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Thomas v. State

July 15, 2009

JESSE THOMAS, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County, The Honorable Peter G. Arnold, 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 attempted second-degree murder, two counts of aggravated assault and battery, and reckless endangerment. On appeal, he challenges the admission of certain "victim impact" testimony and argument, and he alleges that the district court failed to consider the presentence investigation report (PSI) at sentencing. We affirm.

ISSUES

[¶2] 1. Did plain error occur through the admission of irrelevant victim impact testimony and argument?

2. Was the appellant denied a fair sentencing hearing by the district court‟s failure to consider the PSI?

FACTS

[¶3] On August 2, 2005, the appellant rammed his truck into his former girlfriend and the vehicle next to which she was standing. He then jumped out of his truck and pointed a handgun at both his former girlfriend and another person standing nearby. The appellant fled the scene, but turned himself in to law enforcement authorities the next day.

[¶4] Pursuant to a plea agreement, the appellant pled nolo contendere to one count of attempted second-degree murder and two counts of aggravated assault and battery. In an earlier appeal, we reversed those convictions and remanded the case to the district court to allow the appellant to withdraw his pleas because he had not properly been advised of the consequences of those pleas. See Thomas v. State, 2007 WY 186, ¶ 24, 170 P.3d 1254, 1263 (Wyo. 2007). Upon remand, the appellant pled not guilty to the reinstated charges. A jury found him guilty of attempted second-degree murder, two counts of aggravated assault and battery, and reckless endangerment. On September 29, 2008, he was sentenced to multiple terms of imprisonment. This timely appeal followed.

DISCUSSION

Did plain error occur through the admission of irrelevant victim impact testimony and argument?

[¶5] The appellant‟s former girlfriend suffered horrendous injuries when she was struck by the appellant‟s truck. At trial, without objection, she and her treating physician testified at length and in detail about those injuries, about the numerous surgeries which she had undergone, and about the necessity of future medical treatment.*fn1 In addition, the State made reference in both opening statement and closing argument to the nature of those injuries and their impact upon the victim.

[¶6] Because there was no trial objection, either to the testimony, or to the opening statement, or to the closing argument, we review for plain error. To prove plain error, the appellant must show the following: (1) that the record is clear as to the alleged error; (2) that the alleged error amounted to a clear violation of an unequivocal rule of law; and (3) that the error denied to the appellant a substantial right, to his prejudice. Wilks v. State, 2002 WY 100, ¶ 7, 49 P.3d 975, 981 (Wyo. 2002).

[¶7] The appellant easily clears the first plain error hurdle because the matters of which he now complains are fully set forth in the trial transcript. He also nearly clears the second hurdle, inasmuch as we have long-established rules governing the admission of victim impact evidence during the guilt phase of a trial. "Broadly speaking, victim impact evidence is that evidence relating to the victim‟s personal characteristics and to the physical, emotional, or social impact of a crime on its victim and the ...


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