Summary 2010 WY 45

Summary of Decision issued April 16, 2010

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

Case Name: Schreibvogel v. State

Citation: 2010 WY 45

Docket Number: S-09-0044

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

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

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

Facts/Discussion: Schreibvogel was convicted of two counts of first degree sexual assault and one count of robbery.

Motion to quash: Prior to trial, Schreibvogel served a subpoena duces tecum on the victim. The district court may quash or modify the subpoena if compliance would be unreasonable or oppressive. The subpoena requested all financial records, tax returns, and bank records for the past five years. Schreibvogel had the burden to show that the requested documents were specific, relevant, and not intended as a general fishing expedition. He did not satisfy that burden.
Victim impact testimony: The State agreed that the challenged testimony was victim impact testimony. It was relevant to counter the attack on the victim’s credibility. The State maintained the testimony was relevant to prove the victim had undergone a traumatic experience. The Court stated that the victim’s credibility was at issue and the challenged testimony bolstered her credibility and was appropriate under the circumstances.
Hearsay testimony: Schreibvogel challenged the testimony of the investigating officer, an x-ray technician, and an emergency room nurse who testified regarding statements made to them by the victim shortly after the incident. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence.
404(b) evidence: When the witness was testifying, he stated that Schreibvogel was “coked up” and behind on his child support payments. It did not appear from the record that the State, prior to trial, intended to utilize the evidence of drug use. The witness was asked to tell the jury what he had been told by Schreibvogel. If the prosecution did not intend to introduce such evidence, it was not required to provide the defense with notice.
Prosecutorial misconduct: During questioning of Schreibvogel the prosecutor asked several times whether testimony by other witnesses was correct. A witness may not comment on the truthfulness or veracity of another witness. It is the jury’s duty to resolve factual issues. It is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken. The Court stated that while the questioning was improper, it was brief and the prosecution did not draw attention to Schreibvogel’s answers during closing argument. The Court did not find unfair prejudice. Viewed in context, the prosecutor’s statements referenced the lack of corroboration of Schreibvogel’s version of the events.
Ineffective assistance of counsel: Schreibvogel was required to show that his counsel’s performance was so seriously deficient that he was denied his Sixth Amendment right to counsel. He also needed to show that the deficient performance prejudiced his defense. The Court reviewed the record and stated that Schreibvogel could not show that his defense was prejudiced by his trial counsel’s performance. There was no reasonable possibility that had trial counsel objected to the challenged evidence or questioned the victim about what she heard that night, the outcome of the trial would have been more favorable to Schreibvogel.

Conclusion: Schreibvogel did not satisfy his burden to prove the records requested were not a general fishing expedition. The challenged testimony bolstered the victim’s credibility and was appropriate under the circumstances. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence. The prosecution did not intend to introduce the evidence objected to by Schreibvogel, therefore it was not required to provide the defense with notice. While the prosecutor’s questioning was improper, it was brief. There was no reasonable possibility that had trial counsel objected to the challenged evidence the outcome of the trial would have been more favorable to Scheibvogel.

Affirmed.

J. Burke delivered the decision.

C.J. Voigt specially concurred: The Justice concurred because stare decisis required the Court to place upon Schreibvogel the impossible task of proving prejudice in cases such as this. The prosecutor in the case asked Appellant three times whether another witness was incorrect or mistaken. Perhaps the State would pay attention to the law that it is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken, if it bore the burden of proof as to the lack of prejudice.

Link: http://tinyurl.com/y7utnlw .

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