Summary 2007 WY 139
Summary of Decision issued August 29, 2007
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Case Name: Szymanski v. State
Citation: 2007 WY 139
Docket Number: 06-106
Appeal from the
Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender. Argument by Ms. Kerin.
Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Senior Assistant Attorney General. Argument by Mr. Armitage.
Issues: Whether the district court abused its discretion when it admitted the pretrial statements of the victim. Whether the prosecution committed misconduct.
Facts/Discussion: Appellant appeals his conviction by a jury of one count of first degree arson for intentionally setting fire to his neighbor’s apartment.
Standard of Review: The Court reviews claimed error concerning the improper admission of evidence for abuse of discretion and will not reverse the trial court’s discretion absent a clear abuse. The Court reviews allegations of prosecutorial misconduct by reference to the entire record to determine whether a defendant’s case has been so prejudiced as to deny him a fair trial.
Hearsay Testimony of Deceased Witness: Ms. Jones, the tenant of the apartment in which the fire had been set, died of causes unrelated to the fire prior to trial. Appellant relied on Crawford v. Washington where the court held that tape-recorded statements of the defendant’s wife made by police during interrogation on the night of the offense qualified as testimony because they were given in response to structured police questioning. Following Crawford, the Wyoming Supreme Court in Vigil held that a police officer’s testimony concerning statements made to him by a witness who was unavailable at trial and who the defense had not had an opportunity to cross-examine violated the Confrontation Clause. Applying the standards from Davis v. Washington and Hammon, the Court stated it would seem to compel the conclusion that the challenged statements were testimonial. Despite that, the district court admitted the statements based upon Allen v. State in which the Court upheld the admission of a police officer’s expert opinion testimony, including his testimony concerning eyewitness statements he reviewed in the course of investigation. The Court found the Missouri Supreme Court’s reasoning in Edwards v. State persuasive. The testimony in the instant case was admitted not to establish the truth of the statements but for the limited purpose of describing the investigation. The statements did not implicate or identify Appellant as the arsonist.
Prosecutorial Misconduct: Appellant had the burden of demonstrating plain error because defense counsel did not object at trial.
Improper Comment on Witness Credibility: The Court stated that it was apparent from the course of the testimony that the challenged testimony arose when the prosecutor attempted to rehabilitate Inspector Magee after defense counsel questioned him concerning the importance of interviews generally and Appellant’s interview specifically. Once the defense opened that door, the prosecutor was entitled to make reasonable inquiry concerning why the witness did not include the interview in his conclusions. Neither the testimony nor the comment directly reflected on Appellant’s credibility but instead assisted the jury in understanding the information that was relied upon in determining the cause of the fire.
Improper Character Evidence: The expert testimony concerning the patterns of arsonists was arguably “profile testimony” but the defense opened the door to the testimony on cross-examination. The Court did not find the prosecutor’s questions in that regard to be excessive.
Violation of
Misstating the Evidence in Closing Argument: The Court reviewed the statements in question and concluded the prosecutor’s comment was not an unreasonable inference from the evidence presented.
Arguing Ms. Jones’ Statements for the Truth of the Matter Asserted: It was improper for the prosecutor to suggest to the jury during closing arguments that Ms. Jones’ statements proved the condition of her apartment before the fire. However, in the context of the entire trial, the Court did not find Appellant was prejudiced by the improper argument. There was other evidence from which the Prosecutor could properly have argued the condition of the apartment prior to the fire.
Holding: The Court concluded the statements Ms. Jones made during the investigative interview were not admitted for their truth and did not implicate Appellant. Their admission did not violate the confrontation clause and the district court did not abuse its discretion in admitting the testimony. The Court held that the State improperly argued Ms. Jones statements for their truth contrary to the limited purpose for which they were admitted. The improper argument did not result in material prejudice because other evidence supported the State’s argument.
Affirmed.
J. Kite delivered the decision.
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