Summary 2013 WY 46

Summary of Decision April 19, 2013

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: TRAVIS J. KOVACH v. THE STATE OF WYOMING

Docket Number: S-12-0150

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge.

Representing Appellant: Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY; and Tim Newcomb, Laramie, WY. Argument by Mr. Newcomb.

                       
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: April 19, 2013

Facts: Travis Kovach was a passenger in a vehicle traveling on a narrow backcountry road.  As the vehicle in which Kovach was traveling passed another oncoming vehicle, the two vehicles clipped each other.  Kovach pursued the other vehicle, and after catching up with it, he assaulted the vehicle’s seventy-three-year-old driver and sixty-seven-year-old passenger.  Kovach then forced the two men back to his hunting camp, where he again assaulted them. 

A jury found Kovach guilty of numerous charges, including false imprisonment, felonious restraint and aggravated assault and battery.  On appeal, Kovach contended the prosecutor suppressed exculpatory evidence in violation of his state and federal due process rights.  He also challenged the district court’s order requiring him to disclose witness statements and its imposition of sanctions related to that order; alleged misconduct in the prosecutor’s failure to correct false or misleading testimony; alleged the district court relied on impermissible information in sentencing; and alleged the district court erred in sua sponte issuing an amended judgment correcting the fine imposed against Kovach. 

Issues:    Kovach presents eight issues on appeal, which we consolidate and restate as follows:

1.      Did the prosecutor suppress exculpatory evidence in violation of Kovach’s federal and state due process rights?

2.      Did the district court abuse its discretion and violate Kovach’s federal and state constitutional rights when it ordered him to disclose witness statements and then limited his cross-examination of two prosecution witnesses as a sanction for failure to comply with that order? 

3.      Did the prosecutor commit plain error in violation of Kovach’s due process rights by failing to correct the testimony of two witnesses? 

 4.      Did the district court commit plain error in its sentencing of Kovach by relying on uncharged misconduct evidence and by sua sponte issuing an amended judgment correcting the fine imposed against Kovach?

Holdings: The Court found no violation of Kovach’s constitutional rights in the prosecutor’s failure to disclose information to the defense or in the district court’s discovery orders. The Court further found no prosecutorial misconduct, and no plain error in the court’s sentencing decisions and order. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 43

Summary of Decision April 12, 2013


Justice Davis delivered the opinion for the Court. Affirmed.

Case Name: IN THE INTEREST OF: MC, HC and CC, Minor Children, DL, v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES

Docket Number: S-12-0199

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge.

Representing Appellant: Curtis Cheney of Messenger & Overfield, PC, Thermopolis, Wyoming

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.

Representing Guardian Ad Litem: Dan S. Wilde, Permanency Attorney, Wyoming Guardian Ad Litem Program, Cheyenne, Wyoming; and Claudia Lair, Student Intern. Argument by Ms. Lair.

Date of Decision: April 12, 2013

Facts: After an adjudicatory hearing in this abuse and neglect case, Appelllant was found to have neglected her three children. She challenged that decision on the grounds that she was denied fundamental due process rights because the trial court declined to grant a motion to dismiss or to strike witnesses after claimed discovery violations by the State, and because the evidence was insufficient to support a finding of neglect.

Issues: 1. Did the trial court abuse its discretion when it denied Appellant’s motion to dismiss and to strike witnesses for claimed discovery violations that were not brought to the court’s attention until the date of the trial, and did its rulings on this issue result in a denial of due process?

2. Was there sufficient evidence to support the trial court’s finding of neglect?

Holdings: The Court found that the trial judge did not abuse his discretion in dealing with the claimed discovery violations, that Appellant received due process, and that the evidence was sufficient to support a finding of neglect. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2010 WY 112

Summary of Decision issued August 5, 2010

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

Case Name: McClure, Jr. v. State

Citation: 2010 WY 112

Docket Number: S-09-0243

Appeal from the District Court of Lincoln County, the Honorable Dennis L. Sanderson, Judge.

Representing McClure: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Craig C. Cook, Student Intern for the Prosecution Assistance Program

Facts/Discussion: McClure appealed from the district court’s order denying his motion for new trial based on newly discovered evidence. McClure contended he was denied both his right to be present and his right to confront witnesses against him when the district court held the hearing on his motion for new trial without his physical presence. He also claimed his right of confrontation was abridged when two witnesses were permitted to testify telephonically at the hearing.
The constitutional provisions requiring a defendant’s presence pertain only to proceedings that are a part of, and are critical to the outcome of, the criminal prosecution. McClure did not direct the Court to any authority that the constitutional right extended to a hearing on a post-trial motion for a new trial. Similarly, McClure did not demonstrate that the procedures employed by the district court – requiring him to appear by telephone and allowing two witnesses to testify telephonically – abridged his right to confrontation under the Sixth Amendment. The decisions of the United States Supreme Court establish that the right to confrontation is a “trial” right.

Conclusion: The Court was unable to conclude that a clear and unequivocal rule of law was transgressed.

Affirmed.

J. Golden delivered the decision.

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

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 111

Summary of Decision issued August 5, 2010

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

Case Name: Zumberge v. State

Citation: 2010 WY 111

Docket Number: S-09-0255

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Zumberge: Michael Reese, Contract Appellate Counsel, of Michael Henry Reese, PC; Diane Lozano, Wyoming Public Defender; Tina N. Kerin, Appellate Counsel.

Representing 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: Zumberge appealed his conviction for felony driving while under the influence, alleging that his constitutional rights to due process of law and to confront witnesses were violated by the district court’s failure to reasonably accommodate his hearing impairment at trial. Under the Wyoming and federal constitutions, a clear and unequivocal rule of law exists requiring a court to make reasonable accommodations to ensure that a hearing impaired individual can hear and properly participate in the proceedings. It was not until sentencing that Zumberge notified the district court that he had had significant trouble hearing during voir dire and during his trial, and that the means adopted by the district court to prevent that problem were inadequate. The Court noted in their review of the record that the district court had informed Zumberge several times that if he had trouble hearing, he needed to make the court aware of it. The record showed the accommodations made by the district court were reasonable and adequate.

Conclusion: The district court did not abuse its discretion when evaluating Zumberge’s hearing impairment and making accommodations to ensure that he could hear the proceedings.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2c7gs72 .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 100

Summary of Decision issued August 19, 2009

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

Case Name: Abromats v. Wood

Citation: 2009 WY 100

Docket Number: S-08-0195; S-08-0196

Appeal from the District Court of Big Horn County, the Honorable Steven R. Cranfill, Judge.

Representing Abromats: Philip E. Abromats of Philip E. Abromats, PC, Greybull, Wyoming.

Representing Wood: Bradley T. Cave of Holland & Hart LLP, Cheyenne, Wyoming and Hadassah M. Reimer of Holland & Hart, Jackson, Wyoming.

Facts/Discussion: The Abromats requested relief from summary judgment to the Woods claiming the district court erred when it found that one allegedly defamatory statement contained in a victim impact statement was not libel per se and that the other allegedly defamatory statement was protected by qualified immunity as a statement concerning a common interest.

Published victim statements: The court’s need for evidence demands that all participants in the process of gathering evidence for use at trial be immune from any liability for damages. The Abromats argued that the Woods were not immune to a civil suit based on their publication of the victim impact statement to a crime victim service provider which is neither a court nor a prosecutor. However, Wyoming law creates a statutorily defined role for such providers and those providers are an important conduit for information between the State and the victim. Wyoming has a strong public policy of protecting victims of crimes from harassment. Therefore, the Woods’ publication of statements for submission to the court in an underlying criminal case cannot be used to support a civil suit for libel. The document was prepared for the purpose of submission to the court and was not published to anyone for any reason outside that purpose.

Conclusion: Statements made by the victim of a crime to a crime victim service provider for submission to the court, which were not published to anyone else for any other purpose, cannot support tort liability for libel because a victim has absolute immunity as a witness when making statements in the court of the judicial proceedings.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/kmbp5g

[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 54

Summary of Decision issued April 16, 2009

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

Case Name: Bowser v. State

Citation: 2009 WY 54

Docket Number: S-08-0061

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

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

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham Macdonald Smith, Assistant Attorney General.

Facts: Appellant appeals his convictions on two counts of immoral or indecent acts with a minor in violation of Wyo. Stat. 14-3-105 (2005). He challenges the district court’s decision permitting the alleged victim, a minor child, to testify at trial by video deposition. He also contends that the seating arrangement at the video deposition violated his constitutional right to confront witnesses against him because he was prevented from seeing the witness while she testified.

Issue: Whether there was a violation of Appellant’s right to confront witnesses against him as a result of failure to follow the requirements of Wyo. Stat. Ann. § 7-11-408.

Holdings: As a general proposition, in criminal cases, witness testimony should be presented by oral testimony of the witness at trial. W.R.Cr.P. 26(a) provides: “In all trials, the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, or by these rules, by the Wyoming Rules of Evidence, or by other rules adopted by the Supreme Court of Wyoming.” The particular statute at issue in this case is Wyo. Stat. Ann. § 7-11-408 which permits videotaped depositions in sexual assault cases when the victim is a child less than twelve (12) years of age. The statute also establishes a procedure to be followed.
It is undisputed that, in this case, the alleged victim was a child under the age of twelve. It is also undisputed that Appellant was charged with incest and sexual assault. Before ordering that deposition, however, the court “shall find” that the testimony is “relevant and material,” that the “best interests of the child” would be served by permitting the deposition, and that “[a] potential physical or psychological harm to the child is likely to occur . . . which would effectively render the child incapable to testify at the trial.” The court in this action made no specific findings and there was no evidence presented to the court by the State in support of its request to take the deposition.
It appears to be undisputed that the seating arrangement at the deposition resulted in Appellant having, at best, an obstructed view of the witness during her testimony. Pursuant to Wyo. Stat. 7-11-408(d)(i), denial of face-to-face confrontation is permitted only if two conditions are met. The first is that the defendant must be “alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child.” Here, it is questionable whether this requirement was met. There is no specific allegation of physical harm in the Information and the State did not allege that Appellant committed or threatened physical harm to the witness in support of its motion to permit the videotape deposition.
The second requirement of the statute that must be satisfied is that “physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant.” Wyo. Stat. 7-11-408(d)(i). The trial court must also find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. Here, the district court did not make any finding that this requirement had been satisfied. More significantly, there was no evidence in the record that would support that finding. The State did not present any evidence on the issue. In the absence of such a finding, and evidence to support it, the Appellant was denied his right of face-to-face confrontation.
Use of the deposition in lieu of trial testimony is governed by Wyo. Stat. Ann. § 7-11-408(e). Before the deposition may be introduced at trial the judge must find, after a hearing, that “[a] potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.” The court made no specific findings and there was no evidence presented by the State in support of its request to use the deposition in lieu of the witness’s testimony. According to the State: “the district court has implicitly adopted the States [sic] uncontroverted showing that a videotape deposition was both in the witness’s best interest as well as that she would be effectively rendered incapable of testifying.” Even if we were to agree that “implicit findings” were sufficient to satisfy the statutory mandate, there is no evidence in the record to support those findings. In the absence of any evidence satisfying the requirement of Wyo. Stat. Ann. § 7-11-408(e)(iv), the district court erred in permitting DM’s testimony to be presented by video deposition.
Having found that there was a failure to comply with Wyo. Stat. Ann. § 7-11-408, it must be determined whether the error was harmless. The State bears the burden of establishing that an error violating a defendant’s constitutional right to confront adverse witnesses is harmless beyond a reasonable doubt. In conducting the analysis, the witness’s testimony must be disregarded in its entirety. “An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Any attempt to determine the impact of the testimony had it occurred in open court or had Appellant been afforded face-to-face confrontation would “involve pure speculation.” Absent this testimony, Appellant’s conviction cannot stand. At most, the remaining evidence establishes that Appellant masturbated in his home, and that he viewed pornography, but it does not establish that the child was present during those incidents. Neither activity is sufficient to sustain convictions for indecent acts with a minor if the minor is not present. It is impossible for the Court to conclude beyond a reasonable doubt that the violations of Appellant’s Sixth Amendment rights were harmless.

Conclusion: The State failed to satisfy the requirements of Wyo. Stat. § 7-11-408 because it failed to provide any evidentiary foundation for the restricted seating arrangement at the deposition or use of the video deposition at trial.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/cbljoc .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2009 WY 42

Summary of Decision issued March 25, 2009

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

Case Name: Greene, D.C. v. State, ex rel., Board of Chiropractic Examiners

Citation: 2009 WY 42

Docket Number: S-08-0137

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Greene: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Michael L. Hubbard, Deputy Attorney General; Ryan Schelhaas, Senior Assistant Attorney General; Kennard F. Nelson, Senior Assistant Attorney General.

Facts/Discussion: Two patients of licensed chiropractor Greene filed complaints against him with the Wyoming Board of Chiropractic Examiners (Board). Following a contested case hearing, the Board entered an order dismissing one of the complaints and indefinitely suspending Greene’s license to practice based on the second complaint.

Evidentiary Error: Mental Health Records: Dr. Greene attempted to obtain copies of the complainant SS's mental health records. Following a hearing, the OAH examiner found that the information sought was protected by privilege and did not fall within any exception. For the exception in § 33-27-123(a)(iii) to apply, a patient must allege mental or emotional damages in litigation and SS did not do so. Rather, she was a witness in an administrative licensing proceeding before the Board and no damages were recoverable.
Lack of Notice: Dr. Greene relied on Slagle which stands for the principle that a licensing board may not consider in a contested case hearing matters concerning allegations of which the licensee has not been given notice. The Court stated that the letter of intent and notice of hearing clearly notified Dr. Greene of the allegations giving rise to the disciplinary action. From documentation provided in discovery, he had notice of specific witness statements. From the record, the Court noted there was no question that Dr. Greene had notice of the conduct and violations being alleged against him and the matter the Board considered at the hearing.
Non-complaining Witness Testimony: Dr. Greene asserted the Board erred in allowing a non-complaining witness to testify. The Court noted no such requirement in the statute or rule. There is no requirement that a patient having information relevant to proceedings against a chiropractor brought by another patient must file a complaint. Administrative hearings are governed by WAPA and administrative agencies acting in a judicial or quasi judicial capacity are not bound by the rules of evidence that govern trials by courts or juries. The standard for admissibility of evidence at an administrative hearing is contained in § 16-3-108(a). The Board did not abuse its discretion in allowing the testimony because it concerned an alleged incident 20 years before the complaints giving rise to the disciplinary proceeding. Whether testimony should be excluded is a discretionary decision for the agency.
Mr. Blanchard’s Testimony: Blanchard, a licensed professional counselor, testified on Dr. Greene’s behalf. Dr. Greene argued that the Board did not mention all the testimony from Blanchard. As the trier of fact, the Board was entitled to give Blanchard’s testimony the weight it concluded it deserved in light of other evidence presented.
Licensing Records of Dr. Greene’s Experts: After reviewing the record, the Court concluded that neither the Board nor the OAH committed any evidentiary error with respect to Dr. Greene’s expert witnesses’ licensing records. The hearing examiner properly declined to admit the records into evidence, the State’s questions to Dr. Blanchard concerned information found in his C.V. and with only one exception, the State’s questions to Dr. Brown likewise did not require his licensing records. While confidential records may have been improperly obtained, they were not admitted into evidence for consideration by the board. The Court noted their concern about the State’s effort to use information concerning Dr. Brown from the Board of Chiropractic Examiners’ file. Without the consent of Dr. Brown or a court order, the assistant attorney general was not authorized to obtain and the Board was not authorized to release confidential information from the file.
Sufficiency of the Evidence: In its findings, the Board specifically found that the witnesses were credible and the statements they gave during the investigation were consistent with their hearing testimony. In contrast, the Board found that Dr. Greene’s testimony concerning events was sometimes not supported by his notes on patient charts. The Board also found that Dr. Greene’s statements during the investigation were sometimes different than his hearing testimony and his testimony on cross sometimes contradicted his direct examination testimony.

Conclusion: Having reviewed the record, the Court held that clear and convincing evidence was presented which would persuade the Board that the contentions that Dr. Greene acted improperly and violated the Board Rules and ethical standards was highly probable.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/djmcxk .

[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 37

Summary of Decision issued March 11, 2009

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

Case Name: Nelson v. State

Citation: 2009 WY 37

Docket Number: S-07-0299

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

Representing Appellant Nelson: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, 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; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Nelson was convicted by a jury of aggravated assault and battery as a result of an attempted traffic stop by Sergeant Boisvert. During the incident, Nelson backed his truck into the patrol car requiring Boisvert to jump out of the way. Nelson caused damage to camper trailers as well as to the patrol car.

Discovery: Nelson complained that his entire defense rested on the assertion that the Sergeant was biased and jaded because he had experienced similar past events. Nelson also asserted that testimony concerning other, similar occurrences was the only way to test the Sergeant’s credibility. The Court supported the district court’s decision to deny the request stating that the information relative to the Sergeant’s past work-related affairs was not material in light of the facts. Simply being involved in similar circumstances did not give rise to any presumption of a negative predisposition to such events.
Recall of Sergeant Boisvert: The reason given for calling the Sergeant was to question him about specific past events. The district court denied the request on the grounds that the proposed testimony was not relevant and would likely confuse the jury. The Court agreed stating that any involvement by the Sergeant in prior, similar events was irrelevant to the credibility of his testimony in the instant case.

Conclusion: The Court found no abuse of discretion by the district court in the contested discovery and evidentiary rulings.

Affirmed.

J. Golden delivered the decision.

C.J. Voigt dissented: The Chief Justice noted he would have found an abuse of discretion in the district court’s refusal to allow the appellant to call Sergeant Boisvert as a witness in his case-in-chief. Nelson should have been allowed to question the Sergeant about the prior similar incidents to test whether his perception of the appellant’s intent may have been colored by those incidents. It was relevant and admissible.

Link: http://tinyurl.com/cq5bm6 .

[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.]

Summary 2008 WY 124

Summary of Decision issued October 10, 2008

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

Case Name: Dean v. State

Citation: 2008 WY 124

Docket Number: S-08-0017

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

Representing Appellant Bush: Diane M. Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Appellate Counsel.

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

Facts/Discussion: Appellant Dean was convicted of committing a third or subsequent battery against a household member. Dean contended the district court erred in permitting an expert witness to vouch for the credibility and truthfulness (or lack thereof) of witnesses who have been victims of domestic violence (and thus, also Mrs. Dean) as well as in permitting that same expert witness to provide improper character evidence concerning Mr. Dean. The only issue raised in the appeal is whether or not the district court erred in allowing the admission of Thurin’s testimony.
A qualified expert witness may testify about scientific, technical, or specialized knowledge if such testimony will help the jury understand the case. Thurin’s testimony was relatively brief. She acknowledged that she did not know Mrs. Dean and that she was not familiar with any part of the instant case. She opined that victims of domestic abuse frequently suffer from low self-esteem and believe they need the abuser to function in their day-to-day life. On average victims will be abused seven times before they leave the relationship. Victims may be kept isolated and economically deprived. They are sometimes threatened with losing their children or finances. Thurin spoke in generalities about the “cycle of violence” and qualified her descriptions with the caveat that every relationship is different. Mr. Dean objected to questions that Thurin answered about “truth telling” by victims of abuse. The Court quoted liberally from State v. Yusuf where the court in Connecticut stated that expert testimony properly may be admitted to assist the jury in understanding not whether the victim was credible on the witness stand but whether the victim’s conduct was consistent with the pattern and profile of a battered woman. The Court also made note of the case State v. Borelli where the expert testimony was a description of battered woman’s syndrome. In Arcoren v. United States, the appellate court considered a related issue that involved a recantation by a victim. The expert in that case testified as to battered woman syndrome and again the court ruled that it was scientific, technical or other specialized knowledge that would assist the jury to understand the evidence.

Holding: Because Ms. Thurin’s expert testimony did not purport to vouch for the credibility of Mrs. Dean, nor did it impugn the character of Mr. Dean, the Court found no error requiring reversal of Mr. Dean’s conviction

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/4bu2tp

[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 2008 WY 114

Summary of Decision issued September 30, 2008

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

Case Name: Proffit v. State

Citation: 2008 WY 114

Docket Number: S-07-025

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

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

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

Facts/Discussion: Appellant Proffit raised five issues in the appeal of his conviction on eight counts of third-degree sexual assault.

State Witness Testimony Regarding Polygraph: The transcript from the trial provided the record of the exchange with the State’s witness who talked about Appellant’s decision to decline the polygraph test. Wyoming adheres to the rule that it is error for the State to introduce evidence that a defendant has refused to take a polygraph test.
Cross-Examination as to Whether Other Witnesses Lied: The Appellant raised the issue of improper questioning techniques in regard to the questioning of his expert witness and in regard to his own cross-examination. There were no trial objections to the line of questioning asking witnesses whether others were lying. The Court quoted extensively from Jensen v. State as well as Beaugureau v. State. The admonition against asking the appellant whether other witnesses lied applies equally to asking any witness whether another witness has lied. Such questions invade the province of the jury to determine witness credibility. By bringing in the testimony from the other trials, and quizzing the appellant as to whether those witnesses were lying, the prosecutor was allowed improperly to bolster B.C.’s credibility. The Court considered the errors together with all of the other errors that occurred in the trial of this case and in doing so, was not convinced that absent the errors, the verdict might not have been more favorable to the appellant.
Cross-Examination as to Prior Convictions: In Wyoming, the courts have given effect to the presumption in favor of exclusion where the witness is the accused by holding that a testifying defendant is required to give answers only as to whether he had previously been convicted of a felony, as to what the felony was, and as to when the conviction was had. A review of the record showed the prosecutor “hearsayed in” testimony from two murder trials, told the jury that the other juries had convicted Appellant of those crimes, and then told the jury that B.C. was murdered because he was going to be the witness in the present trial. The Court considered whether Appellant’s direct examination opened the door to the prosecutor’s questions. It determined that the jury’s focus was shifted from the facts of the present case to the facts of the two prior murders. The district court never made a determination that the probative value of the evidence of the prior convictions outweighed its prejudicial effect. The Court determined that was plain error requiring reversal.
Shifting the Burden of Proof to Appellant: The Court reviewed the prosecutor’s argument and stated it was not so far outside the realm of appropriate argument as to be misconduct. Appellant testified and the prosecutor’s statements were comments upon that testimony.
Ineffective Assistance of Counsel: The defendant must show that counsel’s performance was deficient. The defendant must also show that the deficient performance prejudiced the defense.
Failing to Make Appropriate Objections: The Court reviewed the record in the instant case observing the tenet that trial counsel is to be given the benefit of the doubt when considering whether a “failure” to object is actually a strategy. The Court could not accept counsel’s performance as adequate. It had no confidence that the guilty verdicts were based upon the admissible evidence and could not countenance defense counsel’s failure to object or the decision not to object to the highly prejudicial and objectionable testimony that was admitted.
Inquiring Into the Investigators’ Opinions as to Appellant’s Credibility: Appellant argued that not only did defense counsel fail to object when the prosecutor elicited the investigators’ opinions that Appellant was guilty, but that he emphasized those opinions by further inquiry about them during cross. The Court concluded the issue was part of the cumulative ineffectiveness of defense counsel.
Failure to Demand Notice of or Object to Uncharged Misconduct Evidence: The admissibility of uncharged misconduct evidence should be tested before trial – preferably via a defendant’s demand for notice of the State’s intent to introduce such evidence, the State’s identification of such evidence and a pretrial hearing. The State produced uncharged misconduct evidence at trial including the evidence of a sexual assault by Appellant upon B.C. outside Campbell County; evidence of a breach-of-the-peace incident at a convenience store; evidence of Appellant’s involvement in a homosexual child pornography ring; and evidence of the Forquer and B.C. murders. It was the Court’s perception that no reasonable attorney in the instant situation would forfeit the opportunity to prevent the jury from learning about the different instances of uncharged misconduct.
District Court’s Response to Jury Question: The jury asked the judge a question regarding State Exhibit 2 which was the Judgment Upon Jury Verdict holding Appellant guilty of conspiracy to commit first-degree murder of B.C. The district court responded stating that State’s Exhibit 2 was a piece of evidence which should be given as much weight as the jurors deemed appropriate. The district court’s response could only be justified if defense counsel’s failure or decision not to object made the document admissible beyond the limited purpose of impeaching credibility.

Holding: Plain error occurred when a State witness testified that Appellant had refused to take a polygraph examination, when the State questioned Appellant and one of Appellant’s witnesses as to whether other witnesses were lying, and when the State improperly used prior conviction evidence in the cross-examination of Appellant. Plain error did not occur when the State, during rebuttal closing argument pointed out the lack of evidence supporting Appellant’s theory of the case. Appellant received ineffective assistance of counsel when defense counsel failed to make numerous meritorious objections to evidence, when defense counsel invited prejudicial error by inquiring into the investigators’’ opinions as to Appellant’s credibility and guilt, by failing to demand notice of uncharged misconduct evidence and failing to object to the introduction of such evidence, and by failing to obtain a limiting instruction that would have prevented the jury from using prior conviction evidence as substantive evidence of guilt.

Reversed, remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/3ml2ct .

[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.]