Tennant v. State, 89-14

• Decision Date: 19 January 1990
• Docket Number: No. 89-14,89-14
• Citation: 786 P.2d 339
• Parties: Robert TENNANT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 339

786 P.2d 339

Robert TENNANT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-14.

Supreme Court of Wyoming.

Jan. 19, 1990.

Rehearing Denied Jan. 23, 1990.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Mike Cornia, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

THOMAS, Justice.

The significant question to be resolved in this case is whether the trial court erred in excluding from evidence, as hearsay, the testimony of a witness called by the defendant. The appellant, Robert Tennant (Tennant), also asserts, as constituting prejudicial error, other issues relating to the denial of a motion in limine, which Tennant contends chilled his right to defend by inhibiting the exercise of his right to testify; improper questioning of prospective jurors during voir dire; and prosecutorial misconduct in the presentation of closing argument. We are not persuaded, in light of the record and the applicable law, that any reversible error occurred in connection with Tennant's trial, and we affirm the Judgment and Sentence.

In his Brief of Appellant, Tennant sets forth these issues for consideration by the court:

"I. Whether the court erred in ruling that evidence of prior bad acts would be admissable substantively if the appellant testified and such error denied the appellant his right 'to defend in person' as guaranteed by Article 1 § 10 of the Wyoming Constitution.

"II. Whether the trial court erred in excluding the testimony of proposed witness Allen.

"III. Whether statements elicited by the prosecutor caused the jury to believe the trial court would correct any errors in their guilt determination and deprived the appellant of his right to a jury trial.

"IV. Whether the comments made by counsel for the State constituted misconduct and were prejudicial to the defendant."

The State of Wyoming (State), as Appellee, restates the issues in this way:

"I. Whether the trial court properly denied appellant's Motion in Limine concerning the admissibility of appellant's prior convictions.

"II. Whether the trial court should have concluded that the proposed testimony of Geraldine Allen was inadmissible hearsay.

"III. Whether the prosecutor's questions on voir dire constituted error.

"IV. Whether the prosecutor's statements in closing argument were appropriate."

Tennant was charged with, tried for, and convicted of one count of larceny and a second count of larceny by a bailee, each alleged to be a violation of the applicable provisions of § 6-3-402, W.S.1977, ¹ and *341s 6-3-410, W.S.1977. ² These charges and convictions are the product of two separate occasions when Tennant obtained the funds of a fellow prisoner in the Natrona County Jail, $1,300 in each instance. The State and Tennant stipulated that the counts should be merged for purposes of sentencing, and the court then imposed a sentence of "not less than twelve months nor more than eighteen months; said sentence * * * [to] run consecutive with the penitentiary sentence handed down in District Court No. 10316." See Tennant v. State, 776 P.2d 761 (Wyo.1989). Tennant has taken his appeal from this Judgment and Sentence.

The facts relating to Tennant's convictions are not complicated. In April of 1988, the victim returned to the Natrona County jail from the State Hospital in Evanston where he had been sent for evaluation. Tennant and the victim became cell mates, and the victim, at some point, told Tennant of the difficulty he had encountered at the State Hospital in endeavoring to retrieve funds from his checking account at a bank in Wichita Falls, Texas. The victim had been successful in arranging a wire transfer of funds, but he was denied the freedom to pick up the money from the bank in Evanston. The victim expressed the desire to obtain funds from his bank account so that he would have money for purchasing items from the jail commissary. He could not use a check because of jail policy, and he assumed that he would have the same difficulties with a wire transfer that he had encountered in Evanston.

Tennant offered to assist the victim by having the wire transfer sent to Tennant's mother in Cheyenne. Tennant suggested that the money could be transferred to his mother who then would forward the funds to the victim in the Natrona County jail. Following this suggestion, the victim arranged to have $1,300 sent to Tennant's mother in Cheyenne. This transfer of funds was accomplished on May 31, 1988. None of the money ever reached the victim, however, and, when he inquired, Tennant explained that his mother was unable to obtain the transferred funds because the victim's bank had made a mistake and put the transfer order in two names, the victim's and Tennant's mother's names. Tennant then suggested that the victim write his bank again requesting the wire transfer of another $1,300, this time only in the name of Tennant's mother. The victim did that, and the second wire transfer of funds was accomplished on June 13, 1988. The victim did not receive any of that money either and, when he was able to telephone his bank, he learned that both fund transfers had been accomplished according to his directions. He then reported the situation to the authorities at the Natrona County jail, and the investigation leading to Tennant's prosecution was instituted.

In the meantime, Tennant's mother, who had never before had so much money, was concerned about the source of the funds represented by the wire transfers. She inquired of Tennant who first told her that the money had been paid for work that he had performed prior to being incarcerated in the Natrona County jail. After Tennant was charged, he telephoned his mother and told her the funds really were the proceeds of a gambling debt that the victim owed to him from a bet relating to some game on television.

The only evidence in the case was presented by the State. After making an offer of proof concerning the proposed testimony of a witness who would have testified about a statement made to her by Tennant that he had won the money from the victim in two bets on televised horse races, the defense rested without introducing any evidence. Additional facts relating to the several issues on appeal will be included within the discussion of those issues.

We need not dwell on Tennant's first issue because it is controlled by Vaupel v. State, 708 P.2d 1248 (Wyo.1985). Tennant filed a Motion in Limine seeking an order that no witnesses be permitted to testify about his prior criminal record, particularly the conviction upon which he was being held in the Natrona County jail at the time these crimes were committed. When the motion was argued immediately prior to the trial, the State advised the trial court that it would offer evidence of two prior convictions for purposes of impeachment pursuant to Rule 609(a), W.R.E. ³ The State also asserted that the conviction for which Tennant then was being held in the Natrona County jail was admissible, pursuant to Rule 404(b), W.R.E., ⁴ as substantive "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The district judge, in ruling on the motion, said:

"These motions in limine are always difficult because I can't see the full picture, but the Defendant should be aware that my inclination at this moment is that the prior bad acts, the conviction of 1988, can be offered both for impeachment and as an illustration of prior bad acts. The 1984 conviction seems to be unrelated to that. I would permit that to go in for impeachment purposes only."

The initial phrase of the trial court's ruling is almost a paraphrase of language used by the Supreme Court of the United States in Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 463, 83 L.Ed.2d 443 (1984), where the Court said:

"A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context." (Footnote omitted.)

Vaupel, 708 P.2d 1248, in which this court adopted and relied upon Luce in applying Rule 609, W.R.E., sustains the ruling of the trial court on the impeachment aspect of the motion in limine.

"We hold that if an accused does not testify, he does not preserve the issue of the propriety of a ruling on his motion in limine for appeal." Vaupel, 708 P.2d at 1250.

Tennant did not testify, and his claim of error with respect to the denial of the motion in limine by the trial court on the use of prior convictions for impeachment is negated by Vaupel.

We are satisfied that the principles articulated in Luce, and adopted in Vaupel, extend to the thrust of the motion in limine with respect to the use of the one prior conviction for the purposes set forth in Rule 404(b). In light of the State's announced position that it would only offer the evidence of the previous crime under Rule 404(b) if Tennant testified, the parameters of the issue are identical. The trial court would need to have before it all the factual circumstances of the case, including the testimony of Tennant, in order to rule on any objection to such evidence.

Furthermore, with respect to evidence offered under Rule 404(b), admissibility does not depend upon the decision of a defendant to testify as does the use of such evidence for impeachment. If such evidence is admissible, then it can be produced as part of the State's case in chief which has no impact, chilling or otherwise, upon the defendant's decision to testify. An announced choice by the State to use such evidence only for rebuttal perhaps affords the defendant an advantage that the law does not demand, but that choice could not be prejudicial to the defendant under the circumstances of this case.

The more significant question in this case, essentially because it presents...