Appeal from the District Court of Sublette County The Honorable Nancy J. Guthrie, Judge
The opinion of the court was delivered by: Voigt, 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] Elizabeth Miles Ehlers (the victim) was shot to death in Sublette County, Wyoming, on June 21, 1984. Troy Dean Willoughby (the appellant) was convicted of that murder on January 29, 2010. The appellant now appeals that conviction and the denial without a hearing of his motion for a new trial. Finding no error, we affirm.
[¶2] 1. Did the district court abuse its discretion by failing to grant the appellant's motion for a new trial?
2. Did the prosecutor commit misconduct by violating discovery orders, by violating a pre-trial order regarding uncharged misconduct evidence, and by eliciting testimony from a law enforcement officer that the officer believed a witness was lying during an interview?
[¶3] During the evening of June 20, 1984, the victim attended a party with friends in Jackson, Wyoming. The appellant and his wife (R.H.) and a companion (T.B.) were also present. At some point during the party, the appellant sold some "dope" to the victim, who said that she would go get the payment money from her car. The appellant, watching from a window, saw the victim get in her car and drive away. He hurried to follow her, and was joined by R.H. and T.B. as he left. As they were leaving, the appellant saw R.C., the person from whom he had purchased the "dope," and to whom he still owed the purchase money, and the appellant commented to R.C., "I might need that piece."
[¶4] Driving his car, with T.B. in the passenger's seat and R.H. in the back seat, the appellant chased after the victim. At some point, as they headed south out of Jackson, the appellant pulled over to the side of the road, and R.C. pulled in behind the appellant's car. The appellant went to R.C.'s vehicle and returned with a pistol. He then resumed the chase of the victim, eventually coming upon her car pulled over in a turnout. Upon seeing the vehicle, the appellant said something like, "I've been looking for her." He pulled in behind the victim's car, got out of his car, approached the victim's car, and dragged her out by the hair. A struggle and screaming match ensued, during which the appellant punched the victim twice in the face, causing her to fall to the ground. The appellant returned to his car, retrieved the pistol, walked back up to the victim and shot her twice.
[¶5] When the appellant returned to his vehicle, R.H. demanded to know what he had just done. The appellant responded that "this will teach the bitch to rip me off." The appellant then drove to his home in Daniel, a small town south of Jackson, where R.H. drove him to work. T.B., being too afraid to leave and having no transportation, stayed with the appellant and R.H. for a few days. At some point, the appellant told R.H. he needed help hiding the gun, which was eventually hidden in the couple's septic tank. When R.H. initially refused to assist the appellant, he struck her in the face with the butt of a rifle. After witnessing that violence, T.B. hitchhiked back to Jackson, where he made an anonymous telephone call to law enforcement saying the appellant had killed the victim.
[¶6] During the trial, several witnesses implicated the appellant in the victim's murder. Much of the preceding factual scenario came from the testimony of R.H. and T.B., the eye witnesses, and from B.C., a fellow inmate with whom the appellant had discussed many aspects of the crime. In addition, another witness, D.S., testified that, during a hunting trip in 1984, the appellant had described how the victim was murdered, and that the appellant's account scared D.S. to the point that he eventually reported it to authorities. At the time of the murder, however, not everyone was so forthcoming, and insufficient evidence was developed with which to charge the appellant.
[¶7] The appellant's trial defense was that of alibi. He claimed to have been at work at the time of the murder. The State presented expert testimony, however, indicating that the appellant's signature and initials on the "drilling log" had been forged. Further, the appellant told B.C. that he had paid the driller $100.00 for the forgery. Beyond that, the appellant's defense focused upon inconsistencies in the details of the testimony of the State's witnesses. The jury found the defendant guilty of first-degree murder, and the appellant's post-trial motion for a new trial was deemed denied when it was not determined by the district court within the time constraints of W.R.Cr.P. 33.
Did the district court abuse its discretion by failing to grant the appellant's motion for a new trial?
[¶8] We review the denial of a motion for new trial, including a motion based upon alleged prosecutorial misconduct, for an abuse of discretion. Lawson v. State, 2010 WY 145, ¶ 19, 242 P.3d 993, 1000 (Wyo. 2010); Schafer v. State, 2008 WY 149, ¶ 21, 197 P.3d 1247, 1251 (Wyo. 2008). Similarly, the decision whether or not to grant a hearing upon the filing of a motion for new trial is within the sound discretion of the district court; the district court "may deny a motion for new trial without a hearing when all that is necessary for disposition is already in the record." Best v. State, 769 P.2d 385, 389 (Wyo. 1989). An abuse of discretion occurs when the district court could not reasonably have concluded as it did. Schafer, 2008 WY 149, ¶ 21, 197 P.3d at 1252.
Statement by the Appellant to D.S.
[¶9] In his new trial motion filed on February 3, 2010, the appellant raised eight issues. The first issue was whether the State had violated two court orders-one regarding uncharged misconduct evidence and one requiring the State to set forth the proposed testimony of witnesses-by eliciting testimony from D.S. that had not been revealed to defense counsel. The essence of that testimony was that, sometime after D.S. had told the authorities about the appellant's hunting camp description of the murder, D.S. and the appellant saw one another at a gas station and the appellant threatened to kill D.S. if he ever again talked to the police.
[¶10] Defense counsel objected at trial to this testimony as being violative of W.R.Cr.P. 16(a)(1)(A)(i)(2), because the State had not disclosed the alleged threat.*fn2 After a hearing outside the presence of the jury, the district court admonished the prosecutor for not disclosing the statement, and then instructed the jury to disregard that portion of D.S.'s testimony. The State now contends that W.R.Cr.P. 16(a)(1)(A)(i)(2) governs only oral statements made to law enforcement officers, and that the summary of D.S.'s testimony disclosed in discovery was adequate under the rule.*fn3
[¶11] We have said many times that a trial error may be corrected by an appropriate curative instruction, and that we presume that jurors follow the court's instructions. See, e.g., Janpol v. State, 2008 WY 21, ¶ 24, 178 P.3d 396, 405 (Wyo. 2008); Brown v. State, 953 P.2d 1170, 1177 (Wyo. 1998); Rubio v. State, 939 P.2d 238, 243 (Wyo. 1997); and Burke v. State, 746 P.2d 852, 857 (Wyo. 1987). In the instant case, the district court instructed the jury as follows immediately after the appellant's objection:
THE COURT: All right. You may all be seated. The jury is present again.
And I want to remind the jury of initial instruction that I gave to them about when evidence is stricken. I instructed you [sic] the outset that sometimes throughout the trial I would be called upon to pass upon the question of whether or not some evidence might be admitted and that you weren't to be concerned with my reasons for such rulings. And if I do strike evidence you are number one not to consider it and certainly not to consider the reasons for me striking it because you certainly are the triers of the facts, but I am the -- the Court determines the admissibility of evidence.
So I am hereby instructing you, ladies and gentlemen of the jury, that you are not to consider any of [D.S.]'s testimony considering the -- when he saw the Defendant at the Chevron station, any statements made by the -- allegedly made by the Defendant, you are not to consider any of those or [D.S.]'s move to California.
In other words, [D.S.]'s testimony of anything after he said he talked to the Sheriff, anything after that is stricken and you're not to consider anything after that.
[¶12] A new trial should be granted only "if required in the interest of justice[,]" which standard is similar to that for granting a mistrial: "Granting a mistrial is an extreme and drastic remedy that should be resorted to only in the face of an error so prejudicial that justice could not be served by proceeding with trial." Yellowbear v. State, 2008 WY 4,¶ 67, 174 P.3d 1270, 1295 (Wyo. 2008) (quoting Warner v. State, 897 P.2d 472, 474 (Wyo. 1995) (emphasis added)). The appellant bears the burden of proving prejudice by the denial of a new trial motion. Yellowbear. 2008 WY 4, ¶ 67, 174 P.3d at 1295. Here, in the context of the overwhelming evidence of the appellant's guilt, and the district court's detailed curative instruction, we cannot say that the post-trial motion should have been granted. The appellant has not met his burden of showing that he was prejudiced by denial of the new trial motion in respect to the stricken testimony.
Testimony of Gene Ferrin.
[¶13] At the time of the murder, Gene Ferrin was an investigator for the Teton County Sheriff's Office. During the trial, Ferrin testified that he responded to a call to the murder scene in Sublette County, not as an investigator, but as an ambulance attendant. Several days later, however, he learned of an anonymous "Crime Stoppers" call that had come into the Teton County Sheriff's Office, identifying the appellant as the murderer. Ferrin forwarded that information on to the Wyoming Division of Criminal investigation, the agency in charge of the murder investigation.
[¶14] Some months later, Ferrin happened to be interviewing T.B. during the investigation of an unrelated crime. Knowing T.B. to be an associate of the appellant, Ferrin asked T.B. if he had made the anonymous telephone call. At trial, Ferrin testified that T.B. responded with "that deer in the headlight look," turned very white, and refused to talk about the call. Defense counsel did not object to this line of questioning. After several other witnesses had testified, however, and the court was about to recess for the day, defense counsel made the following comments during a generalized complaint about the prosecutor's conduct throughout the trial:
Furthermore, Officer Ferrin, we had nothing in discovery about that telephone call, nothing whatsoever. There was no indication on the witness list of what he was testifying that he would be testifying to that. It was a major part of this trial. I don't know if I would call it a direct violation of discovery rules, it certainly violates the spirit of this. We're not doing trial by ambush.
[¶15] Neither party has suggested that the absence of a contemporaneous objection takes this inquiry outside the abuse of discretion standard, presumably because the question is presented as part of the appeal of the denial of the new trial motion. With that in mind, we conclude that the district court did not abuse its discretion in denying the motion based upon this issue. Even if defense counsel was unaware before trial that Ferrin had asked T.B. about the telephone call, we cannot conclude that such affected the outcome of the trial. Information relating to the Crime Stoppers call was contained in another officer's report, which report was received by defense counsel and was used to cross-examine T.B. In his opening statement, defense counsel noted that T.B. claimed to have made the anonymous call. Furthermore, defense counsel cross-examined the former Teton County Sheriff regarding the Sheriff's memory that his office received numerous anonymous calls about the murder, but he did not recall one coming in only a few days after the murder. And finally, during the cross-examination of Ferrin, defense counsel produced a transcript of a recorded 1985 anonymous telephone call received by the Teton County Sheriff's Office, apparently in an attempt to prove that, had the alleged T.B. call been made, it would have been recorded and a transcript would exist. Ferrin testified that some incoming lines were recorded, but the Crime Stoppers line was not. In short, defense counsel knew about the alleged anonymous telephone call, knew that it was allegedly placed by T.B., and knew that it implicated the appellant. In that context, the fact that defense counsel may not have known that Ferrin asked T.B. about the call did not affect the outcome of the case.
Testimony of Mark Hollenbach
[¶16] Mark Hollenbach was employed by the Wyoming Division of Criminal Investigation from 1993 to 1999. One of his first assignments was to review the accumulated files in the Elizabeth Ehlers murder case. Soon after receiving the case files, Hollenbach traveled to Jackson for a group meeting of the various agencies involved in the investigation. At that meeting, Ferrin told Hollenbach about the anonymous telephone call discussed above, and told Hollenbach that he believed T.B. had made the call. Hollenbach testified at trial that, because of his full case load, and because this was merely an introductory meeting, he prepared no report about the meeting.
[¶17] The appellant makes the same appellate argument in regard to the testimony of Hollenbach that he made in regard to the testimony of Ferrin. That is, the appellant contends that, because Hollenbach provided no report of his having learned from Ferrin that Ferrin suspected T.B. of placing the anonymous telephone call, the appellant was unfairly surprised by such revelation at trial. Labeling this a significant breach of the prosecutor's duty to provide a summary of each witness's expected testimony, the appellant contends that the proper remedy is a new trial.
[¶18] T.B. told Hollenbach that he had placed the Crime Stoppers call. T.B. also testified at trial that he had done so. Part of the defense trial strategy was the suggestion that, through overbearing interrogation techniques, including the "feeding of details," Hollenbach had induced T.B. to tell a story that fit law enforcement's theory, rather than to tell the truth. This strategy, the appellant now argues, was undermined by the State's late revelation that T.B. was asked about the telephone call by Ferrin, and that Hollenbach knew, at the time he interviewed T.B., that Ferrin suspected T.B. of making the call. In other words, the appellant's allegation that Hollenbach had badgered T.B. into admitting that he made the call was somehow undermined by Ferrin having earlier asked T.B. about the call.
[¶19] Viewing all of this in the context of Hollenbach's testimony does not change our conclusion that it did not affect the outcome of the trial. If anything, it probably aided the defense because it allowed counsel not only to emphasize the differences in the various stories told by T.B. to investigators over the years, but it presented an opportunity for the defense to cast aspersions upon the techniques used by the law enforcement officers investigating the case. Beyond that, T.B. testified at the trial and admitted that he had made the call. The jury was able to judge his credibility against that of the officers. The district court did not abuse its discretion by failing to grant a new trial on the basis of this discovery issue. Even if the State breached a discovery order by failing to include in its witness summaries the fact that Ferrin asked T.B. if he had placed the call, such was not of a magnitude as to have thwarted the ends of justice.
Testimony of Ruth Kohlmeier
[¶20] The pathologist who performed the autopsy on the victim in 1984 was physically unable to testify at trial. In his stead, the State called Dr. Ruth Kohlmeier, a forensic pathologist who had reviewed the original autopsy report and related materials. Although the State listed Kohlmeier as a witness in its first witness list, her report was not prepared or provided to defense counsel until the month before trial. Prior to obtaining the report, the State did, however, file a response to the appellant's motion in limine, indicating that Kohlmeier would testify "to the autopsy, concurring with all of [the original pathologist's] findings except his observation of the mid-line nose and his omission of any mention of the bruise above the victim's eye." Eventually, Kohlmeier's report was provided to defense counsel on the date required by the district court. Shortly before trial, Kohlmeier filed an amended report in which she indicated that she had changed her mind as to certain conclusions in her first report. The primary change was that she now concluded that the gunshot wound to the victim's chest would have been fatal.
[¶21] Defense counsel interposed an objection during Kohlmeier's trial testimony, which objection was heard outside the jury's presence. In addition to the belated change to Kohlmeier's report, counsel complained that Kohlmeier's testimony as to the temporal order in which the wounds to the victim occurred went beyond Kohlmeier's expert designation. After hearing the objection, the district court allowed Kohlmeier to testify as to the order in which the wounds had been inflicted upon the victim.*fn4
[¶22] On appeal, the appellant repeats his trial objections to Kohlmeier's testimony: (1) the relative lateness of the report and the amended report; (2) the report's contradiction of the original autopsy report; (3) Kohlmeier's testimony as to the order of the wounds, which defense counsel characterized as "crime scene reconstruction"; and (4) the testimony exceeded the scope of Kohlmeier's expert designation. The appellant contends that this was a prejudicial discovery violation that left him without notice of what Kohlmeier's testimony wouldbe.
[¶23] Once again, we review this issue for abuse of discretion. Consequently, our task is to determine whether the district court reasonably could have admitted Kohlmeier's testimony, and reasonably could have determined not to grant the new trial motion as it related to that testimony. First, we note that an Order Upon Status Conference filed onJuly 30, 2009, gave a date for the parties to submit witness lists, along with a summary of each witness's testimony, but allowed supplementation of such "if witnesses are discovered after this date." Second, Kohlmeier was listed as a may call witness in the State's pre-trial memorandum, filed two months before the trial, with the following designation as to her potential testimony:
MAY testify to her professional qualifications as a forensic scientist, her forensic testing, respectively of the exhibits herein, the protocol and procedures used in conducting such testing, the results of the same, participation in the chain of custody of evidence in this case, as well as all other matters within her knowledge having relevance in this case.
[¶24] In response to another pre-trial defense motion, the State provided the following additional information about Kohlmeier's expected testimony:
2. Dr. Ruth Kohlmeier. [W.F.] is the pathologist that performed the autopsy on the victim  twenty five years ago. Because [W.F.] is alive, the State initially expected to call him to testify as to the forensic pathology of this case. The State then discovered that [W.F.] suffers from [d]ementia and has lost the ability to speak. The State immediately began its search for a forensic pathologist to examine [W.F.'s] findings and prepare to testify to the autopsy and forensic pathology, and ultimately enlisted Dr. Ruth Kohlmeier for this purpose. The State has advised the Defendant that we have not yet received a report from Dr. Kohlmeier and that a copy of that report would be forwarded to the Defendant as soon as we receive it. The state has contacted Dr. Kohlmeier and requested all speed in her submission of the report. The state has advised the Defendant that while we do not yet have the report, Dr. Kohlmeier has verbally indicated that she will be testifying to the autopsy, concurring with all of [W.F.'s] findings except his observation of the mid-line nose and his omission of any mention of the bruise above the victim's eye.
Finally, as mentioned above, Kohlmeier's consultation report was provided to defense counsel on the date required by the district court.
[¶25] Under the circumstances set forth above, we cannot conclude that the district court abused its discretion in allowing Kohlmeier to testify. The pathologist who performed the autopsy was unavailable, and the State detailed its reasonable efforts in obtaining replacement testimony. The record indicates that the State met the deadlines imposed by the district court in these discovery matters, including production of Kohlmeier's report on the date required. It appears from the record that only this original report, and not Kohlmeier's later amended report, was admitted into evidence. Even before Kohlmeier's report was available, the State informed the appellant that Kohlmeier would disagree with portions of the original autopsy report. While the summary of Kohlmeier's proposed testimony did not specify that she would testify as to the temporal order of the victim's wounds, the appellant has not provided the Court with any authority that a summary of testimony must contain details of that nature, and it certainly should come as no surprise that, where a victim has been shot more than once, the pathologist may testify as to the order in which the victim received her wounds.*fn5
[¶26] The district court is obligated to pursue the matter when there has been an allegation of a discovery violation. Seivewright v. State, 7 P.3d 24, 27 (Wyo. 2000). Further, if a violation is found to have occurred, the district court is obligated to exercise its discretion in determining the appropriate sanction. State v. Naple, 2006 WY 125, ¶ 24, 143 P.3d 358, 365 (Wyo. 2006). Here, the district court made extensive inquiry into the discovery process as it related to Kohlmeier's report, amended report, and testimony. Eventually, while it did not grant the appellant's motion to strike Kohlmeier's testimony, it did limit the State to asking one additional question after the objection was interposed-that question being whether the chest wound or the head wound was the last wound. The appellant has not shown that he was unfairly prejudiced by the district court's rulings.
[¶27] In 2009, Sara Brew was a detective working in the Sublette County Sheriff's Office. She was one of the detectives assigned to the re-opened investigation into the victim's death. She testified at trial primarily about an interview of the appellant conducted by several law enforcement officers in Helena, Montana, in February 2009. The following statement from the appellant's new trial motion sums up his complaint with Brew's testimony:
5. Sara Brew. Detective Brew introduced the Defendant's 11 hour interview and then testified to several other matters concerning the investigation. A major part of the defense case was to show why [T.B.] and [R.S.] would implicate the Defendant in the victim's death. During one part of the cross-examination Ms. Brew steadfastly denied that neither [sic] of the witnesses just mentioned had been threatened with prosecution. Defense counsel then produced a transcript in which Ms. Brew testified under oath at a suppression hearing that [T.B.] was in fact threatened with prosecution. It is hard to fathom that an officer of the law would offer testimony totally inconsistent with earlier sworn testimony, but in this case, it was yet another example of the State attempting to elicit testimony regardless of the rules.
[¶28] The last sentence of this excerpt indicates that the appellant has two grievances in regard to Brew's testimony: (1) that an officer of the law lied; and (2) that the State elicited the lie. Those themes are repeated in the brief presented to this Court by the appellant, wherein he alleges that "Ms. Brew's, and the prosecution's lack of forthrightness in this matter materially prejudiced [the appellant's] defense, and denied him his right to a fair trial. The appellant then cites Lawson v. State, 2010 WY 145, ¶ 50, 242 P.3d 993, 1008 (Wyo. 2010) for the proposition that not only must the State avoid the presentation of known false evidence, but it should also correct false evidence when it occurs, even if it did not elicit it.
[¶29] While we agree with the principle of law just stated, we do not see anything of this nature having occurred in regard to Brew's testimony in this case. In a suppression motion hearing on October 20, 2009, the following colloquy occurred during the cross-examination of Brew:
Q. Yeah. You agree that's what's happening in the interview with [the appellant]? That throughout the interview the law enforcement -- I'm going to say you guys, law enforcement -- is saying that we don't know why [R.H. and T.B.] would come in and say this, correct?
Q. But that's not true, you know why [T.B.] would have a reason to come in and say that based on the immunity agreement, correct?
A. No, I wouldn't agree to that. I don't -- the immunity, which I'm not even sure what that was even for, didn't have anything to do with him being in any trouble. He hadn't committed any crime at that point or that we knew about.
Q. Well, yes, he did, he was an accessory to the homicide and that's what he was threatened to be charged with if he didn't -- [PROSECUTOR]: Objection, Your Honor. Totally mischaracterizes all of the evidence that's been put before this Court and perhaps even the facts. I don't have any idea where she's getting to.
[DEFENSE COUNSEL]: I'll tell you.
[DEFENSE COUNSEL]: Your Honor, what's happening here is that the police throughout this interview, when you watch this video for 11 hours, continue to tell [the appellant] you have two people, the two closest people to you, saying these things and we have no idea why they would say it.
And [the appellant] throughout this interview, and even until the 5th of March, keeps saying I don't know why they would say this. And they pat themselves on the back for showing him part of these interviews and saying we're being honest with you, but that's not true. They knew they had offered [T.B.] immunity and that could be a reason why he's lying and they don't share that with [the appellant].
So that's why those interviews are relevant because they knew when they were sitting in this interview with [the appellant] that they had offered him immunity and that goes to the coercion of [the appellant's] later statements.
[PROSECUTOR]: This must be coercion through osmosis, Your Honor, because unless they tell the Defendant about that there's no way that it can effect [sic] him.
THE COURT: I'm going to overrule and you may proceed, [Defense Counsel].
[DEFENSE CONSEL]: Thank you, Your Honor.
Q. : So [T.B.] has reason -- the immunity granted [T.B.] is immunity from prosecution for being ...