Summary 2010 WY 100

Summary of Decision issued July 16, 2010

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

Case Name: Rolle v. State

Citation: 2010 WY 100

Docket Number: S-09-0086

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Rolle: Michael H. Reese, Contract Appellate Counsel, of Michael H. Reese, PC, Cheyenne, Wyoming.

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

Facts/Discussion: Rolle sought to overturn his convictions for first-degree murder, felony murder, and kidnapping.

Uncharged misconduct evidence: The test that district courts must follow when determining the proper application of the rule and admissibility of uncharged misconduct evidence was adopted in Vigil, modified in Howard and later articulated in Gleason. Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. Rolle specifically took exception to the testimony of D.G. who was one of his former girlfriends. The Court reviewed the evidence of Rolle’s relationships with D.G. as well as another girlfriend. The evidence included instances of threats, assaults, and destruction of property which met the admissibility requirements under 404(b). The district court addressed the relevance and probative value of the evidence by applying the Gleason/Vigil test. The district court properly balanced the probative nature of the evidence against its potential for unfair prejudice.
Limiting instruction: Rolle next argued the district court committed plain error when it failed to give a limiting instruction both at the time the uncharged misconduct evidence was admitted and at the end of trial when instructing the jury. Both the federal courts and the Wyoming court have rejected the dual-instruction requirement. In Connolly, the Court found the district court did not err in failing to give a limiting instruction following the admission of uncharged misconduct evidence where none was requested. The Tenth Circuit reviewed the rule in light of Huddleston and stated that “in the wake of Huddleston it is not error for a trial court to fail to instruct the jury…in the absence of a proper request by counsel.”
Jury question: The jury requested a definition of “maliciously” and for examples of “pre-meditated malice.” The district court referred them back to Instruction 10 and 15. In Spagner, the Court held that an Information is sufficient if it is in the words of the statute. The Information was drafted in the words of the statute therefore Rolle was fully and fairly informed of the charges. A trial court is under no obligation to define a statutory term unless the term carries a technical connotation different from its everyday meaning. Rolle made a comment there was lack of evidence to find him guilty of murder in the first degree but it was not supported by cogent argument or pertinent legal authority so the Court refused to consider the claim.
Ineffective assistance: Rolle contended his trial counsel was ineffective for: failing to request a limiting instruction regarding the State’s uncharged misconduct evidence at the time the evidence was introduced; failing to object to the content of the uncharged misconduct limiting instruction; and failing to object to the qualifications of certain witnesses who were, or could have been considered, experts. The district court was not required to give a contemporaneous limiting instruction. Before trial, defense counsel was informed by the district court that it would give a limiting instruction if requested. Defense counsel did not object to the adequacy of the limiting instruction regarding the uncharged misconduct evidence given to the jury at the end of the trial. He asserted the instruction only applied to prior acts committed against his victim and not to other individuals’ testimony. Rolle did not point to any instances of uncharged misconduct that was admitted but not covered by the limiting instruction therefore, he failed in his burden to demonstrate how he was prejudiced by his defense counsel’s failure to object to the jury instruction. Rolle argued defense counsel was ineffective because he failed to object to the qualifications of certain witnesses who were or allegedly could have been considered experts. He argued trial counsel could have challenged the credentials of the Crisis Intervention Services director and that the person who transcribed the 911 call was not qualified to give expert opinion about certain sounds heard in the call. An attorney’s refusal or failure to voir dire an expert witness is not per se ineffective performance. After the Court’s review of the qualifications of the CIS director and the relevance of her testimony, the Court found she was adequately qualified as an expert and that her testimony was such that it assisted the jury. In Kenyon, the Court recognized the type of testimony offered was proper expert testimony under similar circumstances. As to the testimony of the individual who transcribed the 911 call, the Court noted that trial counsel objected to the subjective statements made and the qualifications of the transcriptionist. Counsel’s efforts to exclude admission of the evidence were not deficient.
Cumulative error: Because the Court found no individual errors occurred, a claim for cumulative error was not possible.

Conclusion: After careful consideration of the appellant’s claims, we conclude that: (1) the district court properly followed the Gleason/Vigil test for determining the admissibility of the uncharged misconduct evidence and we cannot say that the court abused its discretion in admitting testimony concerning the appellant’s prior uncharged misconduct; (2) the appellant’s claim that a court is required, without request, to give a limiting instruction contemporaneously with the introduction of uncharged misconduct evidence is not supported by law; (3) the appellant’s claim that there was a variance between the facts alleged in the Information and those presented at trial is unsupported by the record; (4) the jury was adequately instructed on the difference between first-degree and second-degree murder, and on the meaning of the term “maliciously”; (5) the appellant failed to provide cogent argument or citation to pertinent authority regarding his claim that there was insufficient evidence to support his conviction for first-degree murder; (6) the appellant failed to show that defense counsel’s failure to request, or decision not to request, a limiting instruction contemporaneously with the admission of uncharged misconduct evidence resulted in ineffective assistance; (7) the appellant failed to demonstrate any prejudice arising out of defense counsel’s failure to object, or decision not to object, to the limiting instruction regarding the uncharged misconduct evidence; (8) the appellant’s claim that defense counsel was ineffective for failing to voir dire certain “expert” witnesses is not supported by the record; and finally, (9) because we find no individual error or abuse of discretion, we conclude that cumulative error did not occur.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2fnm7ja .

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