Spinner v. State, 01-222.

• Decision Date: 05 September 2003
• Docket Number: No. 01-222.,01-222.
• Citation: 2003 WY 106,75 P.3d 1016
• Parties: Lance W. SPINNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

75 P.3d 1016

2003 WY 106

Lance W. SPINNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-222.

Supreme Court of Wyoming.

September 5, 2003.

Representing Appellant: Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Rebecca A. Lewis, Special Assistant Attorney General.

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

VOIGT, Justice.

[¶ 1] In June 2001, a Campbell County jury found Lance Spinner (appellant) guilty of battery against a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii) (LexisNexis 2003), a felony. The district court sentenced appellant to a fifteen to twenty-four month prison term. On appeal, appellant argues that the district court erred in allowing the State to introduce expert rebuttal testimony that amounted to improper character evidence, that in their trial testimony, officers attributed statements to appellant that were obtained in violation of appellant's Miranda rights, that the prosecutor improperly commented on appellant's pre-arrest silence, that the district court erred in allowing witness testimony regarding the alleged victim's hearsay statements pursuant to the excited utterance exception, that the district court erred in failing to bifurcate the proceedings concerning evidence of appellant's prior convictions, and that these claimed errors amounted to cumulative error requiring a reversal of appellant's conviction. We reverse and remand for a new trial.

ISSUES

[¶ 2] Appellant phrases the appellate issues as follows:

ISSUE I

Whether the trial court erred in allowing the testimony, on rebuttal, of the State's expert witness Michelle Daigle, as said testimony was used by the State as improper character evidence against appellant and it was not true rebuttal evidence?

ISSUE II

Whether appellant was timely advised of his Miranda rights, and whether statements made by appellant which were used against him, were in violation of his constitutional rights?

ISSUE III

Whether the prosecutor impermissibly commented on appellant's pre-arrest silence, solicited impermissible evidence of appellant's pre-arrest silence and argued appellant's guilt based upon appellant's pre-arrest silence, all in violation of appellant's constitutional rights?

ISSUE IV

Whether the district court erred by admitting prejudicial and improper hearsay, determining that such hearsay qualified as an "excited utterance" under W.R.E. 803(2)?

ISSUE V

Whether appellant was denied due process when the court failed to bifurcate the domestic violence trial from the penalty phase, thus allowing the jury to hear about Mr. Spinner's two prior domestic violence convictions?

ISSUE VI

Because of the numerous errors made during appellant's trial, did cumulative error occur?

The State phrases the issues in substantially the same manner.

FACTS

[¶ 3] On January 19, 2001, appellant and his girlfriend, Jessica Manke (Manke), shared a residence in Campbell County. That evening, the two went to a party at Sean Eckenrod's (Eckenrod) residence. Upon arriving at the party, appellant and Manke began arguing and raised mutual allegations of unfaithfulness. Manke returned home and appellant remained at the party. Around 4:00 a.m. on January 20th, Eckenrod and appellant returned to appellant's residence, where appellant and Manke resumed arguing.

[¶ 4] We will very generally refer to the witness testimony as to what occurred thereafter. Eckenrod testified that during the argument, Manke twice initiated physical contact with appellant and also asked Eckenrod to "knock" appellant "out." According to Eckenrod, appellant ultimately turned and walked away from Manke, and Manke locked herself in the bathroom. Eckenrod and appellant continued to converse, and Eckenrod left the residence by 5:30 a.m.

[¶ 5] Appellant chose to testify at trial. He testified that during the argument, Manke twice initiated physical contact with him and he "threw her off," he and Manke disturbed items in their bedroom as each wanted the other to leave the residence with their respective belongings, and Manke then "ran into the bathroom and locked the door." According to appellant, Manke stated that she would not leave the residence and threatened suicide. At some point, appellant heard glass "shattering" and unlocked the bathroom door with a kitchen knife. He discovered the bathroom in disarray and Manke holding glass in her hands. Appellant removed the glass from Manke's hands, which appeared to be cut and scraped, and attempted to calm Manke. According to appellant, Manke then left the residence in her car.

[¶ 6] Manke did not testify in person at trial. Instead, appellant's counsel played her taped preliminary hearing testimony to the jury. In that testimony, Manke stated that she initiated physical contact with appellant during the argument, he "pushed" her away but did not otherwise initiate physical contact with her, and she locked herself in the bathroom. According to Manke, she "popped a handful of sleeping pills" because she did not want appellant to leave and "punched out a picture frame." Appellant entered the bathroom and held her only "to keep me from hurting myself," and Manke left the residence for the Knigge residence because she wanted "sympathy." At the Knigge residence, Manke told the police that appellant choked her, kicked her, and pulled her hair, but claimed at the preliminary hearing that she lied to the officer out of "[a]nger, frustration, and I was wanting to get Lance back," "it was revenge."

[¶ 7] Lyle "Buzz" Knigge, and his girlfriend Mary Knigge, lived three trailers from appellant and Manke. At approximately 7:00 a.m. on January 20th, while Buzz and Mary Knigge were sleeping, Manke entered the Knigge residence, "crying and screaming," through an unlocked patio door. Buzz Knigge, awakened from a deep sleep, asked "What the hell is going on?," to which a "pretty upset" Manke replied "Lance just beat the shit out of me." According to Mary Knigge, Manke came "running in" and appeared "scared," and told Mary Knigge that she and appellant "got in a fight" and appellant was "choking her." Mary Knigge observed redness on Manke's neck, and an injury to her hand. Mr. Knigge called the police.

[¶ 8] Officers Rebecca West and Chuck Deaton arrived at the Knigge residence shortly thereafter. As the officers arrived, they encountered appellant as he proceeded towards the Knigge residence. After some interaction, Officer West went inside the Knigge residence, while Officer Deaton remained outside with appellant. Upon entering the residence, Officer West recalled that Manke was "real stiff" and "lethargic," "[a]lmost in shock," her voice was "scratchy and she kept having to clear her throat." According to the officer, Manke's right hand was covered in blood, a couple of the knuckles swollen and bruised, her throat area was red, and she complained of a bruise on her arm and a knot on the left side of her forehead.

[¶ 9] Officer West exited the residence, informed appellant that he was under arrest, and a struggle between appellant and the officers ensued. At some point during the struggle, Officer West recalled appellant screaming "she's cheating on me, what was I supposed to do." The officers subdued appellant and Officer Jason Marcus transported appellant to the detention center. According to Officer Marcus, appellant again stated "What was I supposed to do? She was cheating on me" during the transport. Appellant also apparently stated that he had not done anything to warrant his arrest.

[¶ 10] Manke informed an EMT who responded to the Knigge residence that she "had been hit with a fist to her head and shoulders, and that she had been choked." She also complained of neck, left clavicle, and right wrist pain, and tenderness in her lower back. A nurse noted that Manke reported "right hand pain through glass frame. Neck and back. Fell into tub. Choked. Hit head."

[¶ 11] Officer West went to appellant's residence and described the scene as follows:

As we go into the back in the main master bedroom, the place is destroyed. There's blankets everywhere and the curtains were ripped off the windows. The clothes are ripped thrown everywhere. It's a complete mess. The window above the bed has been shattered. There's glass on the floor.

So we go in the bathroom and there's a picture frame that's wooden in the garbage can and also glass on the floor as well as in the garbage can. There's a broken towel rack. There's clothes and stuff strung all over the place in the bathroom.

Two days later, Manke's mother observed bruising on Manke's neck that "looked like from fingers." However, when Officer West contacted Manke to take pictures of bruising, Manke replied that there was no bruising.

[¶ 12] Appellant was charged with battery on a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii), a felony. In June 2001, a jury found him guilty of that offense, and the district court sentenced appellant to a fifteen to twenty-four month prison term. Appellant appeals from that judgment and sentence.

DISCUSSION

Constitutional Right to Silence

[¶ 13] Appellant argues that the prosecutor improperly commented on appellant's pre-arrest silence during opening statement, in questioning law enforcement officers during the prosecution's case-in-chief and rebuttal case, in cross-examining appellant, and during the prosecution's closing and rebuttal argument. Appellant's trial counsel did not object to these alleged comments at trial. On appeal, it is therefore incumbent upon appellant to demonstrate plain error in that "the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial...