Summary 2008 WY 107

Summary of Decision issued September 12, 2008

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

Case Name: Callen v. State

Citation: 2008 WY 107

Docket Number: S-07-0026

Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dana J. Lent, Assistant Attorney General.

Facts/Discussion: Callen appealed his conviction for being an accessory before the fact to the crime of arson. He contended his conviction was tainted by erroneous evidentiary rulings and prosecutorial misconduct.
Evidentiary Rulings: Callen argued that the trial court erred by allowing witnesses to testify about out-of-court statements made by Sherley and Rosenberger who implicated Callen in the arson. Callen claimed the statements were hearsay and did not meet the requirements for admissibility under W.R.E.801 (d)(2)(E). The Court noted that a conspiracy does not have to be charged in order for evidence to be admitted under the Rule. The Court stated that Sherley’s testimony provided sufficient evidence from which the trial court could reasonably infer that a conspiracy existed among the three men and that Callen was the driving force behind the conspiracy and the arson. Callen also argued that DeHaan’s and Bybee’s testimony was inadmissible because they were not members of the conspiracy. The Court noted there was no requirement under the Rule or case law that a witness be a member of the conspiracy before he can testify about statements made by participants on the conspiracy.
Callen asked the Court to adopt the rule espoused in United States v. Radeker and modified in United States v. Perez. The Court noted it recognized the benefits of a trial court setting out on the record its reasons for making a particular evidentiary ruling but stated it did not require a trial court to make express findings absent a specific request from one of the parties.
Callen contended the trial court erred in allowing testimony regarding the procedure of manufacturing methamphetamine claiming the testimony was irrelevant and served no purpose other than to engender vindictive passions in the jury. The Court stated the testimony tended to prove that what was alleged to be lab equipment which was seized from Callen was actually used in the process. The challenged testimony was probative to the issue of Callen’s guilt as it provided a foundation connecting Callen’s drug charge to his motive for committing the arson.
Prosecutorial Misconduct: The Court agreed with the State that it was improper and constituted misconduct when during cross the prosecutor asked whether other witnesses were lying. Callen made no effort to explain, within the context of the record how the prosecutor’s improper questioning adversely affected the fairness of his trial or the jury’s verdict. Therefore the Court rejected Callen’s complaint.
Callen also complained of comments made during closing argument. The Court considered the prosecutor’s comments as a whole and in the context of the entire closing argument and stated they did not construe the comments as an improper attempt to define reasonable doubt for the jury. It was merely an explanation that reasonable doubt had no formulaic definition.

Holding: There was no requirement under the Rule or case law that a witness be a member of the conspiracy before he can testify about statements made by participants on the conspiracy. The Court declined to require a trial court to make express findings absent a specific request from one of the parties. The challenged testimony was probative to the issue of Callen’s guilt as it provided a foundation connecting Callen’s drug charge to his motive for committing the arson. The Court agreed with the State that the prosecutor committed misconduct while cross-examining Rosenberger by asking him whether other witnesses were lying. Considering the prosecutor’s comments as a whole and in the context of the entire closing argument, the Court stated they did not construe the comments as an improper attempt to define reasonable doubt for the jury.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/3rjqz4 .

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