Ross v. State, 95-178

• Decision Date: 20 December 1996
• Docket Number: No. 95-178,95-178
• Citation: 930 P.2d 965
• Parties: Lawrence Michael ROSS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 965

930 P.2d 965

Lawrence Michael ROSS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-178.

Supreme Court of Wyoming.

Dec. 20, 1996.

Sylvia L. Hackl, State Public Defender; Deb Cornia, Appellate Counsel; Gerald M. Gallivan, Director, Defender Aid Program, Delia Reeves, Student Intern; and Dan Erramouspe, Student Intern, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Colleen K. Coebergh, Special Assistant Attorney General, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, ^* and LEHMAN, JJ.

TAYLOR, Chief Justice.

Appellant complains that his conviction for child abuse was obtained by the impermissible introduction of his wife's conviction for failure to protect their child--a crime arising out of the same circumstances. Appellant also scores the introduction of prior bad acts evidence, allegedly in violation of W.R.E. 404(b), and complains of prosecutorial misconduct. Failing to show prejudice from the introduction of his wife's conviction, and unable to establish improper introduction of prior bad acts evidence or prosecutorial misconduct,

appellant offers no valid basis upon which to overturn his conviction. We affirm.

I. ISSUES

Appellant, Lawrence Michael Ross (Ross), identifies three arguments:

ARGUMENT I

The trial court erred when it allowed statements about Misti Dawn Ross' previous misdemeanor conviction to be presented to the jury when those statements could not be used for the purpose of inferring the appellant's guilt, nor could they be used for impeachment purposes.

ARGUMENT II

The district court abused its discretion when it allowed testimony of prior bad acts into evidence without adequately reviewing its admissibility under W.R.E. Rule 404(b) and applicable Wyoming law or its prejudicial weight under W.R.E. Rule 403 and its applicable Wyoming law.

ARGUMENT III

The appellant was denied his right to a fair trial due to prosecutorial misconduct.

The State identifies essentially the same issues:

I. Whether plain error was committed when testimony regarding Misti Dawn Ross's nolo contendere plea was admitted in the State's case in chief.

II. Whether the district court erred in allowing testimony regarding prior injuries to the child victim.

III. Whether prosecutorial misconduct was committed which denied to appellant his right to a fair trial.

II. FACTS

In September of 1994, five and one-half month old Richard Ross was taken by his mother to the doctor's office because of an injury to his arm. The injury was diagnosed as a broken arm and set. Precautionary x-rays, however, revealed additional fractures involving the child's other arm, his left collar bone, and nine ribs, all in various stages of healing. The amount of force necessary to cause such injuries was quantified by reference to similar injuries seen in children thrown from a car in the course of a collision or having fallen from a second or third-story window.

Ross subsequently acknowledged that he seldom held his son; but, when he did, "the baby would cry and scream * * *." When that happened, Ross' wife would ask for the child but Ross would refuse, his son screaming as Ross "held him tighter and tighter." Confronted with the extent of his young son's injuries, Ross admitted to being under a great deal of stress, indicating that he would "hate to think that those injuries occurred" on those occasions when he held the boy "too tight." Ross' wife initially maintained that her son's broken arm had come from falling off a bed onto a carpeted floor. When told of the seriousness of her son's injuries, however, Mrs. Ross eventually admitted that Ross would hold her son "really tight. He would squeeze him."

Prior to Ross' trial, his wife pled guilty to failure to protect their son and was sentenced to five years of supervised probation. Ross was charged with child abuse in violation of Wyo.Stat. § 6-2-503(a)(ii)(A) (1988), although only the information's recitation of the date upon which the offense was alleged to have occurred made it clear that the charge concerned the child's broken arm, rather than the larger course of conduct which had resulted in the boy's numerous other broken bones.

The State notified Ross and the district court, well in advance of trial, of its intention to call a medical expert to testify concerning the victim's prior injuries, characterizing such testimony as W.R.E. 404(b) "course of conduct evidence." Following a defense motion in limine seeking exclusion of the prior injury evidence, the district court ruled that evidence would be admissible under either W.R.E. 404(b) or a "res gestae theory so long as there is shown by testimony or other evidence to be a nexus between [Ross'] conduct or actions and the injuries." While excluding x-rays of the earlier injuries as unduly prejudicial, the district court ruled during trial that a nexus between Ross' conduct and those injuries had been sufficiently demonstrated to allow admission of the expert's testimony.

A jury trial culminated in a verdict of "guilty," and this appeal timely followed.

III. STANDARD OF REVIEW

Decisions regarding the admission or exclusion of evidence are within the sound discretion of the trial court. Taylor v. State, 642 P.2d 1294, 1295 (Wyo.1982). Absent a pretrial motion to suppress or objection at trial, admission of evidence must amount to plain error in order to presage reversal. Urrutia v. State, 924 P.2d 965, 969 (Wyo.1996).

This court will find plain error when the record clearly shows the incidents alleged as plain error, and appellant has demonstrated the violation of a clear and unequivocal rule of law, that a substantial right has been denied and that appellant has been materially prejudiced. Lobatos v. State, 875 P.2d 716, 721 (Wyo.1994).

Trujillo v. State, 880 P.2d 575, 578 (Wyo.1994).

A trial court's decisions regarding admissibility of uncharged misconduct evidence are entitled to great deference on appeal. James v. State, 888 P.2d 200, 203 (Wyo.1994). If a legitimate rationale can be shown for the admission of such evidence, we will not find abuse of discretion. Dean v. State, 865 P.2d 601, 606 (Wyo.1993). Our analysis of whether uncharged misconduct evidence has been properly admitted employs the four-part test articulated in United States v. Herndon, 982 F.2d 1411, 1414 (1992), aff'd on appeal after remand, 34 F.3d 1077 (10th Cir.1994). Vigil v. State, 926 P.2d 351, 356-57 (Wyo.1996).

A trial court's decision to grant or deny motions for mistrial is reviewed under an abuse of discretion standard. Miller v. State, 904 P.2d 344, 351 (Wyo.1995). This is no less true when such a motion is precipitated by alleged prosecutorial misconduct. Hodges v. State, 904 P.2d 334, 343 (Wyo.1995). An abuse of discretion has been described as a ruling which " 'exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did.' " Miller, 904 P.2d at 351 (quoting Duffy v. State, 730 P.2d 754, 757-58 (Wyo.1986)).

Finally, claims that a prosecutor has overstepped the bounds of permissible conduct are settled by reference to the entire record, and depend upon whether a defendant's case has been so prejudiced as to effectively deny his right to a fair trial. King v. State, 780 P.2d 943, 951 (Wyo.1989).

IV. DISCUSSION

A. PRIOR CONVICTIONS OF WITNESS

The State's opening statement promised the jury evidence that Ross' wife had previously admitted guilt to a misdemeanor charge of failing to protect her son from his father. When that promise was fulfilled, the absence of a timely objection by Ross' trial counsel would not appear sufficient to save the State's case from reversal, predicated on the rule of Kwallek v. State, 596 P.2d 1372 (Wyo.1979). Kwallek, as reaffirmed by Urrutia, contemplates situations in which two individuals are prosecuted for different offenses arising out of the same circumstance, rendering "the fact that one has pleaded guilty * * * inadmissible against the other." Kwallek, 596 P.2d at 1375. The Kwallek rule is predicated on notions of fundamental fairness:

The rationale is that evidence of a witness' guilt for an offense which arose out of a circumstance leading to the defendant's trial implies that the defendant is also guilty. Such an implication violates a defendant's right to have a trial on its own merits. Kwallek, 596 P.2d 1372.

Wells v. State, 846 P.2d 589, 595 (Wyo.1992).

Employing plain error analysis, it is readily apparent that the Kwallek rule is as clear and unequivocal as is the violation thereof on the record of these proceedings. There is no question that Ross' right to a fair trial includes the right not to be convicted in whole or in part on the basis of his wife's plea of guilty to failure to protect the victim. The question remains, however, of whether Ross was truly prejudiced by the State's introduction of his wife's guilty plea when that guilty plea was the very lynchpin of his defense.

Ross' trial strategy was first articulated during voir dire when his counsel asked a prospective juror: "Did you read in the paper that both the husband and the wife were accused of this [child abuse]?" During opening statement, counsel for Ross promised to create doubt as to whether it was Ross or his wife who actually abused their son. Ross' theory was that Mrs. Ross had been the "real abuser," but had engineered a plea agreement with the prosecutor in return for her testimony implicating Ross. Central to such a theory was elucidation of Mrs. Ross' plea bargain, through her testimony. That is what Ross' attorney promised the jury and what he gave them during cross examination of Mrs. Ross. As part of his strategy, Ross' attorney even went so far as to have Ross' wife admit that both she and her husband had been charged...