Willoughby v. State

• Decision Date: 08 June 2011
• Docket Number: No. S–10–0161.,S–10–0161.
• Citation: 2011 WY 92,253 P.3d 157
• Parties: Troy Dean WILLOUGHBY, Appellant (Defendant),v.The STATE Of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

253 P.3d 157

2011 WY 92

Troy Dean WILLOUGHBY, Appellant (Defendant),

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

No. S–10–0161.

Supreme Court of Wyoming.

June 8, 2011.

Representing Appellant: Diane M. Lozano, State Public Defender, and Tina N. Olson, Appellate Counsel, Wyoming Public Defender Program. Argument by Ms. Olson.Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.

[¶ 1] Elizabeth Miles Ehlers (the victim) was shot to death in Sublette County, Wyoming, on June 21, 1984. Troy Dean Willoughby (the appellant) was convicted of that murder on January 29, 2010. The appellant now appeals that conviction and the denial without a hearing of his motion for a new trial. Finding no error, we affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion by failing to grant the appellant's motion for a new trial?

2. Did the prosecutor commit misconduct by violating discovery orders, by violating a pre-trial order regarding uncharged misconduct evidence, and by eliciting testimony from a law enforcement officer that the officer believed a witness was lying during an interview?

FACTS ¹

[¶ 3] During the evening of June 20, 1984, the victim attended a party with friends in Jackson, Wyoming. The appellant and his wife (R.H.) and a companion (T.B.) were also present. At some point during the party, the appellant sold some “dope” to the victim, who said that she would go get the payment money from her car. The appellant, watching from a window, saw the victim get in her car and drive away. He hurried to follow her, and was joined by R.H. and T.B. as he left. As they were leaving, the appellant saw R.C., the person from whom he had purchased the “dope,” and to whom he still owed the purchase money, and the appellant commented to R.C., “I might need that piece.”

[¶ 4] Driving his car, with T.B. in the passenger's seat and R.H. in the back seat, the appellant chased after the victim. At some point, as they headed south out of Jackson, the appellant pulled over to the side of the road, and R.C. pulled in behind the appellant's car. The appellant went to R.C.'s vehicle and returned with a pistol. He then resumed the chase of the victim, eventually coming upon her car pulled over in a turnout. Upon seeing the vehicle, the appellant said something like, “I've been looking for her.” He pulled in behind the victim's car, got out of his car, approached the victim's car, and dragged her out by the hair. A struggle and screaming match ensued, during which the appellant punched the victim twice in the face, causing her to fall to the ground. The appellant returned to his car, retrieved the pistol, walked back up to the victim and shot her twice.

[¶ 5] When the appellant returned to his vehicle, R.H. demanded to know what he had just done. The appellant responded that “this will teach the bitch to rip me off.” The appellant then drove to his home in Daniel, a small town south of Jackson, where R.H. drove him to work. T.B., being too afraid to leave and having no transportation, stayed with the appellant and R.H. for a few days. At some point, the appellant told R.H. he needed help hiding the gun, which was eventually hidden in the couple's septic tank. When R.H. initially refused to assist the appellant, he struck her in the face with the butt of a rifle. After witnessing that violence, T.B. hitchhiked back to Jackson, where he made an anonymous telephone call to law enforcement saying the appellant had killed the victim.

[¶ 6] During the trial, several witnesses implicated the appellant in the victim's murder. Much of the preceding factual scenario came from the testimony of R.H. and T.B., the eye witnesses, and from B.C., a fellow inmate with whom the appellant had discussed many aspects of the crime. In addition, another witness, D.S., testified that, during a hunting trip in 1984, the appellant had described how the victim was murdered, and that the appellant's account scared D.S. to the point that he eventually reported it to authorities. At the time of the murder, however, not everyone was so forthcoming, and insufficient evidence was developed with which to charge the appellant.

[¶ 7] The appellant's trial defense was that of alibi. He claimed to have been at work at the time of the murder. The State presented expert testimony, however, indicating that the appellant's signature and initials on the “drilling log” had been forged. Further, the appellant told B.C. that he had paid the driller $100.00 for the forgery. Beyond that, the appellant's defense focused upon inconsistencies in the details of the testimony of the State's witnesses. The jury found the defendant guilty of first-degree murder, and the appellant's post-trial motion for a new trial was deemed denied when it was not determined by the district court within the time constraints of W.R.Cr.P. 33.

DISCUSSION

Did the district court abuse its discretion by failing to grant the appellant's motion for a new trial?

[¶ 8] We review the denial of a motion for new trial, including a motion based upon alleged prosecutorial misconduct, for an abuse of discretion. Lawson v. State, 2010 WY 145, ¶ 19, 242 P.3d 993, 1000 (Wyo.2010); Schafer v. State, 2008 WY 149, ¶ 21, 197 P.3d 1247, 1251 (Wyo.2008). Similarly, the decision whether or not to grant a hearing upon the filing of a motion for new trial is within the sound discretion of the district court; the district court “may deny a motion for new trial without a hearing when all that is necessary for disposition is already in the record.” Best v. State, 769 P.2d 385, 389 (Wyo.1989). An abuse of discretion occurs when the district court could not reasonably have concluded as it did. Schafer, 2008 WY 149, ¶ 21, 197 P.3d at 1252.

Statement by the Appellant to D.S.

[¶ 9] In his new trial motion filed on February 3, 2010, the appellant raised eight issues. The first issue was whether the State had violated two court orders—one regarding uncharged misconduct evidence and one requiring the State to set forth the proposed testimony of witnesses—by eliciting testimony from D.S. that had not been revealed to defense counsel. The essence of that testimony was that, sometime after D.S. had told the authorities about the appellant's hunting camp description of the murder, D.S. and the appellant saw one another at a gas station and the appellant threatened to kill D.S. if he ever again talked to the police.

[¶ 10] Defense counsel objected at trial to this testimony as being violative of W.R.Cr.P. 16(a)(1)(A)(i)(2), because the State had not disclosed the alleged threat.² After a hearing outside the presence of the jury, the district court admonished the prosecutor for not disclosing the statement, and then instructed the jury to disregard that portion of D.S.'s testimony. The State now contends that W.R.Cr.P. 16(a)(1)(A)(i)(2) governs only oral statements made to law enforcement officers, and that the summary of D.S.'s testimony disclosed in discovery was adequate under the rule.³

[¶ 11] We have said many times that a trial error may be corrected by an appropriate curative instruction, and that we presume that jurors follow the court's instructions. See, e.g., Janpol v. State, 2008 WY 21, ¶ 24, 178 P.3d 396, 405 (Wyo.2008); Brown v. State, 953 P.2d 1170, 1177 (Wyo.1998); Rubio v. State, 939 P.2d 238, 243 (Wyo.1997); and Burke v. State, 746 P.2d 852, 857 (Wyo.1987). In the instant case, the district court instructed the jury as follows immediately after the appellant's objection:

THE COURT: All right. You may all be seated. The jury is present again.

And I want to remind the jury of initial instruction that I gave to them about when evidence is stricken. I instructed you [sic] the outset that sometimes throughout the trial I would be called upon to pass upon the question of whether or not some evidence might be admitted and that you weren't to be concerned with my reasons for such rulings. And if I do strike evidence you are number one not to consider it and certainly not to consider the reasons for me striking it because you certainly are the triers of the facts, but I am the—the Court determines the admissibility of evidence.

So I am hereby instructing you, ladies and gentlemen of the jury, that you are not to consider any of [D.S.]'s testimony considering the—when he saw the Defendant at the Chevron station, any statements made by the—allegedly made by the Defendant, you are not to consider any of those or [D.S.]'s move to California.

In other words, [D.S.]'s testimony of anything after he said he talked to the Sheriff, anything after that is stricken and you're not to consider anything after that.

[¶ 12] A new trial should be granted only “if required in the interest of justice[,]” which standard is similar to that for granting a mistrial: “Granting a mistrial is an extreme and drastic remedy that should be resorted to only in the face of an error so prejudicial that justice could not be served by proceeding with trial.” Yellowbear v. State, 2008 WY 4, ¶ 67, 174 P.3d 1270, 1295 (Wyo.2008) (quoting Warner v. State, 897 P.2d 472, 474 (Wyo.1995) (emphasis added)). The appellant bears the burden of proving prejudice by the denial of a new trial motion. Yellowbear, 2008 WY 4, ¶ 67, 174 P.3d at 1295. Here, in the context of the overwhelming evidence of the appellant's guilt, and the district court's detailed curative instruction, we cannot say that the post-trial motion should have been granted. The appellant has not met his burden of showing that he was prejudiced by denial of the new trial motion in respect to the stricken testimony.

Testimony of Gene Ferrin.

[¶ 13] At the time of the murder, Gene Ferrin was an investigator for the Teton County Sheriff's...