Friday, February 26, 2010

Summary 2010 WY 21

Summary of Decision issued February 26, 2010

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

Case Name: Wyo. Med. Ctr., Inc. v. Wyo. Ins. Guar. Assn.

Citation: 2010 WY 21

Docket Number: S-09-0109

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

Representing Appellant Wyoming Medical Center, Inc.: Stephenson D. Emery of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing Appellee Wyoming Insurance Guaranty Association: James R. Bell of Murane & Bostwick, LLC, Casper, Wyoming.

Facts/Discussion: After the Wyoming Medical Center’s (WMC) insurer became insolvent, the Wyoming Insurance Guaranty Assoc. (WIGA) paid claims made against WMC. WIGA then filed a complaint against WMC claiming that it was obligated to pay the deductibles for each claim. Asserting that WIGA stood in the shoes of the insurer (PHICO), WMC argued that WIGA’s claim was barred by an earlier district court ruling that WMC was not obligated to pay the deductibles to its insolvent insurer. WIGA filed a summary judgment motion which the district court granted, ruling that WMC was obligated to pay the deductibles.

Res judicata: For res judicata to apply, the parties, the subject matter, the issues and the capacities of the persons must be identical. WMC contended that the requirement that the parties be identical was satisfied because PHICO and WIGA were in privity with each other. WMC asserted that WIGA authorized PHICO to demand payment from WMC of the deductible amounts on WIGA’s behalf. Pursuant to the plain language of § 26-31-106(a)(i), WIGA is obligated to pay “covered claims” which are those claims the insurer would have been obligated to pay but for its insolvency. The Court stated the legislature appeared to intend WIGA pay only what an insurer would have paid had it remained solvent. A solvent insurer would have been obligated to pay the claim amount less the deductible. There is wide support for construing insurance guaranty association statutes to mean that the rights and duties of such associations are limited to those explicitly set forth in the statutes. Res judicata does not apply to bar WIGA’s claim.
Set-off for attorneys’ fees: After PHICO’s insolvency, WMC paid the attorney fees at issue directly to the law firm for services it provided in defending WMC against claims covered under the policy. WMC asserted that PHICO, and therefore WIGA, would have been required to reimburse WMC for attorney fees and that a set-off against the judgment was an appropriate way to accomplish that. The Court stated that the Act reflected that the legislature drew the line between what is covered and what is not. Section 26-31-106(a)(i) makes it clear that WIGA was obligated to pay covered claims arising out of and within the coverage of an insurance policy. Section 26-31-103(a)(ii)(D) excludes supplementary payment obligations including attorney fees.

Conclusion: WIGA and PHICO were not identical and not in privity so as to make it appropriate to apply the default judgment in the breach of contract action against WIGA to bar its claim under the Insurance Guaranty Act. The definition of “covered claims” the legislature adopted expressly excludes attorney fees. The Court concluded that WIGA was not responsible for WMC’s attorney fees.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/y98qyyv .

[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.]

Thursday, February 25, 2010

Summary 2010 WY 20

Summary of Decision issued February 25, 2010

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

Case Name: Wyo. Outdoor Council v. Wyo. DEQ

Citation: 2010 WY 20

Docket Number: S-09-0062

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

Representing Appellant Wyo. Outdoor Council, Powder River Basin Resource Council: Steve Jones, Watershed Protection Program Attorney, Wyoming Outdoor Council, Lander, Wyoming.

Representing Appellee Wyo. DEQ, Water Quality Div.: Bruce A. Salzburg, Attorney General; Jay A. Jerde, Deputy Attorney General; John Burbridge, Senior Assistant Attorney General.

Representing Appellee Marathon Oil Co.: Brent R. Kunz of Hathaway & Kunz, PC, Cheyenne, Wyoming; John C. Martin, Duane A Siler, and Ben A. Ellison of Patton Boggs LLP, Washington, DC.

Representing Appellee Petroleum Assoc. of Wyoming: John A. Masterson of Rothgerber Johnson & Lyons, LLP, Casper, Wyoming.

Facts/Discussion: After the Wyo. Environmental Quality Council (EQC) adopted the DEQ proposed revisions to Chapter 1 of the Wyoming Water Quality Rules and Regulations (WWQR&R), the Wyo. Outdoor Council and the Powder River Basin Resource Council filed a petition challenging the new rules. The petitioners filed the DEQ as the respondent. Finding that the proper party was the EQC, which the petition did not name, the district court dismissed the petition for lack of jurisdiction.

Whether the district court erred in concluding it lacked jurisdiction because the petition did not name the EQC: The DEQ and EQC were created by the Wyoming Environmental Quality Act. The DEQ is a department within the executive branch and consists of six divisions including the water quality division. The director of DEQ appoints administrators for each division. The administrators enforce and administer the Environmental Quality Act and the rules and standards promulgated under the Act. Administrators also receive public comment and after consultation, recommend rules to the director. The EQC is responsible for conducting public hearings on changes the DEQ proposes to the DEQ rules. EQC is also charged with approving or disapproving the DEQ’s proposed rule changes. EQC is responsible for conducting public hearings on changes the DEQ proposes to the DEQ rules. The EQC is also charged with approving or disapproving the DEQ’s proposed rule changes. DEQ and its divisions are responsible for recommending, enforcing and administering DEQ rules and changes to the rules. The DEQ was a proper party to the district court appeal. As the administrative agency statutorily charged with carrying out the purposes of the Environmental Quality Act, the DEQ represented the State’s legal interest at the public hearing before the EQC. As stated in Antelope Valley, an administrative agency such as DEQ, acting in its regulatory or rulemaking capacity is a proper respondent to a district court appeal.
Joinder of EQC: Having concluded that the DEQ was a proper party to the appeal, it was not necessary for the Court to consider Petitioners’ argument that if DEQ was not a proper party they should have been allowed to join the EQC. The Intervenors contended that the joinder would not have been proper whether or not DEQ was a necessary party because by the time the issue was raised, the thirty day time limit imposed by W.R.A.P. 12.04(a) had passed. The Court concluded that the district court could have admitted the EQC as a party after the time for filing the petition for review had passed because there is nothing to suggest otherwise in either the statutes governing administrative actions or the rules governing judicial review of administrative action. Rule 19 requires joinder of all parties having a real interest in a proceeding. Rule 20 allows joinder of defendants against whom a right to relief is asserted and if questions of law or fact common to all defendants will arise in the action. Rule 21 allows a district court to drop or add parties at any stage of an action and on such terms as are just.

Conclusion: The EQC and the DEQ were both proper parties to the proceeding. The district court obtained jurisdiction when the petition naming the DEQ was filed. The district court erred in dismissing the petition for lack of jurisdiction on the ground that the EQC was not named in the petition.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ylmbjr8 .

[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 2010 WY 19

Summary of Decision issued February 24, 2010

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

Case Name: Weber v. State

Citation: 2010 WY 19

Docket Number: S-0900150

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): 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.

Holdings: The State conceded at oral argument that this case must be remanded to the district court for the purpose of allowing the appellant to withdraw his conditional no contest plea, and to plead anew. A conditional plea under W.R.Cr.P. 11(a)(2) may not be utilized to reserve argument on non-dispositive matters. The appellant’s motion seeking to prevent the admission of uncharged misconduct evidence under W.R.E. 404(b) was not a dispositive motion. The Court will not resolve other issues raised by the appellant because such issues may not survive in their current form, making any such resolution advisory in nature.

Reversed and remanded.

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

Link: http://tinyurl.com/yj32zv3 .

[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 23, 2010

Summary 2010 WY 18

Summary of Decision issued February 23, 2010

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

Case Name: BW v. State

Citation: 2010 WY 18

Docket Number: S-08-0216

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant BW (Father): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Father challenged his conviction for indirect criminal contempt on several grounds. The dispositive issue was whether the juvenile court followed proper procedural requirements in finding Father in indirect criminal contempt.

A court imposing criminal contempt must comply with the due process protections found in W.R.Cr.P. 42. A proceeding in indirect criminal contempt must be instituted and conducted as a separate and independent criminal action apart from the original cause in which the contempt arose. In Swain and UMWA, Local 1972 the Court held that failure to adhere to the separate and independent action rule constituted a fatal jurisdictional defect which rendered any judgment of contempt null and void. The Information against Father was filed in the underlying juvenile case, as was his Judgment and Sentence which violated the Court’s precedent.
Next the Court considered whether due process protections attendant to indirect criminal contempt proceedings apply to contempt actions in juvenile court under the Child Protection Act. The juvenile court statutes and rules are silent as to the process to be followed in pursuing an indirect criminal contempt action. The Court found that the general criminal contempt law regarding procedure to be followed applies to contempt proceedings arising under the Child Protection Act.

Conclusion: Within the context of the Child Protection Act, an alleged contemnor must be granted all due process rights mandated by law. Because the contempt proceeding against Father was not conducted as an independent criminal action apart from the underlying juvenile case, with its own caption and docket number, the juvenile court never acquired jurisdiction to proceed. Having no jurisdiction, it’s Judgment and Sentence of contempt is null and void and vacated.

Vacated.

J. Golden delivered the decision.

Link: http://tinyurl.com/yefnqfn .

[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 19, 2010

Summary 2010 WY 17

Summary of Decision issued February 19, 2010

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

Case Name: Thorkildsen v. Belden

Citation: 2010 WY 17

Docket Number: S-09-0154

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Appellant Thorkildsen: David G. Lewis of Jackson, Wyoming.

Representing Appellee Belden: Richard J. Mulligan of Mulligan Law Office; Heather Noble of Jackson, Wyoming.

Facts/Discussion: Thorkildsen appealed from the district court’s Order Granting Defendants’ Motion for Costs arguing that the district court erred in not including an award for attorney’s fees.

Thorkildsen argued that the order awarding costs but failing to address attorney’s fees amounted to an implicit denial of an award and that such action was error. The Court found Thorkildsen’s argument that the portion of his motion pertaining to attorney’s fees was “implicitly denied” or “deemed denied” unpersuasive.

Conclusion: Because the district court’s Order Granting Defendants’ Motion for Costs only addressed costs, the district court made no findings of facts and reached no conclusions of law with respect to attorney’s fees. Thus Thorkildsen was left to appeal only from an award of costs that he didn’t challenge. The Court’s remedy was to remand with instructions to make appropriate findings of facts and conclusions of law relating to the issue of attorney’s fees.

Remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ycbo5u2 .

[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.]

Thursday, February 18, 2010

Summary 2010 WY 16

Summary of Decision issued February 18, 2010

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

Case Name: Stewart v. State

Citation: 2010 WY 16

Docket Number: S-09-0198

Order Affirming the Judgment and Sentence of the District Court

The matter came before the Court on its own motion following notification that Stewart failed to file a pro se brief within the time allotted. The Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw” on December 14, 2009. That Order provided that the Judgment and Sentence would be affirmed unless Sutton filed a brief prior to February 1, 2010.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ylmnmft .

[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 16, 2010

Summary 2010 WY 15

Summary of Decision issued February 16, 2010

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

Case Name: Vigil v. State

Citation: 2010 WY 15

Docket Number: S-09-0053

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

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

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

Facts/Discussion: Vigil challenged his conviction of one count of third-degree sexual abuse of a minor contending that the district court erred in admitting evidence in violation of W.R.E. 404(b).

Timing of 404(b) hearing: The Court has expressed a firm preference for the pretrial determination of issues concerning uncharged misconduct however it has never found reversible error simply because the 404(b) hearing was not held prior to trial. Vigil had ample notice of the State’s intent to introduce the evidence. He failed to establish that he was prejudiced in any manner as a result of the timing of the hearing.
Admissibility of 404(b) evidence: Vigil contended that the district court abused its discretion by admitting evidence of a similar prior conviction. The State intended for the evidence to establish that the touching was made with the intent of sexual arousal and to prove that touching was not the result of accident or mistake. Vigil also contended that the district court did not properly weigh the probative value of the evidence against the danger for unfair prejudice. The record demonstrated that the district court conducted an appropriate analysis of the 404(b) evidence and it established a legitimate basis for the ruling.
Jury instruction: Vigil contended the limiting instruction given by the district court allowed the jury to consider the prior conviction for improper purposes. He asserted that the instruction was erroneous because the State did not seek to use the uncharged misconduct as evidence of motive or plan. The Court has previously recognized that the State and the district court must identify the specific purpose of the 404(b) evidence. Vigil failed to establish that he was prejudiced in any manner by the inclusion of the words “motive” and “plan” in the limiting instruction. Additionally, he did not demonstrate that inclusion of the word “plan” in the instruction impacted the verdict.

Conclusion: Vigil failed to establish that he was prejudiced as a result of the timing of the 404(b) hearing. The district court conducted an appropriate analysis of the evidence and established a legitimate basis for the ruling. Defense counsel and the State both agreed in closing that the jury’s decision should be based upon the credibility of the victim. The jury found her testimony believable.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/yg7axs7 .

[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 2010 WY 14

Summary of Decision issued February 12, 2010

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

Case Name: Phillip v. State

Citation: 2010 WY 14

Docket Number: S-09-0080

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

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

Representing Appellee (Plaintiff): 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: This matter arose out of a fight that occurred in a bar in Casper, Wyoming, on July 18, 2008. During the altercation, the appellant bit off a piece of the ear of another patron, and as a result was charged with one count of aggravated assault and battery. The appellant pled not guilty and a jury trial was held. The jury found the appellant guilty as charged. The appellant timely appealed.

Issues: Whether the district court erred when it gave the jury an instruction regarding an aggressor’s right to self-defense claiming that there was no evidence presented at trial that supported a finding that he was the aggressor in the conflict. Whether the district court erred when it admitted into evidence the appellant’s Affidavit of Indigency for impeachment purposes.

Holdings: The appellant did not object at trial to the instruction to which he now takes exception. Therefore the appellant’s claim will be reviewed under a plain error analysis.

The instruction at issue read:

YOU ARE INSTRUCTED that generally, the right to use self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he wants to end the conflict, and he is thereafter pursued or attacked, he then has the same right of self-defense as any other person.

There is no dispute that the appellant and the victim had been engaged in a verbal confrontation, based on the appellant’s, the victim’s, and the witnesses’ testimonies. It is also not disputed that the victim threw the first punch. However, the record also shows the victim testified he only punched the appellant after the appellant came toward him in an aggressive manner. In instances such as that presented here, where opposing parties claim the other was the aggressor, the task on appeal is not to weigh the evidence, but only to determine whether the district court could reasonably conclude that there was competent evidence from which the jury might find the party claiming self-defense was the aggressor. The instruction on self-defense as given was a correct statement of Wyoming law, and the jury was presented with testimony that could reasonably support a finding that the appellant was the aggressor. Therefore, the appellant has failed to show a violation of a clear and unequivocal rule of law, thereby failing to prove plain error.
The affidavit of indigency contained a sworn statement which was inconsistent with the appellant’s trial testimony. Showing that a witness made statements inconsistent with his testimony is one of five recognized means of impeachment. The purpose of this type of impeachment evidence is to show a witness to be generally capable of making errors in his testimony. The admissibility of evidence of prior inconsistent statements for impeachment purposes is not without limits, however. The cross-examiner may not impeach a witness on a collateral matter. Collateral matters are generally considered to include facts irrelevant to the substantive issues in the case and facts which are not independently provable by extrinsic evidence, apart from impeachment purposes. The test which determines if a matter is collateral is whether the matter could be introduced for any purpose other than to contradict. When a defendant in a criminal action takes the witness stand in his own defense, his credibility becomes an issue. Credibility of witnesses is always a question of fact for the trier of fact to determine. The evidence of the prior inconsistent statement in the present action was offered, admitted, and ultimately used for the purpose of challenging the appellant’s credibility. Furthermore, it is conceivable that the Affidavit of Indigency and the statements contained therein would have been independently admissible for purposes other than to show contradiction. Finally, whether evidence was collateral is a question primarily left to the discretion of the district court and, upon reviewing the entire record, it cannot cannot be said that the district court abused its discretion in admitting the affidavit.
Under the maxim, falsus in uno, falsus in omnibus, as strictly interpreted, if a witness testifies falsely as to any one material part of his testimony, his testimony should be discarded as a whole, and cannot be relied on for any purpose whatever, unless strongly corroborated; but this rule is not inflexible. It is true that the maxim should only be applied, if applied at all, where a witness falsely testifies to a material fact. However, under the facts presented here there is a question whether the falsus in uno maxim, as a separate legal concept, was ever even considered by the jury. The jury was told it was at liberty to disregard any witness’s testimony if it believed from the facts that the witness’s testimony was false. Likewise, the prosecutor never told the jury that it must disregard all of the appellant’s testimony because of the inconsistencies, as required by strict application of the falsus in uno maxim. Rather the prosecutor merely referenced the inconsistencies and told the jury it may consider such inconsistencies when judging the appellant’s credibility. Thus, the falsus in uno maxim was never plainly invoked in either the jury instructions or in any of the prosecutor’s comments. To find otherwise would require speculation and assign meaning not expressly conveyed in either instance. Furthermore, even if the jury was erroneously instructed on the falsus in uno concept, the appellant fails to point to anything in the record showing that the jury applied this maxim to his prejudice. The jury may have assigned more weight to the victim’s version of the events, or found the state’s evidence to be more credible; however, nothing in the record indicates that the jury disregarded all or even part of the appellant’s testimony.
The appellant asserts the admission of the Affidavit of Indigency violated his constitutionally protected right to equal protection by implicitly revealing to the jury that he was represented by a court-appointed attorney. The appellant contends that as an indigent, he was wrongfully subjected to ill feelings, resentment, and a general belief that those who are represented by public defenders are more likely to be guilty than those represented by retained counsel. The appellant cites no authority holding that that admission of an indigency affidavit, under the circumstances and for the purpose presented here, amounts to a violation of law. In fact, the only authority the appellant cites involves a defendant being presented to a jury in prison clothing and shackles – clearly a different scenario than the present. Furthermore, the appellant provides no support for his statements that the public is resentful of defendants represented by court-appointed counsel and automatically assume the individual is guilty. While it is clear from the record that the affidavit was used at trial, the appellant fails to show a violation of a clear and unequivocal rule of law or that he was unfairly prejudiced.
Next the appellant claims that admission of the Indigency Affidavit resulted in a violation of his Fifth Amendment right against self-incrimination. It is difficult to discern the thrust of the appellant’s argument inasmuch as he does not specify what information contained in the affidavit might have been incriminating. The appellant cites one tangentially related case and then concludes, without analysis or argument, that that case should govern here. The case cited, United States v. Hardwell is readily distinguishable from the present case. In Hardwell, the defendant was convicted of money laundering. The prosecution introduced the defendant’s financial affidavit into evidence in its case in chief as substantive evidence of the fact the defendant did not have a legitimate source of income. The lack of a legitimate source of income was a key element to the money laundering charge. The court held such use of that evidence violated the defendant’s Fifth Amendment right against self-incrimination.
Here, in contrast, the affidavit was not used as substantive evidence, but only for purposes of impeachment, and not until the appellant was testifying during the presentation of his case. The United States Supreme Court has held that such a use is proper and not in contravention of a defendant’s Fifth Amendment rights. In Harris v. New York the Court held that voluntary statements made by a defendant, although later deemed inadmissible as substantive evidence by the Fifth Amendment, could be used as impeachment evidence against the defendant if he testifies. , Miranda v. Arizona bars the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. However, it does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. As a result, it is unnecessary to determine whether the evidence admitted via the Affidavit of Indigency in the present action was obtained in violation of the appellant’s Fifth Amendment rights inasmuch as the evidence here was used only for impeachment purposes.
Finally, the appellant contends that his Sixth Amendment right to counsel was violated when he was compelled to answer the questions on the Affidavit of Indigency without counsel present. Once again, it is unnecessary for us to determine whether the appellant’s right to counsel was, or was not, abridged here inasmuch as the same principle discussed in the Fifth Amendment discussion applies in the context of an alleged Sixth Amendment violation. That is, even if the evidence was unlawfully obtained because a defendant’s right to counsel was not properly observed, the evidence may still be used for impeachment purposes. The prosecution must not be allowed to build its case against a criminal defendant with evidence acquired in contravention of constitutional guarantees and their corresponding judicially created protections. But use of statements so obtained for impeachment purposes is a different matter. If a defendant exercises his right to testify on his own behalf, he assumes a reciprocal obligation to speak truthfully and accurately In the present case, because the evidence contained in the affidavit was used only for impeachment, the appellant’s claim that he was denied his right to counsel must necessarily fail.

Conclusion: The evidence in the record could reasonably support the jury’s conclusion that the appellant was the aggressor in the altercation; therefore the district court did not err when it instructed the jury regarding an aggressor’s forfeiture of his right to self-defense. Additionally, the Affidavit of Indigency was properly admitted as a prior inconsistent statement under W.R.E. 613(b), and the district court did not abuse its discretion in admitting the affidavit. The appellant was unable to satisfy his burden of showing that the jury was erroneously instructed on the falsus in uno, falsus in omnibus maxim, or that even if so instructed, that he was prejudiced thereby. Finally, the appellant also failed to demonstrate that the admission of the Affidavit of Indigency resulted in an abridgement of his constitutionally protected right to equal protection, his Fifth Amendment right against self-incrimination, or his Sixth Amendment right to counsel.

Affirmed.

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

Link: http://tinyurl.com/yg7axs7 .

[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 2010 WY 13

Summary of Decision issued February 10, 2010

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

Case Name: Bd. of Prof. Responsibility, Wyo. State Bar v. Bustos

Citation: 2010 WY 13

Docket Number: D-10-0001

Order of Public Censure

The matter came before the Court upon a “Report and Recommendation for Public Censure” filed January 26, 2010, by the Board of Professional Responsibility for the Wyoming State Bar pursuant to Section 16 of the Disciplinary Code. After the Court reviewed the Report and Recommendation, the respondent’s Section 16 Affidavit and the file, found that the Report and Recommendation should be approved, confirmed and adopted.

Respondent shall receive a public censure for his conduct in a manner consistent with the recommended censure contained in the Report and Recommendation. Pursuant to Section 26, Bustos shall reimburse the Wyoming State Bar for $525.00 before March 30, 2010. The order shall be docketed as a public record and published in the Wyoming Reporter and the Pacific Reporter, served upon the Respondent and transmitted to the members of the Board of Professional Responsibility and the appropriate clerks of court.

The Report and Recommendation for Public Censure can be found at the link below.

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

Link: http://tinyurl.com/yl2qprv .

[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.]

Thursday, February 11, 2010

Preview of LexisNexis for MS Office

Greg Lambert of 3 Geeks and a Law Blog posted an article on LexisNexis' upcoming option for those using MS Office.




Preview of LexisNexis for MS Office

I had a great conversation with Darrell Huntsman, VP for New Lexis Innovation Initiatives, yesterday along with a demonstration of the new LexisNexis for Microsoft Office product. This is ‘Phase I’ of Lexis’ two phase project to rebuild their legal research product ‘from the ground up.’ The second phase will be the ‘New Lexis’ online research product that will be launched probably early in 2011. An interesting comment from Huntsman was that many of the changes that were announced in the WestlawNext product will be very similar to the New Lexis product.

Why LexisNexis for MS Office?
When I asked Darrell why produce a product that is so integrated with MS Office, he said that they were looking to go “where the lawyers worked.” Lexis’ research determined that a majority of the lawyer’s work is in building documents. Whether it is a brief, a client memo, contract or other document, lawyers spend most of their time working within MS Office. Lexis’ idea is to build their research database information into MS Office so that lawyers are spending less time toggling between their document tools (MS Office) and their research tools (LexisNexis). So Lexis turned to the Microsoft development team to create a seamless method of connecting the MS Office Suite (Outlook, Work and even SharePoint) to Lexis. In case you missed the subtlety of that comment, Lexis is not programming the resource, Microsoft is.

New Version of Lexis Classic?
When I saw the look of the product, I immediately thought of the old “Lexis Classic” software that we finally weaned users off of a few years ago. The difference being that the software was now MS Office rather than Lexis’ stand alone product. It is an interesting approach in moving from the “web” platform (which most research vendors have pushed since 1998) back to a “software” platform.
When I asked if the ‘views’ that we see when research results are brought back from Lexis are simply an embedded version of Internet Explorer, Huntsman says that it is not. Instead the MS Office product runs an ‘X-Link’ call to the Lexis database and pipes in the results. Those results are then formatted by Word or Outlook or SharePoint, and are not web versions at all. Later versions will optimize the layout for multiple-monitor viewing. This makes me wonder if the already over bloated MS Office tools will be even slower as a result. Huntsman says that it will not decrease the speed of MS Office or slow your computer down when making these ‘X-Link’ calls. Of course, color me skeptical on that issue.

Built for MS Office 2010 - Backward Compatible to 2007, But Not 2003
The LN for MS Office product is specifically designed for the upcoming Office 2010 product that is releasing this summer. Lexis is taking advantage of the MS Office ribbon feature (you know that ‘feature’ that made learning Office 2007 so hard to do?) When pressed on how many of the LN clients that will be interested in this product already have MS Office 2007, Huntsman said that probably more than 25% of the firms already had 2007, but that there is a great amount of pressure on those running older versions of Office to move to either 2007, or upgrade to 2010 very soon. The low percentage may not be a bad thing for LexisNexis right now because they are still working on hardware upgrades on this product, and the New Lexis product. So a longer transition period will help LexisNexis make sure they have the capacity to handle all the new demand. Perhaps Lexis felt the pressure from the competition to roll out the announcement of LexisNexis for MS Office a little sooner than they wanted.

DMS Integration & LexisNexis Legal Taxonomy Built-In
LexisNexis for MS Office will have some interesting features that caused the Knowledge Management portion of my brain to wake up and take interest. It will integrate with most Document Management Systems (DMS) through the indexing features (Autonomy, FAST, Recommind, etc.) On top of that, it appears that it will include some of the LexisNexis taxonomy profiling features found in the Lexis Search Advantage product. It will also index the documents on the local hard drive and apply the same profiling features. The taxonomy profiling will be a significant value-added piece of LexisNexis for MS Office.

Search Lexis, DMS, Local or Web Within MS Office
I have a standard question that I usually ask anyone showing me a new product. “What is one thing in your product that you think is really useful, but may be overlooked by the user?” When I asked this of Darrell, he had a hard time coming up with a quick answer, then finally came up with the “Search Box” function that appears in the MS Office ribbon. This search box allows you to search “all” or “individually” the Lexis database, the firm’s DMS, your local computer, or the Web. Not surprisingly, Bing is the default search engine (it is a Microsoft project!) The problem with the search box isn’t that it is an advanced feature, but rather that users just aren’t used to searching directly within Office. So it will take some getting used to.

Love It or Hate It - LexisNexis & SharePoint Integration
I get a lot of mixed reactions when I mention SharePoint to IT or KM folks. Many like the flexibility of SharePoint, while others cringe at the thought of trying to maintain the security and functionality of the product. If you do like SharePoint, then LexisNexis is integrating webparts that will add features to SharePoint portal through the LexisNexis for MS Office product. If you hate SharePoint, then this will probably not change your mind.

What About All Those Other Lexis Products?
For those of you that have other Lexis products, such as InterAction, atVantage, CourtLink, etc., there is discussion at Lexis to eventually begin bringing in these pieces to LexisNexis for MS Office. The CRM resources seem to be a natural fit for this product, so I assume this is high on the priority list for inclusion into the new product. As for the others, we’ll have to see how the integration goes.

Other Issues With LexisNexis for MS Office
LexisNexis for MS Office will begin Beta Testing later this month and the roll out will begin sometime in the Spring (Mar-Jun '10). I did not get into the pricing model, but have read that it could be simply an "add-in" for existing customers with an installation charge, but did not get verification. It apparently doesn't access all LexisNexis databases at this time, but I imagine this is something that will be added over time. Also, in the initial version, there will not be a cost recovery module (researcher will not be able to enter client/matter numbers). This will be added in later versions. Also, if you use cost recovery products (Research Monitor, OneLog or LookUp Precision), these products will not work with LexisNexis for MS Office.

There is still a way to go on getting this ready for full-blown research capability, but there will be some attorneys that will love the ability to do everything within MS Office.
[gl]

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Tuesday, February 09, 2010

Summary 2010 WY 12

Summary of Decision issued February 9, 2010

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

Case Name: Boyer-Gladden v. Deputy Sheriff Hill

Citation: 2010 WY 12

Docket Number: S-09-0102

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

Representing Appellant Boyer-Gladden: Bernie Q. Phelan, The Phelan Law Firm, Cheyenne, Wyoming.

Representing Appellee Hill: Kay Lynn Bestol of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Representing Appellee Glick: Nancy D. Freudenthal and Mark Stewart of Davis & Cannon, LLP, Cheyenne, Wyoming; Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General.

Facts/Discussion: Boyer-Gladden claimed that while she was a pretrial detainee in the Laramie County Detention Facility, she was sexually assaulted by a detention deputy.

WGCA claim: The sexual assault occurred on Nov. 9, 2004. Boyer-Gladden’s claim was presented to Laramie County on June 15, 2006, well within the two-year period mandated by § 1-39-113(a). Boyer-Gladden filed her complaint in district court on Dec. 22, 2006 but the deputy was not served until Oct. 5, 2007. Consequently, the suit was not commenced within the one-year statutory period. The state law tort claims against the deputy under WGCA were time-barred.
State law tort claim (Hill): The district court initially denied the deputy’s motion for summary judgment on this claim on the ground that sexual assault was outside the deputy’s scope of duties. After the Krenning decision, the district court reconsidered and granted summary judgment finding that Boyer-Gladden consistently pled and argued that the deputy was acting within the course and scope of his duties and that the WGCA was applicable. The Court found that decision to be correct as it applied to the only state law tort claim appealed (for intentional infliction of emotional distress.) The statute of limitations governing WGCA was correctly applied. Both this case and Krenning are concerned with what was pled rather than what was done.
Federal civil rights claim (Hill): The Court concluded that the § 1983 claim against the deputy was made in his personal capacity rather than his official capacity. Therefore, the summary judgment granted to the deputy on the claim was reversed because it was based upon the district court’s conclusion that there was no evidence the deputy had violated a custom or policy of the county or the sheriff’s office. Such evidence is not required to show a personal-capacity violation of § 1983.
State law tort claims (Glick): There was no evidence in the record that the sheriff, within the scope of his own duties negligently hired or supervised the deputy, or failed to enact reasonable rules for the protection of inmates. In fact, the only evidence in regard to the accusations was that sexual contact between detention deputies and inmates violated the rules of the sheriff’s office, that the deputy had been trained under those rules, and that the sheriff had no knowledge of the deputy’s conduct until after the fact and that the sheriff immediately suspended and then terminated the deputy’s employment. Neither the sheriff nor the county was liable for the tortuous conduct of the deputy because that conduct did not occur within the deputy’s scope of duties and neither the sheriff nor the county was liable for the conduct of the sheriff even though within the scope of his duties, because his conduct was not tortuous.
Federal civil rights claim (Glick): Boyer-Gladden’s § 1983 action against the sheriff was in his official capacity. A governmental entity cannot be held liable solely on a theory of respondeat superior. A governmental entity may only be liable in quite particular circumstances. The plaintiff must demonstrate that through its deliberate conduct the municipality was the “moving force” behind the injury alleged. The sheriff was sued in his official capacity and there was no evidence that a custom or policy of the county or of the sheriff played any part in the alleged violation of Boyer-Gladden’s civil rights.

Conclusion: The Court affirmed the ruling of the district court, with the exception of the summary judgment granted on the § 1983 personal–capacity action, and the Court remanded to the district court for further proceedings.

Affirmed in part and reversed in part.

C.J. Voigt delivered the decision.

J. Kite specially concurring, joined by J. Burke: The Justices wrote to address an issue raised by footnote 3 regarding whether failure to comply with the statute of limitations contained in § 1-39-114 deprived the court of jurisdiction. Such an analysis was unnecessary in the instant case because Boyer-Gladden’s claim was barred by her failure to file within one year of the filing of her claim as provided in § 1-39-114.

Link: http://tinyurl.com/yc9tb3o .

[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.]

Monday, February 08, 2010

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Friday, February 05, 2010

Summary 2010 WY 11

Summary of Decision issued February 5, 2010

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

Case Name: Roden v. State

Citation: 2010 WY 11

Docket Number: S-08-0233

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Roden: Diane M. Lozano, State Pubic Defender; Tina N. Kerin, Appellate Counsel, Diane E. Courselle, Faculty Director; Zane A. Gilmer, Student Intern and Jodanna L. Haskins, Student Intern, Defender Aid Program.

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

Facts/Discussion: Roden was convicted of conspiracy to commit aggravated robbery, two counts of aggravated robbery, and two counts of aggravated assault and battery.

W.R.E. 404(b) evidence: Roden asserted reversible error occurred when the State elicited testimony concerning other instances of misconduct. If a demand for notice is going to be treated as an objection to the challenged testimony, it must be made in the trial court. Roden first alleged that error occurred in the State’s solicitation of testimony indicating Roden had been previously involved buying and selling meth. The Court could find no such testimony in the transcript. The second error concerned testimony that the witness Ott was acquainted with Roden from past instances of selling drugs and stolen goods. The challenged testimony arose when Ott revealed that Roden gave him $5,000.00 for the purpose of purchasing a pound of meth. The testimony was allowed because the prosecutor limited his inquiry to that information necessary to demonstrate why it was not uncommon for Ott and Roden to exchange large sums of money. Roden’s trial counsel opened the door when he made an issue of the plausibility of Ott’s testimony concerning the nature of the money exchange. Finally, Roden found error in Hodges’ testimony that she recognized him from a previous encounter in Rapid City where they had used drugs together in a motel room. Although it was evidence of uncharged misconduct, it was unintentionally solicited by the prosecutor. The prosecutor had asked about a timeline and the supplemental information was a spontaneous offering designed to support Hodges’ identification of Roden.
Testimony of convictions: The prosecutor elicited testimony from Ott and Hodges regarding their conviction and guilty plea. The record clearly reflected the error. Roden relied on the rule in Kwallek that when two persons are indicted for separate offenses growing out of the same circumstances, the fact that one person had pleaded guilty is inadmissible against the other. Hodges’ testimony violated the Kwallek rule because it explicitly linked her robbery conviction to the same robbery for which Roden was on trial. Ott did not testify on direct examination that his convictions were related to or stemmed from the same circumstances underlying the charges against Roden. The Court noted that the testimony was not extensive and the State’s case against Roden would have been sufficient even without it. The jury’s attention was not inordinately directed to the improper evidence so the case is distinguishable from Kwallek.

Conclusion: Roden failed to convince the Court that reversible error existed with respect to any of the issues raised.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/ydh8wke .

[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.]

Thursday, February 04, 2010

Summary 2010 WY 10

Summary of Decision issued February 4, 2010

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

Case Name: Dutcher v. State, ex rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 10

Docket Number: S-09-0093

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Dutcher: Kenneth DeCock, Plains Law Offices LLP, Gillette, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Facts/Discussion: After experiencing sudden numbness and weakness on his left side while at work, Dutcher sought workers’ compensation benefits. Dutcher was examined by three neurologists, two of whom gave a diagnosis of brachial plexopathy and one which gave the diagnosis of cervical myelopathy combined with significant thyroid dysfunction.

Substantial evidence: One difficulty with Dutcher’s claim was that two out of the three doctors upon whom he relied did not state that the brachial plexopathy was related to his work. Another problem was that there was inconsistency in the reports Dutcher gave of the events to the physicians over time. The third neurologist made his diagnosis on Dutcher’s self-report which differed from the report given to the first two physicians. The testimony from the physicians was not sufficient to relate the possibility of the injury to the work Dutcher was doing at the time.

Conclusion: There was no question that Dutcher experienced left-sided weakness at work after lying on his left side while cleaning equipment. The difficulty with the claim was that the physicians did not all agree on a diagnosis and none of them sufficiently linked his condition to his work.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ycalyn5 .

[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.]

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