Lacey v. State

• Citation: 803 P.2d 1364
• Decision Date: 31 December 1990
• Docket Number: No. 89-238,89-238
• Parties: Kevin Ross LACEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1364

803 P.2d 1364

Kevin Ross LACEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-238.

Supreme Court of Wyoming.

Dec. 31, 1990.

Rehearing Denied Feb. 1, 1991.

Linda S. Lewis and Daniel G. Blythe of Blythe & Lewis, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

MACY, Justice.

Appellant Kevin Ross Lacey appeals from his convictions for one count of kidnapping and two counts of aggravated assault and battery and from the district court's denial of his motion for a new trial.

We affirm.

Appellant raises the following issues:

I. Does the due process clause of the fourteenth amendment to the Constitution of the United States as interpreted by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] and Article 1 Section 6 of the Wyoming Constitution require a new trial for Appellant?

II. Does the confrontation clause of the sixth amendment to the United States Constitution and Article 1 Section 10 of the Wyoming Constitution require a new trial for Appellant?

III. Should the Court grant Appellant a new trial based on newly discovered evidence?

IV. Was counsel for the Appellant ineffective so that Appellant should be granted a new trial?

V. Should the Court remand this matter for resentencing for the reason that Appellant's status is that of an habitual criminal and not a status of habitual criminal on two separate charges?

At the trial, Appellant's wife, Diane, testified to the occurrence of the following events. On September 10, 1988, Appellant finished working and returned to the apartment where he and Diane lived. Diane was approximately six months pregnant. Appellant had consumed some alcohol, and he continued to drink throughout the evening. Between nine and ten o'clock, the couple prepared to go to bed, and Diane asked Appellant if she could read a book. Appellant got angry because he did not approve of the book's subject matter and tore the book into pieces. Diane became frightened and went into the bathroom to change clothes so she could leave. Appellant went into a fury, kicked the bathroom door open, and began to strike Diane. Appellant pushed Diane into the bathtub, continued to beat her, pulled her hair, and told her that she and the baby she was carrying had to die. Although Diane did not believe she would survive her husband's attack, the physical violence ceased after a period of thirty to forty-five minutes. At that point, Appellant became apologetic, and the couple cleaned up Diane's hair and blood. Despite the fact that Appellant's rage had subsided, he told Diane that she would have to die before the night was over. Diane asked if she could leave the apartment, but Appellant said, "No." After the bathroom was cleaned, Appellant retrieved several cans of beer and a knife, and the couple went to bed. Appellant lay beside Diane, holding the knife, and told her to go to sleep.

The next day, Appellant continued to exercise dominion over Diane by accompanying her everywhere she went and by carrying the knife or keeping it in close proximity. Appellant also poked at Diane with the knife, held it to her throat, and continued to verbally threaten her. The couple had several visitors during the day, but Diane was too afraid of Appellant to say or do anything which would alert anyone of her peril. Diane and Appellant left the apartment so Appellant could speak with a co-worker, but, once again, Diane was too scared to seek help. Finally, Diane's sister stopped by the apartment, and Diane told her that she wanted to get out. Diane's sister notified her father of Diane's plight, and he went to the apartment and liberated Diane without incident.

A criminal complaint was filed against Appellant, charging him with one count of kidnapping in violation of Wyo.Stat. § 6-2-201(a)(ii) and (iii) (1977) and of Wyo.Stat. § 6-2-201(d) (1977) ¹ and with two counts of aggravated assault and battery in violation of Wyo.Stat. § 6-2-502(a)(iii) and (iv) (1977) and of Wyo.Stat. § 6-2-502(b) (1977). ² The information also alleged that Appellant was a habitual criminal under Wyo.Stat. § 6-10-201(a)(ii) (1977). Appellant initially pleaded not guilty to all three counts and then changed his plea to not guilty by reason of mental illness. After two medical examinations, which were conducted for the purpose of determining if Appellant was mentally competent to stand trial, the district court issued an order continuing Appellant's trial.

Diane testified that before the trial she and Appellant discussed the idea of Diane either changing her version of the story or refusing to testify against Appellant. She stated that she also went to the prosecuting attorney's office and that she told him a story which was different from her original statement. Before Appellant's trial, Diane left the state, and, consequently, police arrested her in Oklahoma for failing to appear.

On April 18, 1989, a jury convicted Appellant on all three counts, and the court referred the matter for a presentence investigation. On August 4, 1989, Appellant filed a motion for a new trial. He based the motion upon Diane's claim that her testimony at the trial was false. Attached to the motion was a statement by Diane in which she said that she was the aggressor in the altercation with Appellant, that Appellant only restrained her during her rage, that Appellant did not keep her in the apartment against her will, and that Appellant did not threaten her with a knife. Diane also stated that she attempted to tell the truth to the prosecuting attorney but that he coerced her into testifying against Appellant in accordance with her original story.

The district court held a motion hearing and concluded that Appellant was not entitled to a new trial. The court stated:

[I]t is my judgment that in any event, that the recanted testimony by Mrs. Lacey is totally without credibility and probably because of coercion or emotional turmoil brought about by the husband-wife relationship.

The district court sentenced Appellant to the Wyoming State Penitentiary for a minimum of twenty years and a maximum of twenty-five years on count I, for a minimum of ten years and a maximum of fifteen years on count II, and for a minimum of ten years and a maximum of twelve years on count III. The sentencing order stated that the sentences for counts I and II were to run concurrently to each other and that the sentence for count III was to run consecutively to the sentences for counts I and II. This appeal followed.

I

Appellant's first issue encompasses two questions. First, did the district court err when it allowed several of the State's witnesses to testify about Diane's out-of-court statements? Second, is Appellant entitled to a new trial because the State suppressed and utilized perjured testimony in violation of the due process clause of the United States Constitution and Article 1, Section 6 of the Wyoming Constitution?

Appellant argues that the district court violated W.R.E. 608(a) by allowing witnesses for the State to support Diane's credibility before it was attacked. Diane was the first witness called by the State. The State subsequently called five witnesses who testified, inter alia, about statements which Diane had made to them shortly after the alleged assaults, batteries, and kidnapping. Appellant's counsel objected to some of the testimony as being inadmissible hearsay. The State responded by asserting that the statements were prior consistent statements which were being offered to rebut an expressed or implied charge of recent fabrication or improper influence. The district court overruled Appellant's objections.

W.R.E. 801(d)(1)(B) provides:

A statement is not hearsay if:

(1) Prior Statement by Witness.--The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]

In Makinen v. State, 737 P.2d 345 (Wyo.1987), we stated that W.R.E. 801(d)(1)(B) has two express conditions. First, the prior statement must be consistent with the declarant's testimony. Second, there must be an express or implied charge of recent fabrication or of improper influence or motive.

The testimony given by the State's witnesses satisfies both conditions. As conceded by Appellant in his appellate brief, the testimony given by the five witnesses was consistent with Diane's testimony. The record also reveals sufficient evidence of an implied charge of improper influence. On direct examination, Diane stated that she went to the prosecuting attorney's office and tried to change the story contained in her original statements. She also stated that she and Appellant discussed the idea of her altering her story. On cross-examination, Appellant's counsel asked Diane if the prosecution made a deal with her in exchange for her testimony. He also repeatedly asked her if she and the prosecuting attorney had gone over her testimony before the trial. Under those circumstances, we hold that the district court did not err by allowing the State's witnesses to testify about Diane's prior consistent statements pursuant to W.R.E. 801(d)(1)(B).

Appellant also argues that he is entitled to a new trial because the State utilized Diane's perjured testimony and because it did not disclose the fact that it cut a deal with Diane in return for her testimony. During the hearing on Appellant's motion for a new trial, Diane claimed that her testimony at the trial was perjured. She also stated that the prosecuting attorney threatened to extradite her from Oklahoma and to allow authorities to keep her children unless she voluntarily...