Suliber v. State

• Decision Date: 30 December 1993
• Docket Number: No. 92-248,92-248
• Citation: 866 P.2d 85
• Parties: Alan James SULIBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 85

866 P.2d 85

Alan James SULIBER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 92-248.

Supreme Court of Wyoming.

Dec. 30, 1993.

Leonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel (argued), for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Mary Beth Wolff, Asst. Atty. Gen. (argued), for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

CARDINE, Justice.

Alan James Suliber appeals from his conviction for the murder of his stepson, seven year-old Adam Franklin. Appellant asserts that the trial court erred by admitting prior bad acts testimony and by admitting appellant's statements to the police which were given after he made an equivocal request for counsel. Appellant also challenges the sufficiency of the evidence to sustain the second degree murder conviction.

We affirm.

Appellant raises the following issues:

ISSUE I

Did the trial court err in allowing the introduction of evidence concerning the character and prior bad acts of the appellant?

ISSUE II

Did the admission of appellant's statements to the police after an equivocal request for counsel violate appellant's rights under the Fifth Amendment of the United States Constitution and Article One, Section 11 of the Wyoming Constitution?

ISSUE III

Was there sufficient evidence to support the conviction of second degree murder?

FACTS

This tragic tale begins in March of 1991 when Katie Franklin (Franklin) and her then six year-old son, Adam Franklin (Adam), moved to Rock Springs, Wyoming. Franklin went to work for the Rock Springs post office, where she met a customer, Alan Suliber (appellant). They began dating shortly thereafter, and a serious relationship quickly developed between the two. They were married in October of 1991.

Throughout the time they were married, Franklin noticed various injuries to Adam. These included scratches, bruises and blisters. There was also an incident in July of 1991, which occurred prior to the marriage, where appellant slapped Adam so hard that he left a bruise on Adam's face in the shape of a hand. These injuries were also noticed by several other persons at various times.

On February 13, 1992, Franklin drove her son and appellant to a boy scout meeting. She then went to her job at the post office, where she worked from 5:00 pm to 3:30 am. Meanwhile, appellant and Adam attended the scout meeting; and after it was over, they walked to a friend's house to get a ride home. The friend, however, was not home, so appellant and Adam began to walk home. After they had walked awhile, a passerby stopped and gave them a ride. They arrived home around 6:30 p.m. that night.

Adam went to bed that night around 8:00 p.m., and appellant testified that he went to bed around 10:00 p.m. Franklin arrived home from work around 4:00 a.m. the morning of February 14. She turned on the television The next morning, Franklin was awakened by appellant who said that something was wrong with Adam. She ran down to Adam's room where she found him lying on his back on the floor next to his bunk bed. Adam was not breathing, and his skin felt cool. Franklin immediately attempted to resuscitate Adam by performing CPR.

and read the mail for about ten minutes. She noticed that appellant was not sleeping on the couch or in his art room. She thought it was unusual because he usually did that when she worked late. After Franklin went to bed, she remembered that she had not kissed Adam goodnight, which was her habit. Appellant awoke, held her tight, and told her not to worry about it; it was not important.

Appellant called 911, and an ambulance was sent to the scene. The EMTs attempted to revive the boy, but they were unsuccessful; and Adam was declared dead by a doctor at the hospital emergency room. Both the EMTs and the doctor noticed bruising on Adam that was inconsistent with any type of accidental death. They also noticed other bruises on his body, including on his buttocks. An autopsy subsequently confirmed that Adam died from injuries that were the result of a beating with a blunt object.

Appellant was charged with second degree murder in the beating death of Adam Franklin. A jury convicted appellant, and he was sentenced to life in prison. He now appeals that conviction.

DISCUSSION

A. W.R.E. 404(b)

Appellant challenges the admissibility of prior bad acts testimony by the State's witnesses. These witnesses testified about the relationship between appellant and Adam. Several of those witnesses testified about the July 1991 slapping incident and the resulting bruise on Adam's face. Three of the witnesses testified about instances of emotional abuse, such as when appellant bathed Adam and soap was in Adam's hair, and appellant told Adam not to open his eyes or they would burn, then watched Adam walk around the house for several hours and eat a meal with his eyes closed.

Appellant claims that this testimony was irrelevant and constituted an improper attack on his character. He points out that the testimony was elicited during the prosecutor's case-in-chief; and he argues, as a consequence, it was used to show he had the propensity to commit the crime charged. Appellant further asserts that the testimony was not admissible to show identity under W.R.E. 404(b) because the acts testified to were not peculiar or unique enough to show a personal "signature." Finally, appellant complains that the admission of this testimony violated W.R.E. 403 because it put him on trial for who he was, not for the crime charged.

W.R.E. 404(b) provides:

(b) Other crimes, wrongs, or acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In reviewing Rule 404(b) evidence, we give great deference to the trial court's determination of admissibility. Longfellow v. State, 803 P.2d 848, 851 (Wyo.1990). We will not find abuse of discretion as long as there is a legitimate basis for the court's decision. Pino v. State, 849 P.2d 716, 719 (Wyo.1993); Pena v. State, 780 P.2d 316, 318 (Wyo.1989). The trial court's discretion does have some limits, and to that end we have established a five-part test to determine the admissibility of evidence under Rule 404(b). The five factors to be considered are:

1. The extent to which the prosecution plainly, clearly, and convincingly can prove the other similar crimes.

2. The remoteness in time of those crimes from the charged offense.

3. The extent to which the evidence of other crimes is introduced for a purpose sanctioned by W.R.E. 404(b).

4. The extent to which the element of the charged offense, that the evidence is introduced to prove, is actually at issue.

5. The extent to which the prosecution has a substantial need for the probative value of the evidence of the other crimes.

Longfellow, at 851; Bishop v. State, 687 P.2d 242, 246 (Wyo.1984), cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985). Not all five of these factors need to be satisfied for 404(b) evidence to be admissible. Longfellow, at 851; Pena, at 318. Usually, however, when 404(b) evidence has been properly admitted, all five factors will be found. Longfellow, at 851. Finally, the probative value of the evidence must outweigh any unfair prejudice or confusion of the issues as a result of its admission. W.R.E. 403; Wehr v. State, 841 P.2d 104, 109 (Wyo.1992).

The determination of whether prior bad acts testimony is admissible under W.R.E. 404(b) necessarily includes the determination of relevancy. Coleman v. State, 741 P.2d 99, 103 (Wyo.1987). Thus the question of relevancy is considered at the same time the admissibility of the evidence under Rule 404(b) is determined. Longfellow, at 850 n. 2.

The State offered the evidence as probative of intent, identity and malice. At trial there was no dispute that Adam was beaten to death; according to the defense's opening statement to the jury, the only question was who did it. The night of Adam's death only two people had been with him--Franklin and appellant. The defense theory was that Franklin had beaten her son to death as stated in his closing argument. Therefore, the identity of Adam's killer was a critical issue in dispute at trial.

This case is very similar to what occurred in Longfellow. There the question was whether the mother or her boyfriend beat a baby to death. We held that prior bad acts evidence which showed the mother had abused her other child was admissible to prove intent and identity. Longfellow, at 853-54. The evidence in this case, as in Longfellow, was needed by the prosecution to establish whether appellant or Franklin beat Adam to death. Id. The testimony of the prior bad acts was circumstantial evidence from which the identity of Adam's killer could be inferred. Barnes v. State, 858 P.2d 522, 532 (Wyo.1993).

Also, the evidence was relevant as proof of intent. As we pointed out in Longfellow, even though second degree murder is a general intent crime, the prosecution must still prove that the defendant undertook the prohibited conduct voluntarily. Longfellow, at 853; see also Crozier v. State, 723 P.2d 42, 52 (Wyo.1986). Appellant denied committing the act at all, thus intent was at issue at trial.

Finally, the evidence was admissible to establish malice. Appellant was charged with second degree murder. In order to establish that charge, the prosecution must prove:

1) appellant

2) purposely and maliciously

3) without premeditation

4) killed Adam Franklin

W.S. 6-2-104. The jury was also instructed on manslaughter as a lesser included offense. Malice is not an element of manslaughter. W.S. 6-2-105. Whether a person acted maliciously (second degree...