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Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender; [*] Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope Assistant Attorney General. Argument by Mr. Pope.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶ 1] The appellant, LaShawn Sidney King, was convicted of attempted first-degree murder, kidnapping, and two counts of aggravated assault and battery after he attacked the victim and hit her several times in the face and body with a sledgehammer. In this appeal, the appellant argues his convictions should be reversed because the district court improperly admitted evidence of the appellant's previous violent behavior against the victim, a transcript was provided to the jury of a telephone conversation between the appellant and the victim, and trial counsel was ineffective for waiving the appellant's right to a speedy trial. Finding no error, we affirm.
[¶ 2] 1. Did the district court abuse its discretion when it determined that testimony regarding previous violence in the appellant's relationship with the victim was admissible under W.R.E. 404(b)?
2. Did the district court abuse its discretion when it allowed the jury to review a transcript of a telephone recording between the appellant and the victim while the recording was being played at trial?
3. Was trial counsel ineffective because he requested a continuance and filed a waiver of speedy trial signed by the appellant, contrary to the appellant's desire not to waive his right to a speedy trial?
[¶ 3] On May 6, 2011, the appellant called the victim and asked her to go to a movie with him because he was moving to Detroit the next day. The victim reluctantly agreed, picked up the appellant from his apartment, and drove them to the movie theatre. The appellant asked the victim to park her van off to the side of the road instead of in the
parking lot, but she refused and parked in the main parking lot. She then heard a " dull thump" inside the van. She turned and looked at the appellant, who was staring straight at her. The victim tried to get out of the van, but the appellant grabbed her by the hair and hit her in the eye with a sledgehammer. The appellant continued to hit the victim with the sledgehammer, hitting her again in the eye, the hand, and the back of her head.
[¶ 4] The victim struggled out of the van as the appellant screamed that he was going to kill her. The appellant grabbed the victim, forced her into the van, and drove the van away from the theatre. As she was in the back of the van, unable to see clearly due to her injuries, the victim located her cell phone and called 911. Although the victim did not have a conversation with the 911 dispatcher, she made statements to the appellant that gave the dispatcher an idea of where she was and what was happening to her. Eventually, the victim hid the cell phone in a basket in the hopes the appellant would not notice the phone or that she had dialed 911.
[¶ 5] After driving through the Casper area, the appellant stopped the van and asked the victim where her cell phone was located. The appellant then rummaged through the back of the van until he found the cell phone in the basket. The appellant began hitting the victim with his fists while telling her that he was going to kill her. He removed the battery from the phone, threw the phone to the floor of the van, and began driving again. Eventually, law enforcement officers were able to locate the van, arrest the appellant, and seek medical attention for the victim. Following a jury trial, the appellant was convicted of attempted first-degree murder, kidnapping, and two counts of aggravated assault and battery.
Did the district court abuse its discretion when it determined that testimony regarding previous violence in the appellant's relationship with the victim was admissible under W.R.E. 404(b) ?
[¶ 6] Before trial, the prosecution filed a notice that it intended to use evidence, pursuant to W.R.E. 404(b), of the appellant's violent behavior in his relationship with the victim and towards a former girlfriend. The prosecution asserted the evidence was proper to show the appellant's motive and intent when he attacked the victim, and that the appellant's actions toward the victim were not done by accident or mistake. The appellant objected to the notice, asserting the notice did not describe the prior conduct with sufficient specificity, the evidence of prior conduct was unfairly prejudicial, and the prior conduct was too remote in time. The district court held a hearing, wherein both parties gave lengthy arguments regarding the nature of the proposed evidence. Thereafter, the district court held another hearing where it gave an oral ruling regarding the evidence. After conducting an analysis of each piece of evidence offered by the prosecution, it held that the prosecution could not introduce any evidence of the appellant's abuse against his previous girlfriend and several instances where the appellant allegedly threatened the victim's family members and accused the victim of cheating. However, the district court determined specific instances of violence by the appellant against the victim would be admissible. The appellant now argues the district court's decision was an abuse of discretion because it listed several proper purposes for the use of the evidence pursuant to W.R.E. 404(b), instead of identifying one specific purpose for each piece of evidence.
[¶ 7] When reviewing a district court's decision regarding the admissibility of evidence pursuant to W.R.E. 404(b), this Court uses the following standard of review:
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, " ...