Wilks v. State

• Decision Date: 03 July 2002
• Docket Number: No. 01-51.,01-51.
• Citation: 2002 WY 100,49 P.3d 975
• Parties: Ryan Lee WILKS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

49 P.3d 975

2002 WY 100

Ryan Lee WILKS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-51.

Supreme Court of Wyoming.

July 3, 2002.

Rehearing Denied August 6, 2002.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ. KITE, Justice.

[¶ 1] A jury convicted Ryan Wilks of second-degree murder for the shooting death of a Pizza Hut delivery woman. This case comes before us as a writ of review² of Mr. Wilks' judgment and sentence. He claims multiple evidentiary errors, prosecutorial misconduct, insufficient evidence, and an excessive sentence. Finding either no error or harmless error in connection with his trial and sentence, we affirm.

ISSUES

[¶ 2] Mr. Wilks presents these issues for our review:

I. Did the trial court err in allowing victim impact testimony and victim impact argument from the prosecution?

II. Did the trial court err in permitting improper, irrelevant and prejudicial character evidence concerning [Mr. Wilks]?

III. Did the trial court err in permitting speculative evidence from a layperson that [Mr. Wilks] was not intoxicated shortly before the death of the victim?

IV. Did the prosecutor commit prosecutorial misconduct in closing argument?

V. Was there insufficient evidence to convict [Mr. Wilks] of murder in the second degree?

VI. Did the trial court abuse its discretion in sentencing [Mr. Wilks] to 70 years to life in the Wyoming State Penitentiary?

The State of Wyoming phrases the issues as:

I. Does the record in [Mr. Wilks'] case contain plain error relating to victim impact testimony or argument?

II. Was any error arising from the district court's evidentiary rulings harmless?

III. Did the district court properly admit lay testimony that [Mr. Wilks] was not intoxicated shortly before he killed his victim?

IV. Does the record in [Mr. Wilks'] case contain prosecutorial misconduct amounting to plain error?

V. Does the record in [Mr. Wilks'] case contain sufficient evidence to sustain [his] conviction?

VI. Did the district court abuse its discretion at sentencing, where [Mr. Wilks'] sentence was within the statutory limits?

FACTS

[¶ 3] On January 5, 2000, at approximately 9:00 p.m., Mr. Wilks ordered a pizza from Pizza Hut. The victim delivered the pizza to his residence. Pizza Hut employees became concerned when the victim failed to return from the delivery. Two co-employees went to search for her, and, upon arrival at the delivery residence, they observed her car with its engine running. The victim was lying in a pool of blood next to her pizza delivery bag clutching $13 in her hand. A loaded .38 caliber gun was lying on the floor in Mr. Wilks' kitchen. A pathologist testified that the victim died from a single, very close-range gunshot wound in the right cheek. Mr. Wilks was apprehended at his father's home and arrested the following day.

[¶ 4] Mr. Wilks did not testify at trial. However, even though the trial court suppressed his statement given to the police, he voluntarily introduced the statement into evidence.³ In his statement, Mr. Wilks related how he endured a succession of employment failures and began to spiral downward into depression. He seldom left his apartment and admitted he drank heavily. He had a distant relationship with his family and had no friends. He reached his breaking point and on January 5, 2000, decided to end his life. He claimed he drank alcohol throughout the entire day and attempted to buy a gun but was unwilling to withstand the required waiting period. He took his father's gun from the family home and called a local hotel to inquire about a room rate. He wanted to avoid committing suicide in his apartment out of respect for his landlord. However, he could not afford a room and instead chose to order his last meal from Pizza Hut.

[¶ 5] According to Mr. Wilks, when the victim arrived at his residence to deliver the pizza, an argument ensued over his forty-one-cent tip. He admitted that, in the midst of the argument, he pulled out the gun and shot the victim. He claims he "shot the wrong person" and actually intended to kill himself. He left the victim lying in front of his apartment, drove around town for several hours, and went to his father's home where he was ultimately apprehended.

[¶ 6] On January 7, 2000, Mr. Wilks was charged with one count of first-degree murder. On October 14, 2000, a jury acquitted him of first-degree murder but convicted him of the lesser-included offense of second-degree murder under Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2001). The trial court sentenced him to serve not less than seventy years nor more than the term of his natural life in the Wyoming State Penitentiary. He seeks review of his judgment and sentence.

DISCUSSION

A. Victim Impact Testimony and Argument

[¶ 7] In Mr. Wilks' first claim of error, he asserts the trial court improperly permitted several instances of victim impact testimony and argument. With one exception, Mr. Wilks failed to object to the challenged statements at trial. We, therefore, review his claims under our three-part plain error standard:

First, the record must be clear as to the incident which is alleged as error. Second, the party claiming the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove a substantial right has been denied him and, as a result, he has been materially prejudiced.

Worcester v. State, 2001 WY 82, ¶ 7, 30 P.3d 47, ¶ 7 (Wyo.2001) (citations omitted).

[¶ 8] Wyoming law permits the trial court to consider oral or written victim impact statements prior to imposing a sentence. Wyo. Stat. Ann. §§ 7-21-101 to -103 (LexisNexis 2001). In this case, the allegations of improper victim testimony and argument arose at trial and, therefore, do not fall under §§ 7-21-101 through 7-21-103. The key inquiry on the admissibility of victim impact testimony during the guilt phase of a criminal trial is relevancy. McCone v. State, 866 P.2d 740, 751 (Wyo.1993). Victim impact testimony must not be permitted "unless there is a clear justification of relevance." Justice v. State, 775 P.2d 1002, 1011 (Wyo. 1989). Such testimony may be irrelevant if offered during the guilt phase of the trial as proof of the victim's loss; the physical, emotional, or psychological impact on the victim; or the effect upon the family. Yet, it may be relevant if offered for another proper purpose. Id. at 1010. Mr. Wilks contends that either the testimony and argument were irrelevant or their probative value was outweighed by their prejudice.

[¶ 9] Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." W.R.E. 401. In criminal cases, "[e]vidence is always relevant if it tends to prove or disprove one of the elements of the crime charged." Grabill v. State, 621 P.2d 802, 809 (Wyo.1980); see also Lancaster v. State, 2002 WY 45, ¶ 42, 43 P.3d 80,

¶ 42 (Wyo.2002); Geiger v. State, 859 P.2d 665, 667 (Wyo.1993). Relevant evidence may be excluded, however, if "its probative value is substantially outweighed by the danger of unfair prejudice." W.R.E. 403. For this court to conclude that the trial court admitted unduly prejudicial evidence in violation of W.R.E. 403, the appellant must demonstrate "that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury." Apodaca v. State, 627 P.2d 1023, 1027 (Wyo.1981).

[¶ 10] First, Mr. Wilks challenges the testimony obtained from the victim's husband. He testified that he and the victim had breakfast together every morning they were married and, on the day she was murdered, she was in a "good mood" and was "happy and normal." The state contends this testimony was relevant to establish a foundation for the husband's knowledge of the victim's mood on the day of the murder, which in turn related to the unlikelihood that she would have engaged in an argument with Mr. Wilks. The state bolsters its theory by directing our attention to the husband's rebuttal testimony wherein he recounted an incident in which the victim received a meager tip and immediately forgave the customer, assuming the small amount was all the customer could afford to give her. We agree that, on rebuttal, there may have been some limited relevance to this testimony in an effort to impeach Mr. Wilks' assertion that the victim bickered over the tip amount. However, we cannot see how the evidence was relevant in the prosecution's case-in-chief. The prosecutor is not allowed to bootstrap relevancy in the first instance by what it subsequently offers in rebuttal testimony. Although the victim's state of mind was not relevant when offered in the prosecution's case-in-chief, we cannot say the evidence was extremely inflammatory sufficient to warrant reversal.

[¶ 11] The second instance of challenged testimony occurred when the prosecution questioned the husband about identifying the victim's body. As with several of his other contentions, Mr. Wilks makes no effort to explain how the prosecutor's question resulted in error or to point this court to any pertinent authority. Upon our own independent review, we cannot find any plain error in its admission.

[¶ 12] Third, Mr. Wilks claims the trial court erred by permitting the introduction of a photograph of the victim taken while she was alive. At trial, the state showed the victim's photograph to the husband and asked him to identify it. Defense counsel objected arguing...