Pendleton v. State

• Decision Date: 02 April 2008
• Docket Number: No. 06-129.,06-129.
• Citation: 180 P.3d 212,2008 WY 36
• Parties: Brandy Fay PENDLETON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

180 P.3d 212

2008 WY 36

Brandy Fay PENDLETON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-129.

Supreme Court of Wyoming.

April 2, 2008.

D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric A. Johnson, Director, Prosecution Assistance Program; Geoffrey L. Gunnerson, Student Director; and Brian J. Hunter, Student Intern. Argument by Mr. Hunter.

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

VOIGT, Chief Justice.

[¶ 1] Brandy Pendleton (the appellant) was convicted of being an accessory before the fact to first-degree murder and of conspiring to commit first-degree murder. Part of the evidence submitted to the jury during her trial was a tape-recorded interview wherein the appellant discussed her involvement in the attempted murder. In this appeal, the appellant alleges a number of errors resulting from the admission of this recorded interview. She also contends that the prosecutor improperly elicited testimony from a co-conspirator concerning a guilty plea. We will affirm.

ISSUES

[¶ 2] The appellant presents the following issues for our review:

1. Whether plain error occurred when the jury was permitted to hear the appellant's entire recorded police interview?

2. Whether trial counsel rendered ineffective assistance by not objecting to admission of the recorded interview or by the tactical decision to allow the interview to be admitted?

3. Whether the district court erred when it allowed the jury to take a recording of the interview into the deliberation room?

4. Whether plain error occurred when the State elicited in its case-in-chief that the principal pled guilty to attempted second-degree murder?

FACTS

[¶ 3] On June 25, 2004, the appellant was released from jail after serving a ten-day sentence for delivery of methamphetamine. As her husband was driving her home from jail, the appellant spotted Armando Canales (Cali). The appellant asked her husband to stop the vehicle and she confronted Cali because she suspected that he had "snitched her out." At that time, the appellant told Cali, "I'll see you dead."

[¶ 4] Later that same day the appellant met with Dayle Wooden and Josh Dubois (J.D.) and discussed Cali. The appellant told J.D. that Cali was a "rat" and that he was looking for J.D. The appellant offered J.D. $7,000 and a fake I.D. if he would kill Cali. Later that night, J.D. found Cali, drove him out of town, and shot him twice with a sawed-off shotgun. After shooting Cali, J.D. fled to Cortez, Colorado, where he was eventually arrested. Cali did not die from his wounds.

[¶ 5] Almost a year after the shooting, Wooden, who was then incarcerated in Utah on unrelated charges, told authorities that he had information about his and the appellant's involvement in the Cali shooting. Wyoming law enforcement officers interviewed both Wooden and J.D. (who had already pled guilty to the attempted murder of Cali). Both confirmed the appellant's involvement in the attempted murder. On June 8, 2005, Detectives Vranish and Matthews interviewed the appellant regarding her involvement in the crime.

[¶ 6] Based on the information gathered by interviewing Wooden, J.D., and the appellant, the State of Wyoming filed a felony Information against the appellant on June 20, 2005. The appellant was charged with being an accessory before the fact to first-degree murder and with conspiring to commit first-degree murder. The appellant pled not guilty, but was convicted on both counts after a four-day jury trial.

[¶ 7] The appellant filed a timely notice of appeal.

STANDARD OF REVIEW

[¶ 8] The appellant did not object at trial to any of the alleged errors and thus our review is for plain error.

When no objection is made at trial to the evidence challenged on appeal, we apply our plain error standard of review. Plain error will not be found unless: (1) the record clearly reflects the alleged error; (2) the party claiming the error demonstrates a violation of a clear and unequivocal rule of law; and (3) the party proves that the violation adversely affected a substantial right resulting in material prejudice.

Cazier v. State, 2006 WY 153, ¶ 10, 148 P.3d 23, 28 (Wyo.2006).

[¶ 9] Additionally, the appellant raises a claim of ineffective assistance of trial counsel for the first time in this appeal. Because the district court did not hear the claim or make any findings of fact or conclusions of law, this Court must conduct a de novo review of the facts pertinent to the claim of ineffective assistance. Barker v. State, 2006 WY 104, ¶ 16, 141 P.3d 106, 113 (Wyo.2006).

DISCUSSION

Whether plain error occurred when the jury was permitted to hear the appellant's entire recorded police interview?

[¶ 10] The appellant first argues that it was plain error for the district court to allow the jury to hear the recorded interview. Specifically, she contends that certain statements made by the officers during the interview were misstatements of the law, that the officers expressed opinions of guilt, and that the officers implicitly vouched for the credibility of the State's witnesses when, while questioning her, they accused her of lying. The appellant points to the following highlighted portions of the recording as the basis for her claims:

[Appellant]: They are trying to find out what I knew about Cali and J.D.

M. Vranish: And did you say, "yeah, I saw J.D. tonight with a sawed off shot gun. He was at my house there cutting the barrel off.

[Appellant]: No, sir I didn't because I didn't want to go right back to jail.

M. Vranish: Because you're involved. That's right. Because you had prior knowledge of it. Is that not correct?

[Appellant]: I had prior knowledge of what he said was going to happen, but J.D. has told some really far fetched stories before.

M. Vranish: Yeah. So, right there, you admit that you had knowledge. Right there you admit that you are an accessory before the fact.

[Appellant]: I am not an accessory ...

D. Matthews: You are, you just admitted to me, you said you had prior knowledge, see Brandy, this is the thing that is going to get you into trouble, you're admitting the crime, but you are not being honest about the crime.

[Appellant]: What does it matter? You guys have already pre-determined what's going to happen to me, haven't ya?

D. Matthews: Well, there, there is no doubt you're going to go to jail Brandy, we are going to be honest with you. But, at this point you can't hurt yourself anymore, you've, you've, you've filled the elements of the crime. You have told us what happened.

M. Vranish: I'm not the Judge and I'm not the jury, so no, I haven't pre-determined what's going to happen to you.

D. Furlong: Oh, yeah, that's what you meant. You're going to jail today.

M. Vranish: Uh, huh.

D. Furlong: But, how long you spend in jail is not up to the three people in this room, okay. What charges are eventually, the disposition on the final charges, are not in the hands of the three in this room, that's in the hands of your defense attorney, the County Prosecutor, and the Judge.

. . . .

D. Furlong: You'll, you'll be entitled to [an attorney]. But, what makes the difference here is the cooperation level that goes into it from this interview, might, have some determination. ...

[Appellant]: Oh, I cooperated enough to put myself in jail didn't I?

M. Vranish: You did.

(Emphasis added.)

[¶ 11] Because the third prong of the plain error test is dispositive, we will begin our analysis by examining whether prejudice resulted when the jury heard the above-quoted portion of the recorded interview. See supra ¶ 10. Under plain error analysis, the appellant has the burden of showing material prejudice. Butcher v. State, 2005 WY 146, ¶ 49, 123 P.3d 543, 558 (Wyo. 2005). To establish prejudice, the appellant must show a reasonable probability that she would have received a more favorable verdict in the absence of the error. Miller v. State, 2006 WY 17, ¶ 15, 127 P.3d 793, 798 (Wyo. 2006). When analyzing whether the inclusion of certain evidence resulted in prejudice to the appellant, we must view that evidence in light of the entire record. Talley v. State, 2007 WY 37, ¶ 14, 153 P.3d 256, 261 (Wyo. 2007).

[¶ 12] This trial lasted approximately four days. The prosecution called eight witnesses and the defense presented six. The portion of the tape-recorded interview to which the appellant objects on appeal is a short excerpt from a three-hour recorded interview. When the state presented the recorded interview to be played for the jury, the district court judge questioned whether a proper foundation had been laid. Defense counsel did not object to the admission of the evidence, or portions thereof, but instead advocated for its admissibility, arguing that the foundation for the recording was evident in the recording itself.

[¶ 13] It is not surprising that the appellant advocated for the admission of the evidence as this evidence appears to have been an integral part of the appellant's trial strategy. Defense counsel repeatedly referred to the recorded interview, and the specific portion to which the appellant now objects. For example, during opening statements, defense counsel said the following:

The police, you're going to hear a three hour — a three hour plus statement from [the appellant] that she gave when the police arrested her on June 8, 2005, and they interrogated her. They said, "We want to question you about this. Were going to advise you about your constitutional rights." She agreed to talk to them. She went to the police department. She was held there and grilled and grilled and grilled for three hours. She told one story after another, dug herself a ditch she couldn't get out of, and finally admitted, "Yes, Josh Dubois came to my place at...