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Dike v. State11/30/1999
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Second. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors in order that corrections may be made before final publication in the permanent volume.
MACY, Justice.
Appellant William Dike appeals from the judgment and sentence that was entered after a jury found him guilty of aggravated assault and battery.
We affirm.
ISSUES
Dike presents several issues for our review:
ISSUE I
Did the state fail to prove that William Dike committed aggravated assault since he did not use a Adeadly weapon?@
ISSUE II
Did the trial court deprive William Dike of his due process right to a fair trial by failing to instruct the jury on the elements of aggravated assault?
ISSUE III
Did the trial court err by allowing unfairly prejudicial evidence to be introduced at trial, whereby a reasonable juror could be so inflamed as to infer that because of all the guns and ammunition seized from the Dike residence, William Dike must have committed the aggravated assault?
ISSUE IV
Did the trial court abuse its discretion by allowing hearsay evidence of a taped phone call that does not qualify for the excited utterance exception to be heard by the jury?
ISSUE V
Did the trial court abuse its discretion by allowing the jury to hear portions of a taped phone call that do not qualify for the excited utterance exception to the hearsay rule?
ISSUE VI Did the trial court violate Billy Dike=s right to confronta-tion, his right to testify in his own behalf, and his right to receive due process and a fair trial when the court allowed the prosecutor to remark in closing that Mr. Dike=s right to be present during his own trial gave him an unfair advantage as a witness and that a conviction was required in order to uphold the community=s trust in the jury?
ISSUE VII
Did the ineffectiveness of William Dike=s counsel deny him his due process right to a fair trial?
FACTS
Shortly after arriving home on November 1, 1997, at approximately 11:00 p.m., the victim heard someone pounding on her door. She went to the door and found Dike, who hollered: AOpen this door.@ The victim knew Dike because he had worked for her and her husband and he had previously been a guest in their home. She opened the door, and Dike walked into her house, informing her that he needed to use her telephone. The victim agreed to let him use her telephone, but, feeling uncomfortable, she remained near the door. She did not believe that Dike actually used the telephone because he did not turn on the light in the room where the telephone was located and she did not hear him pick up the receiver. When she asked him if he got a hold of anyone, he responded that the line was busy.
Because of the victim=s uneasiness about being alone with Dike, she told him that she could not visit with him because she had to go back to work at the Buffalo Lodge, that a friend was spending the night, and that her husband would be back from hunting that night, all of which were untrue. She walked out the door, and Dike followed her outside. When she tried to get into her car, Dike pulled her out. When she attempted to get into her car again, he again pulled her out. After a brief struggle, Dike told the victim that she was going with him and pointed a pistol at her head, telling her: AI will use this if I have to.@ The victim
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