Vargas-Rocha v. State

GOLDEN, Chief Justice,

specially concurring, with whom LEHMAN, Justice, joins.

I write separately only to address briefly the accused’s complaint that he was deprived of a fam trial by the prosecutor’s improper closing argument.

Charged with possession of cocaine with intent to deliver, the accused admitted possession but denied having the intent to deliver, claiming he possessed it for his own personal use. Thus, the battle at trial was joined over the single discrete issue of whether the prosecution could prove beyond a reasonable doubt that the accused had the intent to deliver the cocaine he admitted possessing.

The accused possessed eighteen one-half gram bindles (a small folded piece of paper) and “a small rock” of cocaine (weight unknown). When arrested, he had $750, consisting of several hundred dollar bills and various other denominations, including twen*772ties and fifties. He told one of the law enforcement personnel who questioned him that he purchased “a rock” of cocaine in Mexico and, for his own personal use, had placed one-half gram portions from the “rock” in the separate bindles. The accused further told him he had a job in Greeley where he had earned the $750 he was carrying; that he was traveling from Greeley to Cheyenne to buy a car with the money; that he had forgotten he had the cocaine with him until stopped by the Wyoming Highway Patrol at which time he remembered he had it so he hid it under the car seat in front of him.

One of the law enforcement personnel testified that from his law enforcement experience it was known that ordinarily a personal user of cocaine would not package separate bindles for personal consumption. Cocaine sellers ordinarily package their product in separate bindles.

Also on behalf of the prosecution, a jail informant, who had shared quarters with the accused following the latter’s arrest, testified that the accused told him that when arrested he was traveling to Cheyenne to sell cocaine to a friend to whom he had been selling for a year.

The above and foregoing hard evidence was the product of the prosecution’s case-in-chief. The accused presented no evidence in his defense-in-chief.

From an evidentiary perspective, the prosecution’s case that the accused had the intent to deliver the eighteen bindles and perhaps more was strong. This was not a close case.

During the prosecutor’s initial closing argument, the accused’s experienced defense counsel voiced no objections about improper argument. In the approximately ten pages of transcript of the prosecutor’s initial closing statement, the prosecutor emphasized the key pieces of hard evidence: the $750 cash, the eighteen packaged bindles, the ordinary way sellers sell is with bindles, and the accused’s admission to the jailhouse informant of his intent to sell to a friend in Cheyenne to whom he had been selling for a year.

With respect to these ten pages of transcript of the prosecutor’s initial closing argument, the accused’s appellate counsel points to many instances in which he finds improper comment, ranging from personal belief of guilt, to the accused’s possible illegal alien status, to comment on the right to remain silent, to linking the accused’s nationality with drug trafficking from Mexico, to the ease with which the accused could make money selling drugs, to characterizing the accused’s defense as one that challenged the jury’s intelligence, and to encouraging the jury to perform their civic duty.

I have read these passages in the context of the whole case and the entirety of the closing argument. Many of the instances complained about are not improper argument. The few that are borderline are not so flagrant that they survive the application of the rule of waiver. Armstrong v. State, 826 P.2d 1106, 1115 (Wyo.1992).

During the prosecutor’s rebuttal closing argument, which consists of approximately five pages of transcript, the accused’s experienced trial counsel voiced but one objection. In context this is what occurred. In his closing argument, defense counsel had argued that the prosecution’s jailhouse informant was not credible because the law enforcement authorities had not investigated information he had given them about the presence of a quantity of cocaine at a location in Greeley. In rebuttal, the prosecutor commented on facts not in evidence when he stated:

Perhaps [defense counsel] forgot, but I’m sure you haven’t. Remember, it was all over the paper about three weeks ago about all the arrests down in Greeley.

To this remark, defense counsel objected “that’s not in evidence.” The trial judge did not rule on the objection, the prosecutor continued in rebuttal, and defense counsel said nothing further. Within seconds, the prosecutor remarked that Colorado law enforcement authorities do act on information provided by Wyoming law enforcement authorities and then he added, “[a]nd yet people get killed in shoot-outs, but that’s indeed the violent nature of this drug.”

Defense counsel did not object to this remark. On appeal, however, appellate de*773fense counsel assigns this remark as plain error, but provides precious little analysis of the alleged material prejudice to the accused’s substantial right to a fair trial.

Another remark made by the prosecutor during rebuttal, which also did not draw defense counsel’s objection, occurred when the prosecutor commented on defense counsel’s argument that the evidence had shown each of the eighteen bindles possessed by the accused contained only 0.2 grams instead of 0.5 grams. Accusing defense counsel of minimizing the accused’s activity, the prosecutor argued:

He says when you add it all together that’s all there is. But it’s much more likely, ladies and gentlemen, the tip of the iceberg. What you see above water is no where near what’s under water. What you see here in court is no where near the volume sales this individual has been doing, (emphasis added)

On appeal, appellate defense counsel alleges that this remark constituted plain error— it was so flagrant as not to escape the rule of waiver. Appellate defense counsel correctly points out that the accused was on trial for the charged crime, not for “the high volume of sales” with which the prosecutor suspected him to be involved. Appellate defense counsel sees the prosecutor’s remark as “a blatant attempt to secure a conviction outside the evidence presented in the case.” He asks us to condemn strongly improper remarks of this nature. We have in the past, we do now, and we will do so in the future should they recur, which they, regrettably, probably will. Given our standard of review applicable to this particular kind of error and considering these remarks in the context of the total case and the entirety of closing argument, I cannot say that the “so flagrant” line was crossed in these instances.

That is not to say, however, that this particular prosecutor, or any other prosecutor in this state, has a free ticket from this Court to repeat this type of improper argument. It must stop — now!

Perhaps we must remind both prosecutors and defense counsel, again, about their respective roles with respect to this particular issue. See,' e.g., Dice v. State, 825 P.2d 379, 384-85 (Wyo.1992) and Browder v. State, 639 P.2d 889, 893-95 (Wyo.1982). I hope they reflect on their solemn responsibilities. I hope they rededicate themselves to pursuing the ideal of justice, of fairness, of due process. I hope they get the message. The survival of our system of justice depends on it.