Capshaw v. State9/29/2000
vidence at trial lies within the sound discretion of the district court. Curl v. State, 898 P.2d 369, 373 (Wyo. 1995). Decisions to admit or exclude evidence will not be overturned on appeal absent a clear abuse of that discretion. Sturgis v. State, 932 P.2d 199, 201 (Wyo. 1997). The sound exercise of discretion is characterized by the reasonableness of the choice made. Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). Reasonable choices are those based upon objective criteria made with due regard for what is right under the circumstances and unsullied by arbitrary or capricious conclusions. Martin v. State, 720 P.2d 894, 897 (Wyo. 1986) (citing Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)). By contrast: "Abuse of discretion occurs when a court's decision, or decision- making process, exceeds the bounds of measured reason in light of those matters properly before that court." Curl, 898 P.2d at 373 (citing Martinez v. State, 611 P.2d 831, 838 (Wyo. 1980)).
When the issue is admission of evidence of other crimes, wrongs, or acts, we measure the district court's exercise of its discretion according to the specific four-part Vigil test, as derived from United States v. Herndon, 982 F.2d 1411, 1414-15 (10th Cir. 1992), aff'd on appeal after remand, 34 F.3d 1077 (10th Cir. 1994), which decision relies, in turn, upon Huddleston v. United States, 485 U.S. 681, 692-92, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988). Vigil, 926 P.2d at 354-57.
At the threshold, the Vigil test is noteworthy for the increased vigilance it requires of defense counsel. Under the so-called Dean test, which Vigil has supplanted, the initial burden was upon the prosecution to demonstrate the admissibility of any other bad act evidence the State wished to proffer. Dean v. State, 865 P.2d 601, 609 (Wyo. 1993). Now, pursuant to Vigil, a prosecutor need not prove the admissibility of other bad acts evidence unless the defense first interposes an objection, absent, of course, plain error. Vigil, 926 P.2d at 355. Cautious counsel will generally seek pretrial notice from the prosecution of any bad acts evidence the prosecution proposes to proffer. Such a request for notice removes the decision to raise a W.R.E. 404(b) objection from the realm of trial tactics and allows the defense to challenge admissibility out of earshot of the jury, without need for an objection which jurors might interpret as aimed at keeping information from them.
A timely defense objection to the prosecution's proffer triggers a carefully delineated test:
Such evidence is admissible if: 1) the evidence is offered for a proper purpose; 2) the evidence is relevant; 3) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and 4) upon request, the trial court instructs the jury that the [other bad] acts evidence is to be considered only for the proper purpose for which it was admitted. Vigil, 926 P.2d at 357.
Here, although the prosecutor provided the notice of other bad acts evidence requested by the defense, and the defense filed a pretrial motion in limine, the district court did not consider the admissibility of evidence concerning the motel incident until after the jury had been impaneled and the parties had given their opening statements. As a consequence, the prosecutor was able to preview that evidence for the jury before the court made a detailed determination of admissibility. Such premature and untoward disclosure of other bad acts evidence to a jury constitutes a kind of prosecutorial brinkmanship which is contrary to the ordered process envisioned in Vigil and is inconsistent with the prosecutor's ethical obligation to further the ends of justice. Curl, 898
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