Szymanski v. State

• Decision Date: 29 August 2007
• Docket Number: No. 06-106.,06-106.
• Parties: Douglas Peter SZYMANSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

166 P.3d 879

2007 WY 139

Douglas Peter SZYMANSKI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-106.

Supreme Court of Wyoming.

August 29, 2007.

Representing Appellant: D. Terry Rogers, Interim State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender. Argument by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Senior Assistant Attorney General. Argument by Mr. Armitage.

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

KITE, Justice.

[¶ 1] A jury convicted Douglas Peter Szymanski of one count of first degree arson for intentionally setting fire to his neighbor's apartment. Mr. Szymanski appeals his conviction claiming the trial court erred in allowing the State's fire expert to testify concerning hearsay statements made to him by a deceased witness during his investigation of the fire's cause. He also claims the prosecutor committed misconduct during witness questioning and closing argument. We affirm.

ISSUES

[¶ 2] Mr. Szymanski presents the issues as follows:

I. Was hearsay testimony of a deceased witness improperly admitted, and then argued for the truth of the matter asserted?

II. Did prosecutorial misconduct occur in questioning of witnesses and in closing argument?

The State reframes the issues as:

I. Did the district court abuse its discretion when it admitted the pretrial statements of the victim?

II. Did the prosecution commit misconduct?

FACTS

[¶ 3] At approximately 8:30 p.m. on April 1, 2005, Tammy Johnson, a tenant in an apartment complex owned by the Casper Housing Authority located at 243 East K Street in Casper, Wyoming, was returning home. As she approached her apartment, she noticed Mr. Szymanski, who also lived in the apartment complex and with whom she had an "on again-off again" relationship, coming toward her. He was acting strangely and was wearing the type of latex gloves worn by volunteer firefighters.

[¶ 4] As Mr. Szymanski approached Ms. Johnson, he said, "Guess what? Electricity is out. Ha ha ha." She asked what was going on and he did not respond. Ms. Johnson entered her apartment, walked toward the kitchen window and saw that the apartment next to hers, in which Sharon Jones lived, was on fire. Ms. Johnson attempted to call 911 but discovered her phone was not working. She ran to the apartment of another tenant who called 911.

[¶ 5] Worried about the fire reaching her own apartment, Ms. Johnson went back to try to retrieve some of her possessions. Mr. Szymanski followed her into her apartment. He told her she needed to get out and grabbed her arm. He became angry and hit her with the gloves he had been wearing. He said, "I'm just going to burn you. You're going to die, you f___ing, ____." He left and she heard a rapping noise on her bedroom window. She heard Mr. Szymanski outside the window saying, "Bitch, come on, bitch, you're going to die."

[¶ 6] At approximately 8:40 p.m., the Casper Public Safety Communications Center / 911 received the report of the fire. Police officers and firefighters responded. When they arrived at the scene, they determined that the fire was located in unit 241 of the apartment complex. They observed Mr. Szymanski outside the burning apartment. He appeared anxious to enter the apartment and had to be asked twice to move out of the way. One of the firefighters noticed Mr. Szymanski had a hammer sticking out of the back of his pants.

[¶ 7] As firefighters worked to extinguish the fire, Ms. Johnson reported Mr. Szymanski's behavior to police at the scene. When the police spoke with him, he appeared to be intoxicated. They asked him to return to his apartment and he refused, becoming increasingly belligerent and uncooperative. Consequently, police arrested him for public intoxication. A struggle ensued and the officers had to use physical force in order to handcuff him and get him into the patrol car.

[¶ 8] At the detention center, one of the officers removed a hammer from the back of Mr. Szymanski's pants and a jar of onion powder from the front of his pants. Mr. Szymanski had soot marks on his face and his clothes smelled of smoke. Small shards of glass were found on the hammer and Mr. Szymanski's clothes and shoes.

[¶ 9] Fire Inspector Mike Magee and Police Detective Brian Street were called to investigate the cause and origin of the fire. They found a disposable lighter in the parking lot of the apartment complex next to Mr. Szymanski's car which Ms. Johnson identified as one she had seen him use to light his cigarettes. They also found a steak knife inside the doorjamb of the burned apartment which witnesses identified as identical to knives found in Mr. Szymanski's apartment. They concluded someone had broken the electrical meter outside the apartment, forcibly entered and ransacked Ms. Jones' apartment, leaving piles of clothing, bags, spice containers, food boxes and other combustible items strewn about on the floor and breaking several windows and a bathroom mirror, and then intentionally set fire to the piles of debris dumped in the kitchen.

[¶ 10] Mr. Szymanski was charged with first degree arson in violation of Wyo. Stat. Ann. § 6-3-101(a) and (b) (LexisNexis 2007). After a six day trial, the jury found him guilty. The district court sentenced him to 16 to 20 years in the Wyoming State Penitentiary.

DISCUSSION

1. Hearsay Testimony of Deceased Witness

[¶ 11] Prior to trial, Ms. Jones, the tenant of the apartment in which the fire was set, died of causes unrelated to the fire. During trial, the prosecution sought to present testimony from Inspector Magee concerning his interview of Ms. Jones on the night of the fire. The purpose of the interview was to determine the condition of her apartment prior to the fire. Ms. Jones' statements were important to the investigation because of the unusual amount of combustible material found piled on the floor throughout her apartment. During the interview, Ms. Jones told Inspector Magee that her apartment was clean and orderly and locked and secure when she left it before the fire. She also told him the bathroom mirror "should not have been broken."

[¶ 12] Defense counsel objected to the testimony on the grounds that it constituted hearsay and violated Mr. Szymanski's constitutional right to confront the witness against him, Ms. Jones. The district court allowed the testimony, concluding it fell within an exception to the hearsay rule, was not testimonial and did not violate the confrontation clause. After the State presented the disputed testimony, defense counsel requested and the district court gave an instruction telling the jury the testimony was not admitted for the truth of the matters asserted (i.e. to prove Ms. Jones' apartment was clean when she left it) but only for the purpose of showing what Inspector Magee did in the course of investigating the fire.

[¶ 13] Mr. Szymanski claims the trial court erred in allowing Inspector Magee to testify concerning Ms. Jones' statements because admission of the testimony violated his right to confront the witnesses against him guaranteed by the Sixth Amendment. Mr. Szymanski relies primarily on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) to support his claim.

[¶ 14] The State responds that the trial court did not abuse its discretion by allowing the testimony. It argues the trial court correctly distinguished the statements at issue here from those in Crawford, which involved statements of the defendant's wife implicating him in the charged offense. The State further asserts, even if the trial court incorrectly admitted the statements, the error was harmless because Ms. Jones did not identify Mr. Szymanski as the arsonist.

[¶ 15] We review claimed error concerning the improper admission of evidence for abuse of discretion and will not reverse the trial court's decision absent a clear abuse. Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo.2007). A trial court abuses its discretion when it could not have reasonably concluded as it did. Id. In this context, "reasonably" means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious. Id. Because the claimed error involves a mixed question of fact and constitutional law, we independently review the record. Vigil v. State, 2004 WY 110, ¶ 17, 98 P.3d 172, 177 (Wyo. 2004).

[¶ 16] The Sixth Amendment protects the right of the accused to confront the witnesses against him. In Crawford, the United States Supreme Court held that this provision bars the admission of testimonial statements made by a witness who does not appear at trial unless he or she is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. The Court identified various types of statements qualifying as "testimonial," including affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that a witness would reasonably expect to be used at a later trial. Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354. The Court specifically mentioned police interrogations, using the term in its colloquial rather than technical sense, and said such interrogations are testimonial even under a narrow standard. The Court concluded the statements at issue in Crawford, i.e. tape-recorded statements of the defendant's wife made by police during an interrogation on the night of the offense, qualified as testimonial "under any conceivable definition" because they were "knowingly given in response to structured police questioning." Id. at 53, 124 S.Ct. 1354. The court held that admission of the statements, when the wife was not available to testify at trial and the defense had no prior opportunity to...