Jackson v. State

• Citation: 492 P.3d 911
• Decision Date: 11 August 2021
• Docket Number: S-21-0015
• Court: United States State Supreme Court of Wyoming
• Parties: Bradley Dean JACKSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

492 P.3d 911

Bradley Dean JACKSON, Appellant (Defendant),

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

S-21-0015

Supreme Court of Wyoming.

August 11, 2021

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

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

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

FOX, Chief Justice.

[¶1] A jury convicted Bradley Jackson of strangulation of a household member. On appeal, Mr. Jackson argues that the district court erred when it admitted evidence that he violated a no-contact order when he called the victim after his arrest, and that the victim's hearsay statement recorded on the responding officer's bodycam should not have been allowed as an excited utterance. We affirm.

ISSUES

[¶2] Mr. Jackson raises three issues:

I. Was Mr. Jackson prejudiced by the admission of evidence that he violated a no-contact order when he called the victim from jail?

II. Did the district court err when it determined the victim's statement on the responding officer's bodycam was an excited utterance?

III. Did cumulative error deprive Mr. Jackson of a fair trial?

FACTS

[¶3] Bradley Jackson and K.W.’s five-year relationship ended after Mr. Jackson came home from the bar, accused K.W. of cheating, repeatedly threw her to the bed, choked her, and smothered her with a blanket. The couple's upstairs neighbors overheard the commotion and called the police. Corporal Nevada Krinkee arrived on the scene, heard a thud and a scream, then knocked on the door and announced himself. K.W. answered the door, and Corporal Krinkee entered the apartment. Corporal Krinkee directed Mr. Jackson and K.W. to separate areas of the apartment while they waited for a second officer to arrive on the scene. When the second officer arrived, he took Mr. Jackson into the hall and Corporal Krinkee spoke to K.W. in the living room.

[¶4] Initially, K.W. reported that Mr. Jackson had arrived home drunk and had shoved her. Corporal Krinkee did not believe her initial statement. As he questioned her, K.W.’s story evolved. About ten minutes after Corporal Krinkee arrived at the apartment, K.W. fully disclosed her version of the night's events. She reported that Mr. Jackson arrived home from the bar, went into the bedroom, and accused her of cheating on him with a friend. Mr. Jackson then went to the kitchen and after several minutes returned, threw the blankets off K.W. and onto the floor, and when K.W. stood to retrieve them, he pushed her back onto the bed with his hands around her neck and his thumbs pushing into the underside of her jaw. K.W. asserted that she could not breathe and felt a throbbing pain around her neck. This happened three times. Mr. Jackson also placed the blankets over K.W.’s head, making it difficult for her to breathe. He then discovered K.W.’s phone and took it to the kitchen. K.W. chased after him, smacked the phone out of his hand, and picked it up. As she backed out of the kitchen, Corporal Krinkee knocked on the door.

[¶5] Corporal Krinkee took photos of K.W.’s injuries, including a mark under her chin and bruises on her arms. He arrested Mr. Jackson, who was charged with strangulation of a household member. The circuit court ordered Mr. Jackson to have no contact with K.W. Despite this order, Mr. Jackson called K.W. twice. K.W. did not answer Mr. Jackson's first call, but she did speak to him when he called later in the day. In the jailhouse recording, she told Mr. Jackson that they were not supposed to be talking and Mr. Jackson said:

Okay. So I just wanted to let you know like this is really bad for me, really bad. So, I'm not sure what you told those guys but it's really bad for me. Griz [his dog] will be gone. I won't have a job left. I'll probably have to sell the truck. At least my house is rented maybe that will still be there. I just wanted to let you know, I'm not sure what you said, but it's way bad. And everything else goes without saying. You know I am obviously sorry as [expletive] and everything else. But thanks for getting it. I don't know who you've talked to otherwise. Anyone?

The pair then talked for a few more seconds about who K.W. had spoken with and her injuries. Then she indicated again they were not supposed to be speaking, and they hung up. Mr. Jackson then called a friend and admitted he had called K.W. even though he was under a no-contact order.

[¶6] The State filed a pretrial notice that it intended to introduce the phone calls and the fact Mr. Jackson made them in violation of a no-contact order. The State argued that the evidence was admissible as "post-crime guilty mind evidence" and therefore not subject to W.R.E. 404(b), but asserted it was admissible even if the court determined Rule 404(b) applied. At the first pretrial conference, the district court proposed excluding the existence of the no-contact order to avoid the Rule 404(b) issue. The State opposed this suggestion, arguing Mr. Jackson's violation of the no-contact order was "guilty-mind evidence" and therefore outside Rule 404(b), and "among the State's more probative evidence." Mr. Jackson objected to the admission of the recorded phone calls, but, despite making a propensity argument, agreed they were not subject to Rule 404(b). The district court took the issue under advisement and, at the second pretrial conference, ruled in the State's favor and undertook a brief 404(b) analysis despite both parties stating it did not apply. The district court allowed the evidence that Mr. Jackson violated a no-contact order when he called K.W., but excluded Mr. Jackson's contempt of court conviction.

[¶7] The State also filed a pretrial notice that it intended to introduce Corporal Krinkee's bodycam video of K.W.’s statement. It asserted the bodycam video was admissible under the excited utterance exception in W.R.E. 803(2). Mr. Jackson preserved his objection to the evidence at the second pretrial conference and asserted the district court should determine the admissibility of the evidence when it was presented at trial. At trial, both sides admitted parts of the bodycam footage. At one point, the State moved to introduce a five-minute portion of Corporal Krinkee's bodycam video. Mr. Jackson objected and argued that it was misleading and the State should show the entire video. The district court overruled the objection and said, "[I]f you want additional portions of that body-cam video to be admitted, you can do that on cross-examination. ... There was some discussion at pretrial about the hearsay component of that. And the Court finds that there's sufficient foundation that it qualifies as an excited utterance." On cross-examination, Mr. Jackson's attorney questioned Corporal Krinkee about K.W.’s statements to him about her injuries. The State objected to the questioning on hearsay grounds, and the district court overruled the objection because it had admitted the statements as excited utterances.

[¶8] Mr. Jackson's theory was that he committed domestic battery, but not strangulation, because he did not impede K.W.’s breathing or circulation. Compare Wyo. Stat. Ann. § 6-2-511(a) (LexisNexis 2019) ("A household member is guilty of domestic battery if he knowingly or recklessly causes bodily injury to another household member by use of physical force.") with Wyo. Stat. Ann. § 6-2-509(a) ("A person is guilty of strangulation of a household member if he intentionally and knowingly or recklessly causes or attempts to cause bodily injury to a household member by impeding the normal breathing or circulation of blood."). The jury convicted Mr. Jackson of strangulation of a household member, and the district court sentenced him to three to five years in prison. Mr. Jackson appeals.

DISCUSSION

I. Mr. Jackson Was Not Prejudiced by the Admission of the Recorded Phone Calls

[¶9] Prior to trial, the State filed notice of its intent to introduce Mr. Jackson's jailhouse phone calls, including the fact that they were made in violation of a no-contact order, as evidence at trial. The State, citing Palmer v. State , 2009 WY 129, 218 P.3d 941 (Wyo. 2009), argued the calls were "guilty-mind" evidence and therefore not subject to a 404(b) Gleason analysis, and Mr. Jackson agreed with the State's assertion. The district court recognized the potential 404(b) problem and conducted an abbreviated analysis of the issue: "In conducting the 404(b) analysis, the Court finds that the evidence is being offered for a proper purpose, that is, state of mind of guilt, that the evidence is relevant, and the probative value is not substantially outweighed by the unfair prejudice." At oral argument on appeal, Mr. Jackson's counsel argued that trial counsel on both sides misapplied the Palmer analysis and suggested that the jailhouse phone calls should have been subjected to a 404(b) analysis. Mr. Jackson asked this Court to clarify whether Palmer excluded all "guilty-mind" evidence from a 404(b) analysis. We take this opportunity to do so.

A. Palmer , Rule 404(b), and Consciousness of Guilt Evidence

[¶10] "A core principle of Wyoming Rule of Evidence 404(b) ‘is that the defendant in a criminal case should not be convicted because he is an unsavory person, nor because of past misdeeds, but only because of his guilt of the particular crime charged.’ "

Blanchard v. State , 2020 WY 97, ¶ 18, 468 P.3d 685, 691 (Wyo. 2020) (quoting Vinson v. State , 2020 WY 93, ¶ 17, 467 P.3d 1009, 1012 (Wyo. 2020) ). To protect against this, the State is required to give notice of its intent to use 404(b) evidence. Gutierrez v. State , 2020 WY 150, ¶ 4, 477 P.3d 528, 530 (Wyo. 2020). This notice then triggers a Gleason hearing in which the district court must follow "a mandatory procedure ... for...