Farmer v. State, 04-188.

• Decision Date: 21 December 2005
• Docket Number: No. 04-188.,04-188.
• Citation: 2005 WY 162,124 P.3d 699
• Parties: Brian Keith FARMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

124 P.3d 699

2005 WY 162

Brian Keith FARMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-188.

Supreme Court of Wyoming.

December 21, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel; Tonya A. Morse.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Brian K. Farmer appeals his conviction for aggravated assault. Mr. Farmer contends the district court erred in determining that a witness was unavailable and allowing the prior testimony of that witness into evidence. Mr. Farmer also claims that the district court failed to properly instruct the jury and that he was prejudiced by prosecutorial misconduct during closing arguments. We affirm.

ISSUES

[¶ 2] Mr. Farmer presents the following issues on appeal:

I. Whether the trial court erred in admitting the prior testimony of a witness, John Biddix, because

A. The witness was not legally unavailable, or

B. [Mr. Farmer] was denied his rights under the confrontation clause due to ineffective assistance of counsel in the first trial?

II. Whether the trial court erred in denying that certain jury instructions be given?

III. Whether prosecutorial misconduct deprived [Mr. Farmer] of his constitutional right to a fair trial?

FACTS

[¶ 3] The criminal charges brought against Mr. Farmer arose from an incident which culminated in the stabbing of Joshua Goodhue. At the time of the incident, Mr. Goodhue and Mr. Farmer were neighbors in a mobile home park. They lived across the street from one another. According to Mr. Farmer, he was asleep in his home when he was awakened by loud noises which he thought were beer bottles hitting his trailer. He went outside to investigate. Initially, he thought the commotion was caused by the occupant of a vehicle which he observed in the neighborhood. He yelled at the occupant in the car. When the car left, he focused his attention on Mr. Goodhue's residence. Several individuals were present at the Goodhue home. They heard Mr. Farmer yelling. They approached the fence bordering Mr. Farmer's property. Words were exchanged and the altercation escalated.

[¶ 4] According to the State, after the initial verbal confrontation, Mr. Farmer jumped the fence and attacked Jack Biddix. John Biddix then entered the fray in an attempt to help his brother. After a brief scuffle, Mr. Farmer retreated to his home. The others returned to the Goodhue property. Several remained outside. A short time later, Mr. Farmer reemerged from his residence. He jumped over his fence, crossed the road, entered Mr. Goodhue's property and stabbed Mr. Goodhue in the chest. Mr. Farmer left the property and returned to his home.

[¶ 5] Mr. Farmer did not dispute that he stabbed Mr. Goodhue. He did, however, provide a different version of the incident. According to Mr. Farmer, Mr. Goodhue and his companions initiated the confrontation. They threw bottles at him. They pulled him over his fence. He sought refuge under a car parked on the street in an effort to protect himself. When he saw his opportunity to escape, he took it. While climbing out from under the car he was confronted by Mr. Goodhue and he stabbed him in self-defense.

[¶ 6] Mr. Farmer was charged with aggravated assault. He was tried twice. He was found guilty of aggravated assault at his first trial. He appealed. While his appeal was pending, the parties stipulated that Mr. Farmer was entitled to a new trial because he had not been represented by counsel at his preliminary hearing. The case was remanded and a second preliminary hearing was held. Mr. Farmer was bound over for trial and a second jury trial was scheduled to begin November 3, 2003.

[¶ 7] John Biddix, one of the participants in the altercation, testified at Mr. Farmer's first trial. Shortly before the second trial, the State advised that it could not locate Mr. Biddix and intended to present his prior trial testimony as evidence in the second trial. Mr. Farmer objected on the basis that the State had failed to establish that Mr. Biddix was unavailable and that he had not been effectively cross examined during the first trial. A hearing was held during which the State presented evidence regarding its efforts to locate Mr. Biddix. The district court concluded that the prior testimony was admissible because Mr. Biddix was unavailable and Mr. Farmer had adequate opportunity to cross examine him during the first trial. The second jury trial was held and Mr. Farmer was found guilty of aggravated assault. The judgment and sentence of the district court was entered on May 28, 2004. This appeal followed.

DISCUSSION

A. Admissibility of Prior Testimony

[¶ 8] We review issues concerning the admissibility of evidence as follows:

Evidentiary rulings are within the sound discretion of the trial court.... This Court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion. We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria. It also means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. In the absence of an abuse of discretion, we will not disturb the trial court's determination. The burden is on the defendant to establish such abuse.

Holloman v. State, 2005 WY 25, ¶ 10, 106 P.3d 879, 883 (Wyo.2005).

[¶ 9] Mr. Farmer claims the district court abused its discretion by admitting the prior testimony of John Biddix. Prior testimony of a witness may be properly admitted if: (1) the witness is unavailable; (2) the former testimony was given by the witness while he was testifying under oath; and (3) the party against whom the testimony is offered had the opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination at the time of the former testimony. W.R.E. 804(b)(1);¹ Grable v. State, 649 P.2d 663, 671 (Wyo.1982); Rodriguez v. State, 711 P.2d 410, 413 (Wyo.1985). See also Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004) and Vigil v. State, 2004 WY 110, ¶ 18, 98 P.3d 172, 177-79 (Wyo.2004) (recognizing that a defendant's constitutional right to confront a witness is not violated when the witness is unavailable and the defendant has had prior opportunity to cross examine the witness). Mr. Farmer does not dispute that Mr. Biddix testified as a witness under oath at his first trial. He claims the district court erred in admitting the testimony because the State failed to prove that Mr. Biddix was unavailable. He also asserts that he was denied an adequate opportunity to cross examine Mr. Biddix due to ineffective assistance of counsel in the prior trial.

[¶ 10] A witness is unavailable if he "[i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means." W.R.E. 804(a)(5). The burden of proof is on the prosecution to establish that the witness is unavailable to testify at trial despite its good faith efforts to obtain his presence. Grable, 649 P.2d at 672. Mr. Farmer contends the State failed to establish that it used reasonable efforts to locate Mr. Biddix.

[¶ 11] After reviewing the evidence presented by the State, the court determined that Mr. Biddix was unavailable. The court explained:

In this case, and beginning in October, efforts were undertaken by the District Attorney[']s Office through Ms. Lynch to attempt to locate Mr. John Biddix. And she's testified as to those efforts that were made.

It is obvious from the testimony that Mr. Biddix is not in Natrona County or in the immediate area; those efforts were exhausted.

To suggest that she would be required to go to the Child Support Enforcement Division when a bench warrant was issued for Mr. Biddix and still active would be futile. I mean, if they knew where he was, he wouldn't have a bench warrant; he would have been arrested or appeared.

In addition, going to Montana or further researching Montana, when Montana has an active NCIC warrant, would also be futile. Because if it was known where he existed in Montana or any information there, there wouldn't be an active NCIC warrant in Montana [for] extradition.

But most importantly, here is a brother who's told Ms. Lynch that he is somewhere in Florida. He does not know where. He has absconded or conceal[ed] himself because of the existing warrants. And, obviously, there's nothing to indicate that Florida authorities had had any contact or interaction with him based upon the NCIC information. And, also, I believe there's a CAD information, as well.

So, the best we know is, he's somewhere in Florida. Efforts have been made, before talking to his brother, to locate his brother which was some difficulty [sic].

But the question is: Were the efforts reasonable in light of the information and in light of the various warrants that clearly indicate, at least since November, that — I think the testimony is that in November of 2002 Mr. Biddix [had] apparently left the state.

Given the fact that there are the existing warrants from Natrona, Mills, or the City of Casper, and the activity from Montana and the absence, after talking with various officers and individuals in Natrona County, he cannot be located.

Reasonable efforts were made to locate him elsewhere. And there's no information to indicate where he is. So I believe based upon the...