Armstrong v. State

Citation826 P.2d 1106
Decision Date27 February 1992
Docket NumberNo. 91-72,91-72
PartiesArthur M. ARMSTRONG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender and David Gosar, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Jennifer L. Gimbel, Sr. Asst. Atty. Gen., and D. Michael Pauling, Asst. Atty. Gen., for appellee.

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

URBIGKIT, Chief Justice.

In this appeal after a homicide conviction, appellant contends he was denied a fair trial because the State was allowed to ask an improper question calling for a legal conclusion and the legal conclusion was then repeated accompanied by an improper prosecutorial victim-impact comment during closing argument. Appellant also argues inadmissible hearsay was used against him at trial and, finally, that he was deprived of a fair trial by the trial court's refusal to grant a change of venue after the dissemination of prejudicial publicity by local media. We conclude that appellant did receive a fair trial consistent with due process and affirm his first degree murder conviction and life sentence.

I. ISSUES

Appellant presents four issues for consideration:

ISSUE I

Was the appellant denied his right to a fair trial when the state was allowed to ask a question which called for an answer in the form of a legal conclusion?

ISSUE II

Was the appellant denied his right to a fair trial by the improper comments made by the state's attorney during closing arguments?

ISSUE III

Was the appellant denied his right to a fair trial by the repeated use of inadmissible hearsay in the state's case in chief?

ISSUE IV

Was it an abuse of discretion not to grant appellant's request for a change of venue?

The State presents the issues in different terms:

I. Was appellant properly permitted to testify to factual matters within his personal knowledge?

II. Did the prosecutor's closing argument, characterizing certain defense evidence as insignificant and requesting a III. Did the admission of relevant, non-hearsay evidence deprive appellant of a fair trial?

verdict consistent with the state's evidence, deprive appellant of a fair trial?

IV. Was appellant entitled to a change of venue, in light of the negligible effect of pre-trial publicity on the jury?

II.

FACTS

Appellant, Arthur M. Armstrong (Armstrong), admits he fired the gunshot that killed David Anastos (Anastos or victim) at the Ponderosa Bar (Ponderosa) in Green River, Wyoming. Viewed on appeal in the light most favorable to the State, the series of confrontations that culminated with the shooting began during the late afternoon and early evening of Sunday, July 29, 1990. Griffin v. State, 749 P.2d 246 (Wyo.1988). Armstrong drove his friend Bobby Nelson, a/k/a Bobby Eagle (Nelson) to the Ponderosa. With another acquaintance they met at the bar, an evening's drinking began.

Anastos and his girlfriend Rachelle "Shelly" Mandros (Mandros) also arrived at the Ponderosa during the late afternoon to play pool and drink. While engaged in a game of pool, Anastos used several invectives. The bartender, Tracy Roberts (Roberts), repeatedly told Anastos to "watch his mouth." Eventually, Armstrong told Anastos, "[t]he lady asked you once to watch your language, so why don't you listen." Anastos urged Armstrong to "take his best shot." Roberts told Armstrong to sit back down at the bar. Armstrong complied; however, hostility between the two men increased when Armstrong told Anastos to leave the bar. Mandros urged Anastos to leave, but when he continued playing pool, she left to go to another bar in the neighborhood.

Anastos stayed to drink and visit with others he knew. Later, Anastos offered to buy Armstrong a drink and said, "let's be friends." Armstrong told Anastos to get away and stay away. When Anastos refused, Armstrong got off his bar stool and took a swing at Anastos. The confrontation ended with Armstrong on the floor after some shoving and with Armstrong telling Anastos, "[y]ou got me by 31 years or so." A friend of Anastos', Lois Muckley, walked over and took Anastos to another portion of the bar.

The tension between the two men escalated once again. After further verbal exchanges and more shoving, Armstrong ended up on the floor again with witnesses reporting that Armstrong was breathing hard and rubbing his chest and leg. Roberts thought Armstrong, who had a history of heart problems, might be suffering a mild heart attack. Armstrong threatened Anastos saying, "I'll see you dead before I die," and "[n]o punk kid's going to get the best of me." After being helped to his feet, Armstrong sat down to regain his breath. He left the bar a short time later.

Armstrong testified he left the bar to change his torn shirt. Roberts, the bartender, said that Armstrong left expressing anger that Anastos had ripped the shirt. Armstrong told Roberts he would be right back. Roberts expressed concern that Armstrong had left to get a gun. Anastos refused to leave the bar prophetically boasting, "[i]f he [Armstrong] wants to come and shoot me, let him." Anastos joined Gary and Lois Muckley at the end of the bar for a drink.

About fifteen minutes later, Armstrong returned to the bar. Armstrong testified he returned to pick up his friend Bobby Nelson. 1 Roberts saw Armstrong drive up to the bar's parking lot and yelled to Armstrong, "[i]f you come in here, Art, I don't want no trouble." Armstrong assured her that he intended no trouble. Armstrong walked past Anastos and sat down while ordering a drink. Anastos made no statements or gestures to Armstrong during this time.

As Roberts turned to fix the drink, Armstrong got off his bar stool, drew a handgun After the shooting, Armstrong laid the gun on the bar and pushed it away. As Armstrong then lit a cigarette, Gary Muckley heard Armstrong say, "I did what I had to do." Gary Muckley used a table knife to pick up the gun and put it behind the bar. While Roberts called the police, Gary Muckley determined that Anastos was unconscious and bleeding from a head wound. Gary Muckley yelled that Anastos was still alive and Armstrong responded, "[l]et me have the gun back, and I'll finish the bastard off." At trial, Armstrong denied making the statement, but admitted he sat waiting for the police to arrive.

                from his boot and started walking toward Anastos.  A customer at the opposite end of the bar, Keith Phillips, heard Armstrong say loudly, "I'm going to get that son of [a] bitch."   Lois Muckley saw the weapon and screamed, "he's got a gun."   Anastos jumped up and took a step back from the bar.  Armstrong fired one shot
                

Anastos died the following day in a Salt Lake City, Utah hospital. Autopsy results showed Anastos died from a gunshot wound to his right temple. The autopsy also revealed Anastos had used a very high level of cocaine before his death.

Armstrong was charged with first degree murder under W.S. 6-2-101 (1991). 2 At his arraignment, Armstrong was informed his maximum sentence possibility would be life in prison. He entered a plea of not guilty, followed by a motion for a change of venue under W.R.Cr.P. 23 with the contention that there had been "pervasive, protracted and prejudicial publicity in this case" which poisoned the minds of local citizens. The trial court denied the motion with a finding that Armstrong had failed to show it was impossible to seat a fair and impartial jury in Sweetwater County, although agreeing that jury selection in Sweetwater County could take more time due to the publicity about the barroom killing.

At trial, Armstrong relied on evidence of the victim's cocaine use and a self-defense theory to argue that the victim's aggressive behavior threatened Armstrong's heart condition. In disbelief of Armstrong's self-defense theory, the jury rendered a verdict of first degree murder resulting in the mandatory sentence of life imprisonment. W.S. 6-2-101(b) (1991).

III.

TRIAL ISSUES

A. Legal Conclusion Used For Cross-Examination

Armstrong contends the trial court erred in allowing the prosecutor to ask him questions designed to elicit a legal conclusion during cross-examination. Armstrong also argues that the prosecutor improperly used the testimony during closing argument. The colloquy produced this exchange:

Q. [PROSECUTOR]: This is fair to say, isn't it, Mr. Armstrong, that during the course of the evening, you became very angry at David Anastos?

A. [ARMSTRONG]: Yes.

Q. It's fair to say that you had ill will towards David Anastos, isn't it?

A. Yes.

Q. It's fair to say that you felt malice towards David Anastos, isn't it?

[DEFENSE COUNSEL]: Your Honor, I'll object to that question. That's a determination to be made by the jury.

[PROSECUTOR]: I believe the witness is capable of answering whether or not he felt that way.

COURT: Overruled. You may answer.

A. [ARMSTRONG]: I had--at times, I was--I felt malice.

Q. [PROSECUTOR]: Once you became angry at David, you never made up with him? You guys never made

amends or made up with each other, did you?

A. No.

The conduct of the cross-examination of a testifying defendant in a criminal trial is subject to the wide discretion of the trial court in determining the admissibility of evidence. Grabill v. State, 621 P.2d 802 (Wyo.1980). On appeal, the trial court's discretionary ruling on evidence will not be upset absent a clear abuse of discretion. Nimmo v. State, 603 P.2d 386 (Wyo.1979). The appellant has the burden to demonstrate that an abuse of discretion exists. Jahnke v. State, 682 P.2d 991 (Wyo.1984). Abuse of discretion was defined in Martinez v. State, 611 P.2d 831, 838 (Wyo.1980):

A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude...

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