Talley v. State

Summary

The Wyoming Supreme Court affirmed Eyvette Marie Talley's convictions for felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. The court held that the prosecutor's improper use of "were-they-lying" questions during cross-examination did not establish prejudicial plain error. It also held that the prosecutor improperly referred to a co-conspirator's Fifth Amendment privilege during closing argument, but that the fleeting comment did not require reversal.

Holdings

1. A prosecutor may not use the 'lying' or 'mistaken' questioning technique to require a testifying defendant to characterize contradictory witnesses as liars; such questioning is improper prosecutorial misconduct.
2. The improper questioning did not constitute reversible plain error because Talley failed to demonstrate material prejudice or a reasonable probability of a more favorable verdict absent the misconduct.
3. A prosecutor may not tell the jury that a non-testifying co-conspirator could not testify because he had a right to remain silent when that explanation is not based on evidence presented to the jury.
4. The prosecutor's reference was improper but did not amount to plain error requiring reversal because it was fleeting, was made in response to defense argument, was not used to request an adverse inference, and did not prejudice Talley in light of the record and her defense theory.

Questions Presented

1. Whether the prosecutor committed misconduct by asking Talley during cross-examination whether other witnesses were lying.
2. Whether the prosecutor committed misconduct during closing argument by stating that Talley's non-testifying co-conspirator could not testify because he had a right to remain silent.
3. Whether either unobjected-to instance of misconduct constituted plain error requiring reversal.

Disposition

affirmed