Whitmore v. State

552 P.3d 828

2024 WY 81

Donald A. WHITMORE, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-23-0273

Supreme Court of Wyoming.

July 26, 2024

Appeal from the District Court of Converse County, The Honorable F. Scott Peasley, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Sean H. Barrett, Senior Assistant Appellate Counsel.

Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Kristine D. Rude, Assistant Attorney General.

Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.

FOX, Chief Justice.

[¶1] Donald A. Whitmore was convicted of vehicular homicide and four misdemeanors. On appeal, he contends the prosecutor committed misconduct in closing argument by commenting on his decision not to testify, shifting the burden of proof, and vouching for the credibility of a witness. We affirm.

ISSUE

[¶2] The sole issue for our consideration is whether the prosecutor committed misconduct during closing argument.

FACTS

[¶3] At 6:00 a.m. on October 6, 2022, Mr. Whitmore and his coworkers Josh Voytoski and Antonio Jurado, III completed an overnight shift on an oil rig in Converse County, Wyoming. About an hour after that, they rode in Mr. Voytoski’s vehicle to Douglas to buy groceries. They returned to the rig site for an hour or two and then decided to return to town.

[¶4] On the trio’s second trip to Douglas, they took Mr. Whitmore’s wife's vehicle.¹ At approximately 11:00 a.m., they were traveling south on a road known as Walker Creek Road at a speed of over eighty miles per hour when the vehicle failed to negotiate a winding s-curve, struck two delineator posts, and left the roadway. The vehicle rolled a minimum of one and three-quarter times down an embankment and came to rest on its side, driver’s side down. The front windshield was shattered, with blood and hair embedded in it on the driver’s side.

[¶5] Mr. Voytoski was in the front passenger seat when the accident occurred. He lost consciousness and woke up face down on the driver’s side window. He suffered a glass shard injury to his left eye, bleeding from the top of his head, a fat lip, and a bloody nose. Mr. Whitmore was outside the vehicle when Mr. Voytoski regained consciousness, yelling at him to wake up and asking if he was alright. Mr. Whitmore suffered multiple abrasions to his head, including bleeding and missing hair on the crown of his head where the scalp was torn. He also had a long scratch and abrasion on his left arm, and it was later found that he had a compression fracture of his T12 vertebrae. Mr. Jurado was ejected from the vehicle and suffered crushing injuries to his head and neck consistent with the vehicle rolling over him prior to his full ejection. His death was immediate.

[¶6] After Mr. Voytoski regained consciousness, he climbed out through the vehi cle’s sunroof, and he and Mr. Whitmore tried to push the vehicle upright. While they were doing that, a passing motorist stopped and offered assistance, but they declined. A second motorist stopped and asked if they were okay, and Mr. Whitmore responded that they were. The second passerby then pointed to Mr. Jurado, who was lying on the ground further from the vehicle and asked if he was okay. That was the first Mr. Voytoski and Mr. Whitmore knew of Mr. Jurado’s location. Mr. Whitmore walked over to him, nudged him with his foot, and told the passerby that Mr. Jurado had responded.

[¶7] Both passing motorists reported the accident, and Mr. Voytoski used his cell phone to call 911. When law enforcement arrived, both Mr. Voytoski and Mr. Whitmore reported that Mr. Jurado was driving the vehicle at the time of the accident. In a subsequent interview later that day at the oil rig, Mr. Voytoski told Keri McNare, then an investigator with the Converse County Sheriff’s Department, that he had lied earlier, and that Mr. Whitmore was driving the vehicle at the time of the accident.

[¶8] During the accident’s investigation, Investigator McNare interviewed Mr. Whitmore and smelled the odor of alcohol and observed signs of alcohol impairment. Subsequent testing of blood drawn from him after the accident showed a blood alcohol concentration of 0.151.

[¶9] The State charged Mr. Whitmore with felony vehicular homicide, and with five misdemeanors: driving while under the influence; driving without an interlock device; interference with a peace officer; consumption, transportation, or possession of an alcoholic beverage in a motor vehicle; and failing to provide insurance. At Mr. Whitmore’s three-day jury trial, the central issue was whether the State could establish that Mr. Whitmore was driving when the vehicle crashed.

[¶10] Mr. Voytoski testified that Mr. Whitmore was driving at the time of the accident, but after they learned Mr. Jurado had died, Mr. Whitmore asked him to lie and report that Mr. Jurado was driving because "he couldn’t go down for this." Mr. Voytoski further testified that when he returned to the rig camp and saw where Mr. Jurado used to sleep, he had a guilty conscience and decided to tell the truth. The State also presented evidence of Mr. Whitmore’s scalp injuries and the presence of hair-like fibers in the cracked windshield in front of the driver’s seat, and forensic evidence of Mr. Whitmore’s blood in that portion of the windshield.

[¶11] After the State rested, Mr. Whitmore moved for a directed verdict on the failure to provide insurance charge, and the district court granted that motion. Mr. Whitmore then put on a defense case, but he did not testify. The jury returned a verdict of guilty on the vehicular homicide count and the remaining misdemeanor counts. The court sentenced Mr. Whitmore to a prison term of twelve to sixteen years for vehicular homicide, and lesser concurrent sentences for the misdemeanor counts. Mr. Whitmore timely appealed.

DISCUSSION

[¶12] During the State’s closing, the prosecutor argued:

So I would suggest you start by considering who would know beyond all doubt what happened that day and consider their accounts. There were three people in the car that day. One of those was Antonio Jurado, III. As I stated earlier, you didn’t get to hear from him at this trial because he died in that crash. His skull and neck were broken and crushed, dying nearly instantaneously from the injuries that he sustained in that crash.

[¶13] Mr. Whitmore claims this statement, along with the prosecutor’s statement that the jury "also heard from Mr. Josh Voytoski," constituted prosecutorial misconduct. He contends the statements commented on Mr. Whitmore’s decision not to testify, improperly shifted the burden of proof to Mr. Whitmore, and improperly vouched for Mr. Voytoski’s credibility. He further contends the prosecutor’s statements constituted cumulative error.

I. Standard of Review

[1, 2] [¶14] Because Mr. Whitmore did not object to the prosecutor’s closing argu- ment below, we review for plain error. Soares v. State, 2024 WY 39, ¶ 29, 545 P.3d 871, 879 (Wyo. 2024); see also Ridinger v. State, 2021 WY 4, ¶ 32, 478 P.3d 1160, 1168 (Wyo. 2021) (reviewing for plain error appellant’s claim that prosecutor’s closing argument improperly commented on his constitutional right to remain silent). To establish plain error, Mr. Whitmore must show: "1) the record clearly reflects the incident urged as error; 2) a violation of a clear and unequivocal rule of law; and 3) that he was materially prejudiced by the alleged error." Soares, 2024 WY 39, ¶ 18, 545 P.3d at 877 (quoting Gutierrez v. State, 2020 WY 150, ¶ 5, 477 P.3d 528, 530-31 (Wyo. 2020)).

[3] [¶15] "We have long said that a prosecutor is afforded ‘[g]reat latitude’ when arguing a case to the jury." Hembree v. State, 2023 WY 57, ¶ 12, 530 P.3d 314, 318 (Wyo. 2023) (quoting Watkins v State, 2016 WY 108, ¶ 14, 383 P.3d 1080, 1083 (Wyo. 2016)). "We are reluctant to find plain error in closing arguments ‘lest the trial court becomes required to control argument because opposing counsel does not object.’ " Hembree, 2023 WY 57, ¶ 14, 530 P.3d at 318 (quoting Dixon v. State, 2019 WY 37, ¶ 39, 438 P.3d 216, 231 (Wyo. 2019)).

II. Mr. Whitmore has not shown plain error in the prosecutor’s closing argument.

[¶16] The record clearly reflects the challenged statement of the prosecutor, so the first element of the plain error test is satisfied. However, Mr. Whitmore has failed to establish that the prosecutor’s statements violated a dear and unequivocal rule of law or that he was materially prejudiced by them.

A. The prosecutor’s argument was not a comment on Mr. Whitmore’s decision not to testify.

[4–6] [¶17] "It is a clear and unequivocal rule of law, under both the Fifth Amendment of the United States Constitution and art. 1, § 11 of the Wyoming Constitution, that a prosecutor may not directly or indirectly comment upon a defendant’s failure to testify." Ridinger, 2021 WY 4, ¶ 35, 478 P.3d at 1160. However, to prove plain error, Mr. Whitmore "must establish a violation of a clear and unequivocal rule of law in a clear and obvious, not merely arguable, way." Berry v. State, 2023 WY 75, ¶ 41, 533 P.3d 474, 486 (Wyo. 2023) (quoting Bogard v. State, 2019 WY 96, ¶ 21, 449 P.3d 315, 321 (Wyo. 2019)). Additionally, "[w]hen determining whether a prosecutor committed misconduct during closing arguments, ‘we review the entire argument, and do not isolate discrete parts of the argument that may be taken out of context.’ " King v. State, 2023 WY 36, ¶ 44, 527 P.3d 1229, 1245 (Wyo. 2023) (quoting Fairbourn v. State, 2020 WY 73, ¶ 89, 465 P.3d 413, 433 (Wyo. 2020)).

[7, 8] [¶18] In determining whether a prosecutor has commented on a defendant’s right to remain silent, we consider the following:

Whether a prosecutor has improperly commented on a defendant’s refusal to testify turns on "whether the language used was manifestly

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