Summary 2006 WY 104

Summary of Decision issued August 24, 2006

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Case Name: Barker v. State

Citation: 2006 WY 104

Docket Number: 03-85

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge

Representing Appellant (Defendant): Diane Courselle, Director, DAP.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Issue: Whether Appellant was denied a continuance or his right to testify, and whether the district court abused its discretion by denying Appellant’s request for a new trial to permit him to testify. Whether Appellant received adequate notice of the charges against him. Whether the State presented evidence of Appellant’s uncharged misconduct. Whether Appellant received effective assistance of counsel.

Holding: Appellant was convicted after a bench trial of one count of larceny by bailee for converting items belonging to his employer to his own use. He appealed and the Court issued a limited remand for an evidentiary hearing on his ineffective assistance of counsel claim. Returning to the Court after the remand, they concluded the district court unduly limited the evidence Appellant was allowed to present. The Court reversed the district court’s determination defense counsel was effective and again remanded “for the limited purpose of allowing Barker to fully develop the record on the issues of pretrial investigation and the circumstances surrounding Barker’s waiver of his right to testify at his criminal trial”. Following the second remand hearing, the Court requested supplemental briefing from the parties.
Standard of Review: The question of the Right to testify/New trial is governed by W.R.Cr.P.33 and is reviewed for an abuse of discretion. An Appellant must initially demonstrate that he was denied his right to testify and that he would have offered relevant testimony if he had testified. If the Appellant satisfies that initial burden, the State has the responsibility to show that the denial was harmless error beyond a reasonable doubt. An accused has a constitutional right to notice of the charges against him. The issue is reviewed de novo. The district court’s decision on the admissibility of other bad acts evidence is reviewed under the abuse of discretion standard. On a claim of ineffective assistance of counsel, the Court will conduct a de novo review of the trial court’s conclusions of law.
Right to testify/New trial: The Court reviewed the record and agreed with the district court’s conclusion that Appellant’s right to testify was not denied. He voluntarily, knowingly and intelligently waived that right after consideration of a number of factors and discussion with counsel and the district court. Since the right to testify was not violated, the district court did not abuse its discretion by denying his motion for a new trial or to reopen the evidence.
Notice of charges: The right to adequate notice is included in the W.R.Cr.P. 3 which requires a criminal information to include: “a plain, concise and definite written statement of the essential facts constituting the offense charged.” The record indicates the district court was very discriminating about the evidence and the charges. In comparing the charging documents with the judge’s oral ruling, it was clear to the Court that Appellant had adequate notice of the charge for which he was convicted. Appellant also claimed that the evidence offered by the State at trial far exceeded the evidence necessary to establish his guilt on the items for which he was convicted. The amount of evidence presented did not create a problem with Appellant’s right to notice of the charges against him. There was no prejudice because the district court specifically rejected the State’s contentions as to the other items. His constitutional right to notice was not violated.
Evidence of other misconduct: Appellant argues the State violated Rule 404(b) when it presented the evidence of the burglary without following the procedures mandated by the Court in Howard v. State. The State claims and the Court agrees that no error resulted from the failure to follow Howard with regard to the burglary evidence because it was part and parcel of the evidence of a charged crime and did not fall under W.R.E.404(b). The district court’s oral ruling showed the judge critically examined all of the evidence and found Appellant guilty of larceny by bailee for only those items for which the State had proven each of the elements.
Ineffective assistance of counsel: The argument by Appellant was not convincing to the Court that even if his waiver of the right to testify was knowing and voluntary, his counsel were still ineffective because they failed to properly explain the consequences of his behavior. The determination of whether Appellant would testify was ultimately his to make and there was no indication in the record that his attorneys failed to adequately explain the process for and consequences of, waiving the right to testify. The district court informed Appellant of his right to testify in his own defense and offered him time to discuss his decision with his attorneys. He did not accept that invitation and waived his right. The Court concluded Appellant did not show his counsels’ performance was deficient. The attorneys for Appellant did not request a continuance. The Court concluded there was no basis for finding counsels’ performance deficient for failing to request a continuance because they are not required to make a motion without basis. Defense counsel admitted Appellant told them there was e-mail correspondence supporting his defense. Counsel demanded those e-mails in discovery from the State and served CPU with a subpoena duces tecum requesting numerous categories of information, although there was no specific request for e-mails. Appellant claims their failure to follow up with the motion to compel amounted to deficient performance. Upon review of the record, the Court did not agree. The instant case posed a credibility question. Other than Appellant’s uncorroborated testimony, there was no evidence to show the missing e-mails ever existed or that Appellant provided his attorneys with sufficiently specific information about an alleged agreement pertaining to the Arapahoe school items. The district judge ruled Appellant’s testimony was not credible. The district court’s factual determinations support its conclusions that defense counsel conducted a reasonable investigation in pursuit of exculpatory e-mails and made a reasonable decision to cease their search when they believed they had sufficient evidence to conduct his defense.

Affirmed.

J. Kite delivered the order for the court.

Link to the case: http://tinyurl.com/glnwf .