Callen v. State

• Decision Date: 12 September 2008
• Docket Number: No. S-07-0026.,S-07-0026.
• Citation: 2008 WY 107,192 P.3d 137
• Parties: Kevin K. CALLEN, Sr., Appellant (Defendant) v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

192 P.3d 137

2008 WY 107

Kevin K. CALLEN, Sr., Appellant (Defendant) v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0026.

Supreme Court of Wyoming.

September 12, 2008.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dana J. Lent, Assistant Attorney General. Argument by Ms. Lent.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶1] Appellant Kevin K. Callen, Sr. appeals his conviction for being an accessory before the fact to the crime of arson. He contends his conviction is tainted by erroneous evidentiary rulings and prosecutorial misconduct. We disagree and affirm.

ISSUES

[¶2] Callen presents the following issues for our review:

I. Did the trial court err by admitting hearsay evidence, without making a finding on the record, when the evidence was not in furtherance of a conspiracy under W.R.E. 104 and W.R.E. 801(d)(2)(E)?

II. Did the trial court err when it allowed an expert to give detailed testimony that was neither relevant nor probative of an issue in dispute?

III. Did the cumulative effect of two acts of prosecutorial misconduct prejudice Appellant and deny him of a fair trial?

FACTS

[¶3] On June 18, 2004, members of the Wyoming Division of Criminal Investigation (DCI) and the Powell Police Department executed a search warrant on the Park Motel in Powell, which Callen managed and wherein he resided. During the course of the search, officers found lab equipment and chemicals used to manufacture methamphetamine, as well as a small quantity of methamphetamine. The evidence was confiscated and stored in what the parties referred to as the Powell DCI building.¹ Callen was later charged with manufacturing methamphetamine. On August 20, 2005, Callen's son was arrested for distribution of methamphetamine following a controlled buy at the Park Motel, and the evidence supporting that charge was also stored in the DCI building. A week later, on August 27, 2005, someone set fire to the DCI building, resulting in the destruction of some of the evidence stored inside.

[¶4] The ensuing investigation led to the arrest of Levi Sherley and Josh Rosenberger, who later implicated Callen in the arson of the DCI building.² The State ultimately charged Callen under Wyo. Stat. Ann. § 6-1-201 (LexisNexis 2007) with being an accessory before the fact for his involvement in the arson.³ At trial, the State presented evidence that Callen had orchestrated the arson of the DCI building to destroy the evidence supporting his pending drug charge, as well as evidence supporting the drug charge against his son. Among other things, the evidence showed Callen instructed Sherley and Rosenberger on how to ignite the DCI building, including the accelerant to be used,⁴ identified where the drug evidence was kept in the building, directed the boys where they should concentrate their efforts to effectuate his objective, and provided the time line for setting the fire. The jury found Callen guilty on the charged offense, and he was sentenced to a term of imprisonment of twelve to fifteen years. Additional facts will be set forth in our discussion of the issues presented by Callen.

DISCUSSION

A. Evidentiary Rulings

Standard of Review

[¶5] Decisions regarding the admissibility of evidence are within the sound discretion of the trial court. Law v. State, 2004 WY 111, ¶ 14, 98 P.3d 181, 187 (Wyo. 2004). We afford considerable deference to the trial court's rulings and will uphold them if we find they have a legitimate basis. Id. On review, our primary consideration is the reasonableness of the trial court's decision. Martin v. State, 2007 WY 76, ¶ 20, 157 P.3d 923, 928 (Wyo.2007); Wilde v. State, 2003 WY 93, ¶ 13, 74 P.3d 699, 707 (Wyo.2003). If we conclude the trial court erred in admitting evidence, we then must determine if the error was prejudicial, requiring reversal, or whether it was harmless. Skinner v. State, 2001 WY 102, ¶ 25, 33 P.3d 758, 766 (Wyo. 2001); Solis v. State, 981 P.2d 34, 36 (Wyo. 1999); W.R.A.P. 9.04; W.R.Cr.P.52. An error is prejudicial if there is a reasonable possibility the verdict might have been more favorable to the appellant if the error had never occurred. Skinner, ¶ 25, 33 P.3d at 767. The burden of proving prejudicial error rests with the appellant. Id.

Hearsay Testimony

[¶6] Callen argues that the trial court erred by allowing witnesses to testify, over his objection, about out-of-court statements made by Sherley and Rosenberger. Specifically, he takes issue with the following testimony:

—Sherley testified that Rosenberger told him on the night of the arson that "Kevin Callen, Sr. said the burning of the DCI building needed to be done tonight, otherwise it was going to be too late."

—Zach DeHaan, who was present when Rosenberger spoke with Sherley on the night of the fire, testified that he overheard Rosenberger tell Sherley that "they had to do it tonight" because Callen wanted it done "so that evidence would not go through."

—Kayloni Bybee, Sherley's girlfriend at the time, testified she heard Rosenberger tell Sherley a few days before the arson that "[Callen] said it had to be done tonight and that he needed to set the alarm so he could get up"; Rosenberger told Sherley on the night of the arson that "[Callen] said it had to be done tonight, there was [sic] no exceptions"; and Sherley told her that "[Callen] had asked for the DCI building to get burned to get rid of evidence for not only his son, but so that he wouldn't get in trouble."⁵

Callen's challenge to the admission of this testimony appears to be two fold. Grouping the evidence together, he first claims the statements were hearsay and did not meet the requirements for admissibility under W.R.E. 801(d)(2)(E). Second, Callen contends that the trial court erred in admitting the testimony without making an express on-the-record finding that the requirements of W.R.E. 801(d)(2)(E) were satisfied.

[¶7] Under W.R.E. 801(d)(2)(E), a statement is not hearsay if "the statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." In construing this rule, we have stated:

"Three elements must be demonstrated before a statement can be admitted as non hearsay under Rule 801(d)(2)(E), W.R.E. There must be evidence of a conspiracy; evidence that the declarant and the defendant both were involved in the conspiracy; and a showing that the proffered statements were made during the course of, and in furtherance of, the conspiracy. The first two requirements insure that the statements were in fact made by a co-conspirator, and the last introduces a measure of relevance and trustworthiness.

We previously have held that these elements may be demonstrated by prima facie evidence. We concluded that such a showing is adequate, and we required neither a preponderance of the evidence nor proof beyond a reasonable doubt. In addition, we have recognized that because of the covert nature of the crime of conspiracy, the foundation may be established with circumstantial evidence."

Gilliam v. State, 890 P.2d 1104, 1107 (Wyo. 1995) (quoting Jandro v. State, 781 P.2d 512, 521-22 (Wyo.1989) (citations omitted)). A conspiracy does not have to be charged in order for evidence to be admitted under Rule 801(d)(2)(E). "Where there is concerted action between codefendants, evidence of the declarations of one, during and in furtherance of the common design or plan, is admissible against the other defendants, even though no conspiracy is charged." Jasch v. State, 563 P.2d 1327, 1333 (Wyo.1977); see also Burke v. State, 746 P.2d 852, 855 (Wyo. 1987).

[¶8] Turning to the facts of this case, Sherley testified at trial and reported that Callen was unhappy with DCI because of the drug busts at the Park Motel and wanted the DCI building burned down. He testified they discussed on several occasions various methods to accomplish the task, including the use of diesel fuel as the accelerant. According to Sherley, Callen detailed how to effectuate the burn, and even drew a picture of the area of the building to be targeted. In doing so, Callen specifically targeted DCI Agent Tom Wachsmuth's⁶ office because he believed it was where a lot of the evidence pertaining to his methamphetamine charge, as well as the pending charge against his son, was located. Sherley reported he eventually told Rosenberger of the plan to burn the DCI building, and Rosenberger volunteered to assist in the endeavor. Additionally, Sherley testified they subsequently met with Callen on a couple of occasions to finalize the details of the planned arson and the time line for its completion. On August 27, they put the plan into action.⁷

[¶9] Sherley's testimony provided sufficient evidence from which the trial court could reasonably infer that a conspiracy existed among the three men and Callen was the driving force behind the conspiracy and the arson. See Vlahos v. State, 2003 WY 103, ¶¶ 27-30, 75 P.3d 628, 636-37 (Wyo. 2003) (the in-court testimony of a co-conspirator is sufficient to establish the existence of a conspiracy and the defendant's involvement therein). To prove a statement was made in furtherance of a conspiracy, it need only be shown that "the statement was intended to advance the objectives of the conspiracy." Bigelow v. State, 768 P.2d 558, 564 (Wyo. 1989). Here, there is no doubt that the out-of-court statements of Rosenberger, as testified to by Sherley, DeHaan and Bybee, were made during and in furtherance of that conspiracy. Rosenberger's reports were specifically intended to remind Sherley that the timing of the arson was critical and Callen was growing concerned that, if they...