Summary 2008 WY 67

Summary of Decision issued June 16, 2008

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Case Name: Humphrey v. State

Citation: 2008 WY 67

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=451800

Docket Number: 06-249

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

Representing Appellant (Defendant): Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; David Westling, Senior Assistant Appellate Counsel.

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

Date of Decision: June 16, 2008

Issues: Whether Appellant was denied her right to a speedy trial under W.R.Cr.P. 48, with a delay of 270 days, and under the United States Constitution, with a delay of 561 days. Whether Appellant was denied her Fourteenth Amendment right to due process when the State delayed charging her for over 26 years. Appellant was substantially prejudiced by the delay. Whether the district court committed reversible error when it admitted the victim's hearsay statements under the state of mind exception to the hearsay rule. The victim's state of mind was not an issue at trial and the statements did not help the trier of fact determine Appellant's state of mind. Whether the district court committed an abuse of discretion by improperly admitting hearsay evidence contrary to W.R.E. 803(6) and contrary to the completeness requirements of W.R.E. 106.

Procedural History: Appellant's legal woes began on April 11, 1980, when a grand jury indicted her for the first degree murder of her husband. The district court later granted Appellant's April 14, 1980, request for a preliminary hearing and, on May 7, 1980 it remanded the case to county [now circuit] court. Also on May 7, 1980 Appellant waived her right to a speedy preliminary hearing, and stipulated to a June 23, 1980, preliminary hearing date. The preliminary hearing failed to produce sufficient probable cause to support the murder charge, and the county court issued an order dismissing the case on July 2, 1980. The district court formally dismissed the indictment on August 22, 1980. In 1999, the Evansville Police Department reopened the investigation. That investigation led to the refiling of the first degree murder charge against Appellant on March 5, 2004. Following a preliminary hearing on May 26, 2004, Appellant was bound over to district court. The district court initially set Appellant's trial for September 27, 2004, stacked behind a number of other trials which were also set for that day. On July 8, Appellant filed a "Motion for Date Certain for Trial" wherein she requested that her trial be continued to a later date on a more reasonable schedule. On July 19, 2004, the district court moved the trial to the October 18 trial stack because of the court's crowded docket. At Appellant's arraignment on August 10, and in response to defense counsel's concerns about the trial setting, the district court vacated the October 18 trial date. During a scheduling conference held on August 25, the parties agreed to a January 3, 2005, trial date. On August 27, 2004, Appellant moved to dismiss the murder charge, arguing that her constitutional right to a speedy trial under both the United States and Wyoming Constitutions had been violated by the excessive delay in bringing her to trial. Appellant based her speedy trial claim on the lapse in time between the filing of the initial indictment in 1980 and the filing of the instant information in 2004. On September 10, 2004 Appellant filed another motion to dismiss the murder charge, this time alleging that the 24-year delay in recharging her for the 1977 murder of her husband transgressed her constitutional right to due process. Appellant contended that her right to a fair trial was prejudiced by the delay due to the death of several witnesses and the loss of potential evidence. In addition to these motions, Appellant filed numerous motions pertaining to evidentiary matters, including multiple suppression motions. The district court heard testimony and argument on Appellant's motions to dismiss on October 28, 2004, and took the matters under advisement. The district court ultimately determined that Appellant's constitutional speedy trial right had been violated and, on December 20, 2004, the court entered an order dismissing the case. In finding a speedy tr ial violation, the district court considered the entire time period between the initial April 11, 1980, indictment and the January 3, 2005, trial setting. The district court did not rule on Appellant's due process claim. The Wyoming Supreme Court subsequently granted the State's petition for review and reversed the district court's order of dismissal holding that the district court erred in considering the period of time during which no charges were pending against Appellant - August 22, 1980, to March 5, 2004 - in holding that Appellant's constitutional right to a speedy trial had been abridged. On remand, the district court, with the parties' concurrence, set Appellant's trial for March 13, 2006. Thereafter, Appellant renewed her speedy trial and due process motions to dismiss. On January 30-31, 2006, the district court, once again, heard testimony and argument on Appellant's motions to dismiss, as well as the parties' other outstanding motions. After reexamining the length of delay in the criminal proceedings and the reasons for the delay, the district court declined to find a constitutional speedy trial violation. In addition, the district court found no evidence of improper prosecutorial motive underlying the 24-year charging, as required under Fortner v. State, 843 P.2d 1139 (Wyo. 1992), and denied Appellant's due process claim. Appellant's trial commenced as scheduled on March 13, 2006 and concluded on March 24, 2006. The jury found Appellant guilty on the lesser offense of second degree murder. The district court sentenced Appellant on June 15, 2006, to a term of imprisonment of 25 to 40 years. This appeal followed.

Holdings: The record reveals Appellant expressly waived the time limitations of W.R.Cr.P. 48 when she sought, via her motion for a date certain, a continuance of the initial trial date. The record also shows that, upon remand from this Court's reversal of the district court's order of dismissal, Appellant agreed to a trial setting beyond the rule's 180-day requirement. Thus, Appellant waived the speedy trial requirements of Rule 48(b), and thus this claim, by her actions in the district court.

The Sixth Amendment guarantees every criminal defendant a speedy and public trial. Barker v. Wingo, 407 U.S. 514 (1972), set forth the benchmark test that applies to constitutional speedy trial claims. The Barker test requires consideration of four factors in determining whether a speedy trial violation has occurred: the length of delay; the reason for the delay; the defendant's assertion of her right; and the prejudice to the defendant. None of these factors alone are dispositive. Rather, the factors must be considered together and balanced in relation to all of the relevant circumstances of the delay in bringing the defendant to trial. The ultimate question is "whether the delay in bringing the accused to trial was unreasonable, that is, whether it substantially impaired the right of the accused to a fair trial." When a speedy trial violation is found to have occurred, the charges must be dismissed.

The law is well-settled that the speedy trial right attaches upon the filing of a criminal complaint or the arrest of the defendant, whichever occurs first. However, the speedy trial guarantee does not apply to the period of time between the dismissal of a charge and the subsequent refiling of the charge, provided the defendant is not held in continuous custody. On the basis of these principles, in the present action speedy trial clock in this case initially began on April 11, 1980, when the indictment was filed and Appellant was arrested, and continued to run until the indictment was formally dismissed by the district court on August 22, 1980. The clock resumed on March 5, 2004, when the murder charge was re-filed against Appellant. It stopped again when the district court dismissed the case on December 20, 2004. The speedy trial clock restarted on October 26, 2005, upon the filing in the district court of this Court's mandate reversing the December 20 order of dismissal, and continued to run until Appellant's trial began on March 13, 2006. The total elapsed time to trial, excluding the time when no charge was pending against Appellant, was 561 days. The length of delay in bringing Appellant to trial does warrant examination of the remaining speedy trial factors.

In conducting an analysis for the reasons for a delay, an examination is made as to which party was responsible for the delay. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. Delays attributable to the defendant are deducted from the equation. A review of the record in the present action, shows that, of the 561 days, delays amounting to 80 days were occasioned by neutral factors not directly attributable to Appellant or the State. Delays surrounding the preliminary hearings in both criminal actions and the continuance of the October 18 trial date in the present action, totaling 175 days, are directly attributable to Appellant, and that the 138-day delay following this Court's remand is attributable to both Appellant and the State. On the whole, that the reasons for the delay in this case weigh evenly in favor of and against each party.

There is no question Appellant asserted her constitutional right to a speedy trial. During the 1980 criminal proceedings, Appellant filed a motion to dismiss for lack of a speedy trial and filed a separate demand for a speedy trial. After the refiling of the criminal charge, Appellant filed two additional motions to dismiss for failure to afford her a speedy trial, as well as other pleadings in support of her speedy trial claim. Appellant's assertions of the speedy trial right, however, were intertwined with waivers of speedy preliminary hearings in both criminal actions, a request for a continuance of the trial date in the instant criminal action, continued acquiescence to the timetables set by the district court, numerous pretrial motions that required evidentiary hearings, and a request for a five-month stay in the proceedings while Appellant pursued her speedy trial complaint in the United States Supreme Court. Accordingly, this factor weighs only slightly in Appellant's favor.

The final factor considered is the degree of prejudice to Appellant caused by the delay. Prejudice is assessed in light of the interests the particular evils the speedy trial right is intended to prevent: (1) lengthy pretrial incarceration; (2) pretrial anxiety; and (3) impairment of the defense. On the prejudice prong, Appellant only argues that the delay impaired her defense of the charge. In support of this contention, Appellant points to the unavailability of certain witnesses and evidence resulting from the passage of time between the dismissal of the 1980 criminal action and the refiling of the murder charge in 2004. The obvious flaw in Appellant's argument, is that the protection of the Speedy Trial Clause has no application to the period of time in which she was neither under arrest nor formally charged for the murder of her husband. Any prejudice flowing from the loss of witnesses and evidence during the 24-year gap between the criminal prosecutions must be scrutinized under the tenets of the Due Process Clause, not the Speedy Trial Clause. Appellant does not offer any evidence or argument of prejudice resulting from the 561-day delay at issue here. Consequently, this factor weighs heavily against Appellant.

Thus, in balancing the four Barker factors, the Appellant was not denied her constitutional right to a speedy trial. Although a delay occurred in bringing Appellant to trial and Appellant asserted her right to a speedy trial, the length of the delay was not unreasonable in light of the facts in this case. Furthermore, and most importantly, Appellant has not demonstrated actual prejudice arising from the delay in the criminal proceedings. Under the circumstances, dismissal of the criminal charge against Appellant is not warranted.

Wyoming does not have a statute of limitations for the prosecution of criminal offenses. There is no question the legislature would have the authority to enact a statute of limitation, and the failure to adopt one does not appear to be oversight. Instead, it represents a conscious decision to refrain from extending grace through a statute of limitation in criminal cases. In the absence of a statute of limitations, which is the primary guarantee against bringing overly stale criminal charges, the prosecution for a criminal offense may be commenced at any time during the life of the offender unless the delay in charging denied the accused her constitutional right to due process. A pre-charging delay is not a violation of due process absent a showing of both an intentional delay by the state to gain a tactical advantage over the accused and actual prejudice resulting from the delay. The burden of proving the required two-part showing lies with the appellant.

In the present action, Appellant has not carried her burden on either prong. An independent review of the record reveals no evidence indicating bad faith or improper motive on the part of the State. Additionally, the court was not convinced that Appellant was substantially prejudiced by the delay given the facts of this case. Both improper motive and actual prejudice must be shown in order to establish a due process violation. Even if it were to be concluded that some prejudice resulted from the delay because evidence was unavailable, Appellant has not presented any evidence that the prosecutors delayed refiling the charges in order to gain a tactical advantage or due to some other improper motive. By itself, the fact 24 years elapsed between the dismissal of the original criminal case and the filing of the new murder charge does not establish a due process violation. Appellant's claim is rejected.

At trial, the victim's sister testified about a conversation she had with him the night before he was killed. She testified that, during this conversation, he was extremely upset and angry about some bank problems and Appellant's possible involvement in those problems. Such testimony was admissible under the hearsay exception provided by W.R.E. 803(3) for a declarant's then-existing mental, emotional, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health). This exception is available when a nonparty's state of mind is significant. In many criminal trials, the state of mind of the alleged victim is important. What the victim said is often admissible to show his purpose, knowledge or mental state. In the present action, the victim's statement that he was angry with Appellant about the problems at the bank and, if he learned that she was responsible for the missing money and checks, he intended to kick her out of the house and keep the children with him showed his then-existing state of mind and emotion. His state of mind was relevant because testimony from bank employees and others indicated Appellant knew he was upset about the missing money and believed she was responsible, and her knowledge of his state of mind may have affected her actions later that night. Thus, the district court did not abuse its discretion in admitting testimony concerning the statements the victim made on the night before he was killed.

A review of the issue as to whether financial records were hearsay and admitted improperly hearsay evidence is inhibited by the global scope of Appellant's argument. Appellant muddles categories of documents together, failing to present any cogent argument regarding specific challenges to individual documents. Because of the overreaching nature of Appellant's argument, there is no basis in Appellant's argument for overturning the district court's determination of admissibility. Appellant's argument that the challenged documents should not have been admitted seems to revolve, in part, around her speculation that further documents existed that had not been discovered. Other aspects of her argument concern documents that were destroyed over time after the homicide and were no longer available at the time of trial. Appellant complains that the speculative and unavailable documents could have changed the entire context of the admitted documents. Appellant's challenge mistakes admissibility with credibility. Appellant has not provided any legal principle that would bar admissibility of standard business records based on the unavailability of related documents, particularly those whose very existence is purely a matter of conjecture. Without question, the complete records, unmarred by torn pages and missing segments, would have been more useful to the trial court than those records actually admitted. However, such discrepancies go to the weight rather than to the admissibility of the evidence. So long as the available records satisfied all of the safeguards set out in Rule 803(6), the trial court did not abuse its discretion in admitting them into evidence. Additionally, Appellant has not argued, within the context of the facts of this case, that admission of the challenged records prejudiced her, even under a harmless error standard. Under the circumstances, there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred.

There is no reversible error in light of the applicable rules of law. The judgment and sentence of the district court is affirmed.

J. Golden delivered the opinion for the court.