Appeal from the District Court of Natrona County, The Honorable Keith G. Kautz, Judge.
The opinion of the court was delivered by: Kite, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] A jury found Jeffery Lynn Smith guilty of second degree murder and concluded he was a habitual criminal. The district court sentenced him to life in prison. On appeal, Mr. Smith claims there was insufficient evidence to convict him; the State violated his Fifth Amendment rights and engaged in prosecutorial misconduct by referring to his refusal to voluntarily submit a sample for DNA testing; the district court erred by excluding evidence of alternative suspects; the habitual criminal statute, as applied to him, violated the constitutional prohibition against ex post facto laws; and he should have been granted a change of venue.
[¶2] We conclude the evidence was sufficient to support the jury's verdict and the district court did not commit any reversible errors. Consequently, we affirm.
[¶3] The issues for our consideration are:
1. Whether there was sufficient evidence to support the jury's verdict.
2. Whether the prosecutor violated Mr. Smith's constitutional right to remain silent when he elicited testimony about, and commented upon, Mr. Smith's refusal to voluntarily submit a sample for DNA testing.
3. Whether the trial court erred when it excluded evidence of alternative suspects.
4. Whether the habitual criminal statute, as applied in this case, violated constitutional protections against ex post facto laws or was otherwise not applicable.
5. Whether the district court erred by denying Mr. Smith's motion for a change of venue after an article about the case appeared in the Casper Star Tribune on the first day of the trial.
[¶4] On April 28, 1986, Tammy Dively's dead body was discovered near Hat Six Road off Interstate 25 in Natrona County. An autopsy revealed that she had suffered multiple injuries, including blunt force trauma to her skull and injuries suffered from being run over by a vehicle. The coroner ruled the death a homicide. The coroner took biological samples from the victim's vaginal pool, which tested positive for seminal fluid.
Although several persons of interest, including Mr. Smith, were interviewed, no arrests were made at that time.
[¶5] In 2006, investigators located Mr. Smith, who was in jail in Nebraska, and again interviewed him. The investigators asked him to submit a sample for DNA testing. He refused, but the officers obtained a search warrant and took a DNA sample anyway. Tests revealed the seminal fluid retrieved from Ms. Dively's body was Mr. Smith's.
[¶6] Mr. Smith was charged with second degree murder and being a habitual criminal. The district court convened a jury trial on May 7, 2007. At the conclusion of the trial, the jury returned a guilty verdict on the second degree murder charge. The jury also determined Mr. Smith was a habitual criminal. The district court sentenced him to serve life in prison, and he appealed.
1.Sufficiency of the Evidence
[¶7] Mr. Smith was convicted of second degree murder. Second degree murder is statutorily defined as: ―Whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree[.]‖ Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2007). The jury in this case was instructed:
The elements of the crime of Second Degree Murder are:
1. On or about April 28, 1986;
2. In Natrona County, Wyoming;
3. The Defendant, Jeffery Lynn Smith;
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, you should find the Defendant ―guilty‖ of Second Degree Murder.
If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant ―not guilty‖ of Second Degree Murder.
[¶8] In determining whether there was sufficient trial evidence to sustain a conviction, we apply the following standard of review:
In reviewing the sufficiency of the evidence . . . , we examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.
Martin v. State, 2007 WY 2, ¶ 32, 149 P.3d 707, 715 (Wyo. 2007), citing Butcher v. State, 2005 WY 146, ¶ 16, 123 P.3d 543, 549 (Wyo. 2005).
[¶9] Mr. Smith maintains that there was insufficient evidence that he committed the homicide. The day after the murder, April 29, 1986, officers interviewed Ms. Dively's young daughter. She identified a house in the neighborhood where she said one of her mother's friends lived. She told the investigators that she thought her mother had gone to the house the previous evening to purchase marijuana.
[¶10] Mr. Smith was one of the men who lived in the house the daughter identified, and the officers interviewed him shortly after the murder. A transcript of the interview was admitted into evidence at trial. Mr. Smith told officers that Ms. Dively had come to his house the night she died, asking for his roommate. He said she left after he told her his roommate was not home. Mr. Smith stated that he did not know Ms. Dively very well.
[¶11] In 2006, investigators located Mr. Smith, who was in jail in Nebraska, and again interviewed him. During that interview, he contradicted his earlier statements by saying that he did not know Ms. Dively at all. Pursuant to a warrant, the investigators obtained a sample of Mr. Smith's DNA.
[¶12] Contrary to Mr. Smith's statement that he did not know Ms. Dively, DNA testing established that they had engaged in sexual contact prior to her death. The Natrona County Coroner, James Thorpen, M.D., testified that spermatozoa and prostatic acid phospatase, which are components of seminal fluid, were found on the vaginal swab taken during the autopsy. Kevin Noppinger, the State's DNA expert, testified that the DNA test results excluded everyone on earth except Mr. Smith as the donor of the semen discovered in Ms. Dively's body. The medical experts also testified that, while spermatozoa may be discovered in the vaginal pool for several days after sexual activity, prostatic acid phospatase will generally dissipate within 24 to 30 hours after sexual contact. The vaginal swabs were taken 19 1/2 hours after Ms. Dively's death was reported. Dr. Thorpen testified that the fact that prostatic acid phospatase was found in Ms. Dively's vaginal pool was consistent with sexual activity between the victim and Mr. Smith shortly before her death.
[¶13] Lawrence ―Larry‖ Malone, a friend of Ms. Dively's, testified that between 6:15 and 6:30 p.m. on the evening of her death, he witnessed her get into a blue truck with a white cab. He believed the truck was a GMC or Chevrolet, model year somewhere between 1967 and 1972. Consistent with Mr. Malone's testimony, Ms. Dively's daughter testified that she had looked out the window and saw her mother walking toward a blue pickup. She stated that was the last time she saw her mother alive. Ms. Dively's lifeless body was discovered by a passerby around 7:45 p.m. that same night.
[¶14] In 1986, Mr. Smith owned a truck consistent with Mr. Malone's description. Mr. Malone testified that a photograph of Mr. Smith's truck looked like the truck he saw the victim getting into. He also stated that the man driving the truck had brown hair and part of it flipped over one eye. A photograph of Mr. Smith from 1989 introduced into evidence at trial resembled the man Mr. Malone described as the driver of the truck.
[¶15] Mr. Smith argues that the evidence that he committed the murder was circumstantial and, in order to conclude he murdered Ms. Dively, the jury had to improperly add inference to inference. Our law is clear that, in reviewing the sufficiency of the evidence, we do not distinguish between direct and circumstantial evidence. Rawle v. State, 2007 WY 59 ¶ 28, 155 P.3d 1024, 1031 (Wyo. 2007). Furthermore, as our standard of review states, reasonable inferences are allowed.
A permissible inference has been described as follows:
An inference is a process of reasoning by which a fact or proposition is deduced fairly and logically from other facts proven or admitted. An inference is truly evidence. The weight to which it is entitled depends upon the facts and circumstances of each case * * *.
Seeley v. State, 959 P.2d 170, 176 (Wyo. 1998).
[¶16] The trial evidence showed that Mr. Smith was not truthful with officers about his relationship with Ms. Dively. He clearly knew her better than he admitted, as the DNA evidence established he had engaged in sexual contact with her. Mr. Smith argues that the evidence of sexual contact does not prove that he killed Ms. Dively because the medical evidence established that they could have had sex many hours before her death. It is true that one of the inferences which could have been drawn from the medical evidence was that Mr. Smith and the victim engaged in consensual sex several hours before her murder. However, it was also reasonable for the jury to infer from the medical evidence that the time of the sexual activity between Ms. Dively and Mr. Smith was just prior to her death, strongly suggesting that he murdered her. That inference is also supported by the trial evidence that Ms. Dively got into a pickup, like one Mr. Smith owned, with a man that resembled him shortly before her death.
[¶17] When evidence is presented that is capable of producing conflicting inferences, the determination of which inference is proper should be left to the jury. See, e.g., Michaelis v. State, 2005 WY 80, ¶ 3, 115 P.3d 1098, 1100 (Wyo. 2005). This is not a case where the jury had to engage in speculation or conjecture to conclude that Mr. Smith murdered Ms. Dively. Instead, the evidence, although circumstantial, together with the reasonable inferences emanating from it was sufficient to support the jury's verdict. On this record, the jury could have reasonably concluded that the State proved, beyond a reasonable doubt, Mr. Smith was Ms. Dively's murderer.
[¶18] Cases from other jurisdictions support our decision that there was sufficient evidence for the jury to conclude Mr. Smith murdered Ms. Dively. Walker v. State, 651 S.E.2d 12 (Ga. 2007) had facts remarkably similar to those presented here. The victim was killed in 1989 and the medical examiner collected samples of sperm from the victim's vagina during the autopsy. Twelve years later, the swabs were sent for testing. The test revealed that the DNA on the swab matched Mr. Walker's profile, which was already in a DNA database. The trial evidence also revealed that, at the time of the victim's death, Mr. Walker frequently stayed at his grandmother's home, just a block away from the park near where the victim's body was discovered. Mr. Walker had also been observed in the park a few days after the murder. Id. at 14.
[¶19] Mr. Walker submitted that the evidence against him was insufficient because it was ―completely circumstantial‖ and did not exclude other reasonable hypotheses which would have supported his innocence. Id. Like Mr. Smith, he maintained that the evidence could have supported the inference that he had consensual sex with the victim and then, later, someone else killed her. The court ruled that the role of interpreting the evidence belonged to the jury and the jury's decision would be reversed only if it was unsupportable as a matter of law. The court said that the jury was entitled to ―reject as unreasonable the theoretical possibilities that Walker had a consensual encounter‖ with the victim and find, from the evidence presented, that the defendant murdered the victim. Id. at 14-15. See also, People v. Saxon, 871 N.E.2d 244, 251-52 (Ill. App. Ct. 2007) (concluding it was appropriate for the fact finder to infer the defendant was the perpetrator from evidence that he had sexual intercourse with the victim and other contradicted circumstantial evidence).
[¶20] Mr. Smith also argues there was insufficient evidence that he acted purposely. The ...