Summary 2008 WY 102

Summary of Decision issued August 29, 2008

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

Case Name: Proffit v. State

Citation: 2008 WY 102

Docket Number: S-07-0210

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: This was an appeal from a conviction for conspiracy to commit first-degree murder, for which Appellant was sentenced to imprisonment for life without the possibility of parole.
Allowing an investigator to testify what the murder victim reported: At trial the investigating officer testified that B.C., the victim, reported alleged sexual abuse and an alleged death threat. The district court admitted the testimony under the hearsay exception found in W.R.E. 803(24). In doing so, it also applied the “forfeiture by wrongdoing” exception. The Court noted Giles v. California where forfeiture by wrongdoing was identified as a common law exception. The Court stated they were satisfied the facts and procedures of the case met the dictates of Giles. The Court noted that given the underlying rationale of the doctrine, it believed the doctrine should be applied even though B.C. was killed with the primary intent of preventing him from testifying in the sexual assault case. It was not additionally necessary for the State to satisfy a hearsay exception to have B.C.’s statement admitted. The doctrine is part of the common law that has been adopted by Wyoming. It would be illogical to apply the doctrine to constitutional rights while denying its application to the rule of evidence.
Investigator’s testimony in violation of right to confront: Appellant argued that while the State might be allowed to introduce evidence that Appellant was facing criminal charges and that B.C. was going to testify at trial, evidence that those criminal charges were sexual in nature was unfairly prejudicial when compared to its probative value. After a hearing, the district court allowed the investigator to testify about both the threat report and the sexual assault report. The Court’s analysis of the forfeiture by wrongdoing exception to the confrontation clause applied equally to B.C.’s sexual assault report as it did to the threat report. Appellant forfeited his right to raise the issues by procuring the unavailability of B.C. as a witness. The Court next considered whether B.C.’s report of being sexually assaulted by Appellant was more probative than it was unfairly prejudicial. The Court found that the first, second and fourth factors of the Gleason test were met. The evidence was offered for the purpose of proving that Appellant had the intent or motive to kill B.C., the evidence was relevant to proving motive, and the district court provided a limiting jury instruction.
Witness Martinez testimony about statements made by non-witness Hicks: As a witness for the State, Martinez testified that Hicks had arranged for marijuana to be delivered to Gillette for them to sell, but later Hicks said the deal had gone bad and that they were being threatened. Appellant said he would take care of the problem for Hicks and Martinez. A few days later, Appellant told Hicks and Martinez that they owed him a favor – the killing of B.C. – for taking care of the problem. Hicks’ statements to Martinez were not hearsay in this instance because they were not offered to prove the assertions being made by Hicks.
Change of Venue: The Court noted that in Urbigkit v. State and Carothers v. State, they reiterated their standard for reviewing the denial of a motion for change of venue. To require venue to be changed, pre-trial publicity must be so inflammatory as practically to dictate the community’s opinion. After reviewing the pretrial hearings and the voir dire process, the Court concluded that Appellant failed to prove that the district court abused its discretion in denying his initial motion or any of its multitudinous renewals. The Court took extraordinary precautions to make sure that the jury eventually seated had not been prejudiced by pretrial publicity.

Holding: Proffit forfeited his right to challenge the admission of B.C.’s statements to the investigator by conspiring to have B.C. murdered for the specific purpose of eliminating him as a witness. The probative value of those statements was very high in regard to appellant’s motive or intent and that probative value was not outweighed by any danger of unfair prejudice. The district court did not abuse its discretion in allowing the investigator to testify as to B.C.’s statements. Neither did the district court abuse its discretion in allowing witness Martinez to testify about statements made to him by non-witness Hicks because those statements were not offered to prove the truth of the matters asserted and were not therefore, hearsay. The district court did not abuse its discretion in repeatedly denying appellant’s motion for a change of venue. The jury selection process and voir dire questioning resulted in the seating of an unbiased jury, despite the existence of adverse pretrial publicity.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/59437z .

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