Black v. State

• Decision Date: 06 March 2020
• Docket Number: S-19-0118
• Citation: 458 P.3d 1245
• Parties: Roger Keith BLACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

458 P.3d 1245

Roger Keith BLACK, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-19-0118

Supreme Court of Wyoming.

March 6, 2020

Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, Justice.

[¶1] Roger Keith Black sent a threatening letter to a witness subpoenaed to testify at his drug trial. A jury convicted him of intimidating and influencing a witness in violation of Wyo. Stat. Ann. § 6-5-305(a) (LexisNexis 2019). Mr. Black contends the prosecutor committed misconduct during rebuttal closing argument by improperly shifting the burden of proof to him and stating facts not in evidence. He also claims the district court erred in failing to instruct the jury on the mens rea element of § 6-5-305(a), specifically, that it had to find he acted voluntarily. We affirm.

ISSUES

[¶2] Mr. Black raises two issues, which we restate as follows:

1. Did the prosecutor commit plain error during rebuttal closing argument by improperly shifting the burden of proof to Mr. Black or stating facts not in evidence?

2. Did the district court plainly err in failing to instruct the jury that it had to find he acted voluntarily?

FACTS

[¶3] In late August 2017, Tabitha Charles began working as a confidential informant for the Wyoming Division of Criminal Investigation (DCI). In that role, she made several controlled purchases of methamphetamine from Mr. Black. Mr. Black was criminally charged for that conduct and housed in the Sheridan County Detention Center pending trial. Ms. Charles was subpoenaed to testify as a witness at the trial.

[¶4] At the time Ms. Charles made the controlled purchases from Mr. Black, she was living with, among others, Jason Bohm and his father, William Bohm, at 248 South Carlin Street in Sheridan. By April 11, 2018, she had moved out of that residence and was living elsewhere. On that date, Jason Bohm gave her an envelope his father had found attached to the mailbox at the South Carlin address. The envelope was sealed and had "Tabitha Charles" and "4/10/18" handwritten in pen on its front. It did not contain postage. Inside the envelope was a letter stating:

YOU HAVE ONE WEEK TO LEAVE AND NOT COME BACK YOU FUCKING RAT BITCH! DON’T THINK D.C.I. CAN HELP; THEY CAN’T! YOU BETTER TAKE THIS BREAK, YOU WON’T GET ANOTHER. IF YOU DON’T LEAVE, YOUR’ MOM AND DAUGHTER WILL PAY THE PRICE FOR YOUR RAT BITCH ASS. WE KNOW WHERE THEY ARE AT ALL TIMES; YOU TOO BITCH! WE WILL GET MOM, THEN YOUR DAUGHTER; LIVE WITH THAT YOU FUCKING RAT! THEN YOU! DON’T TRY US YOU RAT BITCH! YOU HAVE ONE WEEK.

(Errors in original). Upon reading the letter, Ms. Charles became "really upset" and "scared." She gave the letter to DCI.

[¶5] The State charged Mr. Black with intimidating or influencing a witness in violation of § 6-5-305(a). At trial, Terry Dieleman testified he met Mr. Black while they were housed in the same pod at the detention center. About the time Mr. Dieleman was to be released from the center, Mr. Black asked him to drop off a letter at a house on South Carlin Street. Mr. Dieleman agreed, and Mr. Black provided him a sealed envelope. The envelope had "Tabitha Charles" written on the front. Mr. Dieleman placed the letter with his legal paperwork so it would not be searched by detention center staff upon his release. Mr. Dieleman was released on April 8, 2018. Two days later, he delivered the letter to the South Carlin address, placing it on two hooks on the mailbox. Before delivering it, he wrote "4/10/18" on the front of the envelope because Mr. Black had instructed him to write the date he delivered it. The next day, Mr. Black called Mr. Dieleman from the detention center. Mr. Dieleman told Mr. Black "[e]verything is good here." Mr. Black then asked, "That’s a thumbs up then?" Mr. Dieleman took this question as Mr. Black’s approval that the letter had been delivered.

[¶6] Linda Bradford was charged with delivery of a controlled substance after giving Ms. Charles pain pills (oxycodone) and marijuana. She and Mr. Black made their initial appearances in their criminal cases at the same time on October 30, 2017. She testified that at their initial appearances, Mr. Black told her, "I’m going to get [Tabitha]." Mr. Black’s body language indicated he was mad and angry.

[¶7] Sharon Johnson, Ms. Charles’ mother, testified Mr. Black called her four times from the detention center between November 8 and 26, 2017. In those calls, Mr. Black told Ms. Johnson that Ms. Charles "did this to me"; Ms. Johnson needed to talk to Ms. Charles because "she’s about to send me to prison for the rest of my fucking life, for no reason"; "she needs to retract"; and he was not "playing around" as they were "talking about his life here." Ms. Johnson told the jury that she interpreted these calls as Mr. Black asking her "to talk to [Ms. Charles] and tell her that she basically needed to recant ...."

[¶8] Ms. Johnson also testified that in March 2018, she received a letter from Mr. Black in the mail. Mr. Black told her, among other things, that he did "not hold anything against [Ms. Johnson] for what Tab is doing"; "[Tab] got into some trouble & started working for the D.C.I[.]"; and although "Tab has problems & issues, ... that doesn’t give her the right to ruin other peoples[’] lives because she doesn’t want to deal with her own problems." Ms. Johnson turned the letter over to DCI and changed her phone number.

[¶9] Mr. Black made several phone calls from the detention center to Wayne Finch in November 2017 and to Andrew Price in early April 2018. Mr. Black told Mr. Finch that Ms. Charles had "set him up" and asked Mr. Price to find out "why" she was "doing this" to him when he could go to prison for the rest of his life. He asked Mr. Price for assistance in determining where Ms. Charles was living. Because these phone calls, as well as those to Mr. Dieleman and Ms. Johnson, were made from the detention center, they were recorded. The State played them for the jury at trial.

[¶10] Joshua Meyers, who had been housed in the same pod as Mr. Black for a few days in August 2018, testified he saw Mr. Black looking out the window at the detention center. Mr. Black pointed to Ms. Charles, who was walking down the street, and asked Mr. Meyers if he knew "Tabitha." Mr. Meyers knew Ms. Charles but told Mr. Black he did not. Mr. Black told Mr. Meyers, "he’d been watching Tabitha walk up and down the streets" and she "better watch her back" as "[s]he’s going to get hers" "[i]n due time." After his release from the detention center, Mr. Meyers warned Ms. Charles about what Mr. Black had said.

[¶11] Christine Reed, a questioned document examiner, testified she compared the threat letter with writing samples known to have been written by Mr. Black and Mr. Dieleman. She opined it was "highly probable" Mr. Black had written the letter.

[¶12] The jury found Mr. Black guilty of both attempting to intimidate and attempting to influence a witness and the district court sentenced him to 8-10 years in prison. Mr. Black appealed.

DISCUSSION

1. Did the prosecutor commit plain error during rebuttal closing argument by improperly shifting the burden of proof to Mr. Black or stating facts not in evidence?

[¶13] Ms. Reed described for the jury the methodology she uses to conduct a questioned documents examination:

Well, the first thing I do is I take the questioned document or documents and look at them rather closely trying to detect certain patterns and unusual letter formation, where someone doesn’t write everything on the baseline which is the lines on the paper or they make punctuation different or letters different than what you would normally see a person make .... And then I look at the known sample to see if any of those type of things appear in the known.... And then I ... basically go through and pick out all of those similarities. And if there are a lot of similarities with not a lot of dissimilarities, then I make my opinion.

[¶14] After performing that analysis in this case, comparing the letter to the samples known to have been written by Mr. Black and Mr. Dieleman, Ms. Reed opined it was "highly probable" Mr. Black authored the letter. The only reason she could not definitively say Mr. Black wrote the letter was because the letter was written in all upper-case letters and the known samples contained both upper- and lower-case letters. During cross-examination, defense counsel questioned Ms. Reed’s failure to analyze the envelope or to otherwise use it in forming her opinion.

[¶15] During closing argument, defense counsel suggested to the jury that the phone calls it heard between Mr. Black and others did not convey threats but rather were those of "an innocent man ... reaching out to someone in hopes of bettering his situation." He also criticized Ms. Reed’s analysis and opinion, emphasizing her failure to examine the envelope and to explain what she meant by it being "highly probable" that Mr. Black wrote the letter. He told the jury:

What would have happened in this case if she had examined that envelope and concluded that somebody else put the address on it? We don’t know. We don’t know what criteria she used. When she explained how she did this, she said, "Well, I look at the known source and I look at the unknown source and I try and find some similarities and check the differences and then I decide." Well, we don’t know what similarities or what differences she found. Maybe you folks in the jury room can practice being questioned document examiners and see what similarities and differences you can see in those writings. And maybe include the address, the name "Tabitha Charles" on the envelope in your

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