Summary 2010 WY 8

Summary of Decision issued January 28, 2010

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

Case Name: Foster v. State

Citation: 2010 WY 8

Docket Number: S-09-0056

Appeal from the District Court of Carbon County, the Honorable Jeffrey A. Donnell, Judge.

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

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham H. Smith, Assistant Attorney General.

Facts/Discussion: Following a jury trial, Foster was convicted of numerous drug-related crimes. She appealed the convictions, alleging that the district court abused its discretion by admitting two letters into evidence and alleging that cumulative error occurred.

Letters admitted into evidence: W.R.E. 901 is identical to its federal counterpart, F.R.E.901. Authenticating handwriting through familiarity by a lay witness requires nothing more than familiarity of some sort on the part of the witness with the handwriting of the person who, according to the witness, either did or did not pen the writing in issue. The witness testified she was able to identify the handwriting on the first letter as Foster’s because as Lieutenant of the jail, she received written requests and grievances from the inmates. She acquired her familiarity with the handwriting by reading it repeatedly. Even though a state actor, the Lieutenant did not acquire her familiarity for the purpose of litigation. As to the second letter purportedly written by Walsh, Foster argued that no testimony was offered to show that Walsh authored the letter. The testimony provided made clear that the witness’ knowledge and familiarity with the letter came from watching Walsh on a video camera place the letter where it was found. Foster’s arguments go to the weight of the evidence rather than whether Walsh actually wrote the letter.
Cumulative error: Foster argued that error occurred when the district court refused to provide a limiting instruction after it sustained defense counsel’s objection to statements made by the prosecutor during closing argument. Since Foster failed to demonstrate any resulting prejudice, the Court found it unnecessary to determine whether the failure to provide a limiting instruction was error. For the second error, Foster pointed to several instances of irrelevant and prejudicial evidence including: testimonial evidence of minor witness’s drug use, drug testing and past crimes; testimony from a State’s witness that she came to know Foster in prison; and testimony from the Lieutenant that Foster was an inmate in the jail. Foster argued that the comments from the minor witness about her drug use amounted to a “community outrage” argument. In the instant case, the Court stated the minor witness’s testimony and the prosecutor’s statements were relevant to the credibility of the witness because they did not seem to appeal to the jury’s sense of duty to help local law enforcement. The testimony from a State’s witness that she came to know Foster in jail was considered foundational by the Court. The Court stated that identity is always a material issue. In order to lay an adequate foundation for the Lieutenant to be able to testify as to whose handwriting was on the letters, it was necessary to show how the Lieutenant acquired such knowledge. It was not a big surprise to the jury to find that Foster had been in jail as a result of being charged with eleven drug-related crimes. The third instance Foster pointed to as error was related to questions and comments made by the prosecutor during Walsh’s testimony and closing argument. Although the prosecutor asked several “were-they-lying” questions, Foster opened the door to such questions by calling Walsh as a witness. The prosecutor lightened any prejudicial effects by reminding the jury in closing that it was their task to determine credibility issues. The fourth instance of error referred to a statement made by the prosecutor that Foster alleged constituted improper vouching for the credibility of a witness. The Court stated that the comment by the prosecutor that the witness’s testimony went “basically uncontradicted” pointed out the reasonable inference that she was not lying and that did not rise to the level of vouching.

Conclusion: The Court concluded the district court did not abuse its discretion when it admitted into evidence the letters purportedly written Foster and Walsh. The State properly authenticated the letter purportedly written by Foster through testimony. The State properly authenticated the letter written by Foster based on a video which captured images of Walsh hiding the note in the location in which it was discovered. Cumulative error did not occur. While it was improper for the State to utilize the “were-they-lying” technique, Foster failed to demonstrate sufficient prejudice to amount to cumulative error.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ya2momg .

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