Arner v. State, 93-69

CourtUnited States State Supreme Court of Wyoming
Citation872 P.2d 100
Docket NumberNo. 93-69,93-69
PartiesDennis ARNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date01 April 1994

Michael J. Krampner and Donald L. Fuller (argued), Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl (argued), Deputy Atty. Gen., and D. Michael Pauling, Sr. Asst. Atty. Gen., for appellee.

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

CARDINE, Justice.

Dennis Joseph Arner (Arner) was convicted of two counts of obtaining property by false pretenses and now appeals claiming ineffective assistance of counsel and that the prosecution's questioning of Arner concerning a prior felony conviction amounted to plain error.

We affirm.

Arner phrases the issues as follows I. Was appellant denied effective assistance of counsel by his trial counsel's failure to voir dire, introduction of otherwise inadmissable "bad acts" evidence, failure to object to the prosecutor's introduction of evidence which was inadmissable under Rule 609, W.R.E., failure to request a limiting instruction, and failure to object to the prosecutor's attempt to shift the burden of proof to the defense?

II. Was the prosecutor's questioning of the appellant about the details of a prior conviction plain error requiring reversal?

FACTS

On the morning of December 8, 1991, Dennis Arner discovered that two of his cars, a van and a sedan, and his garage had been broken into sometime the previous night. He contacted the police, and Officer Platt of the Casper Police Department was dispatched to Arner's home. Arner showed Officer Platt that the thieves had unsuccessfully attempted to take his van's stereo by removing the knobs and faceplate from the stereo. At that time, when asked if anything was missing from the two cars and the garage, Arner did not report anything stolen. Officer Platt filled out a report and told Arner to contact the department if he discovered anything missing.

According to his testimony, soon after Officer Platt departed that morning, Arner noticed that a shelf in the garage was dislodged and discovered that his snowblower and acetylene torch were missing. Arner did not notify the police about these missing items for a number of months. However, that same day, Arner telephoned his insurance agent and reported the items stolen. On advice from his insurance agent, Arner prepared a written list of the items stolen and their replacement value and delivered the list to his agent. On December 10, 1991, Arner's insurance agent issued Arner a check for his claim on the stolen snowblower and acetylene torch. Arner further testified that, after he cashed the insurance check, he purchased a new snowblower from Ideal Lawnmower Shop for $700.00.

Several weeks later, on the morning of December 28, 1991, Arner discovered that his van and garage had again been burglarized. The police were summoned, and Officer Butler was dispatched to Arner's home. This time the van was damaged more severely and, according to Arner, his new snowblower, four tires and wheels, two snowmobile helmets, a radial saw, and a television and video recorder/player (VCR) were all missing. Arner contacted his insurance agent that same day to report the second burglary, and the agent turned the claim over to a claims adjuster in Casper.

On December 30, 1991, Arner filled out an inventory form describing the items allegedly stolen during the second break-in and gave a taped statement to the claims adjuster in Casper. The inventory form listed a snowblower, RCA brand VCR ac/dc adaptable, a television, Uniroyal tires, snowmobile helmets, a radial saw, and chrome wheels and hubs. During the taped statement, Arner described the items as follows:

Okay, there was a Toro snowthrowing, 4.5 horsepower, model number 38180, I have an appraisal from Ideal Lawnmower Shop for replacement of 599.95[.]

* * * * * *

Yes, it was brand new, it never had oil and gas in it. An RCA VCR, that's ac adaptable for use in vehicle, unknown model number, it can be purchased at Radio Shack for 199.95[.]

* * * * * *

[A] small Sony [television], 6 [inches.]

* * * * * *

Okay there were a set of wheels and tires that I exchange over from summer to winter on the van, Uniroyal Radial Tigerpaws, purchased at Plains Tire and Battery, this summer of 91[.]

* * * * * *

The wheels were American Racing Chrome Wheels, they were purchased at the same time as the tires[.]

* * * * * *

Uh, two snowmobile helmets, the model number or anything like that I can't get On January 3, 1992, based on this interview and the written inventory, the claims adjuster issued Arner a check for coverage of the snowblower, television, VCR and the radial saw, all allegedly taken during the second burglary.

they were purchased at K-Mart, uh, $75.00 a piece[.]

Ironically, also on December 30, 1991, Detective Burnett with the Casper Police Department began questioning several teenagers concerning numerous recent burglaries, including the two Arner burglaries. Three of the teenagers admitted to a number of thefts and break-ins including the Arner burglaries. All three were involved in the first Arner burglary, and one of the three, plus a fourth, admitted committing the second Arner burglary. Detective Burnett questioned the teenagers about the items stolen during the burglaries. Each of the teenagers related similar accounts of their actions during the first Arner burglary in early December 1991, and the two teenagers involved in the second Arner Burglary in late December 1991, also gave similar stories to Detective Burnett.

At Arner's trial, all three of the admitted burglars related the same accounts of their actions during the first Arner burglary. Each testified that during the first Arner burglary: (1) they were on foot and did not have a car, (2) that Arner's garage door was open, (3) that they tried to take the stereo from Arner's van but could only remove the knobs and faceplate, (4) that one of them took a cassette tape but in the process knocked a number of other tapes on the floor which caused enough noise to scare them off, and (5) that they did not take a snowblower or welding equipment. Only one of the teenagers involved in the second Arner burglary testified at Arner's trial, and he stated that he and another teenager took only the stereo from Arner's van, the amplifier and several speakers. He specifically denied taking the new snowblower, VCR, television, or the tires and wheels and stated that the Arner's garage door was closed during this second burglary.

Sometime in the middle of January, 1992, Detective Burnett and another Casper police officer spoke with Arner at his home. In that conversation, Arner described the items he alleged were taken during the second December burglary, and he stated that he had filed a claim with his insurance for these items. After this conversation, Detective Burnett inquired with Ideal Lawnmower Shop, where Arner purportedly purchased the new snowblower after the first burglary, and Plains Tire and Battery, where Arner claimed to have purchased the new tires and wheels which were allegedly taken during the second burglary. Neither of these retailers could locate records of the purported snowblower or tire and wheel sales to Arner; thus, on February 25, 1992, Detective Burnett contacted Arner again for more information on the snowblower and the tires and wheels.

On February 27, Detective Burnett visited and questioned both Arner's insurance agent and the insurance adjuster. At that time, Detective Burnett first learned that Arner had filed a claim after the first burglary for items which were not yet reported stolen by Arner. After this meeting with the insurance representatives, Detective Burnett continued his investigation until Arner was arrested in late May, 1992. On November 4, 1992, a jury convicted Arner of two counts of obtaining property by false pretenses, from which he now appeals.

DISCUSSION

In this appeal, Arner first argues that he was denied effective assistance of counsel because his trial attorney failed to conduct a proper voir dire, failed to properly handle the admission of evidence of a prior conviction and of a prior "bad act" and failed to object to allegedly improper prosecutorial questioning. In his second assertion, Arner argues that the admission of certain evidence surrounding his prior drug trafficking conviction was plain error.

A. Ineffective Assistance of Counsel

Our method for reviewing claims of ineffective assistance of counsel is firmly established and is comprehensively described in the following passage The standard with respect to effective assistance of counsel requires the criminal defense to satisfy two criteria:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984).

* * * * * *

We examine the conduct of defense counsel in light of all the circumstances in determining whether the identified acts or omissions fall outside the ambit of professionally competent assistance, bearing in mind the function of counsel is to make the adversarial testing process work in every case. Strickland; Gist [v. State, 737 P.2d 336, 343 (Wyo.1987) ]. We do not evaluate the efforts of counsel from a perspective of hindsight but, rather,...

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