*1 distinguish from I cannot this scenario allow a criminal defendant
those in which we Had Duran stated to claim self-defense. Ms. victim,” had intended to harm “the she charge prosecutor her with an decided homicide, have con- intentional could sidered the reasonableness of her actions subjective imminent light of her belief of Rather, is harm. because her state of mind (or prosecutor culpable less because such), majority her charges her as denies that, given opportunity demonstrate belief, subjective her intentional conduct her justifiable. and the risk was reasonable sadly personifies fundamen- This case by confusing “an unin- tal unfairness caused really is an unin- tentional act” with what Here, consequence. tentional Ms. Duran’s unintentional; actions were not the victim’s Elliott v. death was unintentional. See Commonwealth, 420-22 S.W.2d (“As (Ky.1998) applied to the facts
case, ‘wantonly’ the definitions of and ‘reck- mind, lessly’ appellant’s state of address act, respect respect but with act.”). result of his To further illustrate point, imagine the defendant faced and, deadly response, with a assailant points victim and shoots a intended legs, meaning incapacitate the attacker’s However, him. the defendant’s lack of skill causes the bullet to enter the assailant’s heart, instantly killing him. Should the charge him man- choose to 6-2-105(a)(ii),
slaughter Wyo. § under Stat. deny will we a claim of self-defense at trial? majority holding, Under the we do. DIKE, (Defendant), Appellant H. William Wyoming, The STATE of (Plaintiff). Appellee No. 98-254. Supreme Wyoming. Court of 30, 1999.
Nov.
1015 *4 jury guilty aggravated
ter a found battery. assault and We affirm.
ISSUES presents several for our re- issues
view: I
ISSUE prove Did the state fail to that William aggravated Dike committed assault since “deadly weapon?” did use a
II ISSUE deprive
Did the trial court William process right of his due fair failing to instruct the on the elements assault?
III ISSUE
Did the trial allowing court err un- fairly prejudicial evidence to introduced trial, whereby juror at a reasonable could be so inflamed as to infer that because of guns all the and ammunition from seized residence, the Dike William Dike must Representing Appellant: Sylvia Haekl, Lee have committed the assault? Defender; Domonkos, State Public Donna D. Courselle, Counsel; Appellate Diane Di- Wyoming rector of the Defender Aid Pro- ISSUE IV gram; and Daniel Pedriana and Brenda Did the trial court abuse its discretion Hammitt, Wyoming for Student Interns the by allowing hearsay taped evidence of a Program. Defender Aid phone qualify call that does not for the Woodhouse, Representing Appellee: Gay exception excited utterance to be heard General; Rehurek,
Attorney Deputy Paul S. jury? Attorney General; D. Pauling, Michael Sen- General; Attorney ior Georgia Assistant L. ISSUE V Tibbetts, General; Attorney Senior Assistant Did trial court abuse its discretion Lauer, Theodore E. Director of the Prosecu- by allowing portions to hear of a tion Program; Monique Assistance and Du- taped phone qualify call that do not for the Armijo Pont Weppner, and Jodi A. Student exception hearsay excited utterance Interns the Prosecution Assistance Pro- rule? gram. LEHMAN, C.J., ISSUE VI THOMAS, Before and MACY, HILL, GOLDEN & JJ. Billy Did the trial court violate Dike’s right confrontation, right testify to to
MACY, Justice. behalf, in right his own and his to receive Appellant appeals process William Dike from due and a fair trial when the court judgment and sentence that was entered af- allowed the remark clos- anything persuade and tried to right present her husband Dike’s to be ing that Mr. give gun. Dike to her the gave him unfair during his own advantage and that a convic- as a witness finally The was able to convince victim uphold required was order tion gun, give Dike to her the which she held jury? community’s in the trust her left hand while she drove toward Lodge. at the
Buffalo When she arrived Lodge, spoke employ- VII with a ISSUE Buffalo she new going to take ee and told that she Dike’s of William Did ineffectiveness she return Dike to his truck and that would deny process right him his due counsel him, get hoping suspicious to train he would fair trial? they got to if she did not come back. When truck, Dike victim that he Dike’s told the FACTS police. called would kill himself if she that she not The victim assured Dike would Shortly arriving on November after home gave gun to him. police call the back 1, 1997, p.m., approximately 11:00 point, At showed victim pounding her door. heard victim someone her vehi- was not loaded. He exited Dike, who went to door found She to- cle and followed her as she drove back “Open The victim knew this door.” hollered: Lodge. ward the Buffalo her and he had worked for her Dike because guest previously and he had been husband way was on her back to the While she door, opened in their home. She Lodge, Buffalo the victim used her cellular house, informing her her Dike walked into mother-in-law, ad- telephone call her who telephone. her that he needed to use police. Although she vised to call the her telephone, agreed let him use her victim so, doing victim apprehensive about uncomfortable, but, feeling she remained Lodge police call the Buffalo did from that Dike near the door. She did believe Deputy speak Sheriff Jake and asked to telephone actually used the because did conversation, During telephone Hardin. *6 light in the where the not turn on the room hap- dispatcher what had the victim told telephone was and did not hear located she Deputy it pened also communicated and pick up receiver. she asked him When Hardin, along de- Deputy Hardin. with two anyone, responded got if he of he him a hold County sheriffs from the Laramie tectives busy. line that the office, and him. to Dike’s home arrested went separate on occasions Searches of the house Because of the victim’s uneasiness about guns netted various and ammunition. Dike, him that being alone with she told she visit she could not with because had charged aggravated assault Dike was go Lodge, to work at the Buffalo that back trial, acknowl- kidnapping. and At the Dike spending night, and that her friend was home, edged the victim’s that he went to hunting back husband would be from argument, rode with had an and he of night, all which were untrue. She walked Lodge, Buffalo but he denied her to the door, Dike followed her outside. out the and gun. juryA threatening the with a victim ear, get her Dike she tried to into When of- aggravated of assault convicted Dike attempted get pulled her she out. When fense, him to judge sentenced and the again pulled her again, ear out. into her penal in a of serve state institution a term struggle, After a brief Dike told victim years than five than two nor more less pointed him and going that she was years. appeals Dike from his conviction head, pistol telling use her her: “I will at this Court. ultimately if I have to.” The victim con- got Dike to take ear. Dike vinced let her her DISCUSSION began car victim and accus- into the with the “Deadly Weapon” A. Definition of ing telling of her husband about the her error, con first of her In his claim he had made toward sexual advances prove that he failed to previous telling The tends that the state victim denied summer. aggravated subject. Wyoming assault on the State committed because same ex rel. only deadly relating weapon Safety Compensation evidence Workers’ Division Bruhn, (Wyo.1997); requirement pos- was that he Pa offense cificorp, gun. give an unloaded The state 1166. We effect to sessed counters plain language unambiguous required that it was not to establish of statutes. Lyles v. ex rel. Division Workers’ prove in order to State firearm loaded of (Wyo.1998). Compensation, 957 P.2d aggravated Dike committed assault. statutory We resort to extrinsic aids of inter 6-2-502(a)(iii) (LEXIS Wyo. §Ann. Stat. history pretation, legislative as or in such 1999) aggravated describes the assault of- tent, only ambiguous. statutes when are fense: Oedekoven, Christensen v. (a) person guilty A of is as- (Wyo.1995). battery if he: sault making the determination of unambigu whether is clear this statute (iii) deadly use a Threatens to drawn ous, analyze posi we must the structure and weapon reasonably unless another statute, applying tion of the words necessary person, of prop- defense grammatical principles. rules of common erty prevent or abode or to serious bodi- “ naturally ‘This Court does not review con ly injury ... to another gressional panel gramma enactments as a of “deadly term weapon” Wyo. The is defined in rians; regard ordinary but do we neither 6-l-104(a)(iv) (LEXIS 1999) §Ann. Stat. as principles English prose to a irrelevant follows: construction those enactments.’” Man (iv) “Deadly weapon” means but is not agement Wyoming Legislature Council firearm, explosive limited to a or incendi- Geringer, (Wyo.1998) 843-44 material, vehicle, ary an motorized animal States, (quoting Flora v. United 362 U.S. device, instrument, or other material or (1960)). 145, 150, 630, 4 80 S.Ct. L.Ed.2d 623 substance, which in the manner is used reasonably or is intended used is to be 6-l-104(a)(iv), analyzing § After capable producing death or serious bodi- language we conclude that is clear and injury!.] ly unambiguous. phrase “which in the only manner it is used” modifies phrase the last contends that “which in the antecedent, device, instrument, “other mate it is manner used or is intended to be is used rial reasonably pre capable “[0]ther substance.” device” producing death or “or,” and, ceded bodily qualifies generally, where no injury” serious each of the *7 contrary items, appears, qual including intention relative and previously listed “a firearm.” ifying phrases words and are construed to issue, In deciding ap this we must solely refer to the last antecedent which with ply our well standard established for con closely are connected. Moschetti v. Li struing attempt interpret statutes. to We Boulder, quor Licensing Authority City of of in legislature’s statutes with accordance the (en 281, 299, (1971) 176 Colo. P.2d 490 301-02 Department intent. State Revenue and of banc). 1163, Pacificorp, Taxation v. 872 P.2d 1166 (Wyo.1994). by begin making We an aggravated “‘in assault statute enhances quiry respecting ordinary punishment the and the obvious if the defendant a uses dead- meaning employed of ly weapon the according deadly weapons words to because cause a ” arrangement greater their and degree person connection.’ Parker of fear in being the Company Land and Wyoming Cattle v. assaulted. The victim does not know that Commission, 1040, loaded, Game and Fish the firearm apprehen- is not and his (Wyo.1993)(quoting 1042 consequent Rasmussen v. Bak sion and reactions will be the er, 117, 819, Wyo. 133, (1897)). 7 P. 50 823 if may same as the firearm were He loaded. whole, a giving try himself, We construe statutes as escape conceivably ef to or defend word, clause, every sentence, to putting fect and and precarious himself and others into a parts together Id; we construe of dangerous all the statutes and generally situation. see 730, State, in officers searched the residence which Dike P.2d v. Sindelar 307, parents State, with his and seized a number of 1997); P.2d 310-11 lived ALJ guns, along variety a ammuni- danger created with of (Wyo.1992) (recognizing the other in li- filed a motion pointed an tion. Defense counsel is when unloaded firearm an individual). argued that mine wherein he the introduction handgun a .22 caliber would violate “deadly weapon” defini We hold 401, 402, 403. The motion was W.R.E. firearms. It necessar tion unloaded includes denied, allowed and the evidence was into ily an unloaded assault with an follows objection. Dike con- trial without further offense of elevated is that his in tends motion limine was sufficient with the cases assault. This is consistent objection escape ap- an preserve unloaded firearms are where we held that plication plain error standard of review ag weapons purposes deadly for the regarding particular gun. of the evidence gravated burglary statute. Britt plain stan- acknowledges that error He (Wyo.1987); Sutherland v. employed be re- of review must dard 1157, 1162(Wyo.1997). testimony concerning gard to the the other firearms and ammunition. B. Instruction also claims that the trial court denied not This has addressed the Court by right a process fair trial his due is of whether a motion limine suffi issue deadly instructing jury that a firearm is a objection, preserve an and we do not cient He should weapon. maintains appropriate an one in this case to be consider make the permitted to determina- have been that rule law. The motion which invoke gun qualifies as tion whether an unloaded testimony specific did not address the deadly weapon. a nor it demon which takes issue did how W.R.E. and 403 would strate given lati The trial court is wide if officers’ be violated jury. instructing Duckett v. tude Furthermore, allowed. trial court did (Wyo.1998). We will ruling evidentiary not make final on the if the not error instructions find reversible motion, opting raised in Dike’s instead issues correctly Id. state law. specific upon proper to make determinations issue, last an un- As we discussed Accordingly, re objections at the trial. our “deadly firearm is definition a loaded plain is to a search for error. view limited therefore, is, weapon.” This determination three-part A has been established for test jury. to made Because the one determining may achieve whether error statement of the instruction was correct First, plain error. the record the status of law, it. by giving not err court did which must be clear as incident Second, alleged party claim error. Handguns Am- C. Evidence of Seized plain error ing that the error amounted to munition and un clear must demonstrate the trial erred Dike next asserts that Finally, equivocal of law was violated. rule by allowing ple- “a evidence into trial of *8 party prove that a substantial that must guns which was thora of and ammunition” right has and as a result been denied the his ar- seized from Dike residence after materially prejudiced. he has been so He claims that the was rest. evidence State, (Wyo. Bradley v. likely unfairly prejudicial that it contaminat- 1981); Hodgins v. see also jurors prevented ed minds of the and the 153, 156(Wyo.1998). deciding objectively them from the case. may be ex “Relevant evidence testified at the trial that he did Dike outweighed by probative value argument the if its is gun during his cluded have a victim, danger prejudice.” of Hermreck the unfair and law enforcement officials (Wyo.1998); matching see victim’s v. gun to locate a the unable Dike, however, will Before this Court arresting also W.R.E. 403. description. After erroneously argues conclude that the court Dike in his truck. Dike trial ad carried evidence, unduly testimony prejudicial appel appeal mitted the that the concerned activi- lant “must that the evidence time to the demonstrate ties too remote in be relevant to probative had little or no value and that it charges against current him. extremely inflammatory was or introduced provides: W.R.E. 406 purpose inflaming jury.” for Apo of person of a or of Evidence of the habit daca v. practice organization, of an routine 1981); Hermreck, see 956 P.2d at also 340. regard- whether or not corroborated and complains testimony about Dike eyewitnesses, presence less of of is Dexter, from Detective Bruce Detective John prove relevant to that the conduct of Hardin, Haukup, Deputy who detailed person organization particular or on a oc- guns that and ammunition were found at conformity casion was in with the or habit Quoting the Dike residence. Charles A. practice. routine Graham, Jr., Wright & Kenneth W. Federal ex-girlfriend’s testimony was relevant § Practice and Evidence Procedure: because it that Dike demonstrated owned (1978), testimony Dike maintains guns possibili- had access to which made the “ ” jury’ ‘dominat[ed] the mind of the ty gun night that he in had a his truck on the “ making prevented it from a ‘rational deter question likely. in more Dike has not cited ” mination of the truth.’ authority proposition ex-girl- that his his object challenged Dike did not to the testi- of knowledge friend’s his habits old was too mony, and he unable to overcome his to be relevant. defer We to the sound dis- burden demonstrate a clear and un- cretion of the trial court and its decision equivocal rule of law violated because jury allow the to consider remoteness probative value this evidence out- deciding give in weight evidence what weighed any prejudicial effect. Dike was to it. charged threatening to use a drawn come to the same re conclusion We handguns, firearm. The fact that various garding the relevance hus victim’s ammunition, along with were found in the testimony band’s unchallenged had house was relevant show that Dike had told him on several occasions that he had a types
these weapons available to him. handgun pickup. in testimony his This The defense elicited that the offi- charged relevant to the crime in that too any cers did not know whether seized probable made the more likelihood that Dike belonged jury, therefore, items to Dike. The night question. had a on the complete picture weigh had and was able to the evidence and draw reasonable inferences Taped Telephone D. Conversation agree therefrom. We with the state’s obser- unlikely Wyoming jury vation that it is complains the trial would become so inflamed the fact that a court abused allowing its discretion guns defendant owns or has access to that it portions taped to hear of the victim’s duty would abandon its to reach a rational telephone County call to the Platte sheriffs on the verdict basis of evidence and the responds office. The state court’s instructions. properly tape admitted the as excited utterances, prior statements, challenges testimony Dike also from then-existing statements of a mind. state of ex-girlfriend regarding his his “habit” of car general, rulings admissibility rying on the handgun truck. She testified evidence kept handguns that Dike are within sound discretion of during his truck dated, time that the trial court and are entitled approxi which was to consider mately rulings able years three to four deference. Such will not be trial. *9 objected testimony, citing appeal to this disturbed on absent demonstration 404, 405, ex-girlfriend of a W.R.E. and 406. The clear abuse of discretion. This court pistols also identified one of long seized from will not find an abuse of discretion as being the Dike residence guns legitimate one of the as a basis trial exists for the
1021
200,
Thus,
(Wyo.1994).
court
206
Those
rulings.
unless the
court’s
are as follows:
exceeding
manner
the bounds of
factors
in a
acted
reason,
will be
no abuse of discretion
event;
startling
1. The nature
found.
physical
The declarant’s
manifestation
2.
1170,
953
1175
excitement;
Brown v.
omitted).
1998) (citations
age;
The declarant’s
3.
recording
the tele-
tapeA
was made of
lapse of
4. The
time between
event
sheriffs
phone
from the victim to the
call
statement;
hearsay
and the
limine, seeking
Dike filed a motion in
office.
was made in
5. Whether
statement
it was
ground
to
admission on the
that
bar its
response
inquiry.
to an
tape
hearsay. The state
countered
Vandermeer,
921,
v.
Clarke
under
excited utterance
was admissible
James,
(Wyo.1987); see also
P.2d at
206.
trial
exception
hearsay
rule. The
in
Although these
are useful
deter
factors
motion, holding
that it was
court denied
mining
qualifies
whether the
as an
evidence
premature, and ordered the state to submit
utterance,
inquiry
excited
the ultimate
must
portions of the
to counsel and the court those
“
whether the ‘declarant’s condition
proposed
trial. The
tape which it
to offer at
spon
that
time was such
the statement
“pres-
parties to
trial court also ordered the
taneous,
impulsive
or
rather than
excited
arguments
facts and
as to wheth-
ent written
”
product of reflection
LP
and deliberation.’
hearsay
qualify
er
a
the statements
under
County Department
v. Natrona
Public
prelimi-
exception”
purposes making
(Matter
Assistance
Social Services
admissibility.
nary ruling on their
The state
GP),
(Wyo.1984) (quoting
order,
not.
complied with this
but Dike did
Shell,
F.2d
States
Iron
United
trial,
state-
Before
the court ruled that the
(8th Cir.1980),
denied,
cert.
450 U.S.
utterances
ments were admissible as excited
(1981));
see
101 S.Ct.
L.Ed.2d
prior consistent
and as
statements.
James,
was able converse with (2) thirty minutes. for over Excited utterance. —A statement relating startling condition event or analyzing taped After conversation while the was under the made declarant agree the victim’s state- question, we of excitement the event stress caused during telephone conversation ments or condition. tape qualified as excited utterances. frightened has five factors reveals that victim
This Court
outlined
distraught following
incident.
It is also
guide
courts
that are intended
extremely
hearsay
apparent that the victim remained
determining whether
statements
telephone
throughout
call.
agitated
the entire
qualify as excited utterances.
James
*10
Although
ultimately
the victim
stop just
learned that
“at
just
the rest
now and it was
gun
unloaded,
was
that
slowly
fact does not
driving around.”
dispatcher
The
then
change the terror she must have felt when
employee
“any
asked whether the
had
idea
pointed
it at her head nor does it mean
might
where
gone
[Dike]
have
or what he
nothing
that she had
more to fear. That the might
doing.
employee
be”
replied:
The
displayed
presence
victim
some
of mind after
“[M]y feeling right
probably
now he’s
watch-
the incident does not convince us that she
ing.”
challenged
qualified
statement
as
necessary degree
spontaneity
lacked the
a statement
then-existing
of his
state mind
impulsiveness
qualify
her statements as
803(3).
pursuant
to W.R.E.
It
a state-
was
contrary,
excited utterances. To the
the ment of what the
perceiving
witness was
at
tape
exactly
opposite.
reveals
It demon-
time,
and its admission did not
result
that, despite
strates
lapse
of time be-
error.
telephone
tween the incident
and
call and
complains
Dike also
Deputy
about
despite
knowledge
her
gun
that the
was not
before,
Hardin’s comments that “I’ve seen it
loaded, the
ongoing
incident was
in the vic-
ploy
get your sympathy.
it[’]s a
And then
James,
tim’s mind. See
played
jury. During
for the
the debate
expressed
The rule of law
in Bennett v.
about whether
tape
should
State,
be allowed
(Wyo.1990),
evidence,
into
the state announced its
inten-
Stephens v.
(Wyo.1989),
play only
tion
portions
argued
of it. Dike
Dike,
by
require
cited
per
does not
se
play
tape
state should
the entire
reversal
this case. In Dudley v.
rather than
play only
isolate and
the most
(Wyo.1998),
we held that the
damaging statements.
argues,
Dike now
Bennett/Stephens
per
rule of
se reversible
however,
portions
tape
were un-
applicable
error was not
per
because the
se
fairly prejudicial.
require
rule does not
reversal absent
direct solicitation of the testimony from the
first directs our attention
to a
prosecutor
express opinion
and an
to the
statement
employee
made
who was at
guilt of
explained that,
the defendant. We
Lodge
the Buffalo
with the victim when she
situation,
such a
the effect of the
telephone
made the
call.
argues
The state
“
analyzed against
must be
‘the factual back
that this statement
pres
was admissible as a
drop’
using
of the case
‘the most careful
impression
ent sense
then-existing
and as a
”
judicial judgment.’
exercise of delicate
mental or emotional condition.
P.2d at
(quoting Whiteplume
tape
Our review of the
shows that
1332, 1340-41 (Wyo.1992)).
frightened
victim became
because a car was
approaching
lodge
and she was worried
directly
The comment was not
solic
dispatcher
was Dike. The
asked to
case, and,
ited
in this
speak
employee
therefore,
who stated that
per
error
se will not attach. Given
just
had
seen a
pickup
white and blue
specific objection,
truck
the lack of a
we must
*11
put
your
a
head.
using
plain
patrol. But he
to
argument
our
error
analyze this
battery.
it
aggravated
That’s
Whiteplume,
stat-
of review. In
we
Whether
standard
point gun
He
a
quantum of
was
or not.
cannot
measuring
harm
loaded
“In
the
ed:
you
away
get
with it.
error,
by the
we considered the
caused
against
prosecution’s case
strength of the
particular colloquy
Our review of this
leads
ing prior statements, consistent held that (Wyo.1995). prior consistent statements are admissible only when the motive to fabricate occurred We hold that the trial court did not between the two statements. He maintains abuse its plain discretion or commit error repetition that each story of the victim’s allowing prior consistent statements into came after story the motive to fabricate a evidence. The statements were made after and, therefore, present should not have alleged and, improper influence arose been allowed into evidence. therefore, only should have been “considered
This purpose Court settled that issue in for the evaluating Makinen v. limited (Wyo.1987), credibility witness,” but, where of the declarant be we held: request cause Dike limiting did not instruc tion, giving the trial court did express
There not err is no condition the rule 71; Stephens, one. which states 774 P.2d at see also statement alleged must be made Frenzel v. before the
improper 1993). motive to fabricate arose. In arguing I am [PROSECUTOR]: Prosecutorial Misconduct F. credibility the defendant. complains that Dike next THE COURT: Overruled. on his improperly commented Apparently, the de- testify [PROSECUTOR]: at his own right present and to to be the state’s must have found case fendant there is some “You know tidal when said: virtually agreed convincing. with all defendant, He who sits thing about else facts, necessarily except which those trial, opportunity to testi through the has an stand, convicted him. gets witness fy, and then on the you upon what based
tailors his
Dike claims that the remarks invited
you might
he thinks
he has heard and what
*13
that he testified in his
to consider the fact
prosecutorial
claims of
take —We review
thereby
guilt,
own defense as evidence of his
following
by using the
standard
misconduct
rights
exercising his
to be
penalizing him for
of review:
against
present,
to confront the witnesses
him,
testify in his own defense. As
and to
are
prosecutorial
of
misconduct
Claims
argument,
Agard
Dike cites
v.
support for his
by
entire record
reference to the
settled
Cir.1997),
(2d
Portuondo,
696,
117 F.3d
708-09
case
hinge on whether a defendant’s
— U.S. -,
granted,
119
rt.
S.Ct.
as to constitute
prejudiced
been so
has
ce
(1999),
1248,
where the
Similarly,
We also find
for the
The fear
such
priety of the
in our own case law.
is that
the accused will be convicted for
remarks
purpose
wholly
guilt
This
has held that
reasons
irrelevant
to her
Court
closing arguments
may
persuaded by
is to afford counsel the
innocence. “Jurors
that,
opportunity
explain
significance
appeals
by convicting
such
to believe
defendant, they
evidence and how it
be viewed
should
will assist
the solution
jury. Harper
pressing
problem.
some
social
*14
(Wyo.1998). During closing arguments,
society’s
amelioration of
woes is far too
may
jury by reflecting
heavy
counsel
assist
a burden
for
individual criminal
upon
drawing
the evidence and
reasonable
defendant to bear.”
logically
inferences that
flow from the evi
(quoting
[DEFENSE
that an
COUNSEL]:
unloaded
is not a
your
Improper argument.
weapon
purposes
Honor.
as-
801(d)(1)(B)
statute,
object
properly
admitted under W.R.E.
to the introduction
to
sault
statements.
testimony,
guns and ammunition
hearsay testimony
the wit-
object
Solicited Statements
story.
repeated
victim’s
who
nesses
were not direct-
While Hardin’s statements
claim of
prevail
on his
order
ly
from the
the tradi-
solicited
counsel, Dike must
ineffective assistance
examination, the rec-
tional sense of witness
showings that his counsel’s
make the dual
play
prosecutor wished to
ord reveals the
the defi
deficient and that
performance was
tape
not excise the
excerpts from the
but did
prejudiced his defense.
performance
cient
tape that
Har-
portion of the
included Officer
Smith
if a witness
din’s statements.1 It is not as
1998).
to make the first
Dike has failed
prosecutor’s
volunteered the
showing.
required
Instead,
surprise.
the record establishes
was the
that introduction of these statements
the claims of error
We addressed
prosecu-
choice
result of a deliberate
opinion
Dike makes the
throughout this
inescapable
I am
conclusion
tor.
led to
of his ineffective assistance of counsel
basis
statements, played
Deputy Hardin’s
in our discussion of
argument. As we stated
directly
jury by
tape,
audio
solicited
issues,
“deadly
the first two
the definition
prosecutor.
firearm,
whether or not it
weapon” includes
use. The fact
was loaded at
time
its
therefore,
only question,
is whether
counsel did not assert an incor
that Dike’s
Hardin’s statements amount to an
Officer
rep
legal argument
not render his
rect
does
compar
opinion
guilt.
of Dike’s
Rather than
resentation defective.
statement,
objectionable
ing
[Dike]
“he
aggravat
placed gun
your
head. That’s
complaint that his
We turn to Dike’s
*15
compare
battery,” to other
Whi
ed
cases—
testimony
object
re
counsel did not
to
State,
1332,
teplume v.
841 P.2d
1337-39
garding
guns and ammunition that were
(In
(Wyo.1992)
response
prosecutor’s
testimony
seized from his home or
you
point?”
do at that
question of “What did
testified about what the
the witnesses who
deputy
that “I listened to her
sheriff testified
happened. As we discussed
victim told them
story
[complaining
and made a de
witness’]
testimony
opinion, the
was
earlier in this
raped.”);
had been
termination that
she
That
counsel did not
admissible.
Dike’s
State,
1213,
(Wyo.
Newport v.
983 P.2d
objection to admissible testimo
make a futile
1999) (In
prosecutor’s question of
response to
perfor
ny does not cause us to doubt his
your
to the victim at the
“what was
reaction
of the ver
question
mance
the soundness
or
time,”
“[w]e
answered
prosecution witness
dict.
State,
her.”);
v.
953 P.2d
Brown
believed
Affirmed.
(In
1170,
prose
(Wyo.1998)
response to
any
had
question whether witness
cutor’s
LEHMAN,
Justice, dissenting.
Chief
co-conspir
thing against
and his
the accused
ator,
the fact that
witness answered “Just
majority
agree
that an
I cannot
majority
somebody.”)
states:
they killed
by
tape
into evidence
audio
introduced
—the
jurors understood that
Deputy Hardin’s ob- We believe
prosecutor that included
regarding
guilt
Dike’s
or inno-
the decision
jectionable
put
“he
statement of
hearing
make after
all
battery”
cence was theirs to
your
head. That’s
they recognized
by
in
and that
“directly
prosecution
the evidence
not
solicited
addition,
Deputy Hardin made the statements
Maj. op.
I
this case.”
at 1023.
he
the victim before
hearsay
im-
calm and reassure
were
would hold the
statements
trial,
matter,
played
only
tape was
majority
after the
it was
1. In a related
states
the witness
during
cross-examination of
argued
play
entire
"Dike
that the state should
through
introduced
play only
whom the
tape
the most
rather than isolate and
playing
contemplated
tape,
counsel
Maj. op.
that Dike’s
damaging
at 1022. That
statements.”
eventually
tape.
not to do
argument
He
chose
imply
the entire
that Dike made this
seems to
However,
tape.
prior
so.
to the introduction of
Chambers,
opinion
following
an
we recited the
rule on
could have formed
because
prior
made them before he knew all the facts
admission of
consistent statements:
surrounding
and circumstances
the inci-
prior
A witness’s
consistent statements
dent.
801(d)(1)(B),
are not admissible under Rule
W.R.E.,
they
made
unless
before
Maj.
may may
op. at 1023. That belief
or
not
alleged
improper
influence.
fabrication
“impossibility
accurate because of the
made
a witness after cor-
Statements
assessing
upon [those
whether the
relied
just
rupting
play
forces
could be
come into
reaching
in
statements]
its verdict.” Ste
as trial
and do not
State,
60,
fabricated
(Wyo.1989);
phens v.
774 P.2d
just
State,
charge
rebut
be-
879,
fabrication
Bennett v.
1990).
are consistent with his
cause
testimo-
ny at trial.
Hearsay
(citations omitted).
Tome
801(d)(1)(B),
open
possibility
admitting
Tome leaves
under Rule
be admissible
Rule
prior
statements
under
prior
precede
must
consistent statement
803(24),
appears Wyoming
alone in
State,
stands
See, e.g.,
v.
motive to fabricate.
Cole
explicitly rejecting Tome
law
on state
41,
(1991);
307 Ark.
bodies State v. reasons, foregoing respectfully For the I (1997) Chew, A.2d 1301 N.J. dissent. (allowing prior sup consistent statements to credibility port declining but to re witness Jersey’s
solve
New
rule
whether
contains
temporal
requirement);
Tome
State v.
Brown,
(1998)
N.M.
(allowing certain limited rehabilitative uses of statements). prior consistent