Summary 2009 WY 70

Summary of Decision issued May 29, 2009

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

Case Name: Heywood v. State

Citation: 2009 WY 70

Docket Number: S-08-0221

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Heywood: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, 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; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Upon remand from the Court, Heywood was convicted of three counts of second-degree sexual assault.

Adequate advise of charges: Heywood filed a Motion for a Bill of Particulars prior to the second trial. In the first trial, the information, instructions and verdict form failed to inform the jury what charge was being deliberated upon as to each count. The Court agreed with the district court that the Bill of Particulars corrected that deficiency as far as the appellant’s right to notice of the charges was concerned. The district court determined that the basis of the objection to the Bill of Particulars was that it did not sufficiently narrow the time frames of the allegations. The Court noted that in regard to child sexual assault victims, a child’s uncertainty as to time or date upon which the offense charged was committed goes to the weight rather than the admissibility of the evidence.
Uncharged misconduct evidence: The Court noted their mandatory procedure as delineated in Wease for testing the admissibility of uncharged misconduct evidence. Based on that test, the district court concluded it was relevant and admissible.

Conclusion: Heywood was adequately advised of the charges brought against him. Further, the district court appropriately analyzed the proffered uncharged misconduct evidence, and the Court stated it could not say the court abused its discretion in admitting the evidence, or in determining that Heywood did not prove he was unfairly prejudiced by its untimely production.

Affirmed.

C.J. Voigt delivered the decision.

J. Kite, specially concurring, joined by J. Hill: J. Kite concurred primarily because much of the evidence was known to Heywood at the time of the first trial and the “new” evidence was similar to other evidence and was cumulative. The Justice noted that the State failed to comply with the spirit and the letter of W.R.E.404(b) jurisprudence. In Howard, the Court set forth a rule it thought would eliminate late notice of uncharged misconduct evidence and move the debate over its admission to a pretrial hearing. Continued lack of adherence to the procedures established by case law necessitated the amendment of the rules. Wyoming has now joined federal and state courts mandating timely pretrial notice by the State of its intent to introduce uncharged misconduct evidence. If the prosecution continues to ignore its obligation to provide notice of Rule 404(b) evidence as required by Howard and its progeny and the amended rule, the Justices would favor adopting a rule shifting the burden to the State to prove a lack of prejudice from late notice.

Link: http://tinyurl.com/kpfq2s .

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