Holloman v. State

• Decision Date: 28 February 2005
• Docket Number: No. 03-160.,03-160.
• Citation: 106 P.3d 879,2005 WY 25
• Parties: Brian K. HOLLOMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

106 P.3d 879

2005 WY 25

Brian K. HOLLOMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-160.

Supreme Court of Wyoming.

February 28, 2005.

Representing Appellant: Kenneth Koski, Wyoming Public Defender; Donna Domonkos, Appellate Counsel; Diane E. Courselle, Director, Defender Aid Program; and Jeff Stanbury, Antoine Tissot, and Sean C. Chambers, Student Interns. Argument by Mr. Chambers.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General. Argument by Ms. Tibbetts.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J., retired.

HILL, Chief Justice.

[¶ 1] Appellant, Brian K. Holloman (Holloman), was convicted of murder in the first degree and sentenced to life in prison. He claims that the trial court committed reversible error by excluding from the evidence the criminal records of both the victim of his crime, as well as that of a third person present at the scene of the crime. Holloman also contends that the trial court committed reversible error in allowing prejudicial character evidence to be called to the attention of the jury. We will affirm.

ISSUES

[¶ 2] Holloman advances these issues:

1. Did the trial court commit reversible error by improperly excluding the criminal records of both Doug Johnson and Herman Thunder Hawk[?] Did the exclusion of the criminal records violate Mr. Holloman's constitutional right to present a defense of self-defense?

2. In violation of W.R.E. 404(b) and Mr. Holloman's due process rights, did the trial court erroneously permit the State to use inadmissible character evidence to portray Brian Holloman as a liar, a spiteful person, a vigilante and, therefore, a murderer?

The State rephrases the issues only slightly:

I. Did the district court commit reversible error by excluding evidence concerning the victim's and Herman Thunder Hawk's prior criminal conduct?

II. Did the district court abuse its discretion in not preventing the State from introducing allegedly inadmissible W.R.E. 404(b) evidence?

In his reply brief, Holloman addresses these additional issues spawned by the State's brief:

1. Thunder Hawk was not a victim of the crime for which Mr. Holloman was on trial, however his criminal record should be admissible under W.R.E. 404(a)(2) and alternatively if Thunder Hawk's testimony is found inadmissible under 404(a)(2), Mr. Holloman's right to present a defense supercedes a rule of evidence (responding to new argument in brief of appellee).

2. The trial court did not rule that the proof of Thunder Hawk and Johnson's criminal history was insufficient.

3. In addressing the harmlessness of excluding the criminal records of Thunder Hawk and Johnson, the [State] ignores the testimony of Thunder Hawk and the testimony of several witnesses to Johnson's death.

4. Mr. Holloman's pretrial demand for notice of intent to introduce evidence under W.R.E. 404(b) operates as a timely objection under this Court's decision in Howard v. State [2002 WY 40, 42 P.3d 483 (Wyo.2002)].

FACTS

[¶ 3] Holloman was previously convicted of this same crime, and we reversed that conviction on the basis that the trial court failed to give requested self-defense instructions. Holloman v. State, 2002 WY 117, 51 P.3d 214 (Wyo.2002) (Holloman I). Although there were some slight variations in the evidence at the second trial, we refer our readers to the statement of the facts contained in our earlier opinion, and we set out below only those facts most pertinent to this appeal. Holloman I, at ¶¶ 4-14.

[¶ 4] The State's theory of the case, in essence, was that Holloman, the victim Douglas Johnson, and a third man, Herman Thunder Hawk, were all in a hotel room on the third story of the Idelman Hotel in downtown Cheyenne, on July 25, 1999. Thunder Hawk was the tenant in the residential hotel, Johnson was a homeless individual who visited Thunder Hawk regularly over the weeks preceding the crime, and Holloman was a transient who had come to Cheyenne on July 24, 1999, on a freight train. The three men had been drinking heavily that day, and both Thunder Hawk and Holloman were self-admitted alcoholics who drank significant quantities of alcohol on a daily basis. The evidence was conclusive that all three men were very intoxicated (Johnson .36 BAC, Holloman .33 BAC, and Thunder Hawk .27 BAC).

[¶ 5] The crime occurred during daylight hours and the streets of Cheyenne were busy because the annual Frontier Days celebration was in progress. The State's evidence demonstrated that, although there was no apparent motive for the crime, Holloman first dangled the victim of his crime from a third-story hotel window for several minutes and then either dropped him, or forcibly pushed him, out of the window. Johnson fell to his death on the sidewalk below. Many witnesses were situated on the street below, or immediately across the street from the hotel, and they testified that they saw Holloman do this, and that he frustrated the efforts of Thunder Hawk to come to Johnson's rescue.¹

[¶ 6] Thunder Hawk testified that he was in the bathroom of the hotel room and heard no commotion in the living area of the room. However, when he came out into that area, he found Holloman attempting to push Johnson out a window. Thunder Hawk related that he attempted to assist Johnson to get back inside the room but that Holloman punched him and prevented him from helping Johnson. Thunder Hawk's testimony was very clear that Holloman pushed Johnson out the window.

[¶ 7] Holloman, on the other hand, contended that when he attempted to turn down blaringly loud music being played on a radio/cassette recorder, he was punched in the side of his face ("blindsided") by someone he could not see. Holloman had a large wound on the side of his face that he had suffered in an alley fight the day before,² and the blow to that area of his face was excruciatingly painful causing him to become disoriented. The wound was inflicted by a broken beer bottle and required many stitches to suture it shut. Photographic evidence demonstrated the size and severity of the injury as it appeared shortly after Holloman was arrested for this crime. He did not know for sure who delivered the punch, although in his testimony he agreed that only Thunder Hawk and Johnson were in the hotel room with him. His theory of the case was that Johnson's death was a tragic accident and that Johnson simply fell out the open window in the tumult that followed the punch to Holloman's face.

DISCUSSION

[¶ 8] Holloman challenges the district court's rulings on the admission or exclusion of evidence in two respects. First, he contends that the district court erred in making a liminal ruling that Holloman would not be permitted to introduce evidence concerning the prior criminal records of both Johnson and Thunder Hawk under W.R.E. 404(a)(2).³ Second, Holloman contends that the district court erred in allowing the admission of evidence of prior bad acts committed by Holloman.

Admissibility of Victim's and Thunder Hawk's Prior Criminal Records

[¶ 9] Holloman contends that by prohibiting him from making any reference to the past crimes committed by Johnson and Thunder Hawk, he was deprived of his constitutional right to present a defense. "Mr. Holloman sought to introduce the criminal records of Mr. Johnson and Thunder Hawk to show that both had a propensity towards violence. This would serve as evidence that one or both of these men was the first aggressor and that Mr. Holloman responded in self-defense. By not being allowed to present such evidence, Mr. Holloman was prevented from effectively demonstrating to the jury that he acted in self defense."

[¶ 10] 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 also 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 abuse. Wilde v. State, 2003 WY 93, ¶ 13, 74 P.3d 699, 707, ¶ 13 (Wyo.2003); and see Edwards v. State, 973 P.2d 41, 45-47 (Wyo.1999)

.

[¶ 11] Holloman asserts that we must evaluate this issue as a violation of due process of law. We are convinced that the standard of review recited above is the appropriate standard in these circumstances and decline to address the "constitutional" argument propounded in Holloman's brief.

[¶ 12] We have recognized that there are circumstances where the character of the victim of a crime may be relevant, especially in those instances where the defendant contends that an assault or a homicide was justified because the victim was the first aggressor and was known to be of a violent character. Such evidence is not offered for the sake of proving the victim's bad character, but rather to explain defendant's motive and what he might have reasonably apprehended as to the danger he faced. See, e.g., Edwards, 973 P.2d at 45-47

; Braley v. State, 741 P.2d 1061, 1067-69 (Wyo.1987); State v. Velsir, 61 Wyo. 476, 159 P.2d 371, 373-74 (1945) (principle recognized, but exclusion of such evidence not error where offer of proof inadequate); and Mortimore v. State, 24 Wyo. 452, 474-75, 161 P. 766, 772 (Wyo.1916). Although we will not discuss them in detail here, the authorities we...