McCone v. State

• Decision Date: 30 December 1993
• Docket Number: No. 93-50,93-50
• Parties: Henry McCONE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 740

866 P.2d 740

Henry McCONE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-50.

Supreme Court of Wyoming.

Dec. 30, 1993.

Rehearing Denied Feb. 2, 1994.

Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, argued, and Bobbi Renner, Laramie, representing appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., and Barbara L. Boyer, Sr. Asst. Atty. Gen., argued, representing appellee.

Before THOMAS, CARDINE, GOLDEN, and TAYLOR, JJ., and McEWAN, District Judge (Retired).

CARDINE, Justice.

Henry L. McCone was convicted of four counts of making terroristic threats in violation of W.S. 6-2-505, for telephone calls made to the Bethesda Care Center and a police dispatcher in Laramie, Wyoming. On appeal he raises issues concerning: (1) vagueness and overbreadth, (2) jurisdiction and venue, (3) due process in identifying McCone, (4) instructing the jury on the law of the case and on lesser included crimes, (5) witnesses commenting on another's credibility, (6) victim impact testimony, (7) other bad acts testimony, (8) hearsay, (9) closing arguments, and (10) sufficiency of the evidence.

We affirm.

McCone presents the following issues:

ISSUE I

Whether Wyoming Statute § 6-2-205 [sic] is unconstitutional because it is vague and overbroad.

ISSUE II

Whether the Second Judicial District Court had jurisdiction and was proper venue.

ISSUE III

Whether Appellant was denied due process when witnesses identified his voice from unnecessarily suggestive procedures.

ISSUE IV

Whether Appellant was denied a fair trial when the trial court incorrectly instructed the jury on the law of the case.

ISSUE V

Whether the district court denied Appellant the right to a fair trial when it refused to instruct the jury on the lesser-included offense of threatening telephone calls.

ISSUE VI

Whether witness testimony concerning the credibility and truthfulness of the appellant was error per se.

ISSUE VII

Whether the prosecution violated Wyoming Rules of Evidence 401 and 403 by eliciting improper victim impact testimony at trial.

ISSUE VIII

Whether the trial court erred when it allowed evidence of Appellant's other bad acts under Wyoming Rules of Evidence 404(b).

ISSUE IX

Whether the trial court erred when it ruled that Officer Marti's report was inadmissible under W.R.E. 803(6), the business records exception to the hearsay rule.

ISSUE X

Whether Appellant was denied his right to a fair trial when the prosecutor made improper remarks in closing arguments.

ISSUE XI

Whether the evidence produced at trial was sufficient to prove beyond a reasonable doubt that Appellant committed terroristic threats.

I. FACTS

On July 19, 1992, the Bethesda Care Center (Bethesda), a nursing home in Laramie, Wyoming, received two unusual phone calls. Lori Middleton (Middleton), a staff nurse at Bethesda, answered both of these calls. Middleton testified that the first call (hereinafter call # 1) came around 8:00 p.m. from a male calling himself Antonio, who asked to speak with Teresa Landkamer (Landkamer), another Bethesda employee, about bad checks. Landkamer could not come to the phone, and the conversation ended. At around 9:40 p.m. that same evening, Antonio called again (hereinafter call # 2) asking to speak with Landkamer. Middleton described the 30 to 40 second conversation as follows:

I told him [the caller] that she was working and I could give her a message. He told me that he wanted to talk to the [expletives] and if I didn't get her on the phone he would come up there and blow my [expletive] head off.

Middleton put the caller on hold, but he hung up before Landkamer could come to the phone.

Immediately after call # 2, Middleton contacted the Laramie police; and the Bethesda facility was secured through a "lock down" procedure. A Laramie police officer came to the facility and interviewed Middleton that same evening.

The following day, July 20, 1992, Bethesda received two more threatening calls. The first was answered by Nesta Patzer (Patzer), Bethesda's office manager, and the second by Laura White-Mohseni (White-Mohseni). Patzer testified that the caller on the first call on July 20 (hereinafter call # 3) threatened to place a bomb at Bethesda within 24 hours if the caller did not get his money. White-Mohseni described the second call on July 20 (hereinafter call # 4) as follows:

This is Tonio from Denver, unless Teresa Landkamer pays 2,000 owed for cocaine I will place a bomb in Bethesda Care Center within 24 hours.

After these calls, the police were contacted; and Officer Donnelly, a Laramie police officer trained in explosives and bomb threat management, visited Bethesda.

While investigating at Bethesda on July 20, Officer Donnelly interviewed Landkamer. She suggested that McCone could be the caller because she had received harassing phone calls from McCone, her ex-boyfriend, in the recent past. Landkamer, within an hour after Officer Donnelly arrived at Bethesda, retrieved a tape recording she had made previously of a phone conversation with McCone. Officer Donnelly then played this tape for White-Mohseni, the receiver of call # 4, in an enclosed office at Bethesda. White-Mohseni testified that when she listened to the tape she was not aware whose voices were on the tape but that she later learned they belonged to Landkamer and McCone. She also testified that she identified the male voice on the tape as the same voice she heard on call # 4. That evening, the Laramie police placed an officer at Bethesda for security.

On July 21, 1992, the Laramie police dispatcher received another threatening phone call concerning Bethesda (hereinafter call # 5). This time the caller stated that a bomb would go off in 56 minutes at Bethesda. Bethesda was contacted and immediately began evacuating the facility's 120 patients. Officer Donnelly was also contacted and dispatched to Bethesda, where he stopped the evacuation because he believed the threat was a hoax. Donnelly and some of Bethesda's staff searched the facility and located nothing unusual, and then Donnelly went to the Laramie Police Dispatch Center.

Like all calls received by the Laramie police dispatcher, call # 5 was recorded. After returning to the dispatch center, Officer Donnelly listened to the tape recording of call # 5 and recognized the caller as McCone based upon past encounters with McCone. Later that day, Officer Donnelly and another officer arrested McCone at his residence in The day after McCone's release, Bethesda received another call (hereinafter call # 6), during which the caller threatened to bomb Bethesda every two weeks until the caller received his money. This call was received by Patzer, and she identified the caller as the same one who called when she answered call # 3 on July 20. After call # 6, McCone was arrested again and subsequently charged with four counts of making terroristic threats based on call # 2, call # 4, call # 5 and call # 6. After a two and a half day jury trial, McCone was convicted on all four counts.

Laramie. McCone was released the following day, July 22, 1992.

II. DISCUSSION

A. VAGUENESS AND OVERBREADTH

McCone asserts that W.S. 6-2-505(a) (1988) is unconstitutionally vague and overbroad. Wyoming Statute 6-2-505(a) provides:

(a) A person is guilty of a terroristic threat if he threatens to commit any violent felony with the intent to cause evacuation of a building, place of assembly or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such inconvenience.

McCone argues that because the statute employs both specific intent and general intent, and because the phrase "serious public inconvenience" and the term "threat" are not defined, then the ordinary person must speculate as to what conduct is prohibited.

When we review a statute for vagueness, we begin by determining whether the statute may be challenged "facially" or only as it applies to the challenger's conduct. Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993) (citing Griego v. State, 761 P.2d 973, 975 (Wyo.1988)). We review a statute "facially," i.e., we examine the statute in light of how it might be applied to situations other than the challenger's, only if the statute "reaches a substantial amount of constitutionally protected conduct," or if the statute specifies no standard of conduct at all. Griego, 761 P.2d at 975 (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)), see also Ochoa, 848 P.2d at 1363. McCone asserts that W.S. 6-2-505(a) should be reviewed "facially" because it reaches a substantial amount of protected speech such as "practical jokes and groundless threats" and because it specifies no standard at all.

The fundamental right to speak freely, as embodied in the First and Fourteenth Amendments of the United States Constitution and Art. 1 § 20 of our Wyoming Constitution, is not without its limits. John E. Nowak and Ronald D. Rotunda, Constitutional Law § 16.12 at 957 (4th ed. 1991 Hornbook Series); Robert B. Keiter and Tim Newcomb, The Wyoming State Constitution at 59 (1993); see also Spence v. Flynt, 816 P.2d 771, 774-75 (Wyo.1991). Generally, government is prohibited from proscribing speech and expressive conduct based upon disapproval of the speech's or conduct's content; however, "restrictions upon the content of speech in a few limited areas, which are 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality,' " are permitted. R.A.V. v. City of St. Paul, 505 U.S. 377, ---- - ----, 112 S.Ct. 2538, 2542-43, 120 L.Ed.2d 305 (1992) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942)). Speech which causes a clear and present danger to society is not protected. Schenck v. United...