*1 874A say, Jones has
¶ 23, attorney Needless 128 P.3d error. showing prej of required that counsel's assistance failure to make not demonstrated constitutionally claim. ineffective. an ineffectiveness defeat udice will Id. readily dispose of CONCLUSION canWe
[¥20] failure to concerning counsel's claim Jones' the district court hold We previously As Fagan instruction. an seek judgment Jones' motion for properly denied applicable discussed, Fagan rule was ex that sufficient evidence acquittal, and and, consequent of this case under the facts conviction. We also sustain Jones' ists to have would not been Eagan ly, an instruction coun not shown defense find Jones has requested had if counsel even appropriate constitutionally assis ineffective rendered sel pur failure to given. Counsel's that one be Affirmed. tance. that, likely, most would jury instruction sue court does by the district been refused assistance. See ineffective not constitute (counsel
Duke, not inef ¶ 80, at 952 pursue lesser-included failing for
fective legal lacked a basis instruction which
оffense court); by trial refused have been and would Blakeman v. WY 45 (counsel not inef (Wyo.2004) SCHREIBVOGEL, D. Randall failing exclusion of evi to seek fective (Defendant), Appellant under admissible W.R.E. properly dence 404(b)); Lancaster (ineffective (Wyo.2002) Wyoming, STATE counsel's failure premised on ness cannot be (Plaintiff). Appellee underly where no suppression file motion motion); Herdt v. ing existed for basis No. S-09-0044. (ineffectiveness (Wyo.1995) counsel's failure to premised cannot Wyoming. be Supreme Court of available). relief is not seek which April16,2010. We also find no basis for rendered ineffective concluding that counsel particu failing to seek a bill of
assistance for that, contends because
lars. Jones provide
charging failed to suffi document constituting conduct
cient notice of the contact, particulars a bill of
unlawful sexual adequately ability to
was essential to his charge. In against the criminal this
defend
regard, he was forced to defend Jones claims
against allegations of sexual con numerous knowing gave one rise to
tact without which counsel, assailing charge. criminal
however, explain how a Jones has failed sig particulars have altered or
bill strategy in
nificantly aided the defense this
case, general which was a denial failed to
wrongdoing. Jones has also
any analysis, the context of the facts within case, the outcome of his this how alleged absent the
might have been different
Representing Appellant: Lozano, Diane M. Defender; Kerin, State Public Tina N. Ap- Counsel; pellate Morgan, Kirk A. Senior As- Appellate sistant Argument by Counsel. Morgan.
Representing Appellee: Bruce A. Salz- General; burg, Attorney Terry Armitage, L. General; Deputy Attorney D. Michael Paul- ing, General; Attorney Senior Assistant Pojman, Attorney Leda M. Senior Assistant Argument by Pojman. General. Ms. GOLDEN, presented on C.J., nesses that the defense .VOIGT, Before BURKE, Appellant? KITE, JJ. HILL, ineffective as- trial counsel 6. Did BURKE, Justice. counsel, by his failure to sistance of evidence, and object to inadmissible Schreibvogel was convicted Randall adequately advance his theo- failure to assault, degree first sexual two counts of ry of the case? 6-2-8302,1 §Ann. Wyo. Stat. violation Wyo. robbery, in violation of phrases and one count as follows: the issues State 2007)2 (LexisNexis He §Ann. 6-2-401 Stat. abuse its discre- 1. Did the district court several his convictions challenges motion granted when it the State's tion that he was denied contends grounds. He quash the for the victim's subpoena of erroneous a fair trial because right financial records? misconduct, evidentiary rulings, prosecutorial testimony and impact victim 2. Was the counsel. of defense and ineffective assistance during Appellant's argument admitted affirm. We prejudiced? and was he relevant challenged inadmis- 8. Was *5 ISSUES hearsay Appellant which denied sible Schreibvogel presents six is- his right to a fair trial? 4. the district court abuse its discre- Did sues: of tion when it allowed admission abuse its discere- 1. Did the district court uncharged testimo- alleged misconduct quashing subpoena duces tion in ny? prosecu- request at the tecum prosecutorial occur 5. Did misconduct tor? Appellant prejudiced? and was plain error 2. the trial court commit Did ineffective and was 6. Was counsel into evidence victim when it allowed Appellant prejudiced? testimony? impact numerous the cumulative effect of 3. Did FACTS hearsay deny instances of inadmissible right a fair trial? Appellant D.C., case, in in the victim this lived Saratоga. in Rawlins and owned a hair salon when it al- the district court err 4. Did 31, 2007, attended a Hallow On October she 404(b) Ap- in evidence after the lowed Saratoga. The restaurant host party een pellant proper had made the demand ing party Halloween was located next notice, State had failed to and the spend planned to her salon. door D.C. provide any notice? night Saratoga at her salon. prosecutor Did the commit misconduct 5. Schreibvogel was in the area on Appellant [T4] when he cross-examined party. fishing trip. a He also went other witnesses were as whether Schreibvogel briefly at a had met Mr. and did he commit D.C. mistaken; lying or day and noticed during lunch that requested when he restaurant misconduct They sitting at the him next to her bar. jury consider the number of witnesses intermittently during party. On and her talked who testified on behalf D.C. occasions, character, Schreibvogel suggest- compared to the lack of wit- several Stat, (iii) 6-2-302(a)@i) (ii) helpless, physically and the § The viсtim is Wyo. & state: 1. Ann. reasonably know that actor knows or should (a) Any on a actor who inflicts sexual intrusion physically helpless the victim and that is a sexual assault in the first victim coramits victim has not consented. degree if: 6-2-401(a)() Wyo. § states: 2. Stat. Ann. (i) of the victim The actor causes submission through application, reasonably (a) person guilty robbery the actual if in the A committing defined W.S. course of a crime victim, calculated to cause submission confinement; physical force or forcible 6-3-402 he: (i) injury upon bodily another. Inflicts party. gel ed that he and D.C. leave the He conceded that he and D.C. had sexual help relations, offered to her clean the salon. She but claimed it was consensual. He money maintained that he never saw tip or a refused the offer each time. jar in the salon. point party, At some left her drink at the bar and D.C. went to the jury A [t8] found Mr. returned, dance floor. When she she took a guilty of two degree counts of first sexual sip "strange" felt the drink soon robbery. assаult and one count of The dis "groggy." She informed the bartender that imposed prison trict court a sentence of fif something wrong party. and left thirty years teen to on each count of sexual salon, she arrived at her When D.C. testified years assault and five to ten robbery reaching that she remembered down to re- count. The sentences were ordered to be key placed trieve she had her shoe for concurrently. served Mr. Schreibvogel filed safekeeping waking up and then on the timely appeal. ground outside of her salon. She testified that she could not remember if she fell or if DISCUSSION she was struck. Several witnesses testified Quash Motion to days that D.C. told them a few after incident that she had hit. An emergen- been trial, [19] Prior to Mr. Schreibvogel cy room doctor testified that D.C. had facial subpoena served a duces tecum on D.C.3 injuries likely punch. that were subpoena caused required pretrial production of personal records, D.C.'s financial and bank regained [T6] Whеn D.C. consciousness returns, including tax past years. for the five bleeding. she discovered that she was She request, At D.C.'s the State quash moved to hearing something, remembered but was not *6 subpoena. the a hearing, After the district sure what it was. She then entered her granted court pursuant the motion to again. salon and lost consciousness She re- 17(d) finding compliance W.R.Cr.P. gained morning. consciousness twice before subpoena the oppressive would be and bur time, When she awoke the first Mr. Schreib- densome to D.C.4 Mr. Schreibvogel claims vogel engaged was in oral sex with her. On that the State did not standing bring have occasion, Schreibvogel the second was motion, the and the district court abused its engaged in sexual intercourse with her. The in granting discretion the motion. morning next she awoke to discover that Mr. left, money had and that the in standing Whether exists is jar tip missing. her was reported She the legal a issue. Citizens Re Northfork for husband, hospital, incident to the her and law sponsible Development v. County Park Bd. days еnforcement officials two after it oc- ¶ Commissioners, County 88, 6, 2008 WY curred. 260, 189 (Wyo.2008). P.3d 262 This Court Schreibvogel's [o7] version of the legal reviews issues de nmovo. Johnson v. State, 104, ¶ 12, 983, 2009 WY substantially. 986 events differed He maintained (Wyo.2009); D.C. invited him back to her 116, salon. He Reiter v. 7, 36 586, (Wyo.2001). P.3d 589 ¶ For a testified he witnessed her fall and hit ground. her face on the got up, party When she standing, to have he "must demon okay he claimed that he asked her if she was strate in rights the manner which his own they and entered the salon. Mr. adversely Schreibvo- are in light affected of the cireum- subpoena 3. Mr. also served a oppressive. duces ance would be unreasonable or produced tecum on books, D.C.'s business. She the may papers, The court direct that docu- requested subpoena. documents in that objects designated ments or other in the sub- produced poena be before the at a court time 17(d) governs subpoenas 4. W.R.Cr.P. duces te- prior prior they to the trial or to the time when cum: may upon are to be offered in evidence and subpoena may person A also command the books, production permit papers, their doc- books, produce whom it is directed to objects, uments, thereof, and to be portions papers, objects designated documents or other inspected by parties attorneys. and their promptly therein. The court on motion made may quash modify subpoena compli- or if 880 Decaro, 229, 800, 252 745 A.2d v. Conn. v. State court." Gooden before stances (2000). Raineri, 670 F.2d See also 405, quoting Armi 816 (Wyo.1985), Segal, F.Supp.2d 712; v. States United 864, (Wyo.1984).
jo v.
(N.D.Ill.2003).
896, 900
Schreibvogel asserts that
chal
also
[¥12]
challenge the
standing to
did not
State
ruling on the mo
lenges
district court's
The
maintains
tecum.
State
subpoena duces
motions,
rulings
pretrial
review
on
tion. We
subpoe-
challenge the
standing to
that it had
quash, for an abuse of
as a motion to
such
interest
legitimate
a
it had
na because
v.
discretion. Wolfe
victim,
witness,
from
its
protecting
of review re
This standard
(Wyo.2000).
and
unfounded
"preventing
and
harassment
to еxamine "the reasonable
quires this Court
time-wasting incursions
potentially
choice,"
ruling
trial court's
ness of the
superfluous
side
trial into an irrelevant
the matter. Gould
the State for reasons
agree with
issue." We
151P.3d
by the Connecticut Su-
succinetly stated
[q18]
"may quash or
court
The district
preme Court:
witness
We
mate interests." United
poena
pervisor].
been
lenging
who cannot be
upon
Westport
move to
the state
subpoena addressed
670 F.2d
protect
Thus,
ment, however,
served
The
harassment of its witness...."
subpoena
lengthening
belonged
"A
lenging
est
and incur the
als.
denied,
over, many
L.Ed.2d 601
could have filed
sought numerous documents
party
conclude
that
defendant
issued to Smith
"The
its
infringes upon
the trial court
in
459 U.S.
a
quash the defendant's
the state
to the
has
had a
has its
subpoena
on Smith's
interest
seeking
the defendant
subpoena
prosecution's
state's
that the state
(1982).
standing to move
expense
misses
state,
the
legitimate
claims that
expected
own
the
a motion to
subpoena,
to
(7th
legitimately sоught
witnesses are
pendency
in
issued
to another
duces
legal
not the
It is
associated with
quash
the movant's
[the
behalf. This
the
trial
properly
preventing
Cir.
103 S.Ct.
States
standing
point:
to
interest
on a
department and
had
inarguable that
defendant's su
by
tecum that had
the
town. More-
[and]
hire
the town
and materi
which
an accused.
standing
Id.
quash
subpoena.
key
concluded
the inter-
subpoena
Raineri,
quash
lawyers
persons
in chal
),
rested
undue
undue
legiti
argu-
trial,
state
chal-
cert.
sub
the
to
After
modify
unreasonable
These items were to be
17(d).
The record
(5)
ords
trict court and we are
quested that she
na,
abused
abuse of discretion
the decision reached
ed States v.
of the United States
(5)
S.Ct.
His reliance is
pressive.
The Court
poena duces tecum unreasonable
immediately surrounding the date of the
unnecessarily.
issues
time
period
requests
and the
alleged criminal act
curate financial records for such
[T14]
years and bank records
State's
years
including tax
3090, 3103,
with all of her exception Mr. takes [$20] avail- were not establish that the documents to from D.C. and her husband undisputed It another able from source. concerning D.C.'s behavior after the incident. provided the finan- previously had D.C. response questions to D.C. of the hair salon business cial records testified: subpoena response to another duces tecum. you-did you stay Have ever [Prosecutor]: not contend that he did overnight shop again? in that properly prepare for trial without could not No. [D.C.]: financial documents. requested personal request for "all financial Additionally, ostensibly year period, a records" for five Q. Okay. you change your hours? Did testimony regarding the contents challenge A. Yes. date, jar easily tip specific on a could Q. that. Tell us about fishing expedition. be viewed as A. I didn't work after dark. Schreibvogel maintains se seo ak court should have modified the the district Q. [your leaves husband] [town When granting the mo- subpoena instead of State's leaving prior he was town work]-when 17(d) quash. tion to W.R.Cr.P. allows the you staying by yourself? Halloween were compliance modify subpoena court A. Yes. oppressive, or but it
would be unreasonable
require
During
court to do so.
does not
Q.
you
After
contin-
Halloween
did
hearing,
suggested that
defense counsel
stay by yourself
your
ue to
when
husband
court evaluate the records in camera and
gone?
decide whether
the records were relevant.
A. No.
however,
procedure,
That
would still have
Q.
you
weapons per-
Do
have a concealed
required
compile
D.C.
records for the
mit?
years.
Schreibvogel,
full
as the
five
A. Arizona.
information,
party requesting the
had the
Q.
carrying
Did
start
firearm with
requested
burden to show that
docu
you?
relevant,
specific,
ments were
and not intend
A. Yes.
Nixon,
general fishing expedition.
ed
aas
699-700,
883 Q. Do work out of town? ... A. -It is sometimes. still [121] D.C.'s husband testified as follows: A. At that time or now? Q. Now. 2007, Aftеr Halloween of [Prosecutor]: your A. Yeah. I'm about 30 miles from any changes where have observed we live. wife's behavior? Well, Q. you stay overnight you're personality her Do when out Husband]:
[D.C.'s way of town? she is. changed. hasn't She is still I'm friendly people. towards sure She's No, Recently I A. not for work. already people know about her some of town. I been out was North Dakota bubbly. You personality. She is real month, and Montana for almost a I and that, know, for she doesn't-she but as can travel sometimes. her back a little more. She's
watches
Q.
your
stay
Does
wife
home alone when
is,
little more observant of where she
you're
anymore?
out of town
going.
stay
I told her not to
where she's
No,
really.
stay
A.
not
I ask friends to
shop anymore
at the
after dark.
over-usually
that
I
friends
have known
Q.
sleeping?
What about
brother,
like a-like
speak.
so to
A. Excuse me?
couple
gentlemen
they
There's a
Q.
sleep
What about her
habits?
stay
house,
they
either
there at
or
come in and look
on her.
changed.
I
sleep
A. Her
habits
didn't
getting
like
hit in bed all the time. She
clearly
Because the
is
revealed in
dreams,
record,
I
parties
having pretty
was
bad
end-
dispute
do not
up going
myself
I
ed
on
couch
because
part
plain
the first
error test is satis-
sleep
had to have a little bit better
than
parties
fied.
differ on whether a clear
up
night.
get woke
half the
And she told
unequivocal
rule of law was violated.
A.
me
her what was the matter. She said some-
few
she was
Q.
nightmares
Well,
What
tos
having
I was
effect
just having
here and there.
getting
were
you?
woke
bad
nightmares
up.
sleep
I asked
with a
WY
the victim's
Olsen v.
or social
evidence that relates "to the victim's
characteristics and to the
113, ¶ 15,
impact
family."
119 P.3d
of a crime on its victim and
Victim
Smith v.
impact testimony
physical,
46, ¶ 151,
State,
(Wyo.2005);
emotional,
personal
67 P.3d
is
(Wyo.2003).
impact
Victim
testimo
body
chasing
got a
is
me or
hold of me or
ny may may
or
not be admissible. Thomas
is, well,
say
I
whatever. And all that
can
92, ¶ 7,
2009WY
511-
you're okay.
You're
home. And then
sleep,
go
kеy inquiry
I
go
she would
back to
and would
"The
on the
admissibility
impact testimony
of victim
dur
sleep.
back to
ing
guilt phase
of a criminal
Q.
waking you up
Was she
as a result of
relevancy." White v.
nightmares?
these
(Wyo.2003);
Justice v.
Yes,
A.
she was.
(Wyo.1989);
Q.
you?
hitting
Was she
(Wyo
McCone
A. Yeah.
.1993).
testimony may
if
"Such
be irrelevant
Q.
kicking you?
saying
Was she
Was she
loss;
proof
...
offered
as
victim's
anything?
emotional,
psychological
physical,
impact
or
words,
vietim;
exactly
upon
family.
I'm
or the effect
A.
sure a lot of the
on the
mumbled,
may
I
some of it was
Yet it
be relevant
offered for other
because
but
White, ¶ 13,
away"
got
get
purposes."
would hear "no" and "I
I
held that a 404(b) trip. for his intent to use evidence satisfies State's objection requirement. v. so Simmons 84, ¶ 20, Q. Did he talk about the amount of mon- However, always (Wyo.2003). it is not clear ey that he took from this woman? whether the intended to introduce the State No, sir, just A. it he didn't. He said was "404(b) or whether the evidence is evidence a lot. strongly urge evidence." defense We objection any an at trial counsel to raise to Q. He said what? may run evidence that afoul of W.R.E. money, paid A. It awas lot of and it
404(b). they trip his and the motel room that had rented. [y34] The evidence that Mr. Schreibvo- up" during fishing gel trip was "coked his appear It from record [u385] does during testimony was introduced of his trial, prior that the to intended to pod-mate. Schreibvogel former Mr. claims Schreibvogel's utilize the evidence of Mr. given that the State should have notice of its drug pod-mate use. The was not asked to intent to use the evidence and that it was testify regarding Schreibvogel's drug 404(b). inadmissible under Rule The thrust merely jury use. He was to asked tell the of the was that Mr. Schreibvogel. what he had been told Mr. committing had confessed to the sexual as- If prosecution did not intend to introduce robbery pod-mate they sault and to the while evidence, required such it was not jail together:
were Reay defense notice. 13, ¶ 19, can, you you WY [Prosecutor]: As close as can gentlemen jury tell the ladies and [T36] Even the statements were admit you. what he told error, ted in fails to estab Yeah. He said that him [Witness]: and materially prejudiced by lish that he was fishing trip friend were here on a in Sara- challenged testimony. See Britton v. toga, they up and were all coked and Mr.- 91, ¶ 15, (Wyo. WY 2009). Q. relating drug The statements stop you use Let's there. What do mean were presented cumulative of other evidence up?" meaning "coked Does have statements, jury. opening to the you? defense jury counsel told the about Mr. Schreibvo- Cocaine, drugs. A. gel's past "Now, cocaine use when he said: Q. Okay. you? else did he tell What going bag you. I'm not to hide the from [Mr. A. That he went to bar on Halloween Schreibvogel] drug pos has a conviction for night looking lady and he was for a felon, session. He's a convicted but I tell motel, take back to the and she was the that because need to know all of the оnly I gal's one left. don't remember pieces puzzle." tes go name. But she had to back and clean during tified direct and cross-examination place owned, her hair salon that she had previous pos about his conviction for cocaine there, and he followed her and then he told session. He also testified on redirect exami me-well, showing he was rape me the kit possess during nation he did not cocaine papers that he had. And he kind of fishing trip anyone and that he never told laughed and said that he should have hit that he did. We are unable to find a reason again. the bitch in the mouth possibility able that the trial would have been pod-mate's very had different limited Q. saying You him remember that? testimony regarding Schreibvogel's use Yes, A. sir. And that he made her suck of cocaine not occurred. penis he had sex with her and it was support the worst sex-or the worst 15- The evidence of child ar- had, minute-piece-of-ass rearages that he's was not introduced then an challenged he took undisclosed amount of State's case-in-chief. The testi- during the State's cross-ex- mony occurred plain Talley error. his claim for (Wyo. Schreibvogel: of Mr. amination 2007). any children? youDo [Prosecutor]: *13 Yes, Schreibvogel]: I do. [Mr. Schreibvogel contends that the improper questioning Q. you pay support? prosecutor child used an And do technique during cross-examination: his A. Yes. that, you testimony Did hear the you arrearages [Prosecutor]: in on Q. And are you who heard ask a bartender] you? [the aren't in number of times the victim this case to Yes, I am. A. [shop] help her clean. go back to the arrearage in in the amount Q. you're And you testimony? Did hear her $12,000; that correct? is Yeah, Schreibvogel]: I heard the tes- [Mr. right -It in court now. A. is timony. $12,000; of about Q. It is in the amount Q. shop that And that was her she was isn't it? serts that A. Yes. [138] the evidence Schreibvogel boldly relating to child sup as A. Yes. heard going to, that right, to clean testimony? up shop? You Q. you that over and over 404(b) And asked arrearages evidence. Wе port again? you testimony? hear that Did appellant can question "[AJn that assertion. by simply branding not demonstrate error yes. testimony, I A. heard 404(b) v. evidence." Cazier evidence that, Q. every you And time asked 148 P.3d 2006 WY you came back no. Did hear that? answer 404(b) prohibits evi W.R.E. testimony. I her I never asked A. heard crimes, wrongs, or acts "to dence of other that. in person of a order to prove the character Q. that? You never asked conformity therewith." show that he acted No, I A. didn't. added.) that Mr. (Emphasis Evidence support child Schreibvogel was behind Q. said that she [the bartender] So when payments is not the kind of evidence sitting really you close to and heard naturally jury to believe that lead the occasions, a number of that would that on a sexual assault and a he would also commit by that an incorrect statement bartend- be 404(b) robbery. If the evidence was evi er? dence, properly it is admissible establish I never asked over and A. Yes. never-I robbery. Belden v. motive for over. 89, ¶ 31, (Wyo. Q. thаt? You never did 2003). find no abuse of discretion We No, I A. didn't. admitting purpose. evidence for that Q. the bartender would be mistaken So then, correct? Misconduct Prosecutorial also A. I guess. I guess. prosecutorial testimony, de Q. you contends that misconduct heard the victim's And Allegations fair trial. prived you? him of a didn't by ref prosecutorial misconduct are settled Yes, I A. did. "hinge to the entire record and on erence back, Q. you go Ten times asked to prej so whether a defendant's case has been you until the end each time were refused fair trial." as to constitute denial of a udiced just-she just you. ignored Did when (Wyo. Mazurek testimony? you hear that 51, ¶ 15, 2000), also see Lafond testimony. A. I heard the (Wyo.2004). Mr. well? Q. incorrect as Was object Schreibvogel did not to the statements Yes, knowledge, yes. Thus, my A. we review he now claims were error. ok ok
seme
not draw
to Mr. Schreibvogel's
attention
an-
Huff
who
upon
truthfulness
issues,
examined
1999).
(Emphasis
nanced our
A.
indicated that
that also an incorrect
trip
Q. And
260.
testifiеs
other
the
v.
I never
judge
It is the
A
State,
prosecutor." Talley,
regarding
added.)
witness
witness,
so
or
in a criminal
the
fishing trip,
when
money,
jury's duty
veracity
992 P.2d
once
credibility
"Although
may
there are limits
[your
his
mentioned
financed
tell us about that.
statement?
not comment on the
of another witness.
credibility just
case
never.
1071,
former
to resolve factual
of the
may
¶
a defendant
your fishing
how fi-
witnesses,
pod-mate]
be cross-
10, 153
placed
(Wyo.
I
P.3d
like
Is
possibility exists that the verdict would have
viewing the entire
serts that statements
the
been more favorable to Mr.
the
clude that
*14
ated
ary instruction or other curative measure.
tions
salon and how he financed the
consent, but on the number of times Mr.
swers
closing argument,
"were-they-lying"
credibility
that it
centered,
during closing argument.
had the
asked D.C. to
of the witnesses. After re-
up
did not
prosecutor
to the
record,
technique, a reasonable
by
the
the main issue of
prosecution
request
jury
we cannot con-
prosecutor
go
not
Schreibvogel.
to determine
back tо the
fishing trip.
a caution-
employed
also as
reiter-
ques-
dur
guilt
and determine the
or innocence of a
ing closing argument
resulted in an unfair
State,
Gayler
criminal defendant.
v.
review,
trial.
this Court considers the
855,
(Wyo.1998).
It
is error and
prosecutor's
argument
entirety,
in its
not
prosecutor
misconduct for a
to ask a
just
witness
phrases
the sentences and
taken out of
whether he
"ly
thinks other witnesses are
State,
599,
context. Wheeler v.
691 P.2d
ing" or "mistaken."
2008 (Wyo.1984).
interject
timely
Failure to
Proffit
(Wyo.2008),
WY
help her
point, if it is not intend-
on a
happen.
not
lack of evidence
it did
He said
remember.
call attention to the failure
ed to
happen
not
because
it did
He said
testify."
in con-
Id. Viewed
story that he had
defendant
not clear with
text,
referenced
prosecutor's statements
advances that
you that
indicated to
him,
of corroboration of
Schreibvo-
the lack
not made
night were
cannot con-
is,
gel's
of the events. We
by the victim
version
that he
but
gentleman
to the lack of
that this brief reference
clude
this case.
to a shift in
corroborating evidence amounted
of that
no corroboration
But
there is
prosecutor's state-
proof.
the burden
independent
There is not one
whatsoever.
unequivocal
a clear and
ments did not violate
corroborates
witness that
plain
are unable to find
rule of law and we
Certainly that's a situation
the defendant.
error.
only the
It's not
your determination.
*15
a matter of corroboration
credibility.
It is
of Counsel
Ineffective Assistance
statement,
just
there.
and it
was not
of
The
statement of
victim,
taken
in its
In his last
issue,
Mr.
Schre-
ineffective
ibvogel
had been
that he received
entirety,
[D.C.]
indicates that
contends
day; she had been
brutally that
raped
such
counsel. We review
assistance
of
State,
are corrob-
v.
2007 WY
And those statements
claims de movo.
robbed.
Dеttloff
¶29, 17,
376,
(Wyo.2007).
382
This
152 P.3d
credible evidence.
other
orated
strong presumption
are mixed
that
by the defendant
invokes
Court
statements
lies,
contradictions, outright
adequate
and cer-
assistance
and
counsel
rendered
in
significant
in which the
decisions
the exercise
a cireumstance
made all
tainly indicate
State, 11
judgment.
Eustice v.
of reasonable
everything
to-because
doing
defendant
is
897,
paramount
(Wyo.2000). "[T]he
P.3d
in
He has an
an interest
this case.
he has
whether,
all the
away
light
and to
case to walk
determination is
interest
this
man,
cireumstances,
you're instruct-
acts or omis
away
and
trial counsel's
a free
walk
range
profes
that
in deter-
the wide
you can't consider
sions were outside
ed that
Sorensen v.
testimony.
sionally competent assistance."
mining his
657,
(Wyo.2000).
In order
6 P.3d
by the
at the corroboration
And look
assistance of
prevail with his ineffective
bartenders, by people that knew the victim
claim,
first
Schreibvogel must
counsel
case,
type of
indicates the
which
this
dеfi
performance was
that his counsel's
show
'And
is in this case.
person that the victim
showing of errors so
requires a
cient. This
people that came forward
these were
essentially
Schreibvogel was
serious that
victim is.
It
person that the
talk about the
right
to coun
Amendment
denied his Sixth
at a funeral
would be nice
901-02,
Eustice,
quoting
11 P.3d at
sel. See
up
come
many people who would
have that
668, 687,
Washington, 466 U.S.
v.
Strickland
type
that
of individu-
say
that
are
(1984).
2064,
80 L.Ed.2d
104 S.Ct.
kind,
and a
you're
professional
al: That
per
Second,
deficient
must show that the
he
always help out.
that will
person
prejudiced his defense.
of counsel
formance
legion
people that came
no
There is
Eustice,
might
damaging
draw
attention to
undue
evi
(Wyo.2002).
P.3d
635-36
prose
Yet the
25, 22,
Chapman
dence.
cutor in
appellant
this case asked the
Dice,
(Wyo.2001);
825 once,
times,
but three
whether another wit
384;
Rigler
bartender,
victim,
ness-the
and the cell
has failed mate-was
incorrect or
Perhaps
mistaken.
objection
to establish that
would have
pay
the State would
attention to the
if it
law
object
been sustained or that failure to
was
bore the
proof
burden of
as to the lack of
not a reasonable tactical decision.
prejudice.
[n49] Mr.
also
claims
point.
[m58] Another
This was a sexual
his trial
adequately
counsel did not
cross-
assault/robbery case.
I would think it would
Specifically,
examine D.C.
he
contends
fairly
be
clear
appellant allegedly
questioned
D.C. should
regarding
have been
being
up"
uncharged
"coked
was
misconduct
whether "she was assisted or asked if she
evidence,
404(b)
banned
except
W.R.E.
okay
shop."
when she fell outside her
particularized
under
cireumstances.
He contends that
might
cross-examination
majority
appellant's
is correct that the
failure
response
have elicited a
that would have
object
up" testimony
to the "coked
at the
supportive
been
of his defense contention
time it was elicited makes it difficult
apply
the sexual relations were consensual.
an abuse of discretion standard of review.
purely
His
speculative
assertion is
and we
appellant
But
pretrial
did make a
de
will not consider it further.
*16
evidence,
mand for notice of such
meeting
[b50] Mr.
cannot show that
requirement
set,
we have
and there sim
prejudiced by
his defense was
his trial coun
ply
explanation
is no innocent
for the manner
performance.
sel's
He has not shown that
in which the State introduced the evidence.
materially prejudiced
he was
by any of the
surprise
State cannot claim
as to the
alleged evidentiary errors. There is no rea-
witnesses,
answer when it asks one of its own
that,
possibility
sonable
had trial counsel ob-
you can,
"[als close as
can
tell the ladies
jected to
challenged
ques-
evidence or
gentlemen
jury
you."
what he told
tioned the victim about what she heard that
best,
At
preparation.
shows lack of
night, the outcome of the trial would have Maybe,
prosecutor
had the
then left the sub
been more favorable to Mr. Schreibvogel.
ject
gone
alone
else,
on with something
it
[n51] Affirmed.
would be excusable.
question
But that
up
followed
stop
theee-"Let's
there.
VOIGT, C.J.,
specially
files a
conсurring
What do
up?"
mean
'coked
Does that
opinion.
meaning
you?"
And the answer-
"Cocaine, drugs."
prosecutor
intention
VOIGT,
Justice, specially
Chief
concurring.
ally introduced
appellant's
evidence of the
I concur in
[u52]
the result reached
drug use
subjecting
without
that evidence to
majority
requires
because stare decisis
judicial
review that we have mandated.
place
us to
upon
appellant
impossible
State,
Bromley
133,
See
v.
2009 WY
proving prejudice
task of
in cases such as
State,
(Wyo.2009);
110
v.
Wease
2007 WY
majority
this. The
states
the well-estab
176, 170
(Wyo.2007);
P.2d 94
Williams v.
Wyoming:
lished law in
"It
is error and State,
117,
(Wyo.2004);
WY
diced ability to do as its nearly unfettered
State