King v. State, S–12–0187.

• Decision Date: 19 December 2013
• Docket Number: No. S–12–0187.,S–12–0187.
• Citation: 315 P.3d 639
• Parties: Lashawn Sidney KING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

315 P.3d 639

Lashawn Sidney KING, Appellant (Defendant),

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

No. S–12–0187.

Supreme Court of Wyoming.

Dec. 19, 2013.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender; ^* Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope Assistant Attorney General. Argument by Mr. Pope.

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

VOIGT, Justice.

[¶ 1] The appellant, LaShawn Sidney King, was convicted of attempted first-degree murder, kidnapping, and two counts of aggravated assault and battery after he attacked the victim and hit her several times in the face and body with a sledgehammer. In this appeal, the appellant argues his convictions should be reversed because the district court improperly admitted evidence of the appellant's previous violent behavior against the victim, a transcript was provided to the jury of a telephone conversation between the appellant and the victim, and trial counsel was ineffective for waiving the appellant's right to a speedy trial.¹ Finding no error, we affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion when it determined that testimony regarding previous violence in the appellant's relationship with the victim was admissible under W.R.E. 404(b)?

2. Did the district court abuse its discretion when it allowed the jury to review a transcript of a telephone recording between the appellant and the victim while the recording was being played at trial?

3. Was trial counsel ineffective because he requested a continuance and filed a waiver of speedy trial signed by the appellant, contrary to the appellant's desire not to waive his right to a speedy trial?

FACTS

[¶ 3] On May 6, 2011, the appellant called the victim and asked her to go to a movie with him because he was moving to Detroit the next day. The victim reluctantly agreed, picked up the appellant from his apartment, and drove them to the movie theatre. The appellant asked the victim to park her van off to the side of the road instead of in the parking lot, but she refused and parked in the main parking lot. She then heard a “dull thump” inside the van. She turned and looked at the appellant, who was staring straight at her. The victim tried to get out of the van, but the appellant grabbed her by the hair and hit her in the eye with a sledgehammer. The appellant continued to hit the victim with the sledgehammer, hitting her again in the eye, the hand, and the back of her head.

[¶ 4] The victim struggled out of the van as the appellant screamed that he was going to kill her. The appellant grabbed the victim, forced her into the van, and drove the van away from the theatre. As she was in the back of the van, unable to see clearly due to her injuries, the victim located her cell phone and called 911. Although the victim did not have a conversation with the 911 dispatcher, she made statements to the appellant that gave the dispatcher an idea of where she was and what was happening to her. Eventually, the victim hid the cell phone in a basket in the hopes the appellant would not notice the phone or that she had dialed 911.

[¶ 5] After driving through the Casper area, the appellant stopped the van and asked the victim where her cell phone was located. The appellant then rummaged through the back of the van until he found the cell phone in the basket. The appellant began hitting the victim with his fists while telling her that he was going to kill her. He removed the battery from the phone, threw the phone to the floor of the van, and began driving again. Eventually, law enforcement officers were able to locate the van, arrest the appellant, and seek medical attention for the victim. Following a jury trial, the appellant was convicted of attempted first-degree murder, kidnapping, and two counts of aggravated assault and battery.

DISCUSSION

Did the district court abuse its discretion when it determined that testimony regarding previous violence in the appellant's relationship with the victim was admissible under W.R.E. 404(b)?

[¶ 6] Before trial, the prosecution filed a notice that it intended to use evidence, pursuant to W.R.E. 404(b), of the appellant's violent behavior in his relationship with the victim and towards a former girlfriend. The prosecution asserted the evidence was proper to show the appellant's motive and intent when he attacked the victim, and that the appellant's actions toward the victim were not done by accident or mistake. The appellant objected to the notice, asserting the notice did not describe the prior conduct with sufficient specificity, the evidence of prior conduct was unfairly prejudicial, and the prior conduct was too remote in time. The district court held a hearing, wherein both parties gave lengthy arguments regarding the nature of the proposed evidence. Thereafter, the district court held another hearing where it gave an oral ruling regarding the evidence. After conducting an analysis of each piece of evidence offered by the prosecution, it held that the prosecution could not introduce any evidence of the appellant's abuse against his previous girlfriend and several instances where the appellant allegedly threatened the victim's family members and accused the victim of cheating. However, the district court determined specific instances of violence by the appellant against the victim would be admissible. The appellant now argues the district court's decision was an abuse of discretion because it listed several proper purposes for the use of the evidence pursuant to W.R.E. 404(b), instead of identifying one specific purpose for each piece of evidence.

[¶ 7] When reviewing a district court's decision regarding the admissibility of evidence pursuant to W.R.E. 404(b), this Court uses the following standard of review:

We review claims of error concerning the improper admission of W.R.E. 404(b) evidence for abuse of discretion and will not reverse the trial court's decision absent a clear abuse. Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo.2006). A trial court abuses its discretion when it could not have reasonably concluded as it did. Id. In this context, “reasonably” means sound judgment exercised with regard to what is right under the circumstancesand without being arbitrary or capricious. Id.

Munoz v. State, 2013 WY 94, ¶ 3, 307 P.3d 829, 830 (Wyo.2013) (quoting Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206–07 (Wyo.2007)). Further, if the evidence was admitted in error, we must determine whether the error was prejudicial. Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo.2010). “Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made.” Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo.2010).

[¶ 8] In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo.2002), this Court admonished the district courts from engaging in the “shotgun approach” of listing every conceivable purpose for the admissibility of evidence under W.R.E. 404(b), followed by a nondescript statement that the probative value of the evidence outweighs the prejudicial effect. Id. at ¶ 30, 57 P.3d at 343. Instead, we required the record to reflect “the trial court's identification of the purpose or purposes for admission of the evidence, the findings and conclusions establishing relevance and probative value, and the factors considered in balancing probative value against the potential for unfair prejudice.” Id. To ensure the probative value of the evidence is balanced against the potential for unfair prejudice, district courts are to make the following considerations:

In determining the probative value of prior bad acts evidence, the trial court should consider the following factors:

1. How clear is it that the defendant committed the prior bad act?

2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?

3. Is other evidence available?

4. Is the evidence unnecessarily cumulative?

5. How much time has elapsed between the charged crime and the prior bad act?

Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. In balancing against its probative value the unfair prejudice created by the evidence, the trial court should consider the extent to which the evidence distracts the jury from the central question whether the defendant committed the charged crime. The trial court should weigh these additional factors against the probative value of the evidence:

1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.

2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.

3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again.

4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable light.

5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b).

6. Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped...