Summary 2011 WY 77

Summary of Decision May 5, 2011




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Case Name: Sanchez v. State



Citation: 2011 WY 77



Docket Number: S-09-0113, S-10-0044



URL: http://www.blogger.com/goog_1360459507



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



Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel; Wyoming Public Defender Program; Timothy C. Kingston of the Law Office of Tim Kingston, Cheyenne, Wyoming.



Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.



Date of Decision: May 5, 2011



Facts: A jury found Appellant guilty of attempted second degree murder, aggravated assault and battery, felony possession of a controlled substance, and interference with an emergency call. Appellant later sought a new trial, which the district court denied. He appealed both the judgment and sentence and the denial of his new trial motion, and the appeals were consolidated.



Issues: Whether the district court erred when it denied Appellant’s motion for judgment of acquittal, for lack of sufficient evidence, on the possession of a controlled substance charge. Whether the district court erred when it allowed in prejudicial hearsay testimony under W.R.E. 803(2). Whether the district court violated Appellant’s constitutional right to be presumed innocent and invade the province of the jury by referring to the complaining witness as “the victim.” Whethers Appellant was denied his constitutional right to a fair trial before an impartial jury when one of the jury members had knowledge that Appellant had previously been incarcerated at the Wyoming State Penitentiary, and failed to divulge this fact when asked on voir dire if he knew Appellant. Whether the Appellant received effective assistance of counsel from his attorneys in their representation of him in the court below.





Holdings: After the district court denied the motion for judgment of aquittal, Appellant introduced evidence in defense of the possession charge. The law is well established that a defendant’s introduction of evidence following the denial of a motion for judgment of acquittal at the end of the State’s case constitutes a waiver of that motion, thereby precluding appellate review of that denial. Thus, Appellant waived the right to challenge the district court’s ruling on appeal.



Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within a well-delineated exception. An exception is found for an excited utterance, which is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Five factors are to be considered in determining the admissibility of evidence under the excited utterance exception: (1) the nature of the startling event; (2) the declarant’s physical manifestation of excitement; (3) the declarant’s age; (4) the lapse of time between the event and the hearsay statement; and (5) whether the statement was made in response to an inquiry. The ultimate inquiry is whether the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. In the present action, a review of the statements in question show that the factors have been met and that the challenged statements were properly admitted as excited utterances under W.R.E. 803(2).



Viewing the challenged statement referring to the witness as “the victim” in proper context, it is clear the district court was simply describing the alleged roles of the major identified players in the case in an effort to ascertain if any of the potential jurors had knowledge of the case, or had any ties to it or the parties which might prevent them from being impartial or fair. The district court did not tell the panel that, as a matter of law, it had to consider the witness to be a victim, much less Appellant’s victim. Moreover, the district court’s statement did not materially prejudice Appellant. The district court’s description of the wtiness as the victim was a single, isolated incident that occurred at the beginning of a four-day trial. The jury was instructed that it was the sole judge of the facts of the case and that it was to disregard any comment the court made regarding the facts in assessing Appellant’s guilt or innocence on the charged offenses. Additionally, it was uncontested at trial that the witness was the victim of a vicious beating. The only real dispute concerned whether Appellant was her assailant and, if so, whether he was the first aggressor or acted in self-defense. Additionally, the evidence of Appellant’s guilt was substantial. After careful consideration of the record, there was no reasonable possibility that the jury’s verdict would have been more favorable to Appellant in the absence of that isolated statement.



For Appellant to prevail on a claim of ineffective assistance of counsel claim, he must first establish that trial counsel’s performance was deficient. This requires a showing that counsel failed to render such assistance as would have been offered by a reasonably competent attorney. Appellant then must demonstrate that counsel’s deficient performance prejudiced his defense. Under the prejudice prong, Appellant must demonstrate a reasonable probability exists that, but for counsel’s deficient performance, the outcome of his trial would have been different. The failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Appellant did not satisfy his burden on either prong of the ineffectiveness standard. First, Appellant’s ineffectiveness argument is devoid of any analysis establishing that counsel’s performance was legally deficient. More importantly, Appellant has made absolutely no showing of actual prejudice arising from counsel’s alleged deficient performance. That is, he does not explain, within the context of the facts of this case, how counsel’s alleged errors adversely affected the outcome of his trial.



Appellant also presented a motion requesting a partial remand in order for the district court to conduct an evidentiary hearing on the issue of whether his trial counsel provided legally effective assistance. The motion was denied. Appellant challenges that denial in his appellate brief and asks for a reconsideration. There are generally two types of ineffective assistance of counsel claims, those that are apparent in the trial record and those that are outside the record. An evidentiary hearing is necessary only on the latter type of claim, if an appellant can make a showing that his ineffectiveness claim has merit. Such remand shall be available only if the motion is accompanied by affidavits containing non-speculative allegations of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel’s representation was deficient and prejudiced the appellant. Appellant does not show how any of the claims of ineffectiveness being made prejudiced him or would have altered the outcome of his trial.



There are no reversible errors with respect to any of the issues raised in this appeal.



Affirmed.



J. Golden delivered the opinion for the court.