from the District Court of Albany County The Honorable Tori
R.A. Kricken, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; Christopher G. Humphrey, Assistant
Appellate Counsel. Argument by Mr. Humphrey.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Caitlin F. Harper, Senior Assistant Attorney General; Rebecca
J. Zisch, Assistant Attorney General. Argument by Ms. Zisch.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
A jury found Jacob Alan Buszkiewic guilty of two counts of
strangulation of a household member. Mr. Buszkiewic asserts
the prosecutor made several statements during closing
argument that amounted to misconduct and deprived him of a
Finding no error, we affirm.
Mr. Buszkiewic states the following issues on appeal:
I. Did the prosecutor's repeated use of the "golden
rule" argument subvert the objectivity of the jury and
materially prejudice Mr. Buszkiewic?
II. Did the prosecutor's repeated reference to the
complaining witness as being the "victim,"
referring to the defense theory as "victim
blaming," and referring to what the defendant didn't
say to police, and didn't explain, result in cumulative
error and materially prejudice Mr. Buszkiewic?
Mr. Buszkiewic and Sarah Oakland were involved in an
on-again-off-again romantic relationship. In April 2016, Ms.
Oakland, who resided in Sheridan, Wyoming, spent a couple of
weeks with Mr. Buszkiewic at his house in Laramie, Wyoming.
On April 29, 2016, the couple visited several bars, with
their final stop of the night being Bud's Bar in West
Laramie. They stayed at the bar after it closed and played
cards with the bartender until approximately 5:00 a.m. on
April 30, 2016.
When Mr. Buszkiewic and Ms. Oakland returned to Mr.
Buszkiewic's house, he accused her of flirting with the
bartender. He forced her into the bedroom where he placed her
on the bed and slapped her several times. Mr. Buszkiewic then
let her up, and she tried to reason with him. The same thing
happened a few more times, with Mr. Buszkiewic taking Ms.
Oakland into the bedroom, placing her on the bed, slapping
her and then letting her up. During two of the slapping
incidents, he also put his hands around her throat and
squeezed, cutting off her airway and causing pressure in her
eyes, nose and head.
Ms. Oakland eventually ran out the front door and flagged
down a neighbor who was pulling his car out of his driveway.
She told the neighbor that someone was after her and she
needed to get away. Mr. Buszkiewic left the house when Ms.
Oakland did, so she asked the neighbor to take her back to
the house to get her things. Mr. Buszkiewic returned to the
house about the same time as Ms. Oakland. The neighbor
initially parked in the driveway of Mr. Buszkiewic's
house to wait for Ms. Oakland, but then decided it was not
safe to remain there, so he drove away and called 911. In the
meantime, Mr. Buszkiewic took Ms. Oakland to the bedroom one
more time and slapped her. She was able to gather her
belongings and leave after the last incident. Ms. Oakland
stopped at a convenience store for gas, and the attendant
noticed that she looked frightened and watchful as she pumped
Laramie police officers responded to the 911 call. They asked
Mr. Buszkiewic what happened, and he said that he and his
girlfriend had an argument but denied it had turned physical.
The officers learned that Ms. Oakland had contacts in
Sheridan, so they asked the authorities there for assistance
in locating her.
Ms. Oakland drove to Sheridan and went to an urgent care
facility. A physician's assistant took her history and
examined her. Ms. Oakland had injuries to her face, eardrum
and head, and bruising on her arms. Her voice was hoarse and
she had petechiae in one eye, which the physician assistant
found consistent with Ms. Oakland's report that she had
been strangled. The medical staff contacted law enforcement,
and Sheridan police officers interviewed Ms. Oakland and took
photographs of her injuries.
The Sheridan authorities reported the results of their
investigation to the Laramie police, and Mr. Buszkiewic was
arrested. At the time of his arrest, Mr. Buszkiewic admitted
that his altercation with Ms. Oakland had turned physical,
but claimed she struck him first and he had merely
retaliated. The Albany County prosecutor charged Mr.
Buszkiewic with two counts of strangulation of a household
member in violation of Wyo. Stat. Ann. § 6-2-509(a)(i)
(LexisNexis 2017). The matter was tried to a jury, which
found him guilty of both counts. After the district court
sentenced Mr. Buszkiewic, he appealed to this Court.
Mr. Buszkiewic claims the prosecutor committed several
instances of misconduct during her closing argument to the
jury. Because he did not properly object to the
prosecutor's statements during trial, our appellate
review is limited to a search for plain error. Hamilton
v. State, 2017 WY 72, ¶ 7, 396 P.3d 1009, 1011
(Wyo. 2017) (citing Watts v. State, 2016 WY 40,
¶ 6, 370 P.3d 104, 106 (Wyo. 2016)). To establish the
district court committed plain error, Mr. Buszkiewic must
show: "1) the record is clear about the incident alleged
as error; 2) the district court transgressed a clear and
unequivocal rule of law; and 3) he was denied a substantial
right resulting in material prejudice." Sindelar v.
State, 2018 WY 29, ¶ 16, 416 P.3d 764, 768 (Wyo.
2018). See also, Johns v. State, 2018 WY
16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018).
This Court generally hesitates to find plain error in closing
argument because the trial court should not be placed in
"'a position of having to sua sponte
challenge remarks of counsel when there is otherwise no
objection thereto.'" Webb v. State, 2017 WY
108, ¶ 28, 401 P.3d 914, 925 (Wyo. 2017) (quoting
Solis v. State, 2013 WY 152, ¶ 40, 315 P.3d
622, 632 (Wyo. 2013)). However, even though prosecutors are
given wide latitude in arguing their cases, there are
boundaries. Carroll v. State, 2015 WY 87, ¶ 32,
352 P.3d 251, 259 (Wyo. 2015). "When determining whether
those boundaries have been crossed, we consider the entire
argument, and not simply sentences and phrases that may be
out of context." Webb, ¶ 28, 401 P.3d at
Mr. Buszkiewic claims the prosecutor made an improper
"golden rule" argument, by asking the jurors to place
themselves in Ms. Oakland's position, when she said:
. . . Where we've gotten into and off on a - on a
tangent, so to speak, is how many times she was slapped.
Well, I would submit to you, in your common affairs, if you
were being slapped and you were in that situation, would you
remember how many times and counting [sic] how many times?
You think you know. Because it's important when we come
in to testify and talk to you, we've got to know how many
times you got hit. You aren't going to remember in your
ordinary affairs the details, especially if you've been
up all night and you had been drinking and then you come in
here and you want me to recount how many times it happened.
A golden rule argument is "'[a] jury argument
in which a lawyer asks the jurors to reach a verdict by
imagining themselves or someone they care about in the place
of the injured plaintiff or crime victim.'"
Brown v. State, 2014 WY 104, ¶ 18, n.5, 332
P.3d 1168, 1174, n.5 (Wyo. 2014) (quoting Black's Law
Dictionary 713 (8th ed. 2004)). See
also, 75A Am. Jur. Trial § 547 (2018).
"Golden rule arguments are widely recognized as
improper." Brown, ¶ 20, 332 P.3d at 1175
(internal quotation marks omitted). See also, Law v.
State, 2004 WY 111, ¶¶ 31-37, 98 P.3d 181,
192-94 (Wyo. 2004) (prosecutor improperly questioned the jury
panel in voir dire about how they would feel in the
victim's place). A golden rule argument is
"impermissible because it encourages the jurors to
depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence."
75A Am. Jur. Trial § 547 (2018).
However, an argument which asks the jurors to draw inferences
from the evidence based on how a reasonable person would act
if placed in the position of the victim is not an improper
golden rule argument. Similarly, rhetorical questions which
ask the jurors to use their common sense and life experiences
to weigh the trial evidence do not violate the rule even
though the prosecutor may ask the jury what they would do in
similar circumstances. See State v. Williams, 162
A.3d 84, 94-95 (Conn. Ct. App. 2017); State v. Bell,
931 A.2d 198, 212-15 (Conn. 2007).
For example, in Williams, 162 A.3d at 94-95, the
court concluded that the prosecutor's statements in
closing argument about what the jury may or may not have done
in the victim's position was not an improper golden rule
argument. The prosecutor's comments were not designed to
encourage the jury to decide the case based upon their
sympathy for the victim, but to "remind the jurors that
they must review the evidence objectively and from the
perspective of a reasonable person[.]" Id. In
Bell, 931 A.2d at 212-15, the Connecticut Supreme
Court stated that the prosecutor's request that the
jurors put themselves in the place of a witness when
evaluating her credibility was not an appeal to the
jurors' emotions or sympathies. Instead, the prosecutor
was properly asking the jury to ...