Summary 2008 WY 36

Summary of Decision issued April 2, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Pendleton v. State

Citation: 2008 WY 36

Docket Number: 06-129

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, Prosecution Assistance Program; Geoffrey L. Gunnerson, Student Director and Brian J. Hunter, Student Intern.

Facts/Discussion: Pendleton was convicted of being an accessory before the fact to first degree murder and of conspiring to commit first degree murder. Part of the evidence submitted to the jury during her trial was a tape-recorded interview wherein the appellant discussed her involvement in the attempted murder. Appellant alleged a number of errors resulting form the admission of the recorded interview. She also contended that the prosecutor improperly elicited testimony from a co-conspirator concerning a guilty plea.
Whether plain error occurred when the jury was permitted to hear the appellant’s entire recorded police interview: When analyzing whether the inclusion of certain evidence resulted in prejudice to the appellant, the Court views the evidence in light of the entire record. Defense counsel’s opening statement reflected his intent to use the recording to demonstrate the officer’s brow-beating, false accusations and closed-mindedness. Pendleton relied heavily on the recorded interview as part of her defense strategy. She cannot now claim she was prejudiced by its inclusion. Pendleton’s argument was inadequate to satisfy her burden of demonstrating prejudice. The Court was not willing to second-guess counsel and suggest that a different strategy might have been more productive.
Whether trial counsel rendered ineffective assistance by not objecting to admission of the recorded interview or by the tactical decision to allow the interview to be admitted: Pendleton’s claim was based on trial counsel’s failure to prevent admission of the recorded interview evidence or the decision to use the interview as part of the defense strategy. Because the Court concluded that Pendleton failed to meet her burden of proving prejudice resulting from the admission of that evidence, the Court reached the same conclusion with this claim. Without a showing of prejudice, they could not conclude that Pendleton’s trial counsel was ineffective.
Whether the district court erred when it allowed the jury to take a recording of the interview into the deliberation room: Because the Court found no prejudice resulting from the jury hearing the recorded interview, it would have been difficult to conclude that prejudice occurred when the jury was allowed to take the disks into the deliberation room.
Whether plain error occurred when the State elicited in its case-in-chief that the principal pled guilty to attempted second-degree murder: The Court agreed with the State that the nature and scope of the prosecutor’s questions indicated his purpose in asking the witness about his guilty plea was to respond to defense counsel’s comments in his opening statement. Those comments plus the fact that the prosecutor made no other statements regarding the witness’s guilty plea in his opening statements or closing argument convinced the Court that the purpose of the questions was proper and not in violation of the Kwallek rule. The facts of the case relative to this issue are similar to those in Urrutia. There was no objection to the admission of the co-conspirator’s testimony in either case thus little emphasis was placed upon that testimony. In both cases, even without the evidence of the co-conspirators’ pleas, the evidence was clearly sufficient to support conviction.

Holding: The Court concluded that Pendleton failed in her burden of demonstrating that material prejudice resulted when the jury was allowed to hear the recorded police interview or when the jury was permitted to take the recording into deliberations. The Court found no error of law occurred when the prosecutor questioned one of Pendleton’s co-conspirators concerning his guilty plea.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2wu6yo .

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