Summary 2007 WY 57

Summary of Decision issued April 10, 2007

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Case Name: McClelland v. State

Citation: 2007 WY 57

Docket Number: 05-280

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley (Retired), Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Deputy Attorney General. Argument by Mr. Rehurek.

Issues: McClelland: Whether there was invalid consent authorizing the search of McClelland’s residence. Whether inadmissible, improperly adduced evidence was admitted during the habitual phase of McClelland’s trial. Whether cumulative error occurred. State: Whether the recent United States Supreme Court decision in Georgia v. Randolph rendered the consensual search of Kimberly Brown’s apartment unlawful. Whether the district court erred by admitting into evidence the State’s documentary evidence related to McClelland’s habitual criminal status as against objections based on chain of custody and authenticity. Whether the doctrine of cumulative error warranted reversal of McClelland’s conviction.

Facts/Discussion: Appellant was convicted of one count of aggravated robbery in violation of Wyo. Stat. Ann. §§ 6-2-401(a)(ii) and (c)(ii) and of being a habitual criminal; under § 6-10-201. In a judgment and sentence entered on September 30, 2005, McClelland was sentenced to life in prison based on the habitual criminal, sentence enhancement statute (five prior felonies).
Suppression of Evidence Seized from Shared Apartment: Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo. The Court noted McClelland did not file a motion to suppress evidence. The search he challenged was the search of the apartment, rented by Brown, but occupied by both of them at the time the crime was committed. The Court declined to address whether they should give the Randolph v. Georgia decision retroactive application to the issue because McClelland did not brief the issue and it was not developed as a matter of fact below. Also, the Court stated it was satisfied the Randolph decision was not applicable to the circumstances of the case to the extent those circumstances were made clear during the trial. The Court continued further to say the Randolph decision had nuances that make describing its exact reach difficult. But, so long as the Randolph decision represents the law of the land, the police must honor the denial of consent to search, by a cotenant who is present and protests the search. Another cotenant may not override that refusal with his/her consent. The Court concluded the rule articulated in Randolph did not apply to the circumstances presented by the case.
Habitual Criminal Evidence: The standard of review for this issue was abuse of discretion. The Court noted they provided a summary of much of the pertinent law in Abeyta v. State. The Wyoming Rules of Evidence explicitly deal with the concerns raised by McClelland in the trial court and that he iterates in the appeal. The evidence offered and admitted during the habitual criminal phase of the trial was all admissible under the governing statute, the applicable rules of evidence and the jurisprudence of Wyoming as it relates to the proof of the status of habitual criminal. Every exhibit offered and admitted was authenticated in one or more of the manners authorized by the applicable law. The objection at trial and pursued in appeal related only to the weight of the evidence and not its admissibility.
Cumulative Error: The cumulative error analysis’ purpose is to address whether the cumulative effect of two or more individually harmless errors had the potential to prejudice the defendant to the same extent as a single reversible error. The Court only considers matters that are determined to be errors, not matters that are asserted as error but determined not to be erroneous. The Court reviewed the incidents asserted by McClelland to constitute reversible error including: the testimony of John Brown; Officer Thompson’s comment on the credibility of the testimony of the Blockbuster employees and his elaborations on an answer to a very limited question during trial; the district court’s revocation of McClelland’s bond in front of the jury after he was found guilty of robbery but before the jury resumed its fact finding role in the habitual criminal phase; and that the State offered Exhibits 4 and 5 during the penalty phase but that they were never admitted into evidence. The Court concluded that none of the matters catalogued by McClelland constituted error and they declined to apply the cumulative error rule.

Holding: Kim Brown’s consent to search the apartment that was her joint residence with McClelland was not obtained in violation of governing constitutional principles. The evidence admitted at the habitual criminal phase of McClelland’s trial was competent, and objections made to it at trial went to its weight not its admissibility. The concept of cumulative error does not require reversal of McClelland’s conviction. The judgment and sentence of the district court were affirmed in al respects.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2qbzk7 .