Strickland v. State

94 P.3d 1034

2004 WY 91

Floyd STRICKLAND, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-196.

Supreme Court of Wyoming.

July 30, 2004.

Representing Appellant: Initial Brief and First Supplemental Brief: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel, Cheyenne, Wyoming.^* Second Supplemental Brief: Jason M. Tangeman of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming. Oral argument by Mr. Tangeman.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Timothy William Jones, Student Intern, of the Prosecution Assistance Program, Cheyenne, Wyoming. Argument by Mr. Jones.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

GOLDEN, Justice.

[¶ 1] Appellant, Floyd Strickland (Strickland), was convicted of both first degree arson¹ and second degree arson,² for feloniously setting fire to his home with the intent to collect the insurance proceeds. Concurrent sentences of 120 months to 216 months, and 60 months to 108 months were imposed. Strickland seeks review of those convictions, raising more than a dozen issues. We will affirm the judgment of convictions, but remand with directions that the district court either delete, or flesh out, a provision in the sentence that essentially bans Strickland from Natrona County if he is placed on parole or other limited release.

ISSUES

[¶ 2] We summarize the issues raised by Strickland in his initial brief:

I. Whether there was sufficient evidence to convict Strickland of first-degree arson?

II. Did Strickland's counsel fail to provide effective assistance of counsel by not calling an expert witness to testify at trial, or by not submitting jury instructions on alibi or specific intent?

III. Did omission of the words "towards another" in the jury instruction defining "maliciously" constitute error?

IV. Did the district court sufficiently instruct the jury on the specific intent element of both first-degree arson and second-degree arson?

V. Did the district court err when it did not appoint substitute counsel for Strickland?

VI. Did the district court err when it denied Strickland's motion to suppress evidence?

VII. Did the district court err when it admitted into evidence the written report of arson investigator Harry Morrow?

VIII. In sentencing Strickland, did the district court unlawfully banish him from Natrona County?

IX. Was cumulative error committed?

X. Was Strickland's right against double jeopardy violated when he was convicted and sentenced for both first-degree arson and second-degree arson?

In a supplemental brief, Strickland expanded on the last issue listed above:

XI. Whether Strickland's convictions for first-degree arson and second-degree arson cannot stand because the two crimes are mutually exclusive and punishment for both crimes violates Strickland's right to be free from double jeopardy?

In a second supplemental brief, Strickland raised these additional issues:

XII. Whether the State of Wyoming's repeated introduction of impermissible 404(b) evidence and other conduct constituted prosecutorial misconduct and such misconduct prejudiced a substantial right of [Strickland] and denied his right to a fair trial?

XIII. Whether in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance and prejudiced [Strickland] so that the adversarial process was compromised and the trial did not reach a just result?

The State essentially conforms its statement of the issues to that offered by Strickland. The State does contend that with respect to several issues no objections were lodged below or the issue was not otherwise called to the attention of the trial court and, therefore, those issues must be addressed under the plain error standard.

FACTS

[¶ 3] Strickland returned to Casper after a family vacation on Saturday, June 17, 2000, and discovered that his home had been damaged by fire during his absence. Police Officer Richard Brown was dispatched in response to Strickland's 911 telephone call. Strickland told Officer Brown he had already looked inside the house and could hear water running and smell a burning odor. Officer Brown testified that, in response to a question about the cause of the fire, Strickland related that he had filed a lawsuit and had alienated a number of people. However, Strickland also indicated that the cause could have been a broken water pipe because the house was in bad shape. When Strickland informed Officer Brown that he had found a door into the garage unlocked and partially open, Officer Brown examined the door knob and the door frame closely and carefully, using his flashlight, and did not observe any latent finger prints or indications that it had been pried open. However, a few days later a fellow police officer showed Officer Brown a piece of the door frame that he had taken from the scene on June 18, and it had what appeared to be fresh pry marks on it. Officer Brown was certain that had the marks been there the night he was there, he would have noticed them, because that is precisely what he was looking for. Strickland told Officer Brown that all the doors to his home were secured when he left, that he was the last person out of the house, and that no one else had a key. Strickland also directed Officer Brown's attention to a sliding glass door to the kitchen that was ajar, but Officer Brown did not detect any signs that the door had been forced open. Strickland told Officer Brown that nothing was missing from the house, but that the contents of the basement, where most of the damage from fire and running water occurred, were worth over $30,000. Officer Brown did not smell smoke in the house, though Strickland pointed out soot on the walls in the kitchen to him.

[¶ 4] The electricity to the house was still on, and there was water running from a broken pipe in the basement, so Officer Brown called the service providers and had them shut off the power and water. Officer Brown waited at the house for the utilities to be shut off, and Strickland left with his family to go to a motel. Officer Brown told Strickland that an evidence technician would be there the following day to continue the investigation. Although Officer Brown made no determination of the cause of the fire that night, he related that Strickland knew that criminal activity was possibly involved and that an investigation into it would continue.

[¶ 5] Police Officer Michael Concepcion is the evidence technician who was assigned to further investigate Strickland's report of the fire in his home. He arrived at the scene about 6:00 p.m. on June 18, and Strickland unlocked the front door and admitted him into the home. Strickland directed Officer Concepcion's attention to a garage door that had pry marks on it as well as a screwdriver that Strickland said did not belong to him. Officer Concepcion testified the pry marks appeared to have been made recently. Strickland told Officer Concepcion that he had pointed out the pry marks and the screwdriver to Officer Brown.³ The doorjamb itself was cut out and preserved as evidence. Officer Concepcion opined that the pry marks on the doorjamb could have been made by the screwdriver Strickland identified as not belonging to him. Officer Concepcion also noticed a plastic gas can near the door from the garage into the residence. The gas can was open and the air valve on the back was raised. Officer Concepcion then continued his portion of the investigation by taking photographs throughout the house. When asked about suspects, Strickland identified the previous owner of the house and some real estate agents as possible suspects. Strickland also made a written list of those suspects as follows: Roger and Fred Stratton; Victoria M. Lowe; Harry Willis; Michael K. Ward; Sandra Erickson; and John Logan. Officer Concepcion found footprints in the soot on the kitchen floor. Strickland thought they were probably made by him or Officer Brown. The final part of Officer Concepcion's work was done in the basement of the house, and after he observed and photographed that area, he called his supervisor to request that a fire inspector be sent to the scene. Strickland asked Officer Concepcion several times if he thought the fire was caused by arson. Officer Concepcion asked Strickland if anything was missing from the house, and Strickland replied that nothing was missing, but that he takes his personal belongings with him on vacation. Officer Concepcion noticed the house was kind of "sparse," not much hanging on the walls or on top of dressers.

[¶ 6] Harold Morrow, a trained and experienced fire/arson investigator, was dispatched to the Strickland residence late in the afternoon of June 18, 2000. Officer Concepcion was already at the scene, as was Strickland. Morrow obtained permission from Strickland to enter the home, and Officer Concepcion led Morrow to the basement. Morrow photographed the fire scene and made a diagram of the entire basement. Morrow was able to identify the origin of the fire in a small utility closet where the water heater was located. Morrow took note that the water heater was an electric appliance, and although he had seen instances where gas water heaters had caused a fire, he had not seen that with electric ones. Because Morrow had less experience with a fire situation such as this one, he called in Fire Chief Rich Carpenter to continue the investigation. Morrow visited with Strickland while they waited for Carpenter to arrive. During that conversation Morrow became aware of Strickland's dispute over the house and the lawsuit with the previous owner and the realtor involved in the sale of the house. He also noticed pry marks on the garage door as Strickland showed him around.

[¶ 7] Not long after Carpenter arrived, he...