Appeal from the District Court of Natrona County, The Honorable Scott W. Skavdahl, Judge.
The opinion of the court was delivered by: Voigt, Justice
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
[¶1] Jeffery Lee Carter (Carter) was tried by a jury and convicted of the second-degree murder of Johnny Shane Moody (Moody). Carter appeals from the Judgment and Sentence, arguing prosecutorial misconduct and ineffective assistance of trial counsel. Finding no prejudicial error, we affirm.
[¶2] 1. Did the prosecutor commit misconduct by referring to Carter as the "black guy" and Moody as the "white guy"?
2. Was trial counsel ineffective?
[¶3] During an argument that turned into a physical altercation, Carter stabbed Moody, killing him. Carter was arrested for, charged with, and eventually convicted of second-degree murder. He was subsequently sentenced to incarceration for not less than thirty-five years, nor more than forty-five years, with credit for time served. Carter appeals from the Judgment and Sentence arguing prosecutorial misconduct and several instances of ineffective assistance of trial counsel. Finding no prosecutorial misconduct or ineffective assistance of trial counsel, we affirm.
Did the prosecutor commit misconduct by referring to Carter as the "black guy" and Moody as the "white guy"?
[¶4] Carter claims that the prosecutor committed misconduct by repeatedly referring during the trial to him as the "black guy" and to Moody as the "white guy." Carter further claims that these comments deprived him of a fair trial and an impartial jury guaranteed to him by principles of due process and the Sixth Amendment to the United States Constitution as applied to the states through application of the Fourteenth Amendment to the United States Constitution. Regarding claims of prosecutorial misconduct, we have said the following:
Claims of prosecutorial misconduct are settled in reference to the entire record and hinge on whether a defendant's case has been so prejudiced that the defendant did not have a fair trial. Arevalo v. State, 939 P.2d 228, 230 (Wyo. 1997). The propriety of a closing argument is considered in the context of the entire argument. Id. Reversal is warranted when a reasonable possibility exists that, absent the error, the appellant may have enjoyed a more favorable verdict. Id.
Campbell v. State, 999 P.2d 649, 663 (Wyo. 2000). No objection was made at trial to the alleged improper comments by the prosecutor, so we apply a plain error analysis. Id. Accordingly, in order for Carter to prevail on appeal, he must demonstrate that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right. 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 miscarriage of justice.
Burton v. State, 2002 WY 71, ¶ 13, 46 P.3d 309, 314 (Wyo. 2002) (internal quotations and citations omitted).
[¶5] As support for his contention that the prosecutor committed misconduct, Carter points to numerous times throughout the trial in which the prosecutor and witnesses made reference to him as the "black guy" and Moody as the "white guy." On appeal, the State does not contest the fact that the record clearly reflects the prosecutor's repeated use of the phrases "black guy" and "white guy" throughout the trial.
[¶6] Having satisfied the first prong of the plain error test -- that the record clearly reflects the alleged error -- we turn to the second prong to determine whether the alleged error violated a clear and unequivocal rule of law. Carter points to numerous cases to support his contention that the prosecutor, by referring to him as the "black guy" and Moody as the "white guy," violated a clear and unequivocal rule of law prohibiting such comments. The consistent theme throughout the cases cited by Carter, and others dealing with this particular issue, is the desire to remove illegitimate references to race from judicial proceedings to the fullest extent possible. See State v. Garrett, 681 A.2d 362, 367-68 (Conn. App. Ct. 1996) (prosecutor's comment in closing argument telling the jury not to let the defendant hide behind his "blackness," which was in response to defendant claiming he was being prosecuted for being black, was error, but not prejudicial); Reynolds v. State, 580 So.2d 254, 255-57 (Fla. Dist. Ct. App. 1st Dist. 1991) (In a sexual battery case involving black defendant and white victim, prosecutor's comments, such as asking jury to think about "how embarrassing it is for an 18-year old white girl from Crestview to admit she was raped by a black man," were held to have improperly injected race into the trial and violated defendant's right to fair trial.); State v. Varner, 643 N.W.2d 298, 302-05 (Minn. 2002) (statement made by white juror to another juror regarding the area where crime was committed as being the "miracle mile" because it was a miracle if a white person could walk through that area without being beaten or robbed held improper and prejudicial); and Clark v. State, 59 So. 887, 888 (Miss. 1912) (denial of black defendant's request for instruction stating that "he is entitled to be tried by the same rules of evidence and law as if he were a white man" upheld). We continue to recognize that core principle as a prerequisite to a fair trial, but we also follow the reasoning found in this Court's jurisprudence, and others, which recognize legitimate exceptions to the general principle that race should be excluded to the fullest extent possible. See Campbell, 999 P.2d at 663 (prosecutor's references to victim being mixed race and defendant's boyfriend being white were legitimate grounds for the use of race as it established motive for abuse of the child); State v. Hill, 414 S.E.2d 73, 76-77 (N.C. Ct. App. 1992) (Use of defendant's and victim's skin color as a means of identification was not error and "did not cause the issue of race to improperly "dominate the defendant's trial.'"); Lee v. State, 560 P.2d 226, 233 (Okla. Crim. App. 1977) (prosecutor's request for witness to provide description of robbers and witness's response using their race as descriptions was "legitimate and proper").
[¶7] Turning to the present case, we find that the best way to demonstrate how the phrases "white guy" and "black guy" were used throughout the trial is to provide samples of testimony. For brevity's sake, we are not quoting every portion of the record that contains those phrases, but we have reviewed the entire record and determined that the following samples are representative of the context and purpose for which the phrases were used throughout the remainder of the unquoted portions of the record. For instance, the following colloquy between the prosecutor and one of the witnesses, who did not know the names of Carter or Moody, shows that the witness described them based, in part, on race when asked to identify the parties involved in the fight. This colloquy demonstrates the prosecutor's attempts to use descriptive features that other witnesses relied on to identify Carter and Moody, such as the color of Carter's shirt and the fact that Moody was not wearing a shirt, in order to make all of the witnesses' testimony consistent and clear to the jury.
Q: Okay. How many people were down by the trash cans?
A: There was [sic] two, maybe three people.
Q: Okay. What were they doing?
Q: Okay. Describe the people that are arguing for me. What do they look like?
A: One person was black; the other person was a heavy-set white person.
Q: Okay. The -- the white guy, does he have a shirt on?
Q: Okay. The black guy, does he have a shirt on?
Q: How would you describe that shirt?
A: I am sorry. I don't remember --
Q: Do you remember describing it to the police as a tan shirt with a big stripe on it?
[¶8] While some witnesses used race to identify Moody and Carter, several witnesses who testified, including people who witnessed the murder and police officers who were first on the scene, knew the names of Moody and Carter and could identify them without the need to mention their respective race. For example, when the State questioned a witness who knew both Carter and Moody, the prosecutor attempted to tie that witness's testimony to what previous witnesses had testified:
Q: Who were the -- who were the individuals that were arguing as you witnessed that standing at the end of the balcony?
Q: Okay. Jeff meaning Mr. ...