Appeal from the District Court of Carbon County. The Honorable Wade E. Waldrip, Judge.
The opinion of the court was delivered by: Burke, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
BURKE, J., delivers the opinion of the Court; VOIGT, C.J., files a specially concurring opinion.
[¶1] Randall Schreibvogel was convicted of two counts of first degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-302,*fn1 and one count of robbery, in violation of Wyo. Stat. Ann. § 6-2-401 (LexisNexis 2007).*fn2 He challenges his convictions on several grounds. He contends that he was denied his right to a fair trial because of erroneous evidentiary rulings, prosecutorial misconduct, and ineffective assistance of defense counsel. We affirm.
[¶2] Mr. Schreibvogel presents six issues:
1. Did the district court abuse its discretion in quashing the subpoena duces tecum at the request of the prosecutor?
2. Did the trial court commit plain error when it allowed into evidence victim impact testimony?
3. Did the cumulative effect of numerous instances of inadmissible hearsay deny Appellant his right to a fair trial?
4. Did the district court err when it allowed in 404(b) evidence after the Appellant had made the proper demand for notice, and the State had failed to provide any notice?
5. Did the prosecutor commit misconduct when he cross-examined the Appellant as to whether other witnesses were lying or mistaken; and did he commit misconduct when he requested that the jury consider the number of witnesses who testified on behalf of D.C. and her character, compared to the lack of witnesses that the defense presented on Appellant?
6. Did trial counsel provide ineffective assistance of counsel, by his failure to object to inadmissible evidence, and failure to adequately advance his theory of the case?
The State phrases the issues as follows:
1. Did the district court abuse its discretion when it granted the State's motion to quash the subpoena for the victim's financial records?
2. Was the victim impact testimony and argument admitted during Appellant's trial relevant and was he prejudiced?
3. Was the challenged testimony inadmissible hearsay which denied Appellant his right to a fair trial?
4. Did the district court abuse its discretion when it allowed the admission of alleged uncharged misconduct testimony?
5. Did prosecutorial misconduct occur and was Appellant prejudiced?
6. Was trial counsel ineffective and was Appellant prejudiced?
[¶3] D.C., the victim in this case, lived in Rawlins and owned a hair salon in Saratoga.
On October 31, 2007, she attended a Halloween party in Saratoga. The restaurant hosting the Halloween party was located next door to her salon. D.C. planned to spend the night in Saratoga at her salon.
[¶4] Mr. Schreibvogel was in the area on a fishing trip. He also went to the party. D.C. had met Mr. Schreibvogel briefly at a restaurant during lunch that day and noticed him sitting next to her at the bar. They talked intermittently during the party. On several occasions, Mr. Schreibvogel suggested that he and D.C. leave the party. He offered to help her clean the salon. She refused the offer each time.
[¶5] At some point during the party, D.C. left her drink at the bar and went to the dance floor. When she returned, she took a sip of the drink and soon felt ―strange‖ and ―groggy.‖ She informed the bartender that something was wrong and left the party. When she arrived at her salon, D.C. testified that she remembered reaching down to retrieve a key she had placed in her shoe for safekeeping and then waking up on the ground outside of her salon. She testified that she could not remember if she fell or if she was struck. Several witnesses testified that D.C. told them a few days after the incident that she had been hit. An emergency room doctor testified that D.C. had facial injuries that were likely caused by a punch.
[¶6] When D.C. regained consciousness she discovered that she was bleeding. She remembered hearing something, but was not sure what it was. She then entered her salon and lost consciousness again. She regained consciousness twice before morning. When she awoke the first time, Mr. Schreibvogel was engaged in oral sex with her. On the second occasion, Mr. Schreibvogel was engaged in sexual intercourse with her. The next morning she awoke to discover that Mr. Schreibvogel had left, and that the money in her tip jar was missing. She reported the incident to the hospital, her husband, and law enforcement officials two days after it occurred.
[¶7] Mr. Schreibvogel's version of the events differed substantially. He maintained that D.C. invited him back to her salon. He testified that he witnessed her fall and hit her face on the ground. When she got up, he claimed that he asked her if she was okay and they entered the salon. Mr. Schreibvogel conceded that he and D.C. had sexual relations, but claimed it was consensual. He maintained that he never saw money or a tip jar in the salon.
[¶8] A jury found Mr. Schreibvogel guilty of two counts of first degree sexual assault and one count of robbery. The district court imposed a prison sentence of fifteen to thirty years on each count of sexual assault and five to ten years on the robbery count. The sentences were ordered to be served concurrently. Mr. Schreibvogel filed a timely appeal.
[¶9] Prior to trial, Mr. Schreibvogel served a subpoena duces tecum on D.C.*fn3 The subpoena required pretrial production of D.C.'s personal financial and bank records, including tax returns, for the past five years. At D.C.'s request, the State moved to quash the subpoena. After a hearing, the district court granted the motion pursuant to W.R.Cr.P. 17(d) finding that compliance with the subpoena would be oppressive and burdensome to D.C.*fn4 Mr. Schreibvogel claims that the State did not have standing to bring the motion, and the district court abused its discretion in granting the motion.
[¶10] Whether standing exists is a legal issue. Northfork Citizens for Responsible Development v. Park County Bd. of County Commissioners,2008 WY 88 , ¶ 6, 189 P.3d 260, 262 (Wyo. 2008). This Court reviews legal issues de novo. Johnson v. State,2009 WY 104, ¶ 12, 214 P.3d 983, 986 (Wyo. 2009);Reiter v. State, 2001 WY 116, ¶ 7, 36 P.3d 586, 589 (Wyo. 2001). For a party to have standing, he ―must demonstrate the manner in which his own rights are adversely affected in light of the circumstances before the court.‖ Gooden v. State, 711 P.2d 405, 408 (Wyo. 1985), quoting Armijo v. State, 678 P.2d 864, 868 (Wyo. 1984).
[¶11] Mr. Schreibvogel asserts that the State did not have standing to challenge the subpoena duces tecum. The State maintains that it had standing to challenge the subpoena because it had a legitimate interest in protecting its witness, the victim, from harassment and ―preventing unfounded and potentially time-wasting incursions during trial into an irrelevant and superfluous side issue.‖ We agree with the State for reasons succinctly stated by the Connecticut Supreme Court:
We conclude that the state had standing to move to quash the defendant's subpoena. ―A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant's legitimate interests.‖ United States v. Raineri, 670 F.2d 702, 712 (7th Cir. ), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982). It is inarguable that the state had a legitimate interest in challenging the subpoena duces tecum that had been issued to Smith [the defendant's supervisor]. The subpoena, which was served by the defendant on a key state witness during the pendency of the trial, sought numerous documents and materials. ―The prosecution's standing rested upon its interest in preventing undue lengthening of the trial [and] undue harassment of its witness . . . .‖ Id.
The defendant claims that the town of Westport has its own legal department and could have filed a motion to quash the subpoena on Smith's behalf. This argument, however, misses the point: the interest that the state legitimately sought to protect in seeking to quash the subpoena belonged to the state, not the town. Moreover, many state's witnesses are persons who cannot be expected to hire lawyers and incur the expense associated with challenging a subpoena issued by an accused. Thus, the trial court properly concluded that the state had standing to challenge the subpoena that the defendant served on Smith.
State v. Decaro, 745 A.2d 800, 816 (Conn. 2000). See also Raineri, 670 F.2d at 712; United States v. Segal, 276 F.Supp.2d 896, 900 (N.D. Ill. 2003).
[¶12] Mr. Schreibvogel also challenges the district court's ruling on the motion. We review rulings on pretrial motions, such as a motion to quash, for an abuse of discretion. Wolfe v. State, 998 P.2d 385, 387 (Wyo. 2000). This standard of review requires this Court to examine ―the reasonableness of the trial court's choice,‖ in ruling on the matter. Gould v. State, 2006 WY 157, ¶ 8, 151 P.3d 261, 264 (Wyo. 2006).
[¶13] The district court ―may quash or modify the subpoena if compliance would be unreasonable or oppressive.‖ W.R.Cr.P. 17(d). The subpoena served upon D.C. requested that she produce ―all financial records including tax return[s] for the past five (5) years and bank records for the past five (5) years in her possession or control.‖ These items were to be produced pretrial. After a hearing, the district court granted the State's motion to quash stating:
The Court finds [Mr. Schreibvogel's] subpoena duces tecum unreasonable and oppressive. [Mr. Schreibvogel's] subpoena requests records for a lengthy period of time and any time period outside of that immediately surrounding the date of the alleged criminal act is irrelevant to the issues in question. Further, retrieving accurate financial records for such a time period overly burdens the alleged victim and the monetary cost would be incurred unnecessarily.
The record supports the findings of the district court and we are unable to find any abuse of discretion in quashing the subpoena.
[¶14] In asserting that the district court abused its discretion in quashing the subpoena, Mr. Schreibvogel relies upon the decision of the United States Supreme Court in United States v. Nixon, 418 U.S. 683, 699, 94 S.Ct. 3090, 3103, 41 L.Ed.2d 1039 (1974). His reliance is misplaced. Nixon supports the decision reached by the district court.
[¶15] In Nixon, the government pursued the prosecution of presidential campaign officials and former government officials for conspiracy to defraud the United States and to obstruct justice. In doing so, the special prosecutor issued a third-party subpoena duces tecum to the President seeking pretrial production of documents and recordings relating to conversations with advisors and aides.*fn5 The President filed a motion to quash the subpoena. The motion was denied and the President appealed. The United States Supreme Court granted certiorari and affirmed the trial court's denial of the motion to quash. The Supreme Court stated:
A subpoena for documents may be quashed if their production would be ―unreasonable or oppressive,‖ but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220, 71 S.Ct. ; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials, ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ―fishing expedition.‖ Nixon, 418 U.S. at 698-700, 94 S.Ct. at 3103 (footnotes and emphasis omitted). The Court went on to state that, ―[a]against this background‖ the party seeking enforcement of a subpoena, in order to carry his or her burden, had to clear the three hurdles of relevancy, admissibility, and specificity. Id. at 700, 94 S.Ct. at 3103.
[¶16] In sum, the Court noted:
In a case such as this, however, where a subpoena is directed to a President of the United States, appellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied. United States v. Burr, 25 F.Cas. pp. 30, 34 (No. 14,692d) (CC Va. 1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17(c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879 (1951); United States v. Iozia, 13 F.R.D. 335 (S.D.N.Y. 1952).
Id. at 702, 94 S.Ct. at 3104-05 (emphasis omitted).
[¶17] Mr. Schreibvogel made no attempt to comply with the requirements of the Nixon test. He argued generally that the information was relevant because it went directly to the credibility of the witness regarding the amount of money she claimed was in her tip jar at the time of the incident.*fn6 He made no effort to establish that his request was sufficiently specific. He did not explain why he had requested five years of documents or why it was necessary that D.C. provide him with all of her personal records. He failed to establish that the documents were not available from another source. It was undisputed that D.C. had previously provided the financial records of the hair salon business in response to another subpoena duces tecum. Mr. Schreibvogel did not contend that he could not properly prepare for trial without the requested personal financial documents. Additionally, the request for ―all financial records‖ for a five year period, ostensibly to challenge testimony regarding the contents of the tip jar on a specific date, could easily be viewed as a fishing expedition.
[¶18] Mr. Schreibvogel maintains that the district court should have modified the subpoena instead of granting the State's motion to quash. W.R.Cr.P. 17(d) allows the court to modify a subpoena if compliance would be unreasonable or oppressive, but it does not require the court to do so. During the hearing, defense counsel suggested that the court evaluate the records in camera and decide whether the records were relevant. That procedure, however, would still have required D.C. to compile the records for the full five years. Mr. Schreibvogel, as the party requesting the information, had the burden to show that the requested documents were specific, relevant, and not intended as a general fishing expedition. Nixon, 418 U.S. at 699-700, 94 S.Ct. at 3103. He did not satisfy this burden. The district court did not abuse its discretion in granting the motion to quash.
[¶19] Mr. Schreibvogel next contends the district court erred by allowing evidence regarding the impact of the incident on D.C. He did not object to the introduction of this evidence at trial, and we review for plain error. Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right resulting in material prejudice. Causey v. State, 2009 WY 111, ¶ 18, 215 P.3d 287, 293 (Wyo. 2009).
[¶20] Mr. Schreibvogel takes exception to testimony from D.C. and her husband concerning D.C.'s behavior after the incident. In response to questions by the State, D.C. testified:
[Prosecutor]: Have you -- did you ever stay overnight in that shop again?
Q: Okay. Did you change your hours?
A: I didn't work after dark.
Q: When [your husband] leaves [town for work] -- when he was leaving town prior to Halloween ...