# Schreibvogel v. State

> Wyoming Supreme Court · April 16, 2010 · 228 P.3d 874

URL: https://www.frixlaw.com/law-library/cases/9789237

## Case

- **Full name:** Randall D. SCHREIBVOGEL, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff)
- **Court:** Wyoming Supreme Court
- **Decided:** April 16, 2010
- **Citations:** 228 P.3d 874; 2010 WY 45; 2010 Wyo. LEXIS 48; 2010 WL 1509670
- **Precedential status:** Published
- **Opinion:** Concurrence by Voigt
- **Judges:** Voigt, C.J., and Golden, Hill, Kite, and Burke
- **Cited by:** 68 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9789237

## How later opinions describe it (automated extraction)

- noting that relevancy is the “key inquiry” in determining the admissibility of victim impact testimony during the guilt–innocence phase of trial; cited favorably in Martinez
- rejecting an ineffective assistance claim where the defendant failed to establish that any objection would have been sustained
- noting the difficulty in identifying specific basis for admissibility when no objection is made

## Opinion text

VOIGT, Chief Justice,
specially concurring.
[u52] I concur in the result reached by the majority because stare decisis requires us to place upon the appellant the impossible task of proving prejudice in cases such as this. The majority states the well-established law in Wyoming: "It is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are 'Iying' or 'mistaken.'" See Proffit v. State, 2008 WY 114, ¶ 15 , 193 P.3d 228, 235 (Wyo.2008); Teniente v. State, 2007 WY 165, ¶ 51 , 169 P.3d 512, 528-29 (Wyo.2007); Talley v. State, 2007 WY 37, ¶¶ 10-11 , 153 P.3d 256, 260 (Wyo.2007); Jensen v. State, 2005 WY 85, ¶ 20 , 116 P.3d 1088, 1096 (Wyo.2005);, and Beaugureau v. State, 2002 WY 160, ¶ 17 , 56 P.3d 626, 635-36 (Wyo.2002). Yet the prosecutor in this case asked the appellant not once, but three times, whether another witness-the bartender, the victim, and the cellmate-was incorrect or mistaken. Perhaps the State would pay attention to the law if it bore the burden of proof as to the lack of prejudice.
[m58] Another point. This was a sexual assault/robbery case. I would think it would be fairly clear that the appellant allegedly being "coked up" was uncharged misconduct evidence, banned by W.R.E. 404(b) except under particularized cireumstances. The majority is correct that the appellant's failure to object to the "coked up" testimony at the time it was elicited makes it difficult to apply an abuse of discretion standard of review. But the appellant did make a pretrial demand for notice of such evidence, meeting the requirement we have set, and there simply is no innocent explanation for the manner in which the State introduced the evidence. The State cannot claim surprise as to the answer when it asks one of its own witnesses, "[als close as you can, can you tell the ladies and gentlemen of the jury what he told you." At best, that shows lack of preparation. Maybe, had the prosecutor then left the subject alone and gone on with something else, it would be excusable. But that question was followed up with theee-"Let's stop there. What do you mean by 'coked up?" Does that have meaning to you?" And the answer-"Cocaine, drugs." The prosecutor intentionally introduced evidence of the appellant's drug use without subjecting that evidence to the judicial review that we have mandated. See Bromley v. State, 2009 WY 133 , 219 P.3d 110 (Wyo.2009); Wease v. State, 2007 WY 176 , 170 P.2d 94 (Wyo.2007); Williams v. State, 2004 WY 117 , 99 P.3d 482 (Wyo.2004); Moore v. State, 2008 WY 153 , 80 P.3d 191 (Wyo.2003); (Gleason v. State, 2002 WY 161 , 57 P.3d 332 (Wyo.2002); and Howard v. State, 2002 WY 40 , 42 P.3d 483 (Wyo.2002).
[j54] My concern is that, while the harmless error rule certainly makes sense as *891 a reasonable systemic tool, its actual application via a process that requires each appellant to prove that he or she has been prejudiced by prosecutorial misconduct, leaves the State nearly unfettered in its ability to do as it pleases, this Court's opinions to the contrary notwithstanding.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9789237. Public record. Not legal advice.