibility of curing the prejudice with a continuance. Once those factors are weighed, the district court should impose the least severe sanction which will ensure the State’s compliance with its discovery responsibilities.
State v. Naple, 2006 WY 125, ¶ 24, 143 P.3d 358, 365-66 (Wyo. 2006) (internal citations omitted). See also Toth v. State, 2015 WY 86A, ¶¶ 24-28, 353 P.3d 696 (Wyo. 2015) and Salinas v. State, 2016 WY 97, ¶¶ 18-20, 380 P.3d 647, 650 (Wyo. 2016). Furthermore, in Naple this Court recognized that “a continuance may normally be the most desirable remedy for the government’s failure to comply with a discovery order.” Id.
[¶60] The district court carefully analyzed the evidence presented, and the circumstances of the case, when considering Mr. Black’s motion. It thoroughly analyzed the factors set out in Na/ple, In ruling on Mr. Black’s complaint about discovery, the district court made findings and conclusions summarized as follows:
1. Initially, the district court ordered the State to provide information from Face-book and Verizon Wireless “on the basis that the motion was unopposed by the State.” The State did not directly contact either Verizon or Facebook.
2. No further evidence would have been available from either Verizon or Face-book even if the State had directly contacted those entities. The State provided extractions directly from the victim’s phone showing all undeleted data, and “complied with the spirit of the Court’s Order, if not the letter of it.”
3. The extent of prejudice to Mr. Black from the State’s failure to directly contact Verizon and Facebook is not overly significant.
4. Mr. Black’s discovery request was based on (a) a desire for information useful in impeachment of the victim, and (b) the possibility of alternative suspect evi- ' dence. Mr. Black could adequately impeach the victim without any additional information directly from Verizon or Fa-cebook, and the request for alternative suspect evidence was entirely speculative, “akin to a fishing expedition.”
5. The “lack of [the ordered] discovery can 'be cured by providing an opportunity for a continuance.”
The district court then ruled that “to the extent the Defendant would like to seek the discovery information directly, the Court will entertain a motion for a continuance and would prioritize this matter for an expedited trial setting.”
[¶61] It was reasonable for the district court to make these findings and offer a continuance. To determine whether the district court acted reasonably, it is necessary to consider some facts beyond those recited in the majority opinion. These facts were available to the district court when it ruled on Mr. Black’s motion seeking discovery sanctions.
[¶62] The victim sent and received numerous text messages during the evening of October 26, 2014, up. to 9:29 p.m. This incident occurred later that night. Even later on October 26, 2014 and early in the morning on October 27, 2014, the victim took photos and videos showing her injuries and sent them with text messages to the defendant and a friend. The victim was hospitalized the morning of October 27, 2014 and law enforcement interviewed her in the hospital later that day. The victim utilized her text messages and cell phone photos to jog her memory when telling law enforcement what had happened. The victim also gave her cell phone to law enforcement on October 27, 2014. Law enforcement officers extracted all the information from that cell phone on October 28, 2014, and the report from that extraction was provided to Mr. Black’s attorney. The extraction report showed 314 calendar items with 63 being deleted, 326 calls in a call log, 48 chats with 12 being deleted, 6,288 contacts with 168 deleted, 1,429 locations with 167 deleted, 6 mms messages, 226 sms messages with 8 deleted, 64 voice mails and 4,013 images. The report did not indicate any deletions of images.
[¶63] More than eight months later, on July 8, 2015, Mr. Black’s attorney, for the first time, asked the court to compel the State to obtain records from the victim’s cell phone provider and from her Facebook account. In that motion, defense counsel acknowledged that the defense could obtain the information on its own, but asserted that she “believed that it is much easier and more convenient for the State to obtain these requested records than the Defendant.” The State did not oppose the motion and agreed to request the information from Facebook and Verizon. The district court then ordered that the State “exercise due diligence to obtain the requested information and shall promptly request the information from Face-book and Verizon.”
[¶64] In -response, the prosecutor used the victim’s Verizon account information to access her Verizon account online. He found no text messages at all remaining in the victim’s account, and learned from a conversation with an FBI agent that Verizon does not retain text messages beyond ninety days. The prosecutor also learned that Facebook will retain deleted information only, if law enforcement first files, a “preservation request” and, even then, the information is retained for only ninety days. Any information that may have been deleted from Face-book before law enforcement filed the preservation request is simply unavailable.12 The prosecutor did not make any direct requests to Facebook or Verizon.
[¶66] Defense counsel told the district court that the information from Verizon was potentially useful in cross examining the victim about her description of events on October 26, 2014 and might show the existence of some suspect other than Mr. Black. Defense counsel claimed the Facebook information was important because “maybe Mr. Dugan [her investigator] has missed something” when he reviewed the victim’s public Face-book page, and because another potential witness had expressed concerns about Mr. Black based on something she had seen - on Facebook.
[¶66] From these facts. the district court very reasonably concluded that although the State had not contacted Verizon and Face-book directly, it had complied with the spirit of the discovery order. The purpose of the discovery order was to determine whether Facebook or Verizon still had information from the victim’s account. The State learned, from the FBI, that no such information was available. The district court reasonably concluded, based on uncontroverted evidence, that contacting Verizon and Facebook would not produce any additional evidence. It rear sonably concluded that there was not any substantial prejudice to Mr. Black, and accurately described Mr. Black’s claims' as a “fishing expedition.”, Nevertheless, the district court offered Mr. Black a continuance, which he declined. Without question, the district court did not abuse its discretion.
[¶67] Mr. Black' could have accepted a short- continuance of the trial and learned directly from Verizon .and Facebook what,- if any, data still remained from the victim’s accounts. Mr.’Black chose not to do so, perhaps because it was obvious that the requested information had little bearing on his case, and because it did not exist, Whatever his reason; by declining the continuance, Mr. Black waived any objections he had to the district court’s ruling.
Prosecutor’s Closing Statements
[ÍÍ68] I agree with the majority opinion’s conclusion that the prosecutor improperly vouched for law enforcement and,interjected his personal opinion in his closing argument. Those statements were significant departures from well-established standards of conduct for prosecutors. It may be appropriate for the prosecutor to face consequences for his violation of those standards. However, as discussed below, I do not believe those statements, or the statements discussed below, prejudiced Mr. Black under the strong precedent we have defining prejudice.
[¶69] I do not agree that the prosecutor’s characterizations of defense counsel’s closing were personal attacks on defense counsel, or that they went beyond statements we found were not misconduct in Hamilton v. State, 2017 WY 72, ¶ 14, 396 P.3d 1009, 1014 (Wyo. 2017). There we concluded that the prosecutor’s statements only offered the prosecutor’s view of the validity .of certain defense claims, The same is true in this case. For example, in closing defense counsel referred to photographic exhibits showing blood in various locations around the victim’s apartment, and said “does it look like someone’s been thrown up against an object and beaten or does it look like someone whose (sic) drunk, high, and taking prescription pills that’s ping-ponging around a room for several hours letting a cut above her eye bleed all over everything?” During rebuttal, the prosecutor responded “ping-ponging around the room? That’s offensive, that took my bréath away as well. The implication that Kelli is bouncing around' the room like a ping-pong ball smashing her face up against parts of the room, that’s crazy.” Certainly, counsel should have chosen'his words more 'carefully, but. in context his statements were not personal attacks on defense counsel.
Asch Hearing
[¶70] I agree with the majority’s conclusion that the district court failed to comply with the requirements of Asch v. State, 2003 WY 18, 62 P.3d 945 (Wyo. 2003). Asch requires that for a defendant to be restrained during trial, (1) the State must first move to require restraint; (2) the district court must hold a hearing where the defendant can contest the motion; (3) the State must prove the need for restraints and show that it proposes the least restrictive but effective restraint; and (4) the district court must consider a list of. factors and then make findings on the record.. Id., ¶ 62, 62 P.3d at 964. None, of those things happened here. Furthermore, it is troubling that the district court announced it would engage in an independent investigation and ex-parte communication with the sheriffs office to determine whether the defendant should be restrained during trial. Such investigation and ex-parte communications are prohibited by Wyoming Code of Judicial Conduct 2.9 (A) and (C).
[¶71] Failure to comply with Asch requires a harmless error review. Duke v. State, 2004 WY 120, ¶ 29, 99 P.8d 928, 941 (Wyo. 2004); Daniel v. State, 2003 WY 132, ¶ 15, 78 P.3d 205, 212 (Wyo. 2003). Violation of Asch is harmless if, beyond a reasonable ..doubt, “overwhelming evidence of the accused’s guilt exists,” or the jury did not see the restraints. I conclude that the Asch violations here were harmless on each of these bases. (Discussion about the evidence against Mr. Black is in a separate section below).
[¶72] Law enforcement required Mr. Black to wear a brace on his knee,.under his pants. The brace automatically locked if Mr. Black stood up. The brace was not visible unless Mr. Black did not pull his pant leg down when he stood up. The district court observed that 'many people have big knee braces. This observation implies the obvious — a knee brace is not seen as a restraint used by law enforcement. The State represented that the knee brace was used “to ensure that the jury doesn’t know” (the defendant was restrained). Even if a juror had seen a portion of the brace, or seen Mr. Black walking stiff-legged or with a limp, they would not have seen Mr. Black in a law enforcement restraint. They would have only seen someone who, for an unknown reason, wore a knee brace.
[¶73] Restrictions on courtroom restraint of defendants are based primarily on “the substantial danger of destruction in the minds of the jury of the presumption of innocence where the accused is required to wear prison garb, is handcuffed or is otherwise shackled.” Asch, ¶ 57, 62 P.3d at 963, quoting Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). An accused should not be singled out “as a particularly dangerous or guilty person.” Id. The knee brace worn by Mr. Black during his trial could not have singled him out as dangerous or guilty, because it was not obvious as a law enforcement restraint. The “restraint” in this case was, beyond a reasonable doubt, harmless.
Cumulative Error and Prejudice
[¶74] Cumulative error requires reversal only if the combined effect of individually harmless .errors becomes harmful. Guy v. State, 2008 WY 56, ¶ 45, 184 P.3d 687, 701 (Wyo. 2008). “An error is harmful if there is a.. reasonable possibility that the. verdict might have been more favorable to the defendant if the error had.-never occurred. To demonstrate harmful error, the defendant must show prejudice under circumstances which manifest inherent unfairness and injustice or conduct which .offends the public sense of fair play.” Overson v. State, 2017 WY 4, ¶ 38, 386 P.3d 1149, 1157 (Wyo. 2017). Mr. Black has not - demonstrated that the verdict might have been more favorable if the things he complains of had not occurred. To the contrary, the claimed errors had little effect on the trial, and did- not render it unfair.
Discovery Issue
[¶75] As discussed above, no error occurred when the district court denied Mr. Black’s motion for sanctions related to discovery and offered Mr. Black a continuance. Mr. Black waived any complaint he may have had about discovery when he declined the continuance. Consequently, the discovery issue cannot be a basis for considering cumulative error.
[¶76] Even if we consider the prosecutor’s failure to directly contact Verizon and Face-book as error, there is no possibility that such failure affected the outcome of the trial in any way. The unrefuted evidence showed that a request for Verizon and Facebook records, ordered in August 2015, would have produced nothing. Any deletions of text messages had to have occurred before October 27, 2014, when law enforcement obtained the victim’s cell phone. The victim acknowledged that she deleted posts on Facebook about Mr. Black, but those deletions may have occurred long before August 2015. Because Verizon and Facebook only retain data for ninety days, any request more than 270 days later would have been fruitless. The State accessed the victim’s phone account in August 2015, and confirmed that there was no data remaining. Furthermore, Mr. Black was provided with all the photos and text messages extracted from the victim’s cell phone on October 28, 2014. The report from that extraction showed no photos had been deleted. Although the extraction report showed some texts had been deleted from the victim’s cell phone, those deletions apparently occurred sometime prior to this incident. The only evidence regarding potential phone deletions related to this incident occurred when the victim told defense counsel that she had given her phone to law enforcement on October 27, 2014. Defense counsel then asked “and you didn’t of course go in and change any of the timelines or date stamps on anything in your phone?” The victim responded “no.”
Closing Statements
[¶77] The prosecutor’s statements in closing were improper, but the evidence against Mr. Black was so substantial that they would not have affected the verdict. The victim unequivocally identified Mr. Black as having beaten her. She testified that during the fight, Mr. Black grabbed her and threw her up against the wall, hitting her head and that at some point, she was on the ground with Mr. Black “whaling” on her, yelling at her, and calling her names. The victim- then sent text messages to friends and to Mr. Black containing photographs of her bruised and bloody face with eyes swollen shut, identifying Mr. Black as the assailant. One of the message recipients confirmed she had received the messages, and the photos were entered into evidence. The next morning the condition of the victim’s residence was consistent with an altercation having occurred: Mr. Black was found in the'residence with the severely beaten victim, and had not sought medical assistance for her. The first person on the scene, Jake Nichols, testified that when he found the victim and Appellant in the residence he “asked them what’s going on, what happened,” and they “both replied that they had - it was just a little fit, that it was nothing.” Doctors testified to the victim’s injuries, explaining to the jury that the victim suffered nasal bone fractures, two orbital fractures, injured sinuses, 'a basilar skull fracture and brain hemorrhaging. The emergency room doctor stated that the extensive injuries were most consistent with an assault. The jury heard testimony that the clothes Mr. Black was wearing when he was arrested (jeans and a t-shirt) tested positive for blood that matched the victim’s. The jury saw photographs of Mr. Black’s ‘hands taken days after the assault which showed bruising and swelling on his knuckles, consistent with having severely beaten the victim.
Asch Issue
[¶78] Because the knee brace on Mr. Black during trial could not be recognized as a law enforcement restraint, there is no possibility that this issue had any effect on the verdict.
[¶79] I conclude that there was not cumulative error in this case requiring a remand. Furthermore, I question the status of this case upon remand. The majority concludes that the district court abused its discretion by fashioning a sanction for the discovery problem without a deterrent or punishment effect, but does not specifically state that the district court should have granted Mr. Black’s motion to preclude the victim from testifying. It is apparent that any inquiry directed to Verizon and Facebook will produce nothing. A retrial without the victim’s testimony obviously would be futile. Although such a sanction may have some impact on the prosecutor, it would impact the victim and the public far more. It makes no sense to retry Mr. Black with the addition of a jury instruction on spoliation of evidence, because such an instruction is appropriate in civil cases, not criminal eases. See Abraham v. Great Western Energy LLC, 2004 WY 145, 101 P.3d 446 (Wyo. 2004). Although Mr. Black’s trial counsel proposed such an instruction, she withdrew that proposal at the end of the evidence. As discussed above, a retrial which only changes the prosecutor’s ob-jectional statements in closing, and even with an entirely unrestrained defendant, would result only in the same verdict. Other sanctions, not involving a reversal and remand, are available to appropriately deter sloppy discovery practice. Such sanctions include filing a complaint with the Board of Professional Responsibility.
[¶80] I understand and fully sympathize with the majority’s frustration that the prosecutor did not directly contact Verizon or Facebook after he had been ordered to do so. I share the majority’s frustration that this prosecutor made questionable statements in closing. Nevertheless, each case must be examined on its own merits. In this case, I would find that the district court properly exercised its discretion, that the discovery issue had no effect on Mr. Black’s right to a fair trial, and any errors were of no consequence on the verdict. I would affirm the conviction.
. - Facebook’s written policy, submitted to the , district court by Mr, Black, confirms that Face-book would "preserve account records in connection with official criminal investigations for 90 days pending our receipt of formal legal process." Preservation of the records, however, does not .result in the records being provided. The policy specifies that "a search warrant issued ... upon a showing of probable cause is required to compel disclosure of the stored contents of any account, which may include messages,- photos, videos, wall posts, and location information."