Garza v. The State Of Wyo.

• Decision Date: 19 May 2010
• Docket Number: No. S-08-0279.,S-08-0279.
• Citation: 2010 WY 64,231 P.3d 884
• Parties: Richard James GARZA, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

231 P.3d 884

2010 WY 64

Richard James GARZA, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).

No. S-08-0279.

Supreme Court of Wyoming.

May 19, 2010.

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

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

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

GOLDEN, Justice.

[¶ 1] Appellant Richard James Garza appeals from the Judgment and Sentence convicting him of two counts of second degree sexual assault and imposing a combined prison sentence of twenty-one to twenty-seven years. Garza contends the district court erred at trial in admitting certain evidence and in instructing the jury, relied on improper factors in sentencing him, and erred in denying his motion for a new trial. We affirm.

ISSUES

[¶ 2] Garza offers these issues for our consideration:

I. Did the [district] court abuse its discretion when it allowed into evidence telephone recordings when said recordings were not proper impeachment material, and were not otherwise relevant?

II. Did the district court abuse its discretion when it denied Appellant's motion for a new trial based on unsupported assumptions not in the record?

III. Did the district court err when it used factors which were neither found by the jury, nor allowed to be addressed by Appellant against him at his sentencing?

IV. Did the district court's instruction to the jury that corroboration of a victim's testimony is not necessary to obtain a conviction for sexual assault, confuse or mislead the jury or place improper emphasis on the victim's testimony?

FACTS

[¶ 3] The underlying facts of Garza's crimes are not of any special significance to the issues raised in this appeal, and we will not recite them in detail. It suffices to note that, on June 19, 2007, MG notified the Cheyenne Police Department that her nine-year-old daughter, JM, had been sexually assaulted by Garza. Subsequent interviews of JM indicated Garza had sexually abused her over a period of years-starting when she was about four or five years old-and that the abuse included vaginal and anal penetration, as well as oral sex. A sexual assault examination conducted on June 19 revealed a notch, or healed tear, on JM's hymen and a tender, red area inside the labia.

[¶ 4] The State ultimately charged Garza with four counts of second degree sexual assault under Wyo. Stat. Ann. § 6-2-303(a)(v) (Lexis 2005), and one count of third degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2005).¹ In May 2008, a jury found Garza guilty on two counts of second degree sexual assault and acquitted him on the remaining charges. Garza filed a motion for new trial in September 2008 on the ground that JM had recanted her allegations of sexual abuse. After a hearing, the district court denied the motion. The district court later sentenced Garza to consecutive terms of imprisonment of eleven to fifteen years on one count and ten to twelve years on the other count. Additional facts will be set forth as necessary in our discussion of Garza's appellate issues.

DISCUSSION

Admission of Tape Recordings

[¶ 5] At trial, Garza's girlfriend, KV, was called by the State in its case-in-chief to testify regarding her recollection of the events on June 17, 2007, the last day JM alleged Garza had assaulted her. Immediately before KV testified, the prosecutor, defense counsel, and the district court discussed the use of certain tape recorded conversations between Garza and KV which occurred while Garza was incarcerated in the Laramie County Detention Center awaiting trial in this case. The prosecutor indicated she would use the recordings for impeachment, pursuant to W.R.E. 613 and 801(d), only if KV denied making certain statements.

[¶ 6] During KV's testimony, the prosecutor attempted to use the recordings, and defense counsel objected. Defense counsel argued that the prosecutor was impermissibly using the recordings in an attempt to introduce statements made by Garza to KV as substantive evidence in the State's case rather than for the stated purpose of impeaching KV with her prior statements. Defense counsel further maintained that Garza's statements to KV were inadmissible hearsay and irrelevant to the issues at trial. The district court ultimately determined that the tape recordings, which indicated an attempt by Garza to influence the testimony of prospective witnesses, were admissible under W.R.E. 801(d)(2)(A) as admissions of a party opponent. ² The district court specifically found Garza's statements to be relevant because they tended to show “indicia of guilt.” The district court also found that the recordings were relevant and admissible insofar as they could impeach KV's testimony.

[¶ 7] Garza asserts reversible error in the admission of the tape recordings. He essentially argues, in a nonsensical and confusing manner, that the recordings were improper impeachment material and otherwise irrelevant, inadmissible evidence. In reviewing the propriety of the district court's evidentiary ruling, we are guided by the following principles:

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. This Court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion. We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. In the absence of an abuse of discretion, we will not disturb the trial court's determination. The burden is on the defendant to establish such an abuse.

Brown v. State, 2005 WY 37, ¶ 12, 109 P.3d 52, 56 (Wyo.2005) (quotation marks and internal citations omitted); see also

Farmer v. State, 2005 WY 162, ¶ 8, 124 P.3d 699, 703 (Wyo.2005); Holloman v. State, 2005 WY 25, ¶ 10, 106 P.3d 879, 883 (Wyo.2005).

[¶ 8] We need not address the impeachment value of the tape recordings because we agree with the district court's ruling that they were admissible as statements by a party opponent under W.R.E. 801(d)(2)(A). We also agree with the district court that the recordings were relevant because they showed indicia of guilt. See Mazurek v. State, 10 P.3d 531, 543 (Wyo.2000); 2 McCormick on Evidence § 265 (6th ed.2006). “We have followed the principle that evidence of an attempt to fabricate evidence is particularly harmful to a defendant since it is an incriminating circumstance inconsistent with innocence and tends to show consciousness of guilt.” Miller v. State, 830 P.2d 419, 427 (Wyo.1992). Accordingly, we find no abuse of discretion in the district court's admission of the challenged evidence.

Motion for New Trial

[¶ 9] Approximately four months after his trial, Garza filed a motion for a new trial based on newly discovered evidence. The motion was premised on a letter purportedly written by JM in which she recanted her allegations of sexual abuse. The letter stated in relevant part: ³

to whom it may concern:

IN RE: of Richard Garza

Please let my Dad get out Really Bad I miss him Dearly and plus I know he wants to get to smell the Roses and so he can see his KIDS and also I want to say I'M SORRY he Did Not Rape Me.

Garza indicated in his motion that “JM is willing to testify to this letter at [a] hearing,” and requested that the matter be set for hearing. As requested, the district court held a hearing on Garza's motion on September 15, 2008. At that hearing, Garza relied exclusively on the recantation letter and did not present any testimony or other evidence in support of his motion. The district court denied Garza's motion for new trial, stating:

I have reviewed the motion. I have reviewed with great care the letter that is presumably signed by the victim. I have reviewed the case of Brown v. State, [816 P.2d 818 (Wyo.1991),] and in that [case the] supreme court says “Recanted testimony is viewed with the upmost [sic] suspicion.”

In reviewing the letter the format of it by itself arouses suspicion in my mind. It starts out “To Whom It May Concern,” colon. I know of no ten-year-old little girl who would write a letter addressed “To Whom It May Concern.”

It goes on to say “In regard Richard Garza,” colon. I know of no ten-year-old children who would wite [sic] a letter in that format.

I have great recollection of the victim sitting in this witness stand over here and testifying to what in my mind was absolute clarity of the details of these allegations and of these charges.

I also have recollection of, and I reviewed my trial notes in preparing for this hearing, the testimony of [JM's cousin], MG, and [KV]; [KV] being a defense witness essentially, and her testimony was incredible. It was clear to me that Mr. Garza and [KV] conspired to arrange for inaccurate information to be presented to the jury in court.

* * * *

I have also reviewed my notes regarding the testimony of the SANE ^[4] nurse. I recall the photographs which demonstrated to my satisfaction and apparently to the jury's satisfaction that there was recent sexual contact. Certainly the SANE nurse did not know who was responsible for that contact.

The testimony of [JM's cousin], the testimony of the SANE nurse corroborated in my mind the testimony of the victim, that coupled with my instinctive doubt of the veracity of the information contained in this handwritten letter

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