Thompson v. State

• Decision Date: 22 July 2021
• Docket Number: S-20-0206
• Citation: 491 P.3d 1033
• Court: Wyoming Supreme Court
• Parties: Lloyd James THOMPSON, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

491 P.3d 1033

Lloyd James THOMPSON, Jr., Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-20-0206

Supreme Court of Wyoming.

July 22, 2021

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Francis H. McVay, Senior Assistant Appellate Counsel. Argument by Mr. McVay.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Kellsie J. Singleton, Senior Assistant Attorney General. Argument by Ms. Singleton.

Before FOX, C.J., and DAVIS^* , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, J.

[¶1] A jury convicted Lloyd James Thompson of two counts of aggravated assault and battery. He appeals from his convictions, arguing the district court abused its discretion in allowing the hearsay testimony of two law enforcement officers at trial. We conclude the court abused its discretion in admitting the testimony, but Mr. Thompson was not prejudiced. We affirm.

ISSUE

[¶2] Mr. Thompson raises one issue for our review:

Did the district court abuse its discretion in allowing, over his objection, the hearsay testimony of two law enforcement officers at trial?

FACTS

[¶3] In the early evening hours of June 30, 2019, Kristine Booth-Thompson returned home after attending her niece's bridal shower in Colorado. She did not have her house keys, so she called her husband, Mr. Thompson, to let her in. Mr. Thompson arrived five minutes later, and they entered the home. Ms. Booth-Thompson went to the kitchen to make herself a late lunch, while Mr. Thompson retreated to the bedroom to watch a movie. A short time later, Mr. Thompson, who was intoxicated, accused Ms. Booth-Thompson of having an affair and called her vulgar names. Ms. Booth-Thompson grabbed her insulin bag and left the house on foot, planning to walk to her sister's house. Mr. Thompson followed her in the couple's Jeep.

[¶4] As Ms. Booth-Thompson was walking down the right-hand side of the road, Mr. Thompson drove up quickly behind her and hit her left arm with the Jeep's passenger side mirror. Ms. Booth-Thompson continued walking. Mr. Thompson tried to cut her off by driving on the right shoulder of the road approaching her right side. In doing so, he almost ran over her right ankle. Ms. Booth-Thompson crossed the road and continued walking. Mr. Thompson followed her, demanded she get in the Jeep and come back to the house with him, and said if she did not, "he'd put a couple rounds in [her]." Ms. Booth-Thompson did not get in the Jeep "because [she] was afraid [of] what would happen if [she] did." Mr. Thompson pulled out a gun and pointed it at her. Ms. Booth-Thompson turned away and heard the gun go off behind her.

[¶5] A neighbor and her daughter witnessed the events and called 911. The daughter told the 911 dispatcher a man was following a woman in a Jeep, was "running the Jeep onto her" and trying to run her over, and had fired a handgun at a neighbor's fence. Law enforcement officers arrived shortly thereafter and arrested Mr. Thompson. They searched the Jeep and found a loaded handgun tucked between the front passenger seat and the center console. They also found a shell casing on the road; the casing matched the bullets found in the handgun.

[¶6] Sergeant Sean Ellis of the Natrona County Sheriff's Office interviewed Mr. Thompson after the incident. Mr. Thompson admitted he accused Ms. Booth-Thompson of having an affair; she left the house and he followed her in the Jeep; he drove next to her; and there was a gun in the Jeep. He claimed, however, "he would approach her [in the Jeep] so he could hear her." He denied holding the gun, pointing it at Ms. Booth-Thompson, or firing it.

[¶7] The State charged Mr. Thompson with three counts of aggravated assault and battery. Counts 1 and 2 alleged Mr. Thompson unlawfully threatened to use a drawn deadly weapon on another person—a firearm and vehicle, respectively—in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2021). Count 3 alleged he attempted to cause bodily injury to another person with a deadly weapon—a vehicle—in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii). The jury found Mr. Thompson guilty of Counts 1 and 2 but not guilty of Count 3. The district court sentenced him to 6-8 years in prison but suspended the sentence in favor of five years of supervised probation. Mr. Thompson appealed.

[¶8] We will provide additional facts as necessary in our discussion of the issue.

DISCUSSION

Background

[¶9] At trial, Ms. Booth-Thompson testified to the above facts concerning Mr. Thompson's actions. The State then called Officer Casey Gallinger of the Mills Police Department as a witness. Officer Gallinger told the jury that when he arrived on scene, he observed Mr. Thompson in the Jeep and Ms. Booth-Thompson trying to walk away from the Jeep. He testified he spoke with Ms. Booth-Thompson at the scene. When the State asked Officer Gallinger if he recalled what Ms. Booth-Thompson told him, defense counsel objected on hearsay grounds. The district court asked the State the purpose of the testimony. It responded, "I believe that this [testimony] would essentially confirm what she had stated." The court asked, "So you're offering it as a prior consistent statement?" The State replied, "Yes." Defense counsel continued to object, stating Ms. Booth-Thompson had not been impeached. The court overruled the objection but not for the reason offered by the State. Instead, it stated: "I'll allow him to testify to this as it relates to his investigation and what he did." Officer Gallinger proceeded to tell the jury he talked with Ms. Booth-Thompson to figure out "what was going on" so he could relay the information to the Natrona County Sheriff's deputies. When asked what Ms. Booth-Thompson told him, Officer Gallinger responded:

She ... stated she was trying to -- she just wanted to leave. She stated that Mr. Thompson attempted to run her over with the vehicle and also pointed a gun at her, firing one round.

He testified he searched the Jeep and found a loaded handgun between the passenger seat and the center console.

[¶10] Later, the State called Sergeant Sean Ellis from the Natrona County Sheriff's Office, who was assigned to investigate the case. It asked Sergeant Ellis whether he had spoken to Ms. Booth-Thompson; he said he interviewed her at the Sheriff's Office shortly after the incident. The State asked him if he could tell the jury "what [he] learned during [his] interview with Ms. Thompson?" Before he could answer, defense counsel objected on hearsay grounds. The State responded it was not hearsay but rather "prior consistent statements and part of his investigation." The court overruled Mr. Thompson's objection, explaining (outside the hearing of the jury):

Well, officers can testify as to their conversations with people, not for the truth of the matter asserted but to show what they did in their investigation, and that's the question that I believe is pending or the question that was asked about. The State is trying to get him to explain what he did in his investigation, so I'll allow it not for the truth of the matter asserted but for what the officer was doing in his investigation.

Defense counsel responded, "Very good."

[¶11] The State proceeded to ask Sergeant Ellis a series of questions concerning the information he obtained from his interview with Ms. Booth-Thompson:

Q.... Sergeant Ellis, can you tell us what you learned during your interview with [Ms. Booth-Thompson]?

A. [She] informed me that on [June 29], she went to Boulder, Colorado, and attended a bridal shower for her niece, returning to Casper, Wyoming, and ultimately her house ... in the evening hours of June 30th.

Q. Did she tell you what happened when she got home from Boulder?

A. She told me upon arriving home, she got into a disagreement with Mr. Thompson, and he accused her of having an affair.

Q. And what did she do after that?

A. After ... being accused of having the affair, she departed the house. She left her house.

Q. And ... did she tell you whether she left on foot or whether she was driving?

A. She told me that she grabbed her prescription medications and left on foot.

Q. And after that, what did she tell you?

A. She told me that she left her property onto Doane Lane and headed towards Salt Creek Highway, which is basically in an easterly direction.

Q. And did Ms. Thompson tell you anything about being followed by the defendant and how he was driving?

A. She told me that she overheard the Jeep coming up behind her and that at one point, Mr. Thompson, driving the Jeep, struck her left shoulder, and then in another instant after the left shoulder, she almost had her right ankle run over by Mr. Thompson.

Q. During the time of all this happening, did [Ms. Booth-Thompson] tell you anything else as to what the defendant did?

A. As she was walking east in the area, she said that at one point, he demanded that she get back into the Jeep. She denied. She overheard Mr. Thompson make a statement to her ‘I'll put a couple of rounds in you.’ ... After hearing that, she saw a gun displayed and pointed at her by Mr. Thompson, and she turned and started walking [away again] in a westward – or east direction and she heard a gunshot.

Q. Did she state whether or not she saw where the gun was fired?

A. She did not know in what direction the bullet left the gun as she had her back turned to Mr. Thompson walking away.

Q. And why did she tell you that she kept walking?

A. She was scared. She said she didn't want to get in the Jeep.

[¶12] At this point, defense counsel again objected because the testimony "[was] beyond the scope of her testimony, and [was] now getting into witness impact stuff." The State disagreed, stating Ms. Booth-Thompson "did testify to what she had told investigators and why ... she had kept walking, so I don't believe that this is hearsay." The court sustained the objection. It...