Summary 2011 WY 92

Summary of Decision June 8, 2011


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Case Name: Willoughby v. State of Wyoming

Citation: 2011 WY 92

Docket Number: S-10-0161

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462638

Appeal from the District Court of Sublette County, The Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender, and Tina N. Olson, Appellate Counsel, Wyoming Public Defender Program. Argument by Ms. Olson.

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. Argument by Ms. Pojman.

Date of Decision: June 8, 2011

Facts: The appellant was convicted of a 1984 murder in January, 2010. At some point during a party in 1984, the appellant sold drugs to the victim. The victim left the party, saying she would get the payment from her vehicle, and the appellant followed. The victim left in her car, and the appellant chased after the victim in his car. The appellant’s wife and a companion were also present. The appellant eventually caught up with the victim, pulled over in a turnout. The appellant dragged the victim from her vehicle, punched her in the face, and shot her twice. Later, the companion in the appellant’s vehicle made an anonymous call to law enforcement saying the appellant had killed the victim. At the time of the murder, however, insufficient evidence was developed with which to charge the appellant.

During the trial, several witnesses implicated the appellant in the victim’s murder. Much of the factual scenario came from the testimony of Appellant’s wife and companion, the eye witnesses, and from a fellow inmate with whom the appellant had discussed many aspects of the crime. In addition, another witness testified that during a hunting trip in 1984, the appellant had described how the victim was murdered, and that the appellant’s account scared the witness to the point that he eventually reported it to authorities.

The appellant’s trial defense was that of alibi. He claimed to have been at work at the time of the murder. The State presented expert testimony, corroborated by the hunting trip witness, that indicated forgery on the appellant’s work log. Beyond that, the appellant’s defense focused upon inconsistencies in the details of the testimony of the State’s witnesses. The jury found the defendant guilty of first-degree murder, and the appellant’s post-trial motion for a new trial was deemed denied when it was not determined by the district court within the time constraints of W.R.Cr.P. 33. The appellant appealed his conviction and the denial without a hearing of his motion for a new trial.

Issues: 1) Whether the district court abused its discretion by failing to grant the appellant’s motion for a new trial. 2) Whether the prosecutor committed misconduct by violating discovery orders, by violating a pre-trial order regarding uncharged misconduct evidence, and by eliciting testimony from a law enforcement officer that the officer believed a witness had lied during an interview?

Holdings: The judgment and sentence of the district court was affirmed.

In his motion for a new trial, the appellant raised eight issues. The first issue was whether the State had violated two court orders—one regarding uncharged misconduct evidence and one requiring the State to set forth the proposed testimony of witnesses—by eliciting testimony from the hunting trip witness that had not been revealed to defense counsel, specifically, that the appellant threatened to kill the witness if he ever talked again to the police. The Court found that in the context of the overwhelming evidence of the appellant’s guilt, and the district court’s detailed curative instruction, the appellant had not met his burden of showing that he was prejudiced in respect to the stricken testimony.

The second and third issues related to the testimony of two investigating officers, one from the sheriff’s office who had asked questions of the appellant’s companion regarding his anonymous telephone call to the police, and the other officer from the Wyoming Division of Criminal Investigation, who had spoken with the sheriff’s investigator about the call and later also questioned the companion about the call. The Court found that even if defense counsel was unaware before trial that the investigators had asked the companion about the telephone call, defense counsel knew about the alleged anonymous telephone call, who had placed the call, and that it had implicated the appellant. The Court could not conclude that such affected the outcome of the trial.

Appellant also challenged the pathologist’s testimony. The pathologist who performed the autopsy in 1984 was no longer physically able to testify. In his stead, the State called a forensic pathologist who had reviewed the original autopsy report and related materials. On appeal, Appellant objected to several aspects of the pathologist’s testimony, repeating his objections at trial: (1) the relative lateness of the report and the amended report; (2) the report’s contradiction of the original autopsy report; (3) The pathologist’s testimony as to the order of the wounds, which defense counsel characterized as “crime scene reconstruction”; and (4) that the testimony exceeded the scope of the pathologist’s expert designation. The appellant contends that this was a prejudicial discovery violation that left him without notice of what the pathologist’s testimony would be. The Court found that the district court had made extensive inquiry into the discovery process as it related to the pathologist’s report, amended report, and testimony. Eventually, while it did not grant the appellant’s motion to strike the expert’s testimony, the district court did limit the State to asking one additional question after the objection was interposed—that question being whether the chest wound or the head wound was the last wound. The appellant had not shown that he was unfairly prejudiced by the district court’s rulings.

The appellant further objected to the testimony of one of the detectives assigned to the re-opened investigation. Specifically, Appellant contended (1) that an officer of the law lied; and (2) that the State elicited the lie. The Court found nothing of such nature having occurred in regard to the detective’s testimony in this case, and further noted there was not one iota of evidence that the prosecutor committed any act of misconduct in this regard. The Court observed that defense counsel was allowed repeatedly to bring to the jury’s attention the appellant’s theory that the appellant’s companion had lied to obtain immunity.

Appellant also alleged the State’s failure to preserve two “sketches” apparently drawn during interviews of appellant’s wife and companion, both in 2008. The Court concluded that the State may have been negligent in not retaining the sketches, but that was not sufficient to show that the State acted in bad faith. The appellant had not shown that his right to the due process of law was violated, or supported the accusations made in his new trial motion.

During the trial, a transcriptionist discovered an audiotape of an interview with Appellant’s wife on the disk of a videotape interview of the wife. Upon learning of the existence of the audiotape, the prosecutors immediately provided a copy to defense counsel. The appellant motioned that the wife not be allowed to testify, as a sanction for the late disclosure. The district court took the motion under advisement, and later denied. In denying the motion, the district court noted that nothing appeared different on the audiotape from the videotape, but allowed the appellant to utilize it for cross-examination. Here the Court found that appellant failed, either before the district court, or in his appellate brief, to substantiate his allegations of a Brady violation.

Delineated as a separate issue, the appellant also contended that the State’s failure to comply with a discovery order in regards to the above issues might generally be recognized as prosecutorial misconduct. The Court found it had not been shown that the appellant was prejudiced by any of the prosecutor’s conduct described above, no less prejudiced to the substantial extent that would require reversal.

On the issue of whether the prosecutor committed misconduct by violating a pre-trial order regarding uncharged misconduct evidence, the Court found the witness’ comment at issue to be very general and relatively innocuous and not so unfairly prejudicial as to require a new trial. The Court observed that the district court granted defense counsel’s objection and struck the answer, and that the issue did not require further analysis.

On the issue as to whether the prosecutor committed misconduct by eliciting testimony from a law enforcement officer that the officer believed a witness was lying during an interview, the Court stated that no objection was interposed at trial, and so review was limited to review for plain error. In reviewing the factors for plain error, the Court noted that while there a clear and unequivocal rule of law forbids one witness to testify as to the credibility of another witness, here the violation of the rule when placed in context, was not so clear. The Court found this not to be a situation where the witness invaded the province of the jury by opining that another witness was lying, rather the witness merely commented upon something that the other witness had already admitted. The Court found it was not misconduct for the prosecutor to ask the witness about the other witness interview, as set forth above.

Affirmed. The appellant failed to show that the district court abused its discretion by failing to grant the appellant’s new trial motion, or that the prosecutor committed reversible misconduct.

J. Voigt delivered the opinion for the court.