Law library web site will be down for maintenance 9/1/2007

The Wyoming State Law Library web site (http://library.courts.state.wy.us/) will be up and down on Saturday, Sept. 1, 2007, for maintenance.

 

During this maintenance period, you can access the law library web site alternatively at this address: http://www.courts.state.wy.us/LawLibrary/.

 

Please let me know if you have any questions or issues. Though the library will be closed until Tuesday, Sept. 4, I plan on checking email through the holiday weekend.

 

Thank you for your patience!

 

Katie Jones
Electronic Services Librarian
Wyoming State Law Library
2301 Capitol Avenue
Cheyenne, WY 82002
307-777-6487 / Fax: 307-777-7240

kjones@courts.state.wy.us

http://library.courts.state.wy.us/

Summary 2007 WY 141

Summary of Decision issued August 30, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In the Interest of GLP, GWP v. State, DFS

Citation: 2007 WY 141

Docket Number: S-07-0182

Order Dismissing Appeal

The matter came before the Court upon its own motion following a review of recently docketed appeals. The Court found it was without jurisdiction to consider the appeal, the July 16^th notice of appeal was untimely, and the order denying Appellant’s motion for appointment of new guardian ad litem for the child was not an appealable order.

C.J. Voigt.

Link: http://tinyurl.com/24ecug .

Summary 2007 WY 140

Summary of Decision issued August 29, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Sarr v. State

Citation: 2007 WY 140

Docket Number: 06-164

Appeal from the District Court of Hot Springs County, the Honorable John C. Brooks, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Senior Assistant Attorney General.

Issues: Whether appellant’s sentence was illegal because the trial court sentenced him under the wrong version of the statute, sentencing him to a longer prison term than was allowed when the offense was committed. Whether the trial court erred in admitting uncharged misconduct evidence because said evidence was more prejudicial than probative.

Facts/Discussion: Sarr entered a conditional plea of no contest to one count of simple assault and battery, domestic violence, third or subsequent offense in ten years in violation of Wyo. Stat. Ann. § 6-2-501(b)(e)(f)(ii).
Standard of Review: The determination of whether a sentence is illegal is a question of law, which the Court reviews de novo.
Sentence: In accordance with the terms of the parties’ plea agreement, the district court sentenced Sarr to a term of 4 – 5 years in prison pursuant to § 6-2-501(f)(ii) (2006)which was the version in effect at the time of sentencing. The version in effect at the time the offense was committed provided not more than 2 years confinement. The Court’s review of the claim of an illegal sentence is limited to determining whether the sentence was illegal and if the Court finds it was, correcting it themselves if the record is sufficient to allow them to do so or if not, remanding the case to the district court for correction. The Court stated that Sarr did not meet his burden of proving his substantial rights were affected. The record is clear and the parties agree that at the time the district court entered the judgment and sentence, Sarr had already served 1,877 days in jail. The parties agreed and the district court ordered that upon imposition of the sentence, Sarr was to be released from custody because he had already served more than the maximum penalty. Under those circumstances, the imposition of an incorrect statute was harmless.
W.R.E.404(b) Evidence: The district court concluded prior to the second re-trial that the testimony concerning Sarr’s actions immediately before and after the alleged assault was not Rule 404(b) evidence because it described what occurred immediately before and after the charged conduct and it provided background as to a continuing sequence of events. The district court further concluded that it was relevant to show Sarr’s intent and that it was more probative than prejudicial. In its decision letter, the district court outlined the factors as identified by the Court in Gleason v. State.

Holding: The Court remanded the case for the purpose of correcting the record with directions to enter a new judgment and sentence referencing the applicable statute and imposing the maximum sentence of 2 years. The district court’s analysis of the evidence showed that a legitimate basis existed for its ruling. Sarr had not shown the challenged testimony had little or no probative value or that it was extremely inflammatory.

Affirmed; remanded for imposition of a corrected statute.

J. Kite delivered the decision.

Link: http://tinyurl.com/22at8r .

Summary 2007 WY 139

Summary of Decision issued August 29, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Szymanski v. State

Citation: 2007 WY 139

Docket Number: 06-106

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Public Defender. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Senior Assistant Attorney General. Argument by Mr. Armitage.

Issues: Whether the district court abused its discretion when it admitted the pretrial statements of the victim. Whether the prosecution committed misconduct.

Facts/Discussion: Appellant appeals his conviction by a jury of one count of first degree arson for intentionally setting fire to his neighbor’s apartment.
Standard of Review: The Court reviews claimed error concerning the improper admission of evidence for abuse of discretion and will not reverse the trial court’s discretion absent a clear abuse. The Court reviews allegations of prosecutorial misconduct by reference to the entire record to determine whether a defendant’s case has been so prejudiced as to deny him a fair trial.
Hearsay Testimony of Deceased Witness: Ms. Jones, the tenant of the apartment in which the fire had been set, died of causes unrelated to the fire prior to trial. Appellant relied on Crawford v. Washington where the court held that tape-recorded statements of the defendant’s wife made by police during interrogation on the night of the offense qualified as testimony because they were given in response to structured police questioning. Following Crawford, the Wyoming Supreme Court in Vigil held that a police officer’s testimony concerning statements made to him by a witness who was unavailable at trial and who the defense had not had an opportunity to cross-examine violated the Confrontation Clause. Applying the standards from Davis v. Washington and Hammon, the Court stated it would seem to compel the conclusion that the challenged statements were testimonial. Despite that, the district court admitted the statements based upon Allen v. State in which the Court upheld the admission of a police officer’s expert opinion testimony, including his testimony concerning eyewitness statements he reviewed in the course of investigation. The Court found the Missouri Supreme Court’s reasoning in Edwards v. State persuasive. The testimony in the instant case was admitted not to establish the truth of the statements but for the limited purpose of describing the investigation. The statements did not implicate or identify Appellant as the arsonist.
Prosecutorial Misconduct: Appellant had the burden of demonstrating plain error because defense counsel did not object at trial.
Improper Comment on Witness Credibility: The Court stated that it was apparent from the course of the testimony that the challenged testimony arose when the prosecutor attempted to rehabilitate Inspector Magee after defense counsel questioned him concerning the importance of interviews generally and Appellant’s interview specifically. Once the defense opened that door, the prosecutor was entitled to make reasonable inquiry concerning why the witness did not include the interview in his conclusions. Neither the testimony nor the comment directly reflected on Appellant’s credibility but instead assisted the jury in understanding the information that was relied upon in determining the cause of the fire.
Improper Character Evidence: The expert testimony concerning the patterns of arsonists was arguably “profile testimony” but the defense opened the door to the testimony on cross-examination. The Court did not find the prosecutor’s questions in that regard to be excessive.
Violation of ABA Criminal Justice Standard for Courtroom Professionalism: At trial, defense counsel objected to a sarcastic comment and asked that it be stricken. The district court sustained the objection and ordered the comment stricken. The Court’s review of the cases citing the Criminal Justice Standard as well as the district court record led the Court to conclude that while the comment may have been unnecessary, it did not constitute plain error.
Misstating the Evidence in Closing Argument: The Court reviewed the statements in question and concluded the prosecutor’s comment was not an unreasonable inference from the evidence presented.
Arguing Ms. Jones’ Statements for the Truth of the Matter Asserted: It was improper for the prosecutor to suggest to the jury during closing arguments that Ms. Jones’ statements proved the condition of her apartment before the fire. However, in the context of the entire trial, the Court did not find Appellant was prejudiced by the improper argument. There was other evidence from which the Prosecutor could properly have argued the condition of the apartment prior to the fire.

Holding: The Court concluded the statements Ms. Jones made during the investigative interview were not admitted for their truth and did not implicate Appellant. Their admission did not violate the confrontation clause and the district court did not abuse its discretion in admitting the testimony. The Court held that the State improperly argued Ms. Jones statements for their truth contrary to the limited purpose for which they were admitted. The improper argument did not result in material prejudice because other evidence supported the State’s argument.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yqryz5 .

How-to: Adobe Acrobat Reads for You

Here is a great tip from the Colorado Bar Association weekly e-newsletter on a tool in Adobe Acrobat Reader. Reba Nance, Director of Law Practice and Risk Management at the Colorado Bar Association, has given me permission to pass her tip along to you.

*** Tip of the Week: Let Adobe Acrobat Reader Read Your Document Aloud!

Personal Document Format (.pdf) is used extensively in law firms, the courts and on websites. If you have Acrobat Reader (or the full version of Acrobat) 6.0 or later, you may be able to have your computer read your document out loud. You need to have your computer connected to speakers and the volume turned up. This is a great tool for proofreading or listening to your document for readability. Here's how:

- Open a document in .pdf format
- Go to the toolbar at the top of the document and click on "View" and then "Read out Loud"
- Choose "Read This Page Only" or "Read to End of Document"
- A special toolbar may appear, with buttons for you to click "Pause" or "Stop"

You can set your preferences for volume, voice, speech attributes and reading order:
- Go back to the toolbar at the top of the document and click on "Edit" then "Preferences" and then "Reading"

You may be able to choose from three different voices. There also are websites from which you can download other voices (which won't sound so much like HAL from 2001 Space Odyssey).

Contact Reba Nance, reban@cobar.org or (303) 824-5320, with questions.

After experimenting a bit, I found that this tool works best for PDF files that are mostly text. Forms are hit and miss. Files that are images (might look like text but is really a scanned image) will not be read at all. And the "Microsoft Sam" voice really did sound like HAL.

Summary 2007 WY 138

Summary of Decision issued August 28, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Hall v. State

Citation: 2007 WY 138

Docket Number: 06-230

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public; and Tina N. Kerin, Post-Conviction Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Melissa M. Swearingen, Senior Assistant Attorney General. Argument by Mr. Armitage.

Issue: Whether the district court abused its discretion when it refused to suppress drugs confiscated from Appellant during a pat-down search preceding her incarceration in the county jail, where Appellant was arrested pursuant to a legitimate traffic stop but where the officer’s first observation of Appellant was precipitated by knowledge gained from a wiretap later discovered to be illegal.

Facts/Discussion: Appellant entered a conditional guilty plea (contingent on the outcome of this appeal) to a single felony count of possession of methamphetamine under Wyo. Stat. Ann. § 35-7-1031. She contests the district court’s denial of her pretrial motion to suppress certain evidence.
Standard of Review: In general, evidentiary rulings of a district court are not disturbed on appeal unless a clear abuse of discretion is demonstrated.
Both parties agree the original wiretap in this case was illegal. There was no debate as to the propriety of the search conducted on Appellant at the detention. The sole question relates to the applicability of the fruit of the poisonous tree doctrine and the exclusionary rule to these facts. The question in such a case is whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. In Appellant’s case, the trial court excluded all evidence directly related to the wiretap. The only evidence at issue was the drug evidence found on Appellant’s person during her booking for driving under suspension. The officer had probable cause to perform the traffic stop because he observed the violation. The purpose of the exclusionary rule is to deter law enforcement from obtaining evidence through illegal means. Application of the rule would serve no purpose here. Officers believed they were working pursuant to a valid, statutorily authorized wiretap. The Court stated they failed to see how law enforcement can be deterred from inadvertent illegal behavior.

Holding: The district court did no abuse its discretion in denying Appellant’s motion to suppress evidence collected during her arrest for driving under suspension even though she was initially placed under surveillance because of information gained through use of a wiretap that law enforcement officers later discovered to be illegal.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2f7uny .

Summary 2007 WY 137

Summary of Decision issued August 24, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Merta v. State

Citation: 2007 WY 137

Docket Number: 06-227

Appeal from the District Court of Fremont County, the Honorable Norma E. Young, Judge

Representing Appellant (Defendant): Jeremy George Merta, Pro se.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Timothy J. Forwood, Assistant Attorney General.

Issue: Whether the denial of Merta’s motion to correct illegal sentence after finding that Merta was properly credited for his time served, was an abuse of the district court’s discretion.

Facts/Discussion: Merta challenged the order of the district court that denied his motions to modify his sentence and/or to correct an illegal sentence. The Court noted that in Renfro v. State, they held that credit will be automatically granted for presentence incarceration time on all sentences. The Court also noted they adopted the goal of the ABA Standards for Criminal Justice for the purpose to end technical distinctions by granting a comprehensive credit that treated all periods of confinement attributable to the underlying criminal transaction as equivalent no matter what label is attached to such incarceration. The Court stated they continue to recognize that a sentence that does not include proper credit for presentence incarceration is illegal. The record on appeal is not entirely clear principally because Merta did not appeal from any of the district court’s appealable orders, except for the most recent ones. Merta did not document his claims with supporting evidence, cogent argument, or pertinent authority.
In addition, Merta appeared to have asserted that the Wyoming Department of Corrections has erred in keeping his records. The Court stated that was a matter to be taken up administratively through the Department of Corrections and would be subject to the Court’s review only to the extent such an issue reached the Court via W.R.A.P. 12.

Holding: To the extent the record is clear Merta received credit for time in excess of that which is required by the Court’s longstanding rules. The orders of the district court denying Merta’s motions to modify his sentence and/or correct an illegal sentence are affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2fdbev .

Summary 2007 WY 136

Summary of Decision issued August 23, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Leyva v. State

Citation: 2007 WY 136

Docket Number: 06-233

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

Issues: Whether the district court improperly withdrew its acceptance of Leyva’s guilty plea. Whether the district court erred in allowing evidence of uncharged misconduct to be admitted at trial.

Facts/Discussion: Leyva appealed his conviction on two felony counts, one for burglary and one for third offense illegal possession of a controlled substance.
Standard of Review: In reviewing a district court’s decision to accept or reject a guilty plea, the Court generally applies an abuse of discretion standard. However, in analogous cases involving sentencing under a plea agreement, the Court has applied the plain error standard when the defendant did not enter any objection. A trial court’s decision on the admissibility of evidence is entitled to considerable deference, and will not be reversed on appeal unless the appellant demonstrates a clear abuse of discretion.
Did the district court improperly withdraw its acceptance of Leyva’s guilty plea: Leyva relied on two cases, United States v. Ritsema and Brewer v. Starcher. Those cases hold that after a guilty plea is accepted and the sentence pronounced, the trial court may not withdraw its acceptance or increase its sentence. In both cases, the trial court was acting unilaterally and over the objections of the defendants. In the instant case, the district court asked Leyva if he wished to withdraw his plea and Leyva said yes, and the district court allowed him to withdraw his plea. The district court’s actions were consistent with Wyoming’s rules of criminal procedure. W.R.Cr.P. 32(d) provides the district court the authority to allow withdrawal of a guilty plea if made before a sentence is imposed. Because the Court concluded the district court’s decision did not violate any clear and unequivocal rule of law, it was not necessary for them to consider whether Leyva had established material prejudice. They noted that after the district court allowed him to withdraw his guilty plea, he was given another chance to change his plea. Also, the district court gave him the same sentence he would have received under the terms of the plea agreement.
Did the district court err in allowing evidence of uncharged misconduct to be admitted at trial: Evidence of other crimes, wrongs or acts is admissible if it serves a proper purpose, and is excluded only if its sole purpose is to prove that a defendant has a disposition to commit crimes. Intrinsic evidence (“part and parcel” of the crimes charged) is subject to W.R.E. 404(b). The district court’s misstatement that the evidence was not subject to W.R.E. 404(b) was rendered immaterial when the court immediately proceeded to analyze the evidence. The district court expressly found the evidence was relevant and that the evidence was more probative than prejudicial. The record reflected the district court considered the required criteria, had legitimate bases for its conclusions, and did not abuse its discretion in admitting the evidence at trial.
Leyva further challenged the district court’s ruling on procedural grounds. The Court has adopted a procedure to be followed when uncharged misconduct evidence is to be introduced at trial. The State’s response to Leyva’s pretrial demand for notice of intent to introduce evidence was that it did not intend to introduce any evidence pursuant to W.R.E. 404(b). The State maintained the position on appeal and the district court agreed with it. The State listed the evidence in its pretrial memorandum. Leyva made no claim that the evidence was inadmissible until trial was underway. At that point, the district court dismissed the jury and conducted a hearing on uncharged misconduct evidence. When the district court ruled the evidence was admissible, it did not list every conceivable purpose for admissibility. The record contained sufficient information to explain and support the trial court’s conclusions, and to allow meaningful review.

Holding: The district court did not err in granting Leyva’s request to withdraw his guilty plea. The district court did not abuse its discretion in admitting uncharged misconduct evidence. Rather the district court properly analyzed the evidence under W.R.E. 404(b), had a legitimate basis for admitting the evidence and under the circumstances, fulfilled the mandatory requirements for admitting evidence under W.R.E. 404(b).

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/3xnmrb .

Summary 2007 WY 135

Summary of Decision issued August 23, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: In the Matter of the Guardianship of: FJO, AKA and LM, WRB and GB v. GS, MO, GA and RM

Citation: 2007 WY 135

Docket Number: C-07-1

Appeal from the District Court of Campbell County, the Honorable Dan R. Price II, Judge

Representing Appellants (Petitioners): DaNece Day of Lubnau & Bailey, PC, Gillette, Wyoming.

Representing Appellee (Respondent): MO (Father), Pro se.

Issues: Whether the trial court committed reversible error by prospectively applying holdings of a Supreme Court case which was issued while the instant matter was under advisement. Whether trial court abused its discretion by failing to find Father an unfit parent. Whether the trial court abused its discretion by failing to grant a guardianship for one child in a sibling group.
Facts/Discussion: Appellants are the maternal grandparents of the child at issue in this matter. Grandparents petitioned the district court to appoint them as guardians of the Child. Father objected.
Standard of Review: The Court stated it was difficult to articulate a standard of review for the issues presented. The Court noted that In re Guardianship of MEO collected and catalogued many of the most important Wyoming and Federal court decisions that apply to circumstances such as those presented here but that it did not announce a new rule to which the concept of retrospective or prospective application is pertinent.
None of the materials contained in the record suggested that Father was “unfit” but of even more fundamental importance, his “unfitness” was not clearly posed as an issue for the district court to decide. The Grandparents focused on the “best interests of the child” in their arguments. They stated that had they focused on “fitness” of Father, they would have been successful. MEO articulated the time-honored principle that a child with a living parent does not need a guardian unless that parent is demonstrably unfit.
Grandparents also contended that the district court erred in making them guardians of only two of the three children thereby offending the Court’s generally accepted rule that sibling groups not be separated. The Court noted their decision in Aragon v. Aragon stating they did not retreat from anything said there. They stated that the district court’s order does not implicate the separation of siblings as contemplated by that body of law.

Holding: The issue presented to the district court in this case was whether a guardianship was necessary for the Child. The district court determined it was not necessary. That decision was not challenged in the appeal. The provision of the district court’s order which denied Grandparents’ petition to be appointed the guardians of the Child was affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2k7nu4 .