Summary 2010 WY 170

Summary of Decision December 23, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

Summary 2010 WY 111

Summary of Decision issued August 5, 2010

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

Case Name: Zumberge v. State

Citation: 2010 WY 111

Docket Number: S-09-0255

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Zumberge: Michael Reese, Contract Appellate Counsel, of Michael Henry Reese, PC; Diane Lozano, Wyoming Public Defender; Tina N. Kerin, Appellate Counsel.

Representing State: 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.

Facts/Discussion: Zumberge appealed his conviction for felony driving while under the influence, alleging that his constitutional rights to due process of law and to confront witnesses were violated by the district court’s failure to reasonably accommodate his hearing impairment at trial. Under the Wyoming and federal constitutions, a clear and unequivocal rule of law exists requiring a court to make reasonable accommodations to ensure that a hearing impaired individual can hear and properly participate in the proceedings. It was not until sentencing that Zumberge notified the district court that he had had significant trouble hearing during voir dire and during his trial, and that the means adopted by the district court to prevent that problem were inadequate. The Court noted in their review of the record that the district court had informed Zumberge several times that if he had trouble hearing, he needed to make the court aware of it. The record showed the accommodations made by the district court were reasonable and adequate.

Conclusion: The district court did not abuse its discretion when evaluating Zumberge’s hearing impairment and making accommodations to ensure that he could hear the proceedings.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2c7gs72 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 1

Summary of Decision issued January 4, 2010

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

Case Name: Budig v. State

Citation: 2010 WY 1

Docket Number: S-09-0038

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing Appellant Budig: Harry G. Bondi of Harry G. Bondi Law Offices, PC, Casper, Wyoming.

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

Facts/Discussion: Budig challenged his conviction for third-degree sexual assault and sexual abuse of a minor. Budig asserts that his constitutionally protected right to confrontation was violated and that the prosecutor improperly vouched for the credibility of the victim witnesses.
Right to confrontation: The Court noted their summary of the limits a court may place on cross-examination in Miller v. State. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. A defendant’s right is not unfettered but subject to the trial court’s discretion to prevent questioning that was repetitive or of marginal relevance. The trial court held a motion hearing regarding the character evidence he intended to address during cross-examination. The Court stated that since none of the evidence was directly related to Budig, its relevance was marginal and its probative value limited. Past sexual conduct evidence falls into the class of evidence the rape shield law was specifically designed to exclude. Budig was given the opportunity to challenge the victims’ credibility, motives, and biases using other admissible evidence.
Improper vouch for credibility of victims: Budig asserted that the prosecutor improperly vouched for the credibility of the victim witnesses in statements he made during closing argument. After reviewing the record provided on appeal and particularly the trial transcripts, the Court found that the prosecutor’s comments relating the victims’ actions to the general behaviors described by the expert were not tantamount to vouching for the victims’ credibility. The statements informed the jury about the relevance of the testimony and suggested how that testimony might assist the jury in determining the facts at issue. Relating the general behaviors described by the expert witness to the specific behaviors exhibited by the victims was important to effective prosecution in the instant case because one defense strategy was to argue that the victims’ behaviors were inconsistent with the allegations made.

Conclusion: The Court held that Budig’s constitutionally protected right to confrontation was not abridged when the district court refused to allow him to question the victims about prior alleged sexual conduct or about specific instances showing the victims’ mean or manipulative character traits, which instances did not involve Budig. The prosecutor did not improperly vouch for the victims’ credibility during closing argument.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/y8gcn4q .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]