Anderson v. State
| Decision Date | 27 September 2022 |
| Docket Number | S-21-0213 |
| Citation | 517 P.3d 583 |
| Parties | Terry Dean ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Donna D. Domonkos, Domonkos & Thorpe, LLC, Cheyenne, Wyoming.
Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames* , Senior Assistant Attorney General.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, JJ., and TYLER, D.J.
[¶1] A jury found the Appellant, Terry Dean Anderson ("Anderson"), guilty of second-degree murder for the shooting death of his significant other, Deedra Strauch ("Strauch" or "victim"). Anderson challenges his conviction, arguing that: the district court abused its discretion when it admitted a certain text message under W.R.E. 404(b) ; the trial court abused its discretion by permitting the State's forensic pathologist to opine as to the victim's manner of death; and, the prosecutor committed prosecutorial misconduct by repeatedly asking the State's witnesses improper, leading questions on direct examination. Finding no error, we affirm.
[¶2] We state the issues as follows:
[¶3] On January 24, 2020, the Goshen County Sheriff and the Undersheriff responded to a 911 call reporting a shooting in Torrington. At the scene they found Anderson and Strauch inside of a mobile home. The seriously injured Strauch was lying on the kitchen floor. Anderson told them Strauch was his girlfriend, and that she had been shot in the head. Anderson also explained that he and Strauch were arguing when he fell upon a rifle, causing it to accidentally discharge. Strauch died two days later. Anderson was ultimately charged with second-degree murder in violation of Wyo. Stat. Ann. § 6-2-104.
[¶4] Prior to trial, Anderson filed a demand for notice of the State's intent to introduce evidence under W.R.E. 404(b). The State filed its notice of intent under W.R.E. 404(b) seeking to introduce an October 26, 2019 text message inadvertently sent by Anderson to his friend/acquaintance, Rorick Baros ("Baros"), for the purposes of showing course of conduct, opportunity, motive, intent, plan, and lack of mistake. The text message predated the shooting by nearly three months.
[¶5] The district court held a pretrial hearing based upon the State's notice. At the hearing, the State called Baros to testify. Baros described his communications with Anderson using text messages. He testified that Anderson had inadvertently sent him a text message on October 26, 2019. The text stated: "Well D I should have shot that first round at you but I didn't want to take a chance of dog my dog your dog your dog you are a piece of shit." Baros recalled that "D" referred to Strauch, whom he understood was Anderson's significant other. Anderson's counsel opposed the admission of the text message, arguing it shows inadmissible character evidence, lacks the proper context to be relevant, and is overly prejudicial.
[¶6] After performing a full Gleason analysis,1 the district court later issued an 11-page Order on State's Motion to Introduce Evidence Pursuant to W.R.E. 404(b) , concluding that the October 26, 2019 text message would be admissible pursuant to W.R.E. 404(b) only for the proper purposes of showing course of conduct, intent, motive, and lack of mistake. It found the text message was relevant because Anderson described how he "should" have shot the victim, and that three months later Anderson was charged with shooting the victim. In weighing the probative value against the text message's prejudicial effect, the district court acknowledged the text message's similarity to the crime charged could lead to an improper inference by the jury; however, it determined Anderson's text message stating that he "should" have shot the victim is less reprehensible than the crime charged and it is not so similar to the crime charged that the text is likely to be used improperly. The district court found the text message would more likely be used by the jury to understand Anderson's relationship with the victim. The district court also ruled that Anderson had a right to a limiting instruction, which was given at trial.
[¶7] Anderson's four-day jury trial began on March 1, 2021. During trial, the State presented seven witnesses, including Undersheriff Doug Patrick and Sheriff Kory Fleenor, who testified to responding to the 911 call, finding Anderson and the victim at the scene, and their investigation of the shooting incident. The State also called: Deputy Edwin Ochoa who testified to his investigation and collection of certain evidence at the scene; Leah Innocci, a fingerprint analyst from the Wyoming State Crime Lab, who testified that she did not find any useable fingerprints on the gun; Kathryn Bacon, the State's firearms expert from the Wyoming State Crime Lab, who testified that the gun could discharge if dropped, but only if it were "cocked"; and, Baros who testified about the October 26, 2019 text message. Anderson's counsel continued to object to the admission of the text message.
[¶8] The State also called forensic pathologist, Dr. Peter Schilke, as an expert witness. Dr. Schilke performed the autopsy on the victim, and he produced a report containing his conclusions. He testified that the victim's head wound contained evidence of soot and gun powder, which he concluded was evidence of a "contact wound" from the barrel of a gun being pressed against the skin. Anderson's counsel objected to Dr. Schilke testifying as to how the gun barrel may have been held against the victim's head. The district court overruled the objection, but allowed defense counsel to voir dire the witness. Anderson's counsel asked Dr. Schilke whether he knew "exactly how [the gun] was fired ... whether it was held at all, or whether [the victim] fell upon [the gun barrel.]" Dr. Schilke agreed the gunshot wound could be self-inflicted or accidental, but his conclusion was that the manner of death was a homicide. Over defense counsel's continued objection, Dr. Schilke resumed his testimony and he discussed how the victim's manner of death could be either "[n]atural, accident, suicide, homicide, or undetermined." He further stated that "[c]ontact wounds can have different manners of death ... [and] can be variable depending on the circumstances." Dr. Schilke testified that he considered Anderson's claim that the gun was accidentally discharged, but he concluded the "story doesn't really match up with a contact wound." At the end of his testimony, Dr. Schilke stated that he "ruled the manner [of death] as a homicide." The district court gave a limiting instruction regarding Dr. Schilke's testimony.
[¶9] The defense presented two witnesses. The first witness was Ryan Allen, the defense's firearms expert, who testified as to the relative ease with which the rifle may discharge. The next witness was Anderson, who described the circumstances as to how the rifle had accidentally discharged after he fell upon it and he also described the bullet striking Strauch.
[¶10] The jury found Anderson guilty of second-degree murder. The district court entered a conviction against him and sentenced Anderson to 28 to 42 years in prison. Anderson filed a timely notice of appeal.
[¶11] Anderson filed a pretrial demand for notice of the State's intent to introduce evidence under W.R.E. 404(b). This Court treats the demand as an objection, and will review the admission of other acts evidence for an abuse of discretion. Barrett v. State , 2022 WY 64, ¶ 41, 509 P.3d 940, 948 (Wyo. 2022) (citing Mayhew v. State , 2019 WY 38, ¶ 23, 438 P.3d 617, 623 (Wyo. 2019) ). "Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence." Klingbeil v. State , 2021 WY 89, ¶ 32, 492 P.3d 279, 286 (Wyo. 2021) (quoting Spence v. State , 2019 WY 51, ¶ 42, 441 P.3d 271, 282 (Wyo. 2019) ). "We will not disturb the trial court's determination of the admissibility of evidence unless the court clearly abused its discretion." Id. (citing Spence , ¶ 42, 441 P.3d at 282 ). "We need only determine whether the court could have reasonably concluded as it did." Id. (citing Hardman v. State , 2020 WY 11, ¶ 11, 456 P.3d 1223, 1227 (Wyo. 2020) ).
[¶12] The admissibility of other acts evidence is governed by W.R.E. 404(b), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
[¶13] The State filed a notice of intent to introduce evidence under W.R.E. 404(b), which triggered a Gleason hearing. Jackson v. State , 2021 WY 92, ¶ 10, 492 P.3d 911, 916 (Wyo. 2021) (citing Putnam v. State , 2020 WY 133, ¶ 31, 474 P.3d 613, 622 (Wyo. 2020) ). "Our precedent mandates a procedure for the...
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