Schreibvogel v. State

Decision Date16 April 2010
Docket NumberNo. S-09-0044.,S-09-0044.
Citation2010 WY 45,228 P.3d 874
PartiesRandall D. SCHREIBVOGEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

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Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

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

BURKE, Justice.

¶ 1 Randall Schreibvogel was convicted of two counts of first degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-302,1 and one count of robbery, in violation of Wyo. Stat. Ann. § 6-2-401 (LexisNexis 2007).2 He challenges his convictions on several grounds. He contends that he was denied his right to a fair trial because of erroneous evidentiary rulings, prosecutorial misconduct, and ineffective assistance of defense counsel. We affirm.

ISSUES

¶ 2 Mr. Schreibvogel presents six issues:

1. Did the district court abuse its discretion in quashing the subpoena duces tecum at the request of the prosecutor?
2. Did the trial court commit plain error when it allowed into evidence victim impact testimony?
3. Did the cumulative effect of numerous instances of inadmissible hearsay deny Appellant his right to a fair trial?
4. Did the district court err when it allowed in 404(b) evidence after the Appellant had made the proper demand for notice, and the State had failed to provide any notice?
5. Did the prosecutor commit misconduct when he cross-examined the Appellant as to whether other witnesses were lying or mistaken; and did he commit misconduct when he requested that the jury consider the number of witnesses who testified on behalf of D.C. and her character, compared to the lack of witnesses that the defense presented on Appellant?
6. Did trial counsel provide ineffective assistance of counsel, by his failure to object to inadmissible evidence, and failure to adequately advance his theory of the case?

The State phrases the issues as follows:

1. Did the district court abuse its discretion when it granted the State's motion to quash the subpoena for the victim's financial records?
2. Was the victim impact testimony and argument admitted during Appellant's trial relevant and was he prejudiced?
3. Was the challenged testimony inadmissible hearsay which denied Appellant his right to a fair trial?
4. Did the district court abuse its discretion when it allowed the admission of alleged uncharged misconduct testimony?
5. Did prosecutorial misconduct occur and was Appellant prejudiced?
6. Was trial counsel ineffective and was Appellant prejudiced?
FACTS

¶ 3 D.C., the victim in this case, lived in Rawlins and owned a hair salon in Saratoga. On October 31, 2007, she attended a Halloween party in Saratoga. The restaurant hosting the Halloween party was located next door to her salon. D.C. planned to spend the night in Saratoga at her salon.

¶ 4 Mr. Schreibvogel was in the area on a fishing trip. He also went to the party. D.C. had met Mr. Schreibvogel briefly at a restaurant during lunch that day and noticed him sitting next to her at the bar. They talked intermittently during the party. On several occasions, Mr. Schreibvogel suggested that he and D.C. leave the party. He offered to help her clean the salon. She refused the offer each time.

¶ 5 At some point during the party, D.C. left her drink at the bar and went to the dance floor. When she returned, she took a sip of the drink and soon felt "strange" and "groggy." She informed the bartender that something was wrong and left the party. When she arrived at her salon, D.C. testified that she remembered reaching down to retrieve a key she had placed in her shoe for safekeeping and then waking up on the ground outside of her salon. She testified that she could not remember if she fell or if she was struck. Several witnesses testified that D.C. told them a few days after the incident that she had been hit. An emergency room doctor testified that D.C. had facial injuries that were likely caused by a punch.

¶ 6 When D.C. regained consciousness she discovered that she was bleeding. She remembered hearing something, but was not sure what it was. She then entered her salon and lost consciousness again. She regained consciousness twice before morning. When she awoke the first time, Mr. Schreibvogel was engaged in oral sex with her. On the second occasion, Mr. Schreibvogel was engaged in sexual intercourse with her. The next morning she awoke to discover that Mr. Schreibvogel had left, and that the money in her tip jar was missing. She reported the incident to the hospital, her husband, and law enforcement officials two days after it occurred.

¶ 7 Mr. Schreibvogel's version of the events differed substantially. He maintained that D.C. invited him back to her salon. He testified that he witnessed her fall and hit her face on the ground. When she got up, he claimed that he asked her if she was okay and they entered the salon. Mr. Schreibvogel conceded that he and D.C. had sexual relations, but claimed it was consensual. He maintained that he never saw money or a tip jar in the salon.

¶ 8 A jury found Mr. Schreibvogel guilty of two counts of first degree sexual assault and one count of robbery. The district court imposed a prison sentence of fifteen to thirty years on each count of sexual assault and five to ten years on the robbery count. The sentences were ordered to be served concurrently. Mr. Schreibvogel filed a timely appeal.

DISCUSSION
Motion to Quash

¶ 9 Prior to trial, Mr. Schreibvogel served a subpoena duces tecum on D.C.3 The subpoena required pretrial production of D.C.'s personal financial and bank records, including tax returns, for the past five years. At D.C.'s request, the State moved to quash the subpoena. After a hearing, the district court granted the motion pursuant to W.R.Cr.P. 17(d) finding that compliance with the subpoena would be oppressive and burdensome to D.C.4 Mr. Schreibvogel claims that the State did not have standing to bring the motion, and the district court abused its discretion in granting the motion.

¶ 10 Whether standing exists is a legal issue. Northfork Citizens for Responsible Development v. Park County Bd. of County Commissioners, 2008 WY 88, ¶ 6, 189 P.3d 260, 262 (Wyo.2008). This Court reviews legal issues de novo. Johnson v. State, 2009 WY 104, ¶ 12, 214 P.3d 983, 986 (Wyo.2009); Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo.2001). For a party to have standing, he "must demonstrate the manner in which his own rights are adversely affected in light of the circumstances before the court." Gooden v. State, 711 P.2d 405, 408 (Wyo.1985), quoting Armijo v. State, 678 P.2d 864, 868 (Wyo.1984).

¶ 11 Mr. Schreibvogel asserts that the State did not have standing to challenge the subpoena duces tecum. The State maintains that it had standing to challenge the subpoena because it had a legitimate interest in protecting its witness, the victim, from harassment and "preventing unfounded and potentially time-wasting incursions during trial into an irrelevant and superfluous side issue." We agree with the State for reasons succinctly stated by the Connecticut Supreme Court:

We conclude that the state had standing to move to quash the defendant's subpoena. "A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests." United States v. Raineri, 670 F.2d 702, 712 (7th Cir.1982), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982). It is inarguable that the state had a legitimate interest in challenging the subpoena duces tecum that had been issued to Smith the defendant's supervisor. The subpoena, which was served by the defendant on a key state witness during the pendency of the trial, sought numerous documents and materials. "The prosecution's standing rested upon its interest in preventing undue lengthening of the trial and undue harassment of its witness...." Id.
The defendant claims that the town of Westport has its own legal department and could have filed a motion to quash the subpoena on Smith's behalf. This argument, however, misses the point: the interest that the state legitimately sought to protect in seeking to quash the subpoena belonged to the state, not the town. Moreover, many state's witnesses are persons who cannot be expected to hire lawyers and incur the expense associated with challenging a subpoena issued by an accused. Thus, the trial court properly concluded that the state had standing to challenge the subpoena that the defendant served on Smith.

State v. Decaro, 252 Conn. 229, 745 A.2d 800, 816 (2000). See also Raineri, 670 F.2d at 712; United States v. Segal, 276 F.Supp.2d 896, 900 (N.D.Ill.2003).

¶ 12 Mr. Schreibvogel also challenges the district court's ruling on the motion. We review rulings on pretrial motions, such as a motion to quash, for an abuse of discretion. Wolfe v. State, 998 P.2d 385, 387 (Wyo.2000). This standard of review requires this Court to examine "the reasonableness of the trial court's choice," in ruling on the matter. Gould v. State, 2006 WY 157, ¶ 8, 151 P.3d 261, 264 (Wyo.2006).

¶ 13 The district court "may quash or modify the subpoena if compliance would be unreasonable or oppressive." W.R.Cr.P. 17(d). The subpoena served upon D.C. requested that she produce "all financial records including tax returns for the past five (5) years and bank records for the past five (5) years in her possession or control." These items were to be produced pretrial. After a hearing, the district court granted the State's motion to quash stating:

The Court finds Mr. Schreibvogel's subpoena duces
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