Summary 2010 WY 11

Summary of Decision issued February 5, 2010

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

Case Name: Roden v. State

Citation: 2010 WY 11

Docket Number: S-08-0233

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Roden: Diane M. Lozano, State Pubic Defender; Tina N. Kerin, Appellate Counsel, Diane E. Courselle, Faculty Director; Zane A. Gilmer, Student Intern and Jodanna L. Haskins, Student Intern, Defender Aid Program.

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

Facts/Discussion: Roden was convicted of conspiracy to commit aggravated robbery, two counts of aggravated robbery, and two counts of aggravated assault and battery.

W.R.E. 404(b) evidence: Roden asserted reversible error occurred when the State elicited testimony concerning other instances of misconduct. If a demand for notice is going to be treated as an objection to the challenged testimony, it must be made in the trial court. Roden first alleged that error occurred in the State’s solicitation of testimony indicating Roden had been previously involved buying and selling meth. The Court could find no such testimony in the transcript. The second error concerned testimony that the witness Ott was acquainted with Roden from past instances of selling drugs and stolen goods. The challenged testimony arose when Ott revealed that Roden gave him $5,000.00 for the purpose of purchasing a pound of meth. The testimony was allowed because the prosecutor limited his inquiry to that information necessary to demonstrate why it was not uncommon for Ott and Roden to exchange large sums of money. Roden’s trial counsel opened the door when he made an issue of the plausibility of Ott’s testimony concerning the nature of the money exchange. Finally, Roden found error in Hodges’ testimony that she recognized him from a previous encounter in Rapid City where they had used drugs together in a motel room. Although it was evidence of uncharged misconduct, it was unintentionally solicited by the prosecutor. The prosecutor had asked about a timeline and the supplemental information was a spontaneous offering designed to support Hodges’ identification of Roden.
Testimony of convictions: The prosecutor elicited testimony from Ott and Hodges regarding their conviction and guilty plea. The record clearly reflected the error. Roden relied on the rule in Kwallek that when two persons are indicted for separate offenses growing out of the same circumstances, the fact that one person had pleaded guilty is inadmissible against the other. Hodges’ testimony violated the Kwallek rule because it explicitly linked her robbery conviction to the same robbery for which Roden was on trial. Ott did not testify on direct examination that his convictions were related to or stemmed from the same circumstances underlying the charges against Roden. The Court noted that the testimony was not extensive and the State’s case against Roden would have been sufficient even without it. The jury’s attention was not inordinately directed to the improper evidence so the case is distinguishable from Kwallek.

Conclusion: Roden failed to convince the Court that reversible error existed with respect to any of the issues raised.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/ydh8wke .

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