Appeal from the District Court of Sweetwater County The Honorable Jere A. Ryckman, Judge
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1]A jury found the appellant guilty of unlawful delivery of methamphetamine, a felony. He was sentenced to imprisonment for a period of five to ten years. His motion for a new trial was later denied, and he appealed both the judgment and sentence and denial of the motion. We consolidated those appeals.
[¶2] We reverse and remand for a new trial because of prosecutorial misconduct.
[¶3] The appellant raises two allegations against the State, one of prosecutorial misconduct and one of violating Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The second issue is moot, given our resolution of the first issue, which is stated as follows: Was the appellant denied his right to a fair trial due to prosecutorial misconduct when the prosecutor repeatedly asserted during opening statement and closing argument the need to protect the community from methamphetamine?
[¶4] Our standard of review for claims of prosecutorial misconduct is as follows:
Claims of prosecutorial misconduct are settled by reference to the entire record and hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial. Similarly, the propriety of any comment within a closing argument is measured in the context of the entire argument. A trial court's rulings as to the scope of permissible argument will not be disturbed absent a ―clear or patent‖ abuse of discretion. Even then, reversal is not warranted unless a reasonable probability exists, absent the error, that the appellant may have enjoyed a more favorable verdict.
Arevalo v. State, 939 P.2d 228, 230 (Wyo. 1997) (citations omitted; emphasis in original). An additional standard is applied, however, where there was no trial objection to the alleged misconduct:
[When the appellant did not object at trial], we review his claims by applying the plain error standard. Lane v. State, 12 P.3d 1057, 1064 (Wyo. 2000). To demonstrate plain error, [the appellant] ―must show that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right.‖ Taylor v. State, 2001 WY 13, ¶ 16, 17 P.3d 715,  (Wyo. 2001). Reversal of a conviction on the basis of prosecutorial misconduct, which was not challenged in the trial court, is appropriate only when there is ―a substantial risk of a miscarriage of justice.‖ Capshaw [v. State], 10 P.3d , 567 [(Wyo. 2000)] (quoting Dice v. State, 825 P.2d 379, 384 (Wyo. 1992)).
Burton v. State, 2002 WY 71, ¶ 13, 46 P.3d 309, 313-14 (Wyo. 2002).
[¶5] On December 5, 2006, law enforcement officers orchestrated what is commonly called a ―wired buy‖ in which a confidential informant, wearing a wireless transmitter/recorder, purchased methamphetamine from the appellant. The illegal exchange-$250.00 for one-eighth ounce of methamphetamine-took place at the appellant's apartment in Green River, Wyoming. The appellant was not immediately arrested because the officers wanted to use the confidential informant for additional transactions. He was, however, arrested and charged with this crime in May 2007.
[¶6] This Court has frequently admonished prosecutors to seek convictions by presenting evidence of guilt, rather than by arousing the passions and prejudices of jurors against societal evils.
Arguments which are calculated to appeal to the jury's prejudice or passion are improper because they pose a risk that the accused may be convicted for reasons wholly irrelevant to his guilt or innocence. Accordingly, it is improper for a prosecutor to encourage the jury to convict a defendant in order to protect the community rather than upon the evidence presented at trial.
Burton, 2002 WY 71, ¶ 15, 46 P.3d at 314 (internal citations omitted). In Gayler v. State, 957 P.2d 855, 861 (Wyo. 1998), we re-stated this precept in a drug-delivery case:
The prosecutor's argument was obviously an appeal to the jury's sense of duty to help local law enforcement by convicting Gayler. The argument was improper because it appealed to the jury's passion and prejudice against drug- related crimes. Although a prosecutor is permitted a certain degree of latitude during closing arguments, he is not allowed to urge the jury to convict an accused on any basis other than that the evidence shows guilt beyond a reasonable doubt. United States v. Barker, 553 F.2d 1013, 1025 (6th Cir. 1977).
[¶7] We will review the entire trial-voir dire, opening statements, witness testimony, and closing arguments-to determine whether these clear lines were crossed. In cases such as this, the difference between an affirmance and a reversal is often the difference between an isolated comment and a concerted effort by the prosecutor to create prejudice in the jurors' minds based upon something other than the evidence. Statements made in opening and closing must be viewed in the context of the trial as a whole.
[¶8] The record in this case reveals the following questions and statements, many of which, standing alone, would perhaps not require reversal, but all of which, taken together, constitute just the type of community protection argument that we have condemned in the past:
1. During a pretrial conference, the prosecutor stated her intention of using during her opening statement a photograph of children walking near the appellant's apartment, to be accompanied by a statement about ―what the crossing guard can't help them with or protect them from; a drug dealer selling a drug.‖ The district court disallowed the statement, so it did not, in the end, prejudice the appellant, but it does reveal the tenor of the State's proposed approach to the case.
2. During voir dire, the prosecutor asked the prospective jurors whether they all agreed that the law prohibiting methamphetamine is a good law.
3. During her opening statement, the prosecutor said the following:
Now, we talked on jury instructions -- in jury selection this morning a little bit about methamphetamine. You all said that you're familiar with it, the devastating effects that it can have on people and the lives that it ruins. But if you think about it, did you have in your mind that it was dealt in dark alleys? Or the back of smoke-filled bars? Or in front seats of cars parked in out-of-way places. In this case, ladies and gentlemen, in broad daylight, residential street, right here in our community.‖
Last December 5th, agents of the Southwest Drug Enforcement Team set up a sting operation on Zach Strange, in order to -- to have -- to bust at least one drug dealer and shut down his base of operation.
You're going to hear from Arner Smart who is a Drug Enforcement Agent for Southwest Wyoming, a Division of the Criminal Investigation for the State of Wyoming. He's going to tell you about his job assignments and what the Enforcement Team does. He will tell you that one proven way to get rid of elicit [sic] controlled substances in our community is to use a confidential informant, or a CI, to do a drug transaction with a known drug dealer.
And [the confidential informant] also told the officer, ―And I think it's about darn time we try to get rid of the meth problem in Sweetwater County.‖
4. During the direct examination of the State's primary law enforcement witness, the following exchanges occurred:
Q: And why was [the Southwest Wyoming Enforcement Team] created or established, Agent Smart?
A: To investigate crimes in narcotics nature.
Q: And how many agents are stationed in Sweetwater County?
A: I believe there is [sic] five or six.
Q: What do you do in -- in order to try to curb the drug problem in this ...