Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] A jury found Appellant Henry R. Sanchez guilty of attempted second degree murder, aggravated assault and battery, felony possession of a controlled substance, and interference with an emergency call. Sanchez later sought a new trial, which the district court denied. Sanchez appealed both the judgment and sentence and the denial of his new trial motion, and we consolidated those appeals. Finding no reversible error in any of the issues presented on appeal, we affirm.
[¶2] Sanchez offers these issues in his opening brief:
I. Did the district court err when it denied Appellant's motion for judgment of acquittal, for lack of sufficient evidence, on the possession of a controlled substance charge?
II. Did the [district] court err when it allowed in prejudicial hearsay testimony under W.R.E. 803(2)?
III. Did the [district] court violate Appellant's constitutional right to be presumed innocent and invade the province of the jury by referring to the complaining witness as "the victim"?
IV. Was Appellant denied his constitutional right to a fair trial before an impartial jury when one of the jury members had knowledge that Appellant had previously been incarcerated at the Wyoming State Penitentiary, and failed to divulge this fact when asked on voir dire if he knew Appellant?
In a supplemental brief, Sanchez submits this additional issue:
[V.] Did the Appellant receive ineffective assistance of counsel from his attorneys in their representation of him in the court below?
[¶3] In February 2008, Sanchez and the victim, AI, started exploring a dating relationship. On February 10, Sanchez showed up unannounced at the victim's apartment with some cocaine. The victim did not want Sanchez or the cocaine in her apartment, and she told him to leave. When Sanchez refused to do so, the victim retrieved a knife, pointed it at him, and again told him to leave, which he did.
[¶4] Two days later, during the early evening hours of February 12, Sanchez and the victim were at her uncle's apartment. Both were heavily intoxicated. Eventually, the two went to the victim's apartment, which was located in the same building, where they continued to drink. Around 1:00 a.m. on the 13th, a cab service delivered more vodka and cigarettes to the apartment. Sanchez left with the cab driver, but returned to the victim's apartment a few minutes later. Shortly thereafter, the atmosphere in the apartment abruptly and drastically changed. According to the victim, Sanchez "snapped" while they were talking about art. Over the next four to five hours, Sanchez repeatedly choked the victim, pushed her, kicked her, beat her with his fists, pounded her skull with a glass beer mug, and threatened to kill her. During the melee, Sanchez placed a knife against the victim's throat, stating: "See how easy this would be," and tied a cell phone cord around her neck in such a fashion that it could be tightened with ease at anytime. The victim fought back and tried without success to escape the situation. At one point she attempted to call 911, only to have Sanchez grab the phone and throw it out of her reach.
[¶5] The physical attack finally ended around 6:00 a.m. when a friend of the victim showed up at her apartment. Sanchez then left the residence. About 45 minutes later, Sanchez called 911 and reported that he had been stabbed by the victim. Sergeant Chris Gulbrandson and Officers Jeff Sheaman and John Thompson of the Rawlins Police Department were dispatched to Sanchez's residence. After speaking with Sanchez and observing two small stab wounds, one in Sanchez's upper left arm and the other in his left chest, Sergeant Gulbrandson and Officer Sheaman went to the victim's apartment to interview her about the stabbing, while Officer Thompson accompanied Sanchez to the hospital.*fn1
[¶6] The officers arrived at the victim's apartment around 7:00 a.m. When the victim opened the door, the officers immediately noticed that she was covered in blood. She had blood in her eyes and ears, as well as on her face, arms and legs. Her hair and clothing were saturated and blood was oozing from open wounds throughout her head and body. The officers also observed a cell phone cord tied around the victim's neck. The officers called for assistance and requested that an ambulance be dispatched to the residence.
[¶7] When the officers went inside, they found an apartment in disarray; furniture was out of place and/or tipped over and there were cushions, bedding and other items on the floor. The officers noticed blood on the walls and floor throughout the apartment, and found blood-soaked bedding in the victim's bedroom, a bloody towel in the bathroom sink, and multiple bloody "head prints" on the bedroom wall and bathroom door. They also discovered a butcher knife, with blood on both the blade and handle, on the bedroom floor and a bloody glass beer mug lying on the bed.
[¶8] The victim was transported to the hospital, where she remained for approximately nine hours. A medical examination revealed numerous bruises on the victim's face, scalp, chest, arms and hands, a perforated left ear drum, blood in the external canals of both ears, and several lacerations on her hands, left knee and left heel. The examination also revealed a dozen severe lacerations in the victim's scalp and forehead, all of which had to be sutured.*fn2
[¶9] During the ensuing investigation, police executed a search warrant at Sanchez's residence. In a search of the game room where Sanchez had initially spoken with the officers that morning, police discovered the victim's social security card and a baggie containing 7.14 grams of a white powdery substance hidden behind a speaker. Testing of that substance revealed a mixture of baking soda and cocaine.
[¶10] On February 15, 2008, the State charged Sanchez with one count of attempted first degree murder, one count of aggravated assault and battery, one count of felony possession of a controlled substance, and one misdemeanor count of interference with an emergency call. The case went to trial on December 15, 2008. At the close of the State's case, Sanchez moved for judgment of acquittal alleging the State had failed to provide sufficient evidence proving all of the elements necessary for conviction on the charged offenses. The district court denied the motion.
[¶11] Thereafter, Sanchez presented evidence in defense of the charges, including his own testimony. Sanchez admitted striking the victim numerous times during a 15- to 20-minute fight, but claimed he did so in self-defense. Sanchez testified that, during this time, the victim continually bit him and stabbed him three times, and he punched her in the head and body in order to get the knife away from her and to stop the biting. Sanchez, however, denied responsibility for the full extent of the victim's injuries and specifically denied striking her with the beer mug. He also denied taking the victim's phone during the incident, tying the cord around her neck, and having any knowledge of the cocaine found behind the stereo speaker.
[¶12] At the conclusion of a four-day trial, the jury acquitted Sanchez on the attempted first degree murder charge, but found him guilty of the lesser-included offense of attempted second degree murder, as well as guilty on the other charged offenses. The district court sentenced Sanchez on March 20, 2009, to a combined prison term of thirty to forty years. Sanchez appealed the judgment and sentence, and that appeal was docketed in this Court as case number S-09-0113.
[¶13] While his direct appeal was pending in this Court, Sanchez moved the district court for a new trial on the grounds of juror misconduct, alleging that two jurors failed to disclose during voir dire that they knew Sanchez as a result of their employment at the Wyoming State Penitentiary. The district court held an evidentiary hearing and denied Sanchez's new trial motion. Sanchez appealed that denial, and that appeal was docketed in this Court as case number S-10-0044. This Court consolidated the appeals.
[¶14] More than one month after filing his opening appellate brief, Sanchez, through new counsel, filed a motion in this Court requesting a limited remand to the district court for an evidentiary hearing concerning the effectiveness of his trial counsel. In addition, or in the alternative, Sanchez requested that he be permitted to file a supplemental brief on the issue of whether trial counsel rendered ineffective assistance.*fn3 We denied Sanchez's motion for a remand, but granted his request to file a supplemental brief addressing trial counsel's alleged ineffectiveness.
[¶15] Additional facts will be set forth as necessary in our discussion of Sanchez's appellate issues.
Motion for Judgment of Acquittal
[¶16] Sanchez first takes issue with the district court's denial of his motion for judgment of acquittal on the possession charge. Sanchez maintains the evidence was insufficient to support a reasonable conclusion that he was in actual or constructive possession of the cocaine. Our response to Sanchez's argument will be brief.
[¶17] As previously noted, Sanchez moved for judgment of acquittal at the close of the State's case. After the district court denied that motion, Sanchez introduced evidence in defense of the possession charge. The law is well established that a defendant's introduction of evidence following the denial of a motion for judgment of acquittal at the end of the State's case constitutes a waiver of that motion, thereby precluding appellate review of that denial. Granzer v. State, 2010 WY 130, ¶ 7, 239 P.3d 640, 643-44 (Wyo. 2010); Butcher v. State, 2005 WY 146, ¶¶ 12, 14, 123 P.3d 543, 548 (Wyo. 2005); Robinson v. State, 11 P.3d 361, 368 (Wyo. 2000); Hodges v. State, 904 P.2d 334, 339 (Wyo. 1995); see also 6 Wayne R. LaFave et al. Criminal Procedure § 24.6(b) at 443-44 (3d ed. 2007). Consistent with existing law, we hold that Sanchez waived the right to challenge the district court's ruling in this appeal. Consequently, we will not consider his claim. We also do not consider whether the evidence as a whole at the close of all the evidence is sufficient to sustain Sanchez's possession conviction because Sanchez did not raise that discrete issue in his opening brief.
[¶18] At trial, Sergeant Gulbrandson testified that after speaking to Sanchez on the morning of February 13, he went to the victim's apartment to interview her about the reported stabbing. He then testified as to the victim's ...