Appeal from the District Court of Natrona County, The Honorable W. Thomas Sullins, Judge.
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
[¶1] Donald Lee Rolle (the appellant) seeks to overturn his convictions for first-degree murder, felony murder, and kidnapping. He asserts numerous claims of error. Finding no abuse of discretion or prejudicial error, we affirm.
[¶2] 1. Did the district court abuse its discretion when it admitted certain uncharged misconduct evidence?
2. Did the district court commit plain error when it did not give a limiting instruction immediately after the introduction of the uncharged misconduct evidence, but rather waited until the close of evidence, when defense counsel requested the instruction?
3. Did a question asked by the jury, and the judge‟s response thereto, result in a fatal variance, an improper instruction by the judge, or indicate that there was insufficient evidence to support a first-degree murder conviction?
4. Was the appellant‟s defense counsel ineffective?
5. Did cumulative error occur?
[¶3] On the evening of November 3, 2007, the appellant and Jennifer Randel went to Butch‟s Bar in Evansville, Wyoming. The appellant and Ms. Randel were together despite the fact that the appellant had been ordered, as a condition of his probation, not to have contact with Ms. Randel. Witnesses said that at one point the appellant attempted to initiate a physical altercation with another patron, but was restrained by bouncers. Shortly thereafter, the appellant and Ms. Randel left the bar, with a witness hearing the appellant say to Ms. Randel "get the f[---] up let‟s go, we‟re getting the f[---] out of here." Ms. Randel‟s response was "why, what did I do wrong."
[¶4] At approximately 9:34 p.m., that same night, a 911 call was received from Ms. Randel stating she was being held against her will in the appellant‟s vehicle. At one point during the call, there were sounds of a struggle and then Ms. Randel stated "you are going to kill me." Later, a male voice identified as that of the appellant stated, "I‟m going to cut your f[------] eyes out." The call lasted approximately nine minutes, then ended abruptly. Local law enforcement attempted to find Ms. Randel throughout the evening with no success.
[¶5] The next morning, a local rancher reported a vehicle stuck off an unimproved dirt road in a remote portion of Natrona County. Law enforcement responded and discovered the appellant‟s truck, with the appellant outside the vehicle with blood on his clothing. When the appellant saw the officers, he retreated to his vehicle and the officers observed the appellant begin to slash at his wrists. The officers eventually removed the appellant from his vehicle and detained him. Inside the vehicle they found the body of Ms. Randel, who was deceased.
[¶6] An autopsy showed that Ms. Randel had suffered numerous abrasions, contusions, and lacerations. Ms. Randel also suffered a stab wound in the back of her neck, multiple defensive wound*fn2 cuts on her hands, two rib fractures, a broken nose, and bruises across her limbs. However, the most serious trauma was to Ms. Randal‟s head. There was swelling and extensive bruising and lacerations resulting from "many, many blows" to the head and neck. Additionally, patches of hair had been pulled from Ms. Randel‟s scalp, and her body showed signs of manual strangulation. The autopsy revealed that Ms. Randel died from swelling of the brain resulting from blunt force trauma to the head.
[¶7] The appellant was tried and convicted by a jury of premeditated first-degree murder, felony murder, and kidnapping. The appellant timely appealed from those convictions. We will affirm.
Did the district court abuse its discretion when it admitted certain uncharged misconduct evidence?
[¶8]The admissibility of evidence of uncharged misconduct must be determined within the confines of W.R.E. 404(b), which rule reads as follows:
(b) Other crimes, wrongs, or acts. ― Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
The test that district courts must follow when determining the proper application of this rule and admissibility of uncharged misconduct evidence was adopted in Vigil v. State, 926 P.2d 351, 357 (Wyo. 1996), holding modified by Howard v. State, 42 P.3d 483, 484 (Wyo. 2002), and later articulated as follows:
Admissibility under W.R.E. 404(b) is not limited to the purposes set forth in the rule, and we have adopted a liberal approach toward admitting uncharged misconduct evidence. The listed exceptions are illustrative rather than exclusive. Nevertheless, because uncharged misconduct evidence carries an inherent danger for prejudice, we have also adopted a mandatory procedure for testing its admissibility: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. We do not apply this test on appeal; rather, it is intended to be conducted by the trial court.
For proper appellate review of the admissibility of evidence under W.R.E. 404(b), the record must reflect that the trial court required the State not only to identify the proper purpose for which uncharged misconduct evidence is being offered, but also to explain how or why it is probative, and why it is more probative than prejudicial. . . . To make sure there is no doubt in the future that this is a required process, we will repeat it now, in the body of this opinion:
In determining the probative value of prior bad acts evidence, the trial court should consider the following factors:
1. How clear is it that the defendant committed the prior bad act?
2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?
3. Is other evidence available?
4. Is the evidence unnecessarily cumulative?
5. How much time has elapsed between the charged crime and the prior bad act?
Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. In balancing against its probative value the unfair prejudice created by the evidence, the trial court should consider the extent to which the evidence distracts the jury from the central question whether the defendant committed the charged crime. The trial court should weigh these additional factors against the probative value of the evidence:
1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.
2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.
3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again.
4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable light.
5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b).
6. Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped punishment for the prior bad act.
Gleason v. State, 2002 WY 161, ¶¶ 18, 27, 57 P.3d 332, 340, 342-43 (Wyo. 2002) (citations omitted).*fn3
[¶9] Our standard of review when examining a district court‟s determination concerning the admissibility of uncharged misconduct evidence is as follows:
We review claims of error concerning the improper admission of W.R.E. 404(b) evidence for abuse of discretion and will not reverse the trial court‟s decision absent a clear abuse. Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo. 2006). A trial court abuses its discretion when it could not have reasonably concluded as it did. Id. In this context, "reasonably" means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious. Id.
Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo. 2007). Even if we determine that a district court abused its discretion in improperly allowing admission of uncharged misconduct evidence, and thus the evidence was admitted in error, we must also determine whether the error was prejudicial. Solis v. State, 981 P.2d 34, 36 (Wyo. 1999). "Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made." Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo. 2010).
[¶10] Prior to trial, the appellant filed a demand for notice of the State‟s intent to use uncharged misconduct evidence, and the appropriate hearing was held. Following the hearing, the district court issued a decision letter specifically addressing each item of uncharged misconduct evidence. The district court excluded certain items proffered by the State; however, it also determined that much of the uncharged misconduct evidence noticed by the State would be admissible.
[¶11] The appellant now argues that "[t]he introduction of 404(b) evidence is but a smokescreen to have evidence of Mr. Rolle‟s propensity to assault women and men and otherwise be a person with violent tendencies and consequently he should be convicted of first degree murder." While the appellant makes broad assertions of error and discusses the general dangers associated with the admission of uncharged misconduct evidence, in his appellate argument he only specifically takes exception to the testimony of one individual-D.G. D.G. was one of the appellant‟s former girlfriends. In his brief, the appellant claims:
In this case the prejudice is so clear that the jury could generalize from the testimony of just [D.G.] that [the appellant] is prone to violence and is highly and physically abusive, although her testimony would suggest only when drinking. Such testimony infers violent predisposition because which [sic] effectively negates the presumption of innocence.
[¶12] The State responds that the district court took great care to analyze every piece of evidence individually under the Gleason/Vigil test, relying heavily on prior precedent that recognized similar evidence as admissible under 404(b). The State then argues that if the authority relied upon by the district court is still good today, then surely the district court did not abuse its discretion by following that precedent.
[¶13] In order to determine whether the district court abused its discretion in allowing D.G.‟s testimony, we must examine the nature of the testimony as presented to the district court. The appellant did not object at trial to the admission of D.G.‟s testimony, therefore we will examine the testimony as proffered in the State‟s Notice of Intent to Offer Evidence Pursuant to Rule 404(b). Before examining the proffer, we note that with the exception of evidence the district court refused to allow, D.G.‟s in-court testimony was consistent with the State‟s proffer. The State described D.G.‟s proposed testimony as follows:
[D.G.] was in an intimate relationship with [the appellant] from February, 1992 to February, 1994 and again from approximately December of 1994 to December of 1995. In interviews with police, [D.G.] described an incident during the first time she was with [the appellant] when she and [the appellant] had been at a local business when a man who had hung a door for her said hello to her. [The appellant] went into a jealous rage and assaulted the man for no apparent reason. In the summer of 1993, [the appellant] became angry when he had been drinking because [D.G.] and her children would not ride with him. While at [D.G.]‟s home he grabbed her by the neck and began choking her then pushed her into the bathtub causing her to strike her head. On January 13, 1994, [D.G.] became involved in an argument with [the appellant]. [The appellant] repeatedly told [D.G.] to hit him. She did eventually and then [the appellant] called the police. As [D.G.] left the room, [the appellant] punched her in the back of the head. [A police officer] responded to the call and arrested both of the parties and found a knot on the back of [D.G.]‟s head. [The appellant] was convicted of battery but the conviction was reversed due to technical issues with the charging document. Thereafter, [the appellant] entered a plea of guilty to the charge and adopted the supporting documents in the case as factual basis. [The ...