Appeal from the District Court of Albany County, The Honorable Jeffrey A. Donnell, Judge.
The opinion of the court was delivered by: Kite, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Christopher Copty Luftig was convicted of burglary for entering a vehicle with intent to commit larceny. He appeals, claiming the district court committed plain error by allowing the admission of improper testimony about a series of Colorado car thefts for which he pleaded guilty to one count of aggravated motor vehicle theft and that his trial counsel was ineffective.
[¶2] We conclude that, even though some of the testimony about the Colorado crimes was inadmissible, Mr. Luftig has failed to show prejudice to establish plain error. Also, Mr. Luftig has not established that he was denied his constitutional right to effective assistance of trial counsel. Consequently, we affirm.
[¶3] Mr. Luftig presents the following issues on appeal:
1. Where the District Court properly permitted the introduction of limited 404(b) evidence: Whether the admission of prejudicial, improper and objectionable evidence outside the scope of the District Court's 404(b) ruling was Plain Error.
2. Whether Defense Counsel's conduct was so deficient that Appellant's trial cannot be relied upon as having produced a just result.
The State phrases the issues differently:
I. Did the State's direct examination of Officer Bruce conform with the District Court's pre-trial ruling on the admissibility of evidence related to appellant's Colorado guilty plea?
II. Did plain error occur when hearsay evidence was introduced without objection?
III. Did trial counsel's failure to object to certain evidence constitute ineffective assistance of counsel?
[¶4] During the early morning hours of May 2, 2008, Officer Anthony Johnson of the University of Wyoming Police Department was conducting foot patrol of the UW campus. Around 1:30 a.m., he walked by vehicles parked near a cafeteria and dorm area and noticed an individual inside a Honda Accord. Looking in the passenger side window, Officer Johnson saw a man working in the area of the ignition with a tool. He looked up at the officer, opened the driver's side door and fled. As the man exited the vehicle, the officer noticed his height (between 5'11" and 6'0" tall), build (slender), hair (short, dark brown) and lack of facial hair. He also observed that the man was wearing a waist-length tan jacket with a fleece collar.
[¶5] After his order to stop was ignored, Officer Johnson called for back-up and gave a description of the suspect. A few minutes later, other officers apprehended Mr. Luftig a short distance away. He claimed that he was simply walking home from the bar, but Officer Johnson identified him as the man in the car. The officers examined the car and discovered the window looked like it had been tampered with and the ignition was broken.
[¶6] The State charged Mr. Luftig with burglary in violation of Wyo. Stat. Ann. § 6-3-301(a) (LexisNexis 2009).*fn1 Mr. Luftig defended on the basis that Officer Johnson had incorrectly identified him as the perpetrator. The State gave notice that it intended to offer, pursuant to W.R.E. 404(b), evidence of other bad acts committed by Mr. Luftig to, among other reasons, establish his modus operandi, plan and identity. In particular, the State sought admission of evidence that he broke into "at least two Hondas in Ft. Collins, Colorado" on November 6, 2005, and as a result of those activities eventually pleaded guilty to one count of aggravated motor vehicle theft. The State maintained that the Colorado crimes were similar to the Laramie crime in that Mr. Luftig broke into Hondas by "jimmying" the windows and then stole the cars by "punching" the ignitions.
[¶7] The evidence offered included copies of the Stipulation and Consent to Deferred Sentence and Statement of Plea Disposition in the Colorado court, the police reports from the case, and testimony from a Fort Collins police officer regarding Mr. Luftig's prior criminal conduct. The Statement of Plea Disposition indicated that, in exchange for pleading guilty to one count of felony aggravated motor vehicle theft and one count of misdemeanor theft, the prosecution dismissed three other felony counts. Mr. Luftig objected to the evidence of the Colorado crimes.
[¶8] The district court held a hearing and ultimately ruled that the evidence of Mr. Luftig's Colorado conviction "under similar circumstances" was admissible to show Mr. Luftig's identity, modus operandi, and plan. Its decision letter listed the similar circumstances as:
[T]he same make of car (Honda) was broken into; the burglar used a tool or tools to damage/remove the ignition switch of the vehicle, thereby allowing for its theft (speaking in the vernacular, the ignition was "punched" in both cases); both crimes occurred at approximately 2:00 in the morning; and both involved the burglar entering the vehicle by means of "jimmying" the window.
The district court refused admission of the police reports on the basis of hearsay, but stated that the police officer could testify, "subject to other appropriate objections."
[¶9] At trial, the prosecution called Officer Jeff Bruce of the Fort Collins Police Department to testify about his investigation of a series of car thefts in Fort Collins, which led to Mr. Luftig's arrest and conviction. Officer Bruce testified, mostly without defense objection, about what he had learned from other police officers' reports. In addition to the November 6, 2005, car thefts which led to Mr. Luftig's conviction, the officer testified about other car thefts and thefts of personal property from cars in Fort Collins.
[¶10] The jury returned a guilty verdict and, after he was sentenced, Mr. Luftig appealed.
[¶11] Mr. Luftig argues the district court erred by allowing admission of prior bad acts evidence in excess of that permitted by its pre-trial ruling. He also asserts that Officer Bruce's testimony was inadmissible in several other ways, including hearsay, insufficient foundation, etc. Mr. Luftig acknowledges the plain error standard of review applies because no contemporaneous objections were lodged to the challenged testimony. "Under the plain error standard, the appellant must show a clear and unequivocal rule of law was violated, the violation clearly appears in the record, and it resulted in denial of a substantial right to [the appellant's] material prejudice." Granzer v. State, 2008 WY 118, ¶ 9, 193 P.3d 266, 269 (Wyo. 2008).
[¶12] The State called Officer Bruce to testify in its case in chief. He related that on November 8, 2005, he had been assigned to investigate a series of thefts of Honda automobiles in Fort Collins during the early morning hours of November 6, 2005. He testified as to what he had learned about the case from other police officers' reports. He stated that four males, including Mr. Luftig, had traveled from Laramie to attend a party in Fort Collins in a stolen tan Honda Accord. He continued:
Q: And during the course of the evening, were there other vehicles involved in the investigation that were determined to be stolen?
Q: Can you just describe a little bit about where those vehicles were and how they were stolen?
A: According to witnesses . . . they noted a group of males who they recognized from the party. They were standing next to the tan Honda Accord in the parking lot, and it appeared that they were moving items from the tan Honda Accord to a blue Honda Accord. [One of the witnesses] concluded that these parties were likely stealing a car as well as breaking into other cars and stealing items out of them.
Q: Okay. And the tan Honda Accord, you said that the four individuals, which included Christopher Luftig, that vehicle was stolen?
Q: And that vehicle, did you have an opportunity to get a description of -- of that vehicle[?] . . . .
A: The vehicle [was] described in the police report as a tan Honda Accord with a ski rack, according to witnesses and later on Mr. Luftig's friends' statements, that vehicle was recovered by police and ultimately determined to have been stolen from Fort Collins in the previous month.
Q: . . . . Was it determined if that [the tan Honda Accord] was driven by Christopher Luftig and his three other friends from Laramie to Fort Collins?
Q: And did those friends make any statements about the ...