Appeal from the District Court of Natrona County The Honorable W. Thomas Sullins, Judge
The opinion of the court was delivered by: Kite, Chief 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] Kevin Eugene Kidwell challenges his convictions for false imprisonment and simple assault. He claims the prosecutor committed misconduct by failing to give prior notice of evidence suggesting he had attempted to persuade a witness to testify falsely in his favor at trial in violation of W.R.E. 404(b). Mr. Kidwell has failed to demonstrate a clear violation of law or any prejudice; consequently, we affirm.
[¶2] Mr. Kidwell presents the following issue on appeal:
Did the prosecutor commit misconduct when he admitted [sic] 404(b) evidence without providing notice?
The State provides a more detailed statement of the issue:
Proposed defense witness, Andrew Scott, abandoned his plan to testify falsely on Kidwell's behalf and advised the prosecution of both his plan and his change of heart shortly before the end of the noon recess on the third day of trial. Without first notifying defense counsel, the prosecutor called Scott, to repeat his story, as the second witness of the afternoon. Does the record as a whole support the district court's conclusion that the prosecutor's omission was neither misconduct nor prejudicial?
[¶3] Mr. Kidwell and the victim, who was his girlfriend, lived together in an apartment in Casper, Wyoming. The record contains a great deal of information about the history of the parties' relationship; however, it is sufficient at this juncture to note that it was tumultuous, with the parties frequently fighting and the victim occasionally leaving the apartment to stay elsewhere for periods of time.
[¶4] In early June 2010, the victim spent several days in Medicine Bow with a recent acquaintance. She returned to the apartment she shared with Mr. Kidwell on June 12 or 13, 2010. On June 14, 2010, the couple began to fight. The fight escalated, and Mr. Kidwell repeatedly grabbed and choked the victim throughout the day. The victim also claimed that he threatened her with a hammer. That evening, they traveled to a gas station to get cigarettes. Mr. Kidwell left the victim in his pickup truck when he went into the store. He left the keys in the ignition, and the victim took that opportunity to leave and drive to a local hospital.
[¶5] Hospital staff and law enforcement officers observed that the victim's body was covered in bruises. She also had a sore throat, difficulty swallowing and other symptoms resulting from the choking. Mr. Kidwell was charged with one count of kidnapping; one count of aggravated assault and battery (unlawfully attempting to cause serious bodily injury); one count of aggravated assault and battery (threatening to use a drawn deadly weapon-the hammer); and one count of interference with an emergency "911" call.
[¶6] The matter went to trial in January 2011. The defense listed Andrew Scott as a witness. The prosecution interviewed Mr. Scott during the lunch break on the third day of trial. He had been Mr. Kidwell's cellmate at the Natrona County jail and reported that he had witnessed Mr. Kidwell and the victim at the gas station on June 14, 2010. He stated that the victim was the aggressor and Mr. Kidwell was simply trying to defend himself and calm her down. A short time after recounting this tale to the prosecution's investigator, Mr. Scott recanted and stated that he had been lying and, in fact, had not seen the victim and Mr. Kidwell at the gas station.
[¶7] Although Mr. Scott had been listed as a defense witness, the prosecution called him to the stand and had him recount his original plan to testify in Mr. Kidwell's favor and his subsequent change of heart. Mr. Kidwell did not object to either the State calling Mr. Scott as a witness or the testimony about his original story and his recantation. The defense, however, later moved for a mistrial because it had not been given prior notice of Mr. Scott's testimony. The defense did not specifically mention W.R.E. 404(b) in its mistrial motion. Instead, defense counsel argued the State was "put on notice that this witness was going to testify falsely, did not notify myself about that; but rather chose to place him on the stand and have it come out on the stand in front of the jury. We at least -- it's a violation of discovery. . . . At least we would have requested a hearing before the Court on whether or not that information would be admissible." The district court denied the mistrial motion.
[¶8] The jury returned a verdict which was decidedly favorable to Mr. Kidwell. They acquitted him on the kidnapping charge and the lesser included offense of felonious restraint. They convicted him, however, of the lesser included misdemeanor, false imprisonment. The jury also acquitted Mr. Kidwell on the charge of aggravated assault and battery-serious bodily injury, but convicted him of the lesser included misdemeanor, simple assault. The jury returned not guilty verdicts on Counts Three and Four -- aggravated assault and battery with a drawn deadly weapon and interference with an emergency 911 call. After the district court sentenced him, Mr. Kidwell appealed.
[¶9] This case comes to us in an unusual procedural stance. Although Mr. Kidwell claims the evidence of Mr. Scott's plan to testify falsely was other bad acts evidence and governed by W.R.E. 404(b) procedural requirements, he does not specifically challenge the admissibility of the evidence or analyze it under the relevant factors. See, e.g., Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo. 2002). In addition, although he moved for a mistrial in the district court, he does not expressly challenge the district court's denial of his motion. Instead, he maintains that the prosecutor committed misconduct by failing to give the defense notice of Mr. Scott's testimony.
[¶10] "Allegations of prosecutorial misconduct are settled by reference to the entire record and 'hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial.'" Schreibvogel v. State, 2010 WY 45, ¶ 39, 228 P.3d 874, 887 (Wyo. 2010), quoting Mazurek v. State, 10 P.3d 531, 542 (Wyo. 2000). See also, Benjamin v. State, 2011 WY 147, ¶ 50, 264 P.3d 1, 13 (Wyo. 2011). Because Mr. Kidwell did not pose a contemporaneous objection to Mr. Scott's testimony, he has the burden of demonstrating 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 which materially prejudiced him." Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo. 2007).
[¶11] On appeal, Mr. Kidwell maintains the prosecutor violated the notice requirements we have implemented for W.R.E. 404(b) evidence.*fn1 In Howard v. State, 2002 WY 40, ...