Sybert v. State, 85-273
| Decision Date | 02 September 1986 |
| Docket Number | No. 85-273,85-273 |
| Citation | 724 P.2d 463 |
| Parties | Steven Ralph SYBERT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard Munker, State Public Defender, Julie Naylor, Appellate Counsel, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, and Edward G. Luhm, Student Intern (argued), for appellant (defendant).
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Terry L. Armitage, Legal Intern (argued), and Margery Boyd Cozzens, Student Intern, for appellee (plaintiff).
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
Appellant Steven Sybert was convicted of first degree arson in violation of § 6-3-101, W.S.1977. 1 He raises three issues on appeal, all of which involve limiting instructions relating to prior inconsistent statements of a witness. We must decide: (1) whether appellant made a timely objection to an allegedly inadequate limiting instruction which the court gave at trial; (2) whether appellant made a sufficient request for a second limiting instruction which the court refused to give; and, (3) assuming that appellant's request for the second instruction was insufficient, whether the court committed plain error by failing to give the instruction on its own motion.
We affirm.
On the morning of July 5, 1985, a mobile home leased by appellant's girlfriend, Patsy Cole, was destroyed by fire. Ms. Cole's two small children and her niece, Candy Matskus, also lived in the trailer.
The evening before the fire, appellant and Ms. Cole had an argument during which he knocked over a table and threatened to report her for welfare fraud. After appellant left, Ms. Cole went to the sheriff's department where she told Officer Danny Anderson that appellant had threatened to burn her trailer. She requested that patrolling officers watch her trailer to keep appellant away. She then returned home and was joined by Candy Matskus.
Appellant returned to the trailer about 2:00 a.m. and spoke to Ms. Matskus who told him that Ms. Cole was taking a walk. In reality, Ms. Cole was hiding in the bathroom. Appellant concluded that Ms. Cole was out with her ex-boyfriend, John, and he slapped Ms. Matskus in anger saying, "this is what is going to happen to John." When appellant left, Ms. Cole and Ms. Matskus took the children to a neighbor's trailer where all four spent the rest of the night.
At about 5:40 a.m., Peter Galloway, one of Ms. Cole's neighbors, heard a car start up, looked out his window, and saw appellant back his car out of Ms. Cole's driveway and drive off. Five minutes later, Mr. Galloway saw smoke and flames coming from the trailer. He ran to the landlord's house, reported the fire, and returned to Ms. Cole's trailer with an extinguisher. Firemen arrived about fifteen minutes later and put out the fire, but not before the trailer was totally destroyed.
The deputy sheriff dispatched to the fire, Robert Jones, spoke with Ms. Cole at the scene. She told him that appellant had threatened to burn the trailer down during their argument the previous evening. She also gave a description of appellant and his vehicle which enabled the police to stop him within an hour after the fire was reported. In his car were two nearly empty cans of automobile starting fluid and a can of carburetor cleaner. He smelled of petroleum products, and there were two small burn marks on his shirt and a black substance on his hands.
About two hours after the fire, Ms. Cole gave the police a written statement which elaborated on the report she gave Deputy Jones at the fire. According to the statement, the argument leading to appellant's arson threat was quite violent. Ms. Cole was so afraid of appellant when he returned at 2:00 a.m. that she took a sledgehammer with her when she hid in the bathroom. She later saw him around her trailer every fifteen or twenty minutes between 2:00 a.m. and 6:00 a.m., and just before the fire she saw him near the trailer, heard a bang, and saw smoke.
Appellant was charged with first degree arson, pled not guilty, and went to trial on September 9, 1985. At trial Ms. Cole admitted that there had been an argument the night before the fire but contradicted the most incriminating parts of her prior statements. She testified that the night before the fire she had lied to Officer Anderson about appellant's arson threats, that she had repeated the lie to Deputy Jones on the morning of the fire, and that she had repeated it again in her written statement. She said she lied because she was very angry and "just wanted to see Steve put away." She admitted that between appellant's arrest and the trial she had learned that she was pregnant with his child. She also admitted that she loved him.
To impeach Ms. Cole's exculpatory testimony, the prosecution offered into evidence a copy of her written statement. Defense counsel did not object, but asked for "a limiting instruction directing the jury that it could be considered to reflect on the credibility of this witness." The court responded by giving the following instruction:
Defense counsel made no objection to the form or substance of this instruction after it was given.
In addition to Ms. Cole's written statement, the prosecution offered the oral statement which Ms. Cole gave to Deputy Jones at the scene of the fire. At a bench conference, defense counsel objected to Deputy Jones's repetition of this out-of-court statement on grounds that it was hearsay which could only be used to impeach Ms. Cole. The prosecution countered that the statement was admissible for both substantive and impeachment purposes because it was an excited utterance under Rule 803(2), W.R.E. The court did not accept the excited utterance argument but observed:
"I think a prior inconsistent statement may be received both as something that contradicts or shows a willingness to speak untruths on a part of a party, but the prior statement can also be received to establish the truth of the facts alleged therein, or stated therein in their statements, so I think there's two basic instructions to the jury that would be to that effect."
Defense counsel replied:
"We just want to make clear that we do object to that ruling, and it's our contention that under the hearsay rule that this may be admissible to establish that she's not a credible witness, her unreliability, but it cannot be used."
The trial judge then said, "I disagree, I think it can be used in substantive fashion." Defense counsel made no further objection, did not specifically request a limiting instruction, and did not suggest any wording for a limiting instruction. The direct examination of Deputy Jones continued, and he recounted Ms. Cole's prior inconsistent statement.
The inconsistent-statement issue was raised one more time before Deputy Jones completed his testimony. On redirect examination, defense counsel interrupted Jones as he began to repeat Ms. Cole's explanation of how she hid in the bathroom. The judge invited the lawyers to the bench so that he could explain why he was allowing the statement for substantive as well as impeachment purposes. After the court made it clear that it was not relying on the excited-utterance exception to the hearsay rule, defense counsel stated:
"I don't know that we have particularly any objection to keep all of this out, but I do think that perhaps at the instruction conference we maybe need to rediscuss what we may need for substantive purposes or credibility."
The trial judge responded, "I've already drafted an instruction that covers that area."
At the close of trial, over the prosecution's objection, the court instructed the jury as follows:
"Evidence that at some other time a witness has said or done something which is inconsistent with the witness' testimony at the trial, may be considered by the jury for the sole purpose of judging the credibility of the witness, but...
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