Wednesday, February 18, 2009

They're coming back!

For those of you who couldn't wait until we got the Dakota Territory Laws, they are now on the shelf. We have received the first load of books back from storage (about 1500) and are busy getting quite dusty along with sore muscles. The historic state statutes, Code of Federal Regulations and Federal Registers are currently taking up space in the basement lobby of the Supreme Court Building. Today we unpacked and shelved Alabama through the District of Columbia.

So when you come to check out that 1942 CFR, be ready for a maze of white boxes labeled with obscure numbers and notations. And be aware that this is just the first batch. We still have probably 3000 boxes (or more) left in storage.

Thursday, February 12, 2009

Sumamry 2009 WY 18

Summary of Decision issued February 12, 2009

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

Case Name: Shaw v. State

Citation: 2009 WY 18

Docket Number: S-08-0055

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

Representing Appellant Shaw: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leta M. Pojman, Assistant Attorney General.

Facts/Discussion: Shaw entered a conditional plea of guilty to felony possession of marijuana. The condition was that he be given leave to appeal the district court’s denial of his motion to suppress the evidence seized from his car by a Wyoming State Trooper.

Propriety of the Search and Seizure: In Speten v. State the Court described the analytical framework for evaluating issues such as in the instant case. The issue of the constitutionality of a search often focuses upon the question of whether or not the officer had probable cause to search, or reasonable suspicion to initiate an investigative detention. These cases are fact intensive and the Court considers the totality of the circumstances. The case began as a consensual encounter when the trooper stopped to aid Shaw who was stuck in deep snow. The trooper asked to see Shaw’s driver’s license which did not invoke any of the protections provided by the U.S. Constitution or the Wyoming Constitution. Once it was determined that Shaw had been driving, but had no driver’s license, the initial consensual encounter came to resemble a traffic stop or investigative detention. Little time passed from when the trooper realized Shaw had no license until she found the marijuana in the car. The trooper received permission from Shaw to look for proof of insurance and registration in the car. The district court concluded that the trooper had a legal right to enter the vehicle pursuant to Shaw’s consent. Once she entered the vehicle and smelled the marijuana, she possessed the requisite probable cause to search the vehicle for contraband. The district court concluded the marijuana was admissible at trial. Given that the Court could not find evidence in the record that Shaw’s consent was not knowing and voluntary, it was persuaded the district court’s findings were not clearly erroneous.

Conclusion: The Court held that Shaw’s consent for the trooper to enter his car was dispositive and declined to address the matter of inevitable discovery of the contraband during the inventory process.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/at6a9k .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 17

Summary of Decision issued February 12, 2009

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

Case Name: Montez v. State

Citation: 2009 WY 17

Docket Number: S-08-0089

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant Montez: Michael H. Reese, Contract Appellate Counsel, of Michael Henry Reese, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Appellant was convicted by a jury of one count of unlawful possession of marijuana and two counts of taking immodest, immoral, or indecent liberties with a minor.

Ineffective Assistance: The two counts of taking immodest, immoral or indecent liberties with a child were charged under Wyo. Stat. Ann. § 14-3-105(a) which was repealed effective July 1, 2007. The charged crimes occurred on March 10, 2007. Wyo. Stat. Ann. § 8-1-107 provides that the repeal of a statute does not affect pending actions. Appellant next questioned the constitutionality of the statute. However, he did not provide analysis of how the failure to define the word “knowingly” made the statute unconstitutionally vague as applied to his conduct. Furthermore, the Court has previously determined that no instruction on the meaning of “knowingly” need be given in cases brought under Wyo. Stat. Ann. § 14-3-105 because the term does not have a technical meaning under the law which is different from its ordinary meaning. Appellant next argued that trial counsel did not object to testimony from Mother that included “he’s a rapist,” which he characterized as hearsay. The Court determined it was an out of court statement introduced to show its effect upon the person hearing it. In addition, during direct testimony, Appellant stated that he had just completed ten years in prison for sexual assault. The jury was well aware of Appellant’s prior sexual assault conviction. Appellant then contended that trial counsel should have moved for mistrial because of the “he’s a rapist” statement. Having determined that the statement was not hearsay and not unfairly prejudicial, the Court concluded that a motion for mistrial would not have been granted. Counsel is not ineffective for failing to make a motion that would not have been granted. The Court did not discuss Appellant’s contention that trial counsel was ineffective for failing to move for a judgment of acquittal because he did not present analysis of the evidence or cogent argument. Appellant contended that counsel provided ineffective assistance by failing to object to the district court’s rejection of a proposed instruction defining the word “knowingly.” The Court analyzed this issue as a review of jury instructions and found no error. The elements instructions and the verdict form required the jury to find Appellant’s acts to have been done knowingly. The Court has long held that in the context of Wyo. Stat. Ann. § 14-3-105, the word has no technical meaning under the law. Appellant objected to direct testimony from two law enforcements officers. The Court noted that because the parties stipulated that the substance found was marijuana, the Appellant could not have been prejudiced by the officer’s statement. Appellant contended that trial counsel should have objected to an officer’s statement that he thought Appellant was not under the influence of alcohol. The Court has recognized that the question of whether someone is intoxicated is open to the observation of all persons, thus the officer’s opinion was a lay opinion and not subject to Daubert-type analysis.
Cumulative Error: Not having found ineffective assistance of counsel or any other error, the Court could not find cumulative error.

Conclusion: Appellant failed to prove either deficient performance by trial counsel or resultant prejudice and has therefore, failed to prove ineffective assistance of counsel.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/bdsp43 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Wednesday, February 11, 2009

Summary 2009 WY 16

Summary of Decision issued February 11, 2009

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

Case Name: Foxley & Co. v. Ellis

Citation: 2009 WY 16

Docket Number: S-07-0256

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

Representing Appellant Foxley: Stephen H. Kline of Kline Law Office, PC, Cheyenne, Wyoming.

Representing Appellee Ellis: Paul J. Hickey, Roger C. Fransen, and O’Kelley H. Pearson of Hickey & Evans, LLP, Cheyenne, Wyoming.

Facts/Discussion: Foxley is a corporation involved in cattle ranching operations. The Ellises were the owners of the Difficulty Creek Ranch located near Medicine Bow which they sold to Foxley. Foxley claims the Ellises never informed it of a common use arrangement with a neighboring ranch that applied to grazing on a portion of the Difficulty Creek Ranch. Foxley sued for breach of contract and breach of warranty deed.

Application of the Agreement to Private Lands: The district court found the Agreement created common use rights to the BLM lands only, leaving the private lands unencumbered. It reasoned that the actual sale was for private lands only and the private lands were unencumbered so there could be no breach of contract or breach of warranty deed. The Court found the Agreement ambiguous as to its coverage in the West Pasture. The language of the Agreement indicated the blocks included both federal lands and private lands. Those references reflected a direct impact of the Agreement on private lands. How it affected the lands within the West Pasture was unclear. The ambiguity prevented the Agreement from being used as unambiguous support for the Ellis’ argument that private lands were unaffected. The Court proceeded under the assumption that common use rights existed upon private lands as well as federal lease lands in the West Pasture.
Breach of Sales Contract: The sales contract consisted of multiple documents including the initial offer to purchase and several counteroffers with the BLM lease and grazing allotments attached. An addendum gave Foxley time to conduct a due diligence investigation into the leased land and ranch operations. It also provided that if Foxley did not inform the Ellises of any problems by the end of the investigation period, the condition and characteristics of the property would be deemed satisfactory to the buyer. The Court noted the Addendum shifted the risk of loss from lack of disclosure of common use rights to Foxley but the risk was limited to facts that could reasonably be discovered in a due diligence investigation. The existence of the 2002 grazing allotment is one fact to be considered but the Court did not find it dispositive as a matter of law.
Breach of Warranty Deed: When a person conveys property by warranty deed, generally the property is conveyed free of all encumbrances. Consequently, any encumbrances on the seller’s title need to be specifically listed and excluded from the warranty or the seller will be in breach of the warranty. The common use rights were not expressly excepted in the conveyance by the Ellises. Questions of material fact existed as to the extent the Agreement encumbered Foxley’s private land and as to whether the common grazing rights were of record. Common grazing rights fit within the general category of servitudes. The warranty is against the diminution of the value of the land caused by the servitude, not a total loss of land as in Gilstrap. Whether the Ellises breached the warranty was dependent upon all the issues of material fact noted.
Denial of Foxley’s Motion to Amend Complaint: The district court denied Foxley’s motion to amend, finding the amendment would be unduly prejudicial to the Ellises. The initial complaint was filed in November, 2006. It was amended the first time in January 2007. In June 2007, the Ellises filed their motion for summary judgment. The motion to file a second amended complaint was filed in July 2007. It was not unreasonable for the district court to deny the motion.

Conclusion: Summary judgment was inappropriately granted. The sales contract required the Ellises to convey title to the property free from all encumbrances, and the warranty deed they gave Foxley stated that. There are common grazing rights enforceable against Foxley. Along with other material facts, the extent to which those rights encumber the property is a question of material fact yet to be determined.

Reversed in part, affirmed in part.

J. Golden delivered the decision.

Link: http://tinyurl.com/dgd6dn .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 15

Summary of Decision issued February 9, 2009

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

Case Name: Guinn v. State

Citation: 2009 WY 15

Docket Number: S-08-0130

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Guinn): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (State): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeremy C. Schwendiman, Student Intern.

Date of Decision: February 9, 2009

Issues: Whether the district court improperly punished the appellant for exercising his constitutional right to a jury trial.

Facts: The appellant was convicted by a jury of third-degree sexual assault. He complains on appeal that, in imposing sentence, the district court improperly punished him for exercising his right to a jury trial.

Holdings: There is a clear rule of law allowing courts to grant leniency in sentencing to someone who has acknowledged guilt by pleading guilty, but forbidding courts from penalizing or punishing someone who has exercised his or her constitutional right to a jury trial. The district court positively declared at sentencing that it was appropriate to consider the fact that the appellant chose to go to trial. At the very least, the record certainly leaves open the possibility that the district court's sentencing decision was based in part upon that consideration. Courts simply may not punish defendants for the exercise of constitutional rights. The district court violated the appellant's constitutional right to a jury trial by considering at sentencing his exercise of that right.

The judgment is affirmed, but the sentencing order is reversed and the case is remanded to the district court for a new sentencing hearing.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurl.com/b6rowg .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Friday, February 06, 2009

Summary 2009 WY 14

Summary of Decision issued February 5, 2009

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

Case Name: In re Worker’s Comp. Claim of Horn-Dalton

Citation: 2009 WY 14

Docket Number: S-07-0276

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellant Horn-Dalton: Lynn Boak of Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Brandon W. Snyder, Special Assistant Attorney General, MacPherson, Kelly & Thompson.

Facts/Discussion: Horn-Dalton claims that the district court erred when it upheld an OAH decision in favor of the Workers’ Safety and Compensation Division (Division), which determined that Appellant was not eligible for benefits.

Timeliness: Appellant was informed that her symptoms were consistent with a diagnosis of fibromyalgia on March 22, 2004 but did not submit a Report of Injury until July 15, 2004. She admitted she did not report her injury to her employer in writing but rather as part of a conference call in April 2004. The hearing examiner was correct in presuming that the claim should be denied unless Appellant could show that neither the Division nor her employer was prejudiced by her failure to timely report her injury.
Prejudice: There was no evidence in the record that the division or the employer was prejudiced by Appellant’s failure timely to file her injury report. It was not reasonable for the hearing examiner to conclude that Appellant did not meet her burden of showing by clear and convincing evidence that the failure timely to report did not prejudice her employer or the division.
Work-Related Injury: The testimony in the record supported the conclusion that Appellant’s injury occurred over a substantial period of time and is therefore subject to the heightened burden of proof of Wyo. Stat. Ann. § 27-14-603(a). Given the heightened burden and the inconclusive medical testimony, the Court found the hearing examiner could reasonably have concluded that Appellant failed to meet her burden of proving that her injury was directly related to her employment.

Conclusion: The OAH reasonably determined that Appellant’s claim was not timely filed. However, the OAH erred when it applied the statutory presumption to deny Appellant’s claim because its conclusion that Appellant failed to prove that neither her employer nor the Division was prejudiced by the delay was against the great weight of the evidence. The OAH’s determination that Appellant failed to meet her burden of proof on the issue of whether her injury resulted from her employment was not against the great weight of the evidence.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ce4vcb .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 13

Summary of Decision issued February 5, 2009

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

Case Name: Barekman v. State

Citation: 2009 WY 13

Docket Number: S-08-0119

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

Representing Appellant Barekman: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General.

Facts/Discussion: Barekman pleaded guilty to one count of possession with intent to deliver a controlled substance while reserving his right to appeal the denial of his motion to suppress evidence seized from his trash.

Fourth Amendment: Appellant claimed the trash search violated the Fourth Amendment. The district court relied on California v. Greenwood in their decision. In Greenwood, the Court reaffirmed the principle that what a person knowingly exposes to the public, even in his own home or office, is not protected by the Fourth Amendment. As in Greenwood, Appellant exposed his garbage to the public sufficiently to defeat his claim to Fourth Amendment protection by placing it in bins 25-30 feet from his trailer home for removal by a third party. Placing bags in a location where they were readily visible and accessible from a public thoroughfare and exposed not just to the trash collector but to anyone, the defendant had no expectation of privacy.
Article 1, § 4 of the Wyoming Constitution: Under Wyoming law, a person alleging an illegal search must demonstrate a legitimate expectation of privacy in the searched property. There was no dispute the trash in the bag came from Appellant’s residence. It was retrieved from a barrel belonging to someone else who placed it next to the curb on a public thoroughfare for residents to leave their trash. Appellant took no precautions to keep the trash private. The Court reviewed similar cases from New Jersey and Vermont courts deciding that it would not recognize increased protection under Article 1, § 4 of the Wyoming Constitution. The appellant did not have an expectation of privacy in his trash that society would accept as objectively reasonable.
Appellant also asserted law enforcement’s affidavit was not sufficient to support issuance of a search warrant absent the evidence seized in violation of the state and federal constitutions. The Court’s holding that the trash search did not violate either constitutional provision made consideration of the issue unnecessary.

Conclusion: The Court held that the search of Appellant’s trash without a warrant did not violate Barekman’s constitutional rights and affirmed the denial of his suppression motion.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/dkpnx3 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Tuesday, February 03, 2009

Briefs and Pleadings Database Available

Have you ever wished you could read David Boies’ brief in Bush v. Gore? Well now you can delve into the briefs from that case and many others.

Selected briefs and pleadings are now a part of the free public-access Westlaw subscription available at the Wyoming State Law Library. The database includes selected items from the Tenth Circuit, the U.S. Courts of Appeal, and the U.S. Supreme Court as well as from the 51 state courts and DC. It’s possible to view selected Petitions for Writ of Certiorari as well. You’ll find the database on the Wyoming home page at the Westlaw sign-in under the title “Briefs.”

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