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Foster v. State

January 28, 2010

BALYNDA KAY FOSTER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Carbon County The Honorable Jeffrey A. Donnell, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice.

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

[¶1] Following a jury trial, Balynda Kay Foster (the appellant) was convicted of numerous drug-related crimes. The appellant appeals the convictions, alleging that the district court abused its discretion by admitting two letters into evidence and alleging that cumulative error occurred. Finding no abuse of discretion in admitting the letters into evidence and finding that no cumulative error occurred, we will affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion when it admitted into evidence letters purportedly written by the appellant and the appellant‟s accomplice?

2. Did cumulative error occur warranting reversal of the appellant‟s convictions?

FACTS

[¶3]The facts of this case are relatively simple and straightforward. On October 29, 2007, the appellant was charged with eleven counts of drug-related offenses, including possession of a controlled substance, possession with intent to deliver a controlled substance, and delivery of a controlled substance.*fn1 Following a jury trial, the appellant was convicted of eight of the eleven counts and she was subsequently sentenced.*fn2 The appellant filed a timely notice of appeal alleging that the district court abused its discretion when it admitted into evidence two letters purportedly written by the appellant and the appellant‟s accomplice (Mr. Walsh) and that cumulative error occurred during trial.

DISCUSSION

Did the district court abuse its discretion when it admitted into evidence letters purportedly written by the appellant and appellant's accomplice?

[¶4] Generally, decisions regarding the admissibility of evidence are entrusted to the sound discretion of the district court. We afford considerable deference to the district court‟s decision and, as long as a legitimate basis exists for the district court‟s ruling, it will not be reversed on appeal. Under the abuse of discretion standard, our primary consideration is the reasonableness of the district court‟s decision. The burden of establishing an abuse of discretion rests with the appellant.

If we find that the district court erred in admitting the evidence, we must then determine whether or not the error affected [the appellant‟s] substantial rights, providing grounds for reversal, or whether the error was harmless. The error is harmful if there is a reasonable possibility that the verdict might have been more favorable to [the appellant] if the error had never occurred. To demonstrate harmful error, [the appellant] must prove prejudice under circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.

Proffit v. State, 2008 WY 103, ¶ 12, 191 P.3d 974, 977-78 (Wyo. 2008) (quoting Humphrey v. State, 2008 WY 67, ¶¶ 44-45, 185 P.3d 1236, 1249 (Wyo. 2008)) (internal citations and quotation marks omitted).

[¶5] The appellant takes issue with the admission of two letters, one purportedly written by the appellant and the other purportedly written by Mr. Walsh. We will address the admission of each of the letters in turn. As to the admission of the letter purportedly written by the appellant, the appellant makes two arguments supporting her claim that the district court improperly admitted it into evidence. First, the appellant argues that there was insufficient foundation to show that Lieutenant Bisceglia had sufficient familiarity with the appellant‟s handwriting to make a lay identification of it. Second, the appellant argues that Lieutenant Bisceglia acquired her familiarity with the appellant‟s handwriting for purposes of litigation, in violation of W.R.E. 901(b)(2).

[¶6] We begin our analysis with W.R.E. 901, which sets forth the basic requirements of authentication and identification of evidence. It reads in pertinent part:

(a) General provisions. -- The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

(b) Illustrations. -- By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of Witnesses with Knowledge. -- Testimony that a matter is what it is claimed to be;

(2) Non-expert Opinion on Handwriting. -- Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation;

....

[¶7] This Court has rarely addressed the level of familiarity required for a lay witness to testify to the genuineness of a person‟s handwriting, as described in W.R.E. 901(b)(2). See Epperson v. State, 600 P.2d 1051, 1053 (Wyo. 1979) (finding, without much analysis, that a wife was sufficiently familiar with her husband‟s handwriting to be able to authenticate its genuineness). Fortunately, W.R.E. 901 is identical to its federal counterpart, F.R.E. 901. "When this Court construes court rules that are virtually identical to their federal counterparts, relevant federal authority is persuasive." Walters v. State, 2008 WY 159, ¶ 13, 197 P.3d 1273, 1277 (Wyo. 2008).

[¶8] Federal courts have construed F.R.E. 901(b)(2) liberally to admit into evidence a wide spectrum of handwritten evidence authenticated by lay witness testimony as to familiarity with the handwriting. See United States v. Apperson, 441 F.3d 1162, 1200-01 (10th Cir. 2006) (finding sufficient basis for witness to testify to the authentication of handwriting on a letter by testifying that "based upon his long-standing association with [the appellant], he was familiar with his handwriting"); United States v. Tipton, 964 F.2d 650, 654-55 (7th Cir. 1992) (witness could authenticate documents purportedly written by appellant because witness "was familiar with [appellant]‟s handwriting and signature as a result of observing... documents [appellant] prepared"); United States v. Barker, 735 F.2d 1280, 1283 (11th Cir. 1984) (Witnesses who were co-workers of the appellant could authenticate writing on checks as that of appellant‟s because they "testified they were familiar with the [appellant]‟s handwriting and stated in their opinions it matched or was similar to the handwriting on the checks."). Authenticating handwriting through familiarity by a lay witness "requires nothing more than familiarity of some sort on the part of the witness with the handwriting of the person who, according to the witness, either did or did not pen the signature or writing in issue." 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 9:4, at 345 (3d ed. 2007). Moreover, familiarity with handwriting need not come from personally witnessing the person sign a document. "Other categories of experience can, however, demonstrate familiarity, such as seeing signatures on writings purporting to be those of the alleged author when the circumstances would indicate that they were genuine." United States v. Scott, 270 F.3d 30, 50 (1st Cir. 2001). The Advisory Committee Notes to F.R.E. 901(b)(2) provide examples of how a witness may become familiar with handwriting in order to testify to its authenticity:

Example (2). Example (2) states conventional doctrine as to lay identification of handwriting, which recognizes that a sufficient familiarity with the handwriting of another person may be acquired by seeing him write, by exchanging correspondence, or by other means, to afford a basis for identifying it on subsequent occasions. McCormick § 189. See also California Evidence Code § 1416....

[¶9] In this case, Lieutenant Bisceglia testified that the reason she was able to identify the handwriting on the first letter as that of the appellant was because she, "as lieutenant of the jail, receive[s] the requests and grievances from the inmates. And [the appellant] has a particular type of writing that is easy to identify." Lieutenant Bisceglia acquired her familiarity with the appellant‟s handwriting by reading it repeatedly, which the Advisory Committee Notes to F.R.E. 901(b)(2) recognize as creating adequate familiarity as foundation to testify. We find no reason to come to a different result under W.R.E. 901(b)(2). Accordingly, the State sufficiently authenticated the letter and the district court did not abuse its discretion when it admitted the letter into evidence.

[¶10] We now turn to appellant‟s argument that the district court abused its discretion in admitting the letter purportedly written by the appellant because, according to the appellant, Lieutenant Bisceglia acquired her familiarity with the appellant‟s handwriting for purposes of litigation. Specifically, the appellant argues that, as an employee of the State, Lieutenant Bisceglia is an agent of the State, and because the State is a party to the prosecution of the appellant, that without a showing by the State to the contrary, this Court must assume that Lieutenant Bisceglia‟s familiarity with the handwriting on the letter must have come from preparing for litigation.

[¶11] We again rely on federal authority for guidance. Federal case law does not support the appellant‟s broad assertion that simply being a State agent and acting as a lay witness to authenticate handwriting automatically amounts to becoming familiar with the handwriting for purposes of litigation as contemplated by F.R.E. 901(b)(2). In United States v. Scott, 270 F.3d 30 (1st Cir. 2001), after analyzing the rationale behind F.R.E. 901(b)(2), the court found that an IRS agent did not become familiar with the defendant‟s handwriting for purposes of litigation. The IRS agent in Scott became familiar with Scott‟s handwriting over the course of several years as an agent investigating Scott for various criminal tax offenses. Id. at 50. The IRS agent‟s familiarity came from, among other things, viewing several letters, past court pleadings, signature cards used to open bank accounts, checks and tax returns, all written by Scott, as well as witnessing Scott sign a document in his presence. Id. at 48. Scott argued that the IRS agent‟s testimony that certain documents contained Scott‟s handwriting was inadmissible under F.R.E. 901(b)(2) because the agent became familiar with Scott‟s handwriting through his criminal investigation of Scott. The First Circuit rejected this argument stating that the IRS agent became familiar with Scott‟s handwriting over the course of several years, and he did so not for the purpose of testifying, but instead for the purpose of solving a crime. Scott was perfectly entitled to argue to the jury that [the IRS agent‟s] interest in securing a conviction colored [the IRS agent‟s] perception of Scott‟s handwriting. That possibility, however, did not require the district court to exclude the evidence under Rule 901(b)(2).

Id. at 50 (internal citations omitted).

[¶12] Lieutenant Bisceglia testified as to how she became familiar with the letters, and specifically how she was able to identify the handwriting on the first letter as the appellant‟s. When asked how she was familiar with the two letters in question, Lieutenant Bisceglia stated

They came across my desk because they were found by deputies in the jail. I am not sure exactly where these two were found, because it was kind of an ongoing problem. They would hide letters in different places, and the deputies would find them, and they would come up to my desk.

As noted above, Lieutenant Bisceglia then testified that the reason she was able to identify the handwriting on the first letter as the appellant‟s was because she, "as lieutenant of the jail, receive[s] the requests and grievances from the inmates. And [the appellant] has a particular type of writing that is easy to identify." We find that F.R.E. 901(b)(2) would not bar Lieutenant Bisceglia from authenticating the letter, and we find no reason to conclude otherwise under W.R.E. 901(b)(2). The Lieutenant did not obtain her familiarity with the appellant‟s handwriting for the purpose of litigation.

[¶13] As to the letter purportedly written by Mr. Walsh, the appellant argues that the district court improperly admitted it into evidence because the State failed to offer sufficient proof that the letter was in Mr. Walsh‟s handwriting and also failed to show that Lieutenant Bisceglia was sufficiently familiar with Mr. Walsh‟s handwriting to authenticate the letter. However, it appears from the record that the authentication of this letter came not under W.R.E. 901(b)(2), but instead under W.R.E. 901(b)(1), through proof that it was what it was purported to be. The following colloquy occurred between the prosecutor and Lieutenant Bisceglia relating to the authentication of the letter purportedly written by Mr. Walsh:

Q: [By Prosecutor] And [Exhibit] Number 2. Are you familiar with State‟s 2?

A: [By Lieutenant Bisceglia] Yes. From [Mr. Walsh].

Q: And how do you know that?

A: I remember this one because we actually had the camera, because he hid it in the gym behind the mats we have in the gym. And we found it when we actually went back and looked on the videos to see where it came from.

The appellant argues that no testimony was offered to show that Mr. Walsh authored the letter, and she questions whether someone else could have in fact written the letter, even though she does not point to any specific person. However, the testimony provided by Lieutenant Bisceglia makes clear that her knowledge and familiarity with the letter came not from her familiarity with Mr. Walsh‟s handwriting, but instead from watching him on a video camera place the letter where it was found. This testimony is sufficient to lay a foundation for its admission under W.R.E. 901(b)(1), as a witness with knowledge. The appellant‟s arguments as to whether or not Mr. Walsh actually wrote the letter goes not to foundation for admission, but rather to the weight of the evidence. 5 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 9:2, at 333-34 (3d ed. 2007) ("The fact that a matter satisfies the authentication requirement and is received in evidence does not mean that the trier of fact is bound either to conclude that the matter is in fact authentic or that it has the significance in the case the proponent suggests.... [T]he jury remains free to reject the matter in question on the ground that it is not authentic, or to ...


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