Summary 2011 WY 129

Summary of Decision September 16, 2011


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Case Name: Harrell v. State

Citation: 2011 WY 129

Docket Number: S-11-0035

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464369

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, Senior Assistant Appellate Counsel.

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

Date of Decision: September 16, 2011

Facts: After being convicted of rape, kidnapping, and assault, Appellant argues on appeal that the district court abused its discretion when it did not allow him to introduce evidence regarding a previous battery charge

Issues: Whether the district court erred when it denied Appellant’s request to admit evidence pertaining to a prior arrest, after the State’s witness opened the door by mentioning the arrest, in violation of the court’s previous order.

Holdings: Before trial, the district court granted the State permission to elicit testimony that law enforcement went to the victim’s house that day because they had been informed that Appellant’s truck was parked there, and they knew about the protection order. Appellant was arrested for violating that order. Also, testimony was allowed that the victim, that same day, had requested dismissal of the protection order. In regard to the protection order evidence being admitted, defense counsel requested that Appellant be allowed to discuss the basis of that protection order. Counsel assumed that the order stemmed from a prior incident that led to a felony battery charge for which Appellant had just been acquitted. In response to defense counsel’s request, the State objected because it was introducing evidence of the protection order only to explain the basis for Appellant’s arrest. The court ruled it would not permit any testimony about Appellant’s earlier battery charge and acquittal, finding both unrelated to the instant case.

After the arresting officer completed his testimony and was released from his subpoena, defense counsel complained that his testimony let the jury “know everything” about the prior arrest for battery, except that Appellant had been acquitted. The State disagreed, noting that it had introduced no evidence whatsoever that Appellant had been charged with battery, and that defense counsel could have cross-examined the officer to clarify his direct testimony. Furthermore, the State assured the district court that it had instructed its witnesses not to comment on the earlier arrest, and that it “jumped in there and moved on with the testimony” to the best of its ability. The district court determined that the State did “its best,” and “nothing intentional happened here.” Eventually, the district court ruled that Appellant’s acquittal of the battery was inadmissible and pointed out that Appellant did not contemporaneously object to the officer’s testimony, that the officer was unsure of what exactly prompted the February arrest, and that it would entertain a cautionary instruction regarding the officer’s testimony if drafted by defense counsel. Indeed, a curative instruction was developed, and the jury was subsequently instructed to disregard the testimony about the earlier arrest in its entirely in reaching its verdicts.

Appellant argues that his sixth amendment right to compulsory process was violated because he was deprived of testimony that was vital, material, and relevant to his defense. He argues that the evidence of his acquittal was relevant in this case for two reasons: First, he contends that “[d]emonstrating that the officer was mistaken,” with respect to his belief that Appellant was arrested for violating a protection order rather than a battery, “demonstrates that he was not as careful in his recollection of the event as he purported,” and thus Appellant could have used the evidence to impeach the officer’s testimony; and second, the district court’s denial left the jury with “negative,” and to some extent, “inaccurate” information about him. Had he been able to introduce the battery evidence, “it would have alleviated the problem associated with the admissibility of this previously ruled prejudicial and irrelevant 404(b) evidence.”

Appellant’s arguments were not persuasive. The evidence would not have been proper impeachment evidence because the officer was only relaying what the victim had told him. The officer was not himself unclear or unsure – he was only repeating the victim’s statement. Also, regarding the impressions left with the jury, the State points out that neither party sought to introduce under W.R.E. 404(b), evidence of the arrest for violating a protection order because no such arrest occurred. Inasmuch as Appellant’s arguments were not persuasive, there was not a showing of prejudice in this case.

The district court did not abuse its discretion when it denied Appellant the opportunity to introduce evidence that he had been previously acquitted of battery, and Appellant suffered no prejudice.

Affirmed.

J. Hill delivered the opinion for the court.