Klingbeil v. State

492 P.3d 279

Dennis Karl KLINGBEIL, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-20-0213

Supreme Court of Wyoming.

August 4, 2021

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Lauren McLane, Director, Defender Aid Clinic; Andrew Sickenberger, Student Director; Brenna Fisher, Student Intern. Argument by Ms. Fisher.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General. Argument by Mr. Eames.

Before FOX, C.J., and DAVIS^* , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, Justice.

[¶1] Dennis Klingbeil claimed he shot his wife in the head by accident. The jury rejected his defense and convicted him of first-degree murder. Mr. Klingbeil appeals, arguing the district court abused its discretion in admitting improper W.R.E. 404(b) evidence of a 911 call and surrounding events from 2011. Mr. Klingbeil also asserts plain error based on the prosecutor's question eliciting the opinion of the forensic pathologist that the cause of death was homicide. Mr. Klingbeil argues this improper opinion testimony materially prejudiced his defense. We affirm.

ISSUES

[¶2] The issues are:

1. Did the district court abuse its discretion when it admitted W.R.E. 404(b) evidence surrounding a 911 call which occurred in 2011?

2. Did the State elicit improper opinion testimony from the forensic pathologist resulting in prejudicial error?

FACTS

[¶3] Dennis and Donna Klingbeil were married for thirty-four years and together forty-three years.¹ On August 5, 2018, the Klingbeils returned to their ranch outside of Cody, Wyoming, from a truck-buying trip in Billings, Montana. By ten o'clock that night, Dennis had shot Donna once in the head and had overdosed on pills. Donna was life-flighted to the Billings hospital where she died about a half-hour later. Dennis was transferred to the Cody hospital where he recovered. Upon his release, he was charged with first-degree murder.

A. Evidence at Trial

1. The Prosecution

[¶4] A five-day jury trial began on August 5, 2019. The State called numerous witnesses including law enforcement officers, dispatchers, the Klingbeils’ two sons, and the forensic pathologist who conducted the autopsy. The Klingbeil family consisted of Dennis, Donna, and two adult children—Brad Lanken, a son from Donna's first marriage, and Mark Klingbeil, a son from Dennis’ first marriage. Donna had another son who committed suicide in early 2011, and a daughter who succumbed to cancer in 2002.

[¶5] Brad and Mark were in frequent contact with Dennis and Donna and testified about the family dynamics at trial. Both sons testified that throughout the previous year, their parents had been contentiously negotiating the separation of assets from their 1986 Trust into two independent trusts of equal value. The couple owned numerous properties in Cody, Wyoming, and Miami, Florida. Donna believed Dennis was secretly moving money from joint businesses and placing it in a personal safe.

[¶6] Throughout 2018, trust revision negotiations were ongoing and the Klingbeils’ relationship continued to disintegrate. By April 2018, divorce had become a topic of discussion. In May 2018, at his mother's request, Brad contacted a divorce attorney as well as an independent trust attorney for her. Dennis talked to Brad about the possibility of divorce in June 2018. He relayed that he had contacted a divorce attorney, although he did not want a divorce because he loved Donna and wanted to spend the rest of his life with her.

[¶7] While both sons attempted to help their parents resolve their financial disagreements, Brad became Dennis and Donna's primary contact. In June, the couple reached a partial financial settlement that included their respective responsibilities for specific bills on the properties and a monthly payment from Dennis to Donna of $6,000 for management fees. This agreement did not resolve trust matters, and Dennis and Donna continued to argue about the trusts with increasing frequency and vitriol. Alcohol consumption commonly preceded their arguments.

[¶8] The events of the days immediately preceding the shooting were presented through Brad's testimony covering a series of phone calls. On August 3, 2018, Donna telephoned Brad and told him she had gone with Dennis to his attorney's office to sign quitclaim deeds placing the Wyoming properties, excluding the Cody ranch, in Donna's Trust. She explained she had not read the deeds as she and Dennis were headed to Billings, Montana, to buy a truck, and she planned to read them when she returned to Cody. The next day, Dennis telephoned Brad telling him that he and Donna had found a truck, but Donna was upset because the payment was more than her current lease. To please her, Dennis agreed to pay the difference, even though he felt it was unfair given the agreement requiring him to pay other bills. On August 5, Donna told Brad that she and Dennis were heading back to Cody.

[¶9] Donna called Brad again around 4:30 p.m. that same day. She had read the deeds and was distraught because they incorrectly identified Dennis as a trustee for her trust. She indicated that Dennis was calling his attorney to have the deeds corrected, immediately. During this call, she was simultaneously berating Dennis. At about 6 p.m., Donna telephoned Brad again whispering that she was in the garage. She asked Brad to get her a plane ticket to Chicago because she could not remain in Cody any longer—she was leaving Dennis. Brad thought she had been drinking and told her he would get her a ticket first thing in the morning.

[¶10] Jessie Colegrove, the Park County 911 dispatcher, testified she received a call from the Klingbeil residence at 7:42 p.m. that same evening, but the caller hung up. Dispatcher Colegrove immediately called back and spoke to Donna, and on being reassured there was no emergency, ended the call without dispatching officers to the home.

[¶11] At 8 p.m., Donna made her final call to Brad. She told him a meeting had been set for Monday to straighten out the deeds and asked about an e-mail Brad had sent to Dennis earlier that day. In that e-mail, Brad had suggested the valuation of the proposed trusts needed to be changed because of a reallocation of the Cody ranch property to Dennis. In response to Donna's questions, Brad shared his opinion that the disparity in the trust values was $600,000. Donna then summoned Dennis to the phone. As Donna handed the phone to Dennis, Brad could hear her shouting at Dennis, "You know, you're trying to cheat me." Dennis told Brad abruptly that his calculations were wrong and said, "I'm finished talking about this trust. I'm going to put an end to this tonight. Here, talk to your mother."

[¶12] Brad told Donna he thought they reached an impasse on the trusts. He listened as Donna screamed "hateful things" at Dennis, and Dennis yelled back. During this exchange, Donna told Dennis that she was leaving him and going to Chicago. Brad asked what Dennis was doing, and Donna said he was sitting on the couch staring at the wall.

[¶13] Mark testified that Dennis called him at 9:43 p.m. and said, "I shot Donna and she's dead. I took some ... sleeping pills and I'll be gone soon or dead soon. Please send someone out to take care of the dog." Mark called 911, and after being told to call local law enforcement, he located the Park County Sheriff's Office number online. He called the sheriff's office at 9:51 p.m. and then called Brad.

[¶14] Park County Sheriff Scott Steward and Deputy J.J. Schwindt testified they arrived at the Klingbeil home around 10:18 p.m. They found Donna lying on the floor, face up, with her legs straight out and Dennis face down approximately two feet from Donna. The officers observed a .38 caliber gun on the dining table. The gun had been fired once. A spent bullet was on the floor by the fireplace. The officers found pill bottles in the kitchen. A forensic analysis of the gun revealed it was in good condition and functioning as intended. No defect was found that would cause the weapon to accidentally discharge.

[¶15] The State presented evidence of recorded jail telephone calls between Dennis and various individuals. Dennis originally had said he could not remember anything about that night. But later, he told varying versions of the evening's events to different people. In several conversations, he said, "[I] just snapped." In one call, he told Mark's wife that he was going to go for the defense of temporary insanity. On September 16, 2018, Dennis told Mark and Brad that Donna was sitting in a chair next to him when the gun accidently went off. In no conversation did Dennis say he was contemplating suicide prior to the shooting.

[¶16] The State called Dr. Thomas Bennett, the forensic pathologist who conducted Donna's autopsy. Dr. Bennett testified that the cause of death was a perforated (in and out) gunshot wound entering Donna's right temple and exiting her left temple. She had bruising on her lower eyelid from the close-range nature of the gunshot wound but no other assault wounds.

[¶17] An external examination revealed the size of entrance wound matched the bullet found on the floor of the Klingbeil home. Dr. Bennett explained that when there is space between a gun muzzle and a person's skin, gun powder spreads in a cone shape in the skin surface. This is called "stippling." Had there been any gap between gun and skin, stippling would have been present. Dr. Bennett saw no stippling. He observed what may have been a small muzzle imprint around the entry but could not definitively identify it as such. He concluded the gun was touching the skin when fired.

[¶18] Internal observations supported this conclusion. Extensive skull damage and gunpowder stain on the inside of the skull confirmed the gun was against Donna's head when fired. The entry wound was not angled. It was...