Summary 2010 WY 170

Summary of Decision December 23, 2010

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Case Name: Rodriguez v. State

Citation: 2010 WY 170

Docket Number: S-10-0003

URL: http://tinyurl.com/262635v

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

Representing Appellant (Defendant): Patricia Lynn Bennett, H. Michael Bennett, PC, Cheyenne, Wyoming; Michael H. Reese, Michael H. Reese, PC, Cheyenne, Wyoming. Argument by Ms. Bennett.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Smith.

Date of Decision: December 23, 2010

Facts: Appellant challenged his conviction on a felony charge of battery of a household member, third or subsequent offense, in violation of Wyo. Stat. Ann. § 6-2-501(f)(ii) (LexisNexis 2009).

Issues: Whether the admission of the alleged victim’s statements through the testimony of the investigator violated Appellant’s right to confront the witness against him; Whether the district court improperly shifted the burden of proof to the defense in denying Appellant’s motion for judgment of acquittal; Whether defense counsel was ineffective in (1) failing to object to the alleged victim’s statements introduced through the testimony of the investigating officer, and (2) by calling the alleged victim as a witness, thereby waiving Appellant’s argument that he had been denied the right to confront the witness; And whether the district court abused its discretion by admitting evidence of uncharged misconduct and prior bad acts.

Holdings: Appellant contended that the investigating police officer’s testimony about what the alleged victim told the officer was hearsay, although Defense counsel did not object to the officer’s testimony at trial. Because the prosecution presented the police officer’s testimony about the statements, but did not call the alleged victim as a witness, Appellant claimed a violation of his Sixth Amendment right. The flaw in Appellant’s argument was that the alleged victim was not unavailable as a witness. The prosecution did not call her as a witness because, as the prosecutor explained in his opening statement, she later denied that Appellant had hit her.

Appellant also contended that the district court improperly shifted the burden of proof to the defense “by forcing the defense to call the victim as a witness.” The Court found that the district court merely pointed out that the witness was available, and asked if she would be called and did not shift the burden of proof to the defense.

In his third issue, Appellant claimed that his defense counsel was ineffective because he did not object to the hearsay testimony of the police officer, and because defense counsel called the alleged victim as a witness, thereby waiving Appellant’s Confrontation Clause claim. The Court found possible reasons that defense counsel might have believed that a hearsay objection would be ultimately unsuccessful and only draw unwanted attention to the testimony. The Court has previously observed that a failure to object may not be a failure at all, but rather, a tactical decision. Moreover, the Court found that Appellant suffered no prejudice from the lack of hearsay objections. The Court found that Appellant failed to establish his claim of ineffective assistance of counsel.

As his final issue, Appellant claimed that the district court erred in admitting evidence of prior assaults against household members, contrary to W.R.E. 404(b). The Court found that the district court made a well-reasoned and thorough analysis of the evidence at issue, highlighting the district court’s references to Wyoming case law that has addressed prior incidents of battery or domestic violence in these sorts of cases. The Court found that it was easy to discern a legitimate basis for the district court’s ruling that the evidence was admissible. The district court’s decision was not an abuse of discretion.

The Court affirmed Appellant’s conviction.

J. Burke delivered the opinion for the court.