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Dike v. State11/30/1999
tal, set him free. Send him back to the community. Acquit him. If you feel the state failed to prove each of those elements that we discussed earlier, each of the elements of the crimes charged here, acquit the defendant. That it your duty.
You, ladies and gentlemen, are the final deciders of the facts. You know better. The state asks you to convict the defen-dant. The people of the State of Wyoming and this community trusts --[DEFENSE COUNSEL]: Objection, your Honor. Improper argument.
THE COURT: I don=t know where it=s going. Overruled.
[PROSECUTOR]: The people of the State of Wyoming, ladies and gentlemen, trust your judgment.
In Gayler, we warned against community outrage arguments which improperly appeal to a jury=s prejudice or passion:
Arguments which are designed to appeal to the jury=s prejudice or passion are improper. The fear in allowing such appeals is that the accused will be convicted for reasons wholly irrelevant to her guilt or innocence. AJurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society=s woes is far too heavy a burden for the individual criminal defendant to bear.@ 957 P.2d at 861 (quoting United States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984), cert. denied, 470 U.S. 1085 (1985)) (citations omitted).
In Gayler, we found that the prosecutor=s repeated statements inviting the jury to take a stand with law enforcement in the war on drugs and find the defendant guilty in the face of sustained objections was an improper community outrage argument because it appealed to the jury=s passion and prejudice against drug-related crimes. Id. We were concerned in that case that the remarks were a Ablatant invitation to the jurors to convict Gayler not on the evidence but because of their fear and disapproval of drug dealers in general.@ 957 P.2d at 861-62. The comments at issue here, however, do not rise to the same level of impropriety. The prosecutor merely told the jury that the people trusted its judgment. We do not view the comment as being an improper community outrage appeal and are unmoved by Dike=s attempt to characterize it as such.
G. Effective Assistance of Counsel
Dike=s last contention is that he was denied his constitutional right to have effective assistance of counsel at his trial. Specifically, he complains about his counsel=s failure to argue that an unloaded gun is not a deadly weapon for purposes of the aggravated assault statute, to object to the introduction of the guns and ammunition testimony, and to object to the hearsay testimony of the witnesses who repeated the victim=s story.
In order to prevail on his claim of ineffective assistance of counsel, Dike must make the dual showings that his counsel=s performance was deficient and that the deficient performance prejudiced his defense. Smith v. State, 959 P.2d 1193, 1198 (Wyo. 1998). Dike has failed to make the first required showing.
We addressed the claims of error throughout this opinion that Dike makes the basis of his ineffective assistance of counsel argument. As we stated in our Discussion of the first two issues, the definition of Adeadly weapon@ includes a firearm, whether or not it was loaded at the time of its use. The fact that Dike=s counsel did not assert an incorrect legal argument does not render his representation defective.
We turn to Dike=s complaint that his counsel did not object to the testimony regarding the guns and ammunition that were seized from his home or to the testimony of the witnesses who testified about what the victim to
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