Anthony Duane WEST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-13-0012
Supreme Court of Wyoming
Oct. 16, 2013
2013 WY 128
[¶ 19] Despite this general rule, the Hopkins assert that this Court has held that extrinsic evidence should be used to determine the truе intent of the parties when entering into a contract. Specifically, the Hopkins point to our decision in Ultra Resources, Inc. v. Hartman, 2010 WY 36, ¶ 43, 226 P.3d 889, 909 (Wyo.2010), where we recognized that courts should consider the circumstances surrounding the execution of an agreement, including things such as the parties’ relationship, the subject matter of the contract, and the purpose of the contract, when determining the intent of the parties even if the contract is unambiguous. However, the rule in Ultra Resources is not applicable in every contract case.
[¶ 20] In Hickman v. Groves, 2003 WY 76, ¶ 11, 71 P.3d 256, 259-60 (Wyo.2003), this Court acknowledged the general rule that extrinsic evidence should not be considered when a contract is unambiguous, but went on to explain that some contracts—like contracts involving mineral interests—may require the use of extrinsic evidence properly to determine the intent of the parties. Some contracts include terms that have a speciаl or technical sense that is not otherwise apparent from the four corners of the document; thus evidence of local usage of the terms and the circumstances surrounding the contract are important tools in properly interpreting the contract. Id. We quoted with approval lengthy portions of a respected treatise, part of which succinctly states:
Therefore, evidence of usage may be admissible to give meaning to apparently unambiguous terms of a contract where other parol evidence would be inadmissible. Thus, circumstances known to the parties at the time they entered into contract, such as what the industry considered to be the norm, or reasonable or prudent, should be considered in construing a contract, while the parties’ statements of what they intended the contract to mean are not admissible.
Id. at ¶ 13, 71 P.3d at 260 (quoting 12 Samuel Williston, Treatise on the Law of Contracts § 34:5 (4th ed.1999)).
[¶ 21] Although the Hopkins contend that the district court should have taken into consideration extrinsic evidence when determining the intent of the parties, they have not offered any explanation as to why the local usage or technical sense of the terms in the contract would require explanation beyond the plain meaning of the terms. Instеad, it appears the Hopkins want to use the extrinsic evidence to show that the parties intended terms that were completely different from the terms that actually were contained in the contract. This goes beyond the proper use of extrinsic evidence when a contract is unambiguous, and the district court did not err when it limited its review to the four corners of the contract.
CONCLUSION
[¶ 22] We find that the terms оf the contract regarding the release of Hopkins as a guarantor on the Bank of the West loan and a release of the second mortgages on his properties were unambiguous. Further, the terms of the contract are not subject to special or technical usage that would require extrinsic evidence to determine the parties’ intent. The district court‘s order granting summary judgment in favor of Bank of the West is affirmed.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Prof. Darrell D. Jackson, Faculty Director, Prosecution Assistancе Clinic; Emily N. Thomas, Student Director; Thomas Szott, Student Intern. Argument by Mr. Szott.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
KITE, Chief Justice.
[¶ 1] Anthony Duane West was convicted after a jury trial of conspiracy to commit burglary. He claims the district court erred by refusing to order one of his co-conspirators to submit handwriting exemplars so that Mr. West‘s expert witness could evaluate whether the co-conspirator was the author of certain notes sent in jail. We conclude that the subpoena procedure may be used to order a witness to provide handwriting exemplars; however, any error was harmless.
[¶ 2] We affirm.
ISSUE
[¶ 3] The issue on appeal is:
Did the trial court commit prejudicial error when it denied Mr. West‘s request for handwriting exemplars from a co-conspirator?1
FACTS
[¶ 4] Jeffery Stumpf was the CEO of Tatooine Industries International, an electronics company with a recycling facility east of Cheyenne, in Laramie County, Wyoming. His cоusin, Edwin Stumpf, was the supervisor of the recycling facility. Mr. West worked for Tatooine for a short period of time in 2009. Although he was generally a good employee, he was terminated because he did not show up for work or call to explain his absence in accordance with company policy. Mr. West subsequently claimed that he was injured on the job on his last day of work. Mr. West filed a workers’ compеnsation claim, and Tatooine objected. Prior to the contested case hearing, the matter was settled, apparently for the benefits Mr. West had already received, but without any cash payout to him.
[¶ 5] On December 4, 2010, approximately one week after the workers’ compensation settlement, Edwin Stumpf, who was staying at the Tatooine facility, heard a noise at approximately 11:00 p.m. He looked out the window and saw a car outside and a man walking toward the building. He thought there were two or three other people in the car. As the vehicle left, Edwin placed calls to 911 and Jeffery Stumpf.
[¶ 6] Jeffery Stumpf drove to a spot where he could see traffic traveling into Cheyenne and located a vehicle matching the description provided by Edwin. He followed the vehicle and called 911 to report his location. Eventually, the vehicle pulled over and two males got out and walked toward Jeffery‘s truck. When he backed up, they returned to their vehicle. Law enforcement stopped the vehicle a short time later and found four people inside—Mr. West, Autumn Garcia, Zachary Hunter, and Robert Stevenson.
[¶ 7] The State charged Mr. West with conspiracy to commit burglary in violation of
[¶ 9] Zachary Hunter testified that his sister was Mr. West‘s girlfriend. He stated that on December 1, 2010, Mr. West said “he was going to do something” and asked if Mr. Hunter “wanted in on it.” The plan was to obtain TVs and metal from a building, and Mr. West had drawn a blueprint of the building on a piece of paper. Mr. Hunter was told he would be “paid goоd just to be a lookout.” Ms. Garcia and Mr. Stevenson picked up Mr. Hunter and Mr. West, and they all went to the Tatooine facility. According to Mr. Hunter, Mr. West provided directions because he had worked there before. Mr. Hunter testified that Ms. Garcia had knocked on the door to see if anyone was there and then they all got out and looked around. They left after Mr. Stevenson noticed there was someonе at the facility. Mr. Hunter also testified that, while in jail, he received notes from Mr. Stevenson, encouraging him to “pin it all” on Mr. West. Mr. Hunter said he did not pay attention to the notes because he was going to tell the truth.
[¶ 10] Mr. West also testified at trial. He claimed that he was “high” from smoking marijuana on December 4, 2010, and did not plan to go to Tatooine or to steal anything. He claimed he was surprised when they ended up at the facility. Mr. West stated that Mr. Hunter‘s brother had given him the notes in which Mr. Stevenson had encouraged Mr. Hunter to blame Mr. West for the burglary plan.
[¶ 11] The jury found Mr. West guilty of conspiracy to commit burglary and he was sentenced to serve thirty to forty-eight months in prison, but the sentence was suspended and he was placed on probation for five years. Mr. West then appealed to this Court.
DISCUSSION
[¶ 12] Mr. West asserts the district court denied his constitutional rights to compulsory process and due process of law when it refused to require Mr. Stevenson to provide handwriting exemplars for evaluation by his handwriting expert. To the extent Mr. West‘s argument involves constitutional issues, we review it de novo. Smith v. State, 2009 WY 2, ¶ 25, 199 P.3d 1052, 1062 (Wyo. 2009); Bush v. State, 2008 WY 108, ¶ 53, 193 P.3d 203, 217 (Wyo.2008); Hannon v. State, 2004 WY 8, ¶ 13, 84 P.3d 320, 328 (Wyo.2004). The abuse of discretion standard, however, applies to the question of whether the district court properly disallowed the evidence. Bush, ¶ 53, 193 P.3d at 217; Vigil v. State, 2004 WY 110, ¶ 17, 98 P.3d 172, 177 (Wyo. 2004). “A trial court abuses its discretion whеn it could not have reasonably concluded as it did. In this context, ‘reasonably’ means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious.” Szymanski v. State, 2007 WY 139, ¶ 15, 166 P.3d 879, 883 (Wyo.2007) (citations omitted). Moreover, a violation of a right to compel process is not automatically reversible; prejudice must be demonstrated before reversal will be required. See State v. Spears, 76 Wyo. 82, 98, 300 P.2d 551, 557 (Wyo.1956). An error which violatеs a constitutional right is presumed prejudicial unless the reviewing court is convinced it was harmless beyond a reasonable doubt. Daniel v. State, 2003 WY 132, ¶ 16, 78 P.3d 205, 212 (Wyo.2003); Harlow v. State, 2003 WY 47, ¶ 48, 70 P.3d 179, 194 (Wyo.2003).
[¶ 13] A criminal defendant is entitled to compulsory process under the United States and Wyoming constitutions. The Sixth Amendment to the United States Constitution states in relevant part: “In all criminal prosecutions, the accused shall enjoy the
[¶ 14] In general, the right to obtain witnesses is aсcomplished by issuance of a subpoena.
(a) For attendance of witnesses; form; issuance.—Upon the filing of a
precipe therefore, a subpoena shall be issued by the clerk under the seal of the court. It shall state the name of the court and the title, if any, of the proceeding, and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. The clerk shall issue a subpoena, signed and sealed but оtherwise in blank to a party requesting it, who shall fill in the blanks before it is served.* * * *
(d) For production of documentary evidence and of objects.—A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or other objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents, objects, and portions thereof, to be inspected by the parties and their attorneys.
(e) Service.—A subpoenа may be served by the sheriff, or by any other person, over the age of 19 years, not a party to the action, appointed for such purpose by the clerk. Service of a subpoena shall be made by delivering a copy thereof to the person named[.]
The failure of a person to obey a subpoena may be punished with a contempt action. See
[¶ 15] Courts have routinely held thаt a person may be required to provide a handwriting sample under the authority of a subpoena. See, e.g., United States v. Euge, 444 U.S. 707, 711-18, 100 S.Ct. 874, 877-79, 63 L.Ed.2d 141 (1980); State v. Jackson, 223 Or.App. 423, 196 P.3d 559, 561-62 (2008). In Euge, 444 U.S. at 711, 100 S.Ct. at 878, the United States Supreme Court stated that the duty to appear and give testimony “has traditionally encompassed a duty to provide some forms of non-testimonial, physical evidence, including handwriting exemplars.” That was true even though the IRS statute at issue did not explicitly authorize handwriting exemрlars. Handwriting is non-testimonial and there is no reasonable expectation of privacy attached to it; therefore, a command to provide a handwriting sample does not violate a witness‘s Fifth Amendment right against self-incrimination or Fourth Amendment right to avoid illegal searches and seizures. See, e.g., Euge, 444 U.S. at 718, 100 S.Ct. at 881-82; United States v. Doe, 457 F.2d 895, 895-99 (2d Cir.1972). See also, Brummeier v. State, 733 P.2d 265, 266-67 (Wyo.1987) (holding a defendant can be compelled to provide handwriting exemplars without violating the Fifth Amendment to the United States Constitution or
[¶ 16] In Fathke v. State, 951 P.2d 1226, 1228 (Alaska Ct.App.1998), the Alaska Court of Appeals concluded that
[¶ 17] Even prior to the enactment of specific rules and statutes, the common law imposed a similar evidentiary obligation on summoned persons. In United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950), the Supreme Court stated: “[P]ersons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of legislative and judicial machinery.... We have often iterated the importance of this public duty, which every person within the jurisdiction of the Government is bound to perform when properly summoned.” In general, a summoned party must “give whаt testimony one is capable of giving,” subject to recognized exemptions and/or privileges. Id.
One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of non-testimonial physical evidence. ... [T]he common-law evidentiary duty permitted the compulsion of various forms of physical еvidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966) [(omitted on other grounds, Missouri v. McNeely, --- U.S. ----, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013))], this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to “fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the ... body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power.
Euge, 444 U.S. at 713, 100 S.Ct. at 879 (some citations and a footnote omitted). See also, Palmer v. United States, 530 F.2d 787, 788 (8th Cir.1976) (per curiam) (holding that, prior to enactment of a specific statute, federal courts had “inherent power to compel the production of [handwriting] exemplars before a grand jury through the civil contempt power“).
[¶ 18] In Wyoming, we have not directly addressed the issue of whether a witness in a criminal case can be compelled to provide a handwriting sample. We do, however, have some direction on the matter. In Brummeier, 733 P.2d at 266-67, we followed the general rule and held that a defendant can be compelled to provide handwriting exemplars without violating the Fifth Amendment to the United States Constitution or
[¶ 19] Thus, Mr. West was entitled to subpoena Mr. Stevenson‘s handwriting exemplars. However, that was not what he did. Instead, Mr. West filed a motion to compel Mr. Stevenson to provide the exemplars, which, according to the certificate of service, was served upon Mr. Stevenson by
[¶ 20] Had the subpoena procedure been used, Mr. Stevenson could have moved to quash it and the proper parties would have been involved. Thus, we agree with the district court that, under these circumstances, the appropriate procedure was not used. However, consistent with our discussion above, we disagree with the district court‘s statement that there is no legal authority to require a non-party to appear before trial to provide handwriting exemplars. The subpoena process provides such authority.
[¶ 21] Nevertheless, in order to warrant reversal of a conviction, error must be prejudiciаl. Even when a constitutional error is involved, reversal is not required if we conclude it was harmless beyond a reasonable doubt. Spears, 300 P.2d at 557; Daniel, ¶ 16, 78 P.3d at 212. The purpose of the handwriting exemplars was to provide a means for Mr. West‘s handwriting expert to conclude that Mr. Stevenson authored the notes which encouraged Mr. Hunter to “pin” the crime on Mr. West. That issue was not, however, in dispute at trial. Mr. Hunter testified that Mr. Stevenson had given him thе notes, and Ms. Garcia testified that he had also sent her letters encouraging her to lie. As such, the uncontradicted evidence in the record established that Mr. Stevenson had, in fact, written notes encouraging the other co-conspirators to implicate Mr. West. Mr. West‘s defense counsel emphasized Mr. Hunter‘s testimony about Mr. Stevenson‘s notes in her closing argument. Testimony from a handwriting expert would not have added anything to the evidence. Consequently, any error regarding Mr. West‘s right to obtain handwriting exemplars from a witness was harmless beyond a reasonable doubt.
[¶ 22] Affirmed.
Charles L. JACKSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-13-0135
Supreme Court of Wyoming
Oct. 16, 2013
2013 WY 130