Marquess v. State
2011 WY 95
| Wyo. | 2011Background
- Appellant Gary Marquess and his brother and an acquaintance allegedly held the victim at knife point on March 1, 2009 in a conspiracy to obtain guns.
- The same conspirators were present during related March 2, 2009 events including beating the victim and planning to steal guns from the victim's parents.
- Victim escaped, called 911, and the State charged Marquess with aggravated assault and battery, simple battery, kidnapping, conspiracy, and habitual offender status.
- The district court admitted evidence of the March 1 incident as part of the conspiracy and admitted a 911 recording as a prior consistent statement under 801(d)(1)(B).
- Marquess did not object at trial to the 911 recording, and the court conducted no Gleason hearing for the 404(b) issue.
- A jury found Marquess guilty of aggravated assault and battery, simple battery, and kidnapping; a separate jury found habitual offender status, resulting in multiple life sentences concurrent with other terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the March 1 incident properly admitted as evidence? | Marquess contends it was uncharged misconduct under 404(b). | State argues it was direct evidence of conspiracy or, alternatively, course-of-conduct evidence. | No plain error; evidence admitted as intrinsic to conspiracy. |
| Was the 911 recording admissible under 801(d)(1)(B) as a prior consistent statement? | Marquess asserts the 911 recording was a prior consistent statement rebutting fabrication. | State contends the statement rehabilitates credibility under 801(d)(1)(B). | Not admissible under 801(d)(1)(B). |
| Was the 911 recording admissible under 802(2) as an excited utterance? | N/A (challenge focuses on hearsay rule). | N/A (challenge focuses on hearsay rule). | Yes; admissible as an excited utterance under 803(2). |
Key Cases Cited
- Lancaster v. State, 2002 WY 45 (Wyoming) (broad admission of prior consistent statements before impeachment allowed)
- Beartusk v. State, 6 P.3d 138 (Wyoming) (broad interpretation of 801(d)(1)(B) allowed pre-impeachment use)
- Hopkinson v. State, 632 P.2d 79 (Wyoming) (intrinsic acts in conspiracy are admissible as direct evidence)
- Kelly v. State, 694 P.2d 126 (Wyoming) (excited utterance admissible when statements follow a startling event)
- Sanchez v. State, 253 P.3d 136 (Wyoming) (excited utterance factors and spontaneity considerations)