Summary 2006 WY 127

Summary of Decision issued October 11, 2006

[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 for assistance.]

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

Case Name: Hembree v. State

Citation: 2006 WY 127

Docket Number: 05-158

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

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Deputy Attorney General. Argument by Mr. Rehurek.

Issue: Whether the trial court erred in denying Appellant’s motion to suppress evidence.

Holding: Appellant was stopped for a speeding violation. In the course of the stop, the vehicle was determined to be a rental, with expired plates, which the occupants were not authorized to drive and, the driver had an expired license. When the Trooper explained Enterprise asked the car be impounded, the Trooper offered the occupants a ride to town, or they could walk, but if they rode with him, he would have to inspect their luggage before he allowed it into his car. Appellant voluntarily agreed to inspection and the Trooper found one ounce of cocaine and four and one-eighth ounces of methamphetamine. Appellant entered conditional guilty pleas to two counts of felony possession of a controlled substance with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) reserving the right to appeal the district court suppression ruling.
Standard of Review: The Court defers to the court’s findings on factual issues unless they are clearly erroneous. They view the evidence in the light most favorable to the district court’s decision because it is in the best position to assess the witnesses’ credibility, weigh the evidence and make the necessary inferences, deductions and conclusions. The constitutionality of a particular search or seizure is a question of law that the Court reviews de novo.
The Court commented on Appellant’s statement of the issue. They stated that to best assist the Court, each issue should consist of a concise statement of the point of law sought to be argued and reviewed. The Court found that Appellant faulted the district court’s suppression ruling on two grounds, the legality of the initial detention and the voluntariness of his consent to the search of his luggage.
The Detention: Appellant contends that the trooper should have simply issued the appropriate traffic tickets and released him instead of injecting himself into a civil contract dispute with the rental car company. The reasonableness of a traffic stop detention under the Fourth Amendment is determined by applying the two-part inquiry set forth in Terry v. Ohio. A detention must last no longer than necessary to effectuate the purpose of the stop and the scope must be carefully tailored to its underlying justification. In Lindsay and Johnson, the Court determined that the investigation of a potential unauthorized use of a rental vehicle was a reasonably sufficient reason to detain a driver after a traffic stop. The trooper detained Appellant only for the period of time necessary to issue the traffic citations and to complete the investigation into Appellant’s authority to possess and operate the rental car.
Consent to Search: The State argued that Appellant lacked standing to challenge the search of his luggage because as an unauthorized operator of a rental vehicle, he generally would have no legitimate expectation of privacy in the car. The Tenth Circuit Court of Appeals has recognized that although an unauthorized driver has no privacy rights in the motor vehicle, he may possess a legitimate expectation of privacy in his personal luggage stored within the vehicle. The State did not raise the issue of standing in the district court so the State’s argument raises the question whether it should be allowed to raise the standing issue on appeal after it failed to do so in the district court. The Court deferred this question because they affirmed the district court’s denial of Appellant’s motion to suppress. Appellant’s position about the consent to search his luggage is premised on three arguments: the consent was involuntary because it was preceded by an unlawful detention, his consent was not validly obtained because the Trooper exceeded the permissible scope by questioning about travel plans and the presence of drugs, and that his consent was coerced. The first argument failed because the Court held that the extended detention was lawful. The second argument was based on O’Boyle and Campbell. The Court noted the difference in scope of the questions and stated that in the instant case they were limited to Appellant’s travel activities and matters concerning the rental car which were proper under the circumstances. The district court found that the challenged questions occurred after the detention on the traffic stop had terminated. As a courtesy, the trooper offered to drive Appellant and sister to a hotel or bus station. Any interaction occurring in this context was consensual. Third, the voluntariness of Appellant’s consent to the search must be considered within the totality of the circumstances. The Court considered the way the officer phrased the request for permission to search, whether the officer told the individual he could refuse and the presence of other coercive factors. The Court’s review of the record disclosed ample evidence to support the district court’s finding that Appellant freely and voluntarily consented to the search.

The judgment and sentence were affirmed.

J. Golden delivered the order for the court.

Link to the case: http://tinyurl.com/fhmav .

Summary 2006 WY 126

Summary of Decision issued October 10, 2006

[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 for assistance.]

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

Case Name: Thompson-Green v. Estate of Robert Jerry Drobish; Daniel J. Drobish; Geoffrey O. Drobish, Robert Jay Drobish; and Fidelity Financial Services, Inc.

Citation: 2006 WY 126

Docket Number: 05-227

Appeal from the District Court of Laramie County, the Honorable Nicholas Kalokathis, Judge

Representing Appellant: Don W. Riske of Riske & Salisbury, PC, Cheyenne, Wyoming.

Representing Appellees: Scott W. Meier and Ian D. Shaw of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Mr. Meier.

Issues: Whether Appellant complied with the notice requirements set forth in Wyo. Stat. Ann. § 39-13-108(e) prior to obtaining the tax deed. Whether the tax deed remained valid as to one cotenant’s interest in the property because Appellant did serve that cotenant personally with the requisite notice.

Holding: The appeal concerns the ownership of residential property in Cheyenne. In 2004, the Laramie County Treasurer executed a tax deed granting the property to Appellant. The district court granted summary judgment to Appellees because Appellant did not comply with the aforementioned notice provisions and such a failure as to one owner was sufficient to invalidate the tax deed as to all of the owners of record.
The standard for the review of summary judgments applies in declaratory judgment actions. Summary judgment is proper if the pleading, answers and admissions together with affidavits show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof shall be upon any party seeking to invalidate title conveyed by a tax deed in any action in any court in Wyoming.
The primary issue is the extent to which Appellant complied with the notice requirements contained in Wyo. Stat. Ann. § 39-13-108(e) prior to applying for the tax deed. Appellant contended that she took all reasonable steps available to her to comply with the requirements of the statute. The Court concluded that undisputed facts established that two of the parties could have been found in Laramie County, Robert Jerry Drobish and Daniel Drobish. The Court stated that a diligent inquiry would have included an attempt to contact Robert Jerry Drobish and determine what information he had regarding the location of the other three Drobishes. The statute clearly contemplates Appellant serve requisite notice on Robert Jerry Drobish as well as Daniel Drobish personally prior to obtaining a valid tax deed; and that her failure to do so rendered the tax deed invalid or void. Appellant argued that she served Daniel when Robert Jerry Drobish accepted service. The argument is premised on Appellant’s argument that such service complied with W.R.C.P.4(d)(1). The Court noted that the statute at issue does not specifically refer to Rule 4 in establishing the framework for serving the requisite notice. One of the primary purposes of this kind of notice is to bring to the person entitled to redeem knowledge that the land has been sold for taxes and within what time frame the same may be redeemed from the sale. Daniel Drobish had the right to redeem the entire property from Appellant before a valid tax deed application had been filed and accepted by the county treasurer. Appellant’s failure to serve Daniel Drobish with the notice to which he was entitled therefore inhibited his ability to redeem the property.
The Court’s holding did not leave Appellant without a remedy. The legislature specifically provided for a similar circumstance in Wyo. Stat. Ann § 39-13-108(e)(viii).

Affirmed.

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

Link to the case: http://tinyurl.com/gvcme .

Google Reader v. Bloglines

Gina Trapani from lifehacker.com has posted a wonderful comparison between Google Reader and Bloglines. Bloglines has been great for me, but I'm definitely going to start experimenting with Google Reader with some of their new features. It should be easy since I can export my feeds from Bloglines and import them into Google Reader. As a matter of fact, three minutes later, I have imported my feeds and am now ready to see what Google Reader has to offer.

United States Code

Need to search the U.S. Code? Don't have several hundred dollars laying around for the benefit of Westlaw or LexisNexis to search USCA or USCS? While the USCA and USCS are more current and annotated, online access to them can be prohibitively expensive. If you simply need a U.S. statute, try one of these options:

• U.S. Code (PDF version) -- Office of the Law Revision Counsel, U.S. House of Representatives
  
  You can browse, search by citation, and search by keyword. Additionally there are options to limit your keyword search to specific sections of the Code, use advanced searching options (concept, relate, fuzzy, dictionary), and perform cross reference searches. If you prefer, you can download the U.S. Code in PDF format (though be aware, the files are large).



• U.S. Code -- Legal Information Institute
  
  The Cornell Law School Legal Information Institute has also made available the U. S. Code. The search options are typical: browse and search by citation or keyword. LII is unique, though, in that they provide a browsable Table of Popular Names and format the text. The advantage of LII is their presentation. It is the easiest-to-read online version of the Code.



• U.S. Code -- GPO Access
  
  The Government Printing Office provides the print version of the U.S. Code, which remains the official version (for you legal types.) GPO Access is yet another option for retrieving a U.S. statute. You can learn more about the contents of the printed version of the Code at http://www.gpoaccess.gov/uscode/about.html.

Summary 2006 WY 125

Summary of Decision issued September 29, 2006

[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 for assistance.]

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

Case Name: State v. Naple

Citation: 2006 WY 125

Docket Number: 05-113

Original Proceeding: Writ of Review from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge

Representing Petitioner: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant attorney General. Argument by Mr. Pauling.

Representing Respondent: Kenneth M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Ms. Domonkos.

Issue: Whether the district court abused its discretion in dismissing with prejudice the charge against respondent.

Holding: The district court dismissed with prejudice a controlled substances charge against Respondent as a sanction for the State’s failure to comply with its discovery obligations. Respondent was a passenger in a van that was stopped by a Wyoming Trooper. One passenger in the van admitted to having a small amount of marijuana. During a search of the vehicle, a one pound container of marijuana was found. Respondent stated it was her medicine and that she had a prescription for it. Respondent was charged with one count of possession of a controlled substance with intent to deliver, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii). She pleaded not guilty and demanded discovery from the State. The State filed notice with the district court representing it had complied with its discovery obligations. None of the police reports provided to the defense by the State referenced Respondent’s statements. The defense attorney told the jury in his opening statement at trial that her statement was not referenced in any police report. The first witness at trial referred to a report written by Trooper Green which included the inculpatory statement. Respondent moved for a mistrial. The district court granted her request and dismissed, stating the State had the option of re-filing the charges. The State filed a motion for reconsideration of the dismissal requesting a new trial date rather than requiring the State initiate a new prosecution. Respondent filed a response specifically requesting the charge be dismissed with prejudice. In support of the motion, Respondent referred to several other cases in the local district and circuit courts where the State had failed to comply with its discovery obligations and had been warned that future violations would be punished by dismissal with prejudice.
Standard of Review: A trial court has discretion in determining the proper sanction for a party’s violation of its discovery responsibilities and its decision will be set aside only for an abuse of discretion. The State also argued that the trial court did not have the legal authority to dismiss the charge against Respondent with prejudice. This argument involves questions of law and implicates constitutional issues, so the Court reviewed it de novo.
Court’s Authority to Dismiss Criminal Charges with Prejudice: The State agreed a mistrial was warranted, but the correctness of the district court’s decision to grant a mistrial is moot because the jury has been discharged. The State failed to comply with its discovery obligations under W.R.Cr.P.16 which requires the State to provide discovery to the defense and addresses sanctions for violations. The Court focused on language which allows the court to “enter such other order as it deems just under the circumstances.” Rule 16 is modeled after the comparable federal rule so the Court gives great weight to federal precedent pertaining to the rule. The Court agreed with the federal precedent interpreting Rule 16 as giving trial courts discretion to dismiss charges against a defendant with prejudice, but only in extraordinary circumstances when less severe sanctions would not suffice. Wyoming precedent concerning “inherent” or “supervisory” powers does not provide a clear answer as to whether the district court properly concluded it had “inherent” authority to dismiss the case for the State’s discovery violation. Both parties referred the Court to Newman but the Court stated that it was not instructive in the instant case. The State argued that allowing the district court to dismiss criminal actions with prejudice because of the prosecutor’s discovery violations resulted in an unconstitutional intrusion by the judiciary into the executive branch’s exclusive power to prosecute cases. In Hilderbrand, on appeal, the Court held the statute which gave the district court authority to direct the prosecutor to charge someone with a crime infringed upon the executive branch’s power and discretion to make prosecutorial decisions. In the instant case, the district court did not infringe upon the prosecutor’s decision to prosecute or decline to prosecute Respondent. The court was attempting to enforce its own rules. Once a prosecutorial decision has been made, the judicial branch becomes involved. Enforcement of court rules is a responsibility of the judicial branch. The district court did not violate the separation of powers concept when it enforced its rules by dismissing the charges with prejudice.
Exercise of Discretion in Imposition of Discovery Sanctions: The Court stated they agreed with federal precedent interpreting Rule 16(d)(2), which provides three factors for the Court to consider in determining the appropriateness of a sanction: (1) the reasons the State delayed producing the requested materials, (2) the extent of prejudice to the defendant as a result of the delay and (3) the feasibility of curing the prejudice with a continuance. The prosecutor’s conduct in other cases could be relevant to a determination of whether the prosecutor’s actions were taken in bad faith. However, in order to establish the connection between the other cases and this case, there needs to be evidence about whether the same prosecuting attorneys and or the same type of violation was involved in the previous cases, whether there was an official policy to withhold, or whether the delay was simply the result of egregious and repeated sloppiness which could rise to the level of intentional withholding of evidence. Secondly, the analysis of the prejudice suffered by the defendant was not addressed with regard to whether the sanction for the violation should be a dismissal with prejudice. There was no discussion about the prejudice which would be suffered by this particular defendant if the matter was not dismissed with prejudice. Finally, the district court did not discuss whether the prejudice could be cured with a less severe sanction. The failure to consider the proper factors in determining whether a particular sanction is warranted amounts to an abuse of discretion.
The record and the district court’s order did not justify the decision to dismiss the charges with prejudice. The Court repeated that the district court has broad discretion but it must be exercised in a reasoned fashion after consideration of the appropriate factors and the court should choose the least severe sanction which it concludes will ensure the State’s compliance with its discovery responsibilities.

C.J. Voigt, dissenting opinion, joined by J. Hill: C.J. Voigt agreed with most of the majority opinion except he would have come to a different conclusion. If W.R.Cr.P. 16(d)(2) truly does give the district court broad discretion in improvising a remedy for discovery violations by the State as it deems just under the circumstances, then the circumstances of the case coupled with the matters described in paragraph 6 of the district court’s order should have sufficed. Even though the district court’s order did not directly identify and discuss the Dennison factors, the Chief Justice would have found that it sufficiently recited a reasoned decision and met the spirit of Dennison. Repeated violations by a prosecutor’s office constitute the type of extreme behavior for which nothing short of dismissal may have any effect.

Reversed and remanded.

J. Kite delivered the order for the court with C. J. Voigt dissenting, joined by J. Hill.

Link to the case: http://tinyurl.com/enkca .

Summary 2006 WY 124

Summary of Decision issued September 29, 2006

[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 for assistance.]

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

Case Name: Boyle v. Boyle

Citation: 2006 WY 124

Docket Number: 05-258

Appeal from the District Court of Crook County, the Honorable John R. Perry, Judge

Representing Appellant (Defendant): Mary A. Throne and Brandi L. Monger of Hickey & Evans, LLP, Cheyenne, Wyoming. Argument by Ms. Monger.

Representing Appellee (Plaintiff): Kathryn J. Edelman of Edelman Law Office, Gillette, Wyoming.

Issue: Whether it was proper for the district court to consider banked hours, vacation hours and sick hours as marital property. Whether the district court abused its discretion in the property division set forth in the judgment and decree of divorce.

Holding: Husband and Wife were married September 4, 1994. Each party owned a home prior to the marriage but sold their individual properties and placed the proceeds in their joint accounts. They used their joint funds to purchase property and build a new home. District court held a trial on May 25, 2005. Both parties testified and the district court ordered them to prepare written submissions for the court’s consideration in issuing its final decree. The district court issued a decision letter outlining its basic property distribution and indicating it generally adopted Wife’s proposed distribution of the property. Husband appeals from the property disposition in the decree granting Wife’s complaint for divorce.
Wyo. Stat. Ann. § 20-2-114 sets out the statutory requirements for disposition of a couple’s property in a divorce. The trial court has the discretion to determine what weight should be given each of the individual statutory factors. The Court has expansively discussed the “just and equitable” requirement in Sweat v. Sweat. The district court’s conclusions of law are reviewed de novo.
Employment Benefits: The three assets in question were Husband’s banked hours, vacation hours and accumulated sick leave. At trial, there was no testimony concerning these three assets except Wife’s answers on cross-examination. At the conclusion of the trial, the district court asked the parties to submit proposed decrees. Husband’s proposed decree did not address the employment benefits at all. Wife submitted a closing argument together with a revised version of the Joint Exhibit presented at trial which assigned those three benefits to Husband for “value”. Husband did not respond to Wife’s submission but in response to the decision letter, filed a list of questions regarding the disposition of the employment benefits. Wife responded that her position was for the assets to be set over to the Husband at the values shown on the Joint Exhibit because she understood that Husband’s employer would not transfer those assets to her regardless of any contrary order. The district court adopted Wife’s position and Husband did not object. Husband argued that employment benefits are not marital property and nothing more than a future expectancy. However, Husband did not provide evidence at trial concerning the nature of the benefits and/or whether they had present value, or that they were nothing more than a future expectancy or that they were not marital property. The Court stated that to decide the issue on the merits, the case would have to be remanded to the district court for an evidentiary hearing which would give Husband a “second bite at the apple” which he was not entitled to. Husband also submits a factual argument the employment benefits have no “cash value” to him, however the record does not contain evidence as to if or when Husband was entitled to cash out his employment benefits. The record does contain evidence about the value of the employment benefits. Based on the record, the Court stated that the district court properly valued benefits when it set them over to Husband.
Property Division: Husband argued the district court abused its discretion when it divided the parties’ marital property. The Court considered whether or not the evidence adduced at trial supported the property division as a whole, not necessarily each individual part of it. The record did not support Husband’s assertions. The district court expressly considered the parties’ contributions of premarital assets and the relative financial contributions of each party to the marital estate, together with the other statutory factors. The decision letter demonstrated consideration of the proper factors. A party contesting the district court’s division of the property must demonstrate the evidence adduced at trial does not support the property distribution as a whole. Husband did not explain why the equalization payment was not just and equitable or how the district court abused its discretion. Husband claimed the district court was punishing him for evidence of an extra-marital affair. There was no indication of any retribution in the record.

J. Burke’s dissent: The district court ordered Husband to pay Wife $729,400 to “equalize the division of the marital estate”. The district court included $284,204 in employment benefits as assets of the marriage to arrive at the payment amount. There was insufficient evidence to support the district court’s valuation of its finding that the employment benefits were marital assets. The majority noted that there was no evidence in the record indicating the employment benefits had or would have any cash value. The majority states that the absence of such evidence is fatal to Husband’s appeal. J. Burke disagreed. Wife had the burden of providing sufficient evidence at trial to support her claim. In light of Wife’s stated position that she was making no claim to the benefits and the lack of any evidentiary support for valuation of the benefits, Husband’s failure to provide any testimony or other evidence regarding the benefits is understandable and appropriate. J. Burke stated that although on appeal, the Court must review the evidence in the light most favorable to the prevailing party, in this case there was no evidence which supported the district court’s valuation of the employment benefits as marital assets. Review of the entire record leads to the conclusion that the district court’s valuation of the employment benefits was erroneous. J. Burke would have reversed and remanded to allow the district court to fashion an equitable property distribution without inclusion of the employment benefits as marital property.

J. Kite delivered the opinion for the court, with J. Burke dissenting.

Link to the case: http://tinyurl.com/fyzev .

Reminder

This is just a reminder that the State Law Library is currently closed as we work to prepare for our proposed move date of mid-November. We hope to re-open for use of the treatises and access to Westlaw as we await the actual move. You know how it is…we prepare and then we wait for Hathaway to be ready for us – so we will keep you informed.