*1 879 оf, with, escape facility spent correctional and the time and convicted Wyoming Hospital State for examina- from detention. deficiency. tion for mental illness or pertinent cases in examination of Our in a discloses that whether time this area
community facility, correctional such as the directed as a Prejean to which
one
requirement probation, of his counts as probation if revoked fre-
time served courts, according
quently depends,
upon
charge
escape
whether
Babcock,
detention will lie. Seе State v.
BENNETT,
Appellant
(1979).
Kan.
See
(Defendant),
(Alaska
State,
ka
State
Wyoming, Appellee
STATE
(A.D.1986),
A.2d 43
per.
certifica-
(Plaintiff).
499,
and shall be 6-5-206(a)(i) if, proper au- without
W.S.
thorization, he:
“(i) within the extended Fails to remain or to return
limits of his confinement prescribed the time to a communi-
within facility which he was
ty correctional transferred;
assigned or
“(ii) participant program in a Being a provisions of this
established under employment or place
act he leaves the commu- neglects to return to
fails or facility the time
nity correctional within specifically ordered
prescribed or when (June 7-18-112, W.S.1977
to do so.” § Repl.); that such accept the concomitant
it must against a sentence must be counted
time pro- imposed upon violation of is later the cases This is the thrust of
bation. jurisdictions.
other of the district court judgment
reversed, remanded with and the case is Prejean afford- to resentence
instructions the maximum against him credit both imposed the full
and minimum terms in- pre-sentence confinement
time served community time served
cluding the *2 Ap-
cumstances as the crimes with which pellant charged. was II. Whether the admission of stating Appellant was of the and the crimes was error se Appellant plain denied of his error and right jury. to trial the III. the search of over- Whеther night bag found the trunk of Mer- Appellant’s of the cedes violative rights Amendment of under the Fourth and Arti- United States Constitution Wyoming cle 1 of the Constitution § and of evidence therefore admission seized was error. the trial court erred in de-
IV. Whether to nying Appellant opportunity cross- concerning possible examine a witness bias. post
V. the introduction of the Whether arrest statement of co-defendant Jenkins right his Appellant denied the of to con- frontation. try error to VI. Whether Cornia, Program: Mike Public Defender Appellant jointly with Defendant Jen- Counsel, Cheyenne, appel- for
Appellate kins. lant. appellant VII. Whether was denied right process his to due introduc- Gen., Joseph Meyer, Atty. B. John W. irrelevant, inflamatory tion evi- of Renneisen, Gen., Atty. [sic] A. Deputy Karen arguments presentation and dence Gen., Atty. Byrne, David K. Gra- Sr. Asst. appealed preju- to which the fears ver, Gen., Cheyenne, appel- Atty. Asst. the jurors. dices of lee. issue, As reverse on Bennett’s second we THOMAS, CARDINE, C.J., Before opiniоn testimony guilt, as to his use of GOLDEN, URBIGKIT, MACY and JJ. remaining do not address issues. charged on Bennett was arrested and GOLDEN, Justice. 15, 1988, following lengthy po- February investigation convicted after lice Bennett was Bennett and several associates, delivering co- three of whom were arrested two counts 35-7-1031(a)(ii) prin- with him. The state’s case was based caine in violation W.S. buys made 35-7-1016(b)(iv) (Cum.Supp.1987), cipally on three controlled and W.S. Randy informant named Hill at the di- conspiring to deliver co- and one count of Tony investigating reсtion of officer Hin- 35-7-1042 caine violation W.S. Wyoming ton of the Division of Criminal to concurrent terms of He was sentenced Investigation. buys, These were made on delivery years four seven on each of the 14, 1987, 5, 1987, August 13 and December counts, years two four and of January presents conspiracy count. Bennett seven his appeal: issues in police Bennett had been under surveil- I.Whether it was allow of 1986 because of lance since summer suspicious, activity regarded of evidence that two оf introduction which was plead guilty including had the use of several vehicles to state’s witnesses stops at growing recurring same cir- make brief a number offenses out Hill, in- In addition to Hinton and other Cheyenne. The investi- locations in regular dealer, their vestigating as a officers testified as to targeted Bennett gators buys that since Bennett and believed coordination of observations but necessary it was part plea associates were black As of their of the transactions. *3 to deal with them. find а black informant bargains prosecutor, with the both Merritt black, Hill, and was arrested Bennett, who against and Wilkinson testified delivery of charged with two counts of grudgingly were though both did so and 1987, August, July early or cocaine late reluctant or regarded as hostile witnessess. supplier. In a Bennett as his and identified conspir- jury guilty Bennett The prosecutors, agreed Hill plea bargain with August ing delivery to deliver and for Bennett in buys make controlled from transaction, the December charges in the exchange for a rеduction transaction, delivery guilty of in the and testimony buys those faced. His about January acquitted transaction. It Ben- case. central to the state’s conspiracy co-defendant Jenkins of nett’s of, abetting regarding, aiding and and buys all conducted The controlled were January transaction. Hill and his vehicle a similar fashion.
searched, supplied with cash and he was listening a device tape recorder or
and Opinion as to Witness’s Guilt prearranged buy. to make the and sent Defendant Chеyenne police officers fol- Hinton and per se Bennett asserts that was error from a distance. lowed Hill and observed permit opinion Hinton to state his as to the offi- buys Hill would meet After the holding in guilt, relying Bennett’s on our cers, and the record- turn over the cocaine Stephens v. device, what listening and describe testimony In this court held that Stephens investigators searched transpired. had buys. prosecutor which offers an again after the elicited Hill and his vehicle 13-14, guilt buy August opinion on as to the defendant’s should The first controlled 1987, days money per rather than as a spanned two because treated as error se exchanged day, impos- first and the on the error because it is question of to Hill on the second. jury may cocaine delivered to determine whether the sible Bennett, involved his co-de- The deliveries expressed opinion in have relied on the Jenkins, and Michael Merritt Cur- fendant permit reaching verdict. Id. at 68. To its Wilkinson, pleaded guilty both of whom tis opinion of the jurors rеly on a witness’s charges arising from the the trial to before the ultimate guilt “would be defendant’s buys, and others. jury.” the function of the Id. abdication of re- Unfortunately, because Hinton at 64. implicated Bennett testimony Hill’s request for his sponded prosecutor’s deals, although it contradicted his cocaine foundation, what opinion and its factual buys in Hinton after the statements to here must be treated as occurred that on Au- respects. Hill testified several 1987, in- se. called him with gust Bennett cocaine; that рicking up for structions holding Stephens was based Our near Junior
Hill then met Bennett Johnson testimony offering an our conclusion him that Mer- that Bennett told High, and guilt is not opinion as to the accused’s him; that Bennett package ritt had and 704. under W.R.E. 702 admissible the December arranged with him for permits agreed that Rule 704 we While telephone, and transaction over issues, we held upon ultimate evidence to Hill in Bennett’s delivered the cocaine must focus on particular inquiry parked “[t]he in front of the Carter cаr as it was * * * testimony serves to as Hall; whether Legion and Brown American resolving factual issues jury in deal, sist the arranged January Bennett testimony guilt Opinion about residence, it.” before place which took at Wilkinson’s that assist the not address areas Hill does buy money from while and took the issues. Id. at 67. resolving factual handed him the cocaine. Merritt 5th, 1987, testimony in this case 4th I was an- opinion involved While significance buy bought different other cocaine where we one- may appear to have quаrter Stephens, from that offered it was ounce cocaine functionally way, Hill. presented through Randy the same We’ve also surveillance, its the concerns about effect are done we’ve also talked to same, “the other talked namely, that could informants also jury.” proceedings. for the have decided the case Id. other witnesses these expert Stephens three witnesses were is essentially result both a direct asked, training experi- based on their opinion statement of Hinton’s that Bennett ence, their whether or not a child since Hinton that Ben- guilty, testified *4 so, molested, by if sexually and had been was, opinion, drug nett in a dealer his question the whom. All answered first jury, on the the based evidence before affirmatively, and three the all identified unequivocal a substantive statement in the These witness- defendant as the molester. recitation that Bennett was the source of opinions es then asked what their were the cocaine the dates. This court found that the were based on. This beyond simply summarizing the went well responses opinion by the witness- direct drawing investigation by facts of his es, as well as what we termed substantive ultimate conclusion that Bennett was in opinion the form of testi- statements role, guilty. jury’s It was the not the wit- opinions, mony as for the direct to bases ness’s, make this determination. impermissible. Stephens also little evi- physical involved case, as In this Hinton testified dence, opinion testimony that the as to so investigating officer rather than as an paramount guilt credibility assumed our result expert. This does not affect significance, case involve whereas this does recognized Stephens in because physical testi- more evidence and witness testimony guilt a opinion as to defendant’s distinction, mony. Regardless of this lay a impermissible is whether from improper jury’s concern of invasion Id. redirect examina expert witness. On any function remains critical and invasion asked, tion Hinton was jury's must be as error role treated attorney] Q. Frentheway Mr. [Bennett’s pеr se. We are unable to determine the if, you opinion, Ben- your Mr. asked of Hinton’s statement. prejudicial effect you said drug nett was a dealer and opinion, prosecutor, His elicited yes. impossibili- of “the taints the because A. Yes. assessing ty jury whether the relied question. upon reaching it its verdict.” Id. at Q. you I’ll ask next Stephens testimony In use witness Why? guilt analogized to the defendant’s was as a objection This was followed “frosting aptly on the cake.” As was and the attor- discussion between the court bad, frоsting may “if is the morsel put, neys, to Hinton resulting an instruction stay though the cake was down even the court that limit his answer to the need.” at Id. 64. Here sufficient point in the trial. facts introduced again, frosting the form witness limitation, acknowledged but Hinton bad, the substance of the opinion is then, opinion as his factual basis for must form of other evidence cake investigat- just expressed, testified that the disregarded. bought from Bennett officers cocaine through Hill on the three occa- interrelationship informant оf Hinton’s Finally, the charged: sions opinion that Ben- that it was his statements that this 14th, dealer and August in- nett was 13th and A. was the source of cocaine buy one-eighth ounce cocaine because volved buys, during the controlled purchased Randy Danny Bennett Hill and between prosecutor’s telling. response one-eighth ounce where we received jury in his Hinton told the questioning December Bennett. cocaine However, Wyo- turn his conviction. drug dealer because Bennett was a opinion misap- Evidence have been charged drug ming Rules of the three Bennett committed way se plied to see how in a that constitutes It is difficult transactions. and, any- Stephens, this sort of this was as we noted jurors could have believed concerning testimony potentially the defen- an invasion opinion opinion thing but an right to a danger of this accused’s constitutional guilt. The of an dant’s simply This we cannot jury function is trial. Id. at n. 3. compromising the ignore. permit. great to too trial. and remanded new Reversed suggested
Although prosecutor attorney had that Bennett’s question in his MACY, J., concurring opinion. filed on this Hinton his already asked issue, the case. not find that to be we do THOMAS, J., dissenting opinion filed a attorney, by Bennett’s question asked C.J., CARDINE, joins. in which special or not the in the context of whether MACY, Justice, concurring. interpretation of agent’s biases affected activities, he sus was whether Bennett’s where the I concur. This is not case *5 being drug dealer Bennett of pected drug to coddle traf- majority has chosen objeсt The began surveillance. when uniformly a case where we have fickers but distinctly question this and result of the constitu- applied precedent case prosecutor’s the from those of different and the United States. tions of this state opin Hinton’s questioning, which solicited is ludi- a different standard To advocate drug Bennett was ion as to whether crous. investigation from his and the facts dealer opinion. for his Conse that were the basis Justice, THOMAS, dissenting, with which are light of the concerns quently, Justice,* CARDINE, joins. Chief whom we are com presented Stephens, well conviction I affirm Bennett’s would to this issue. to reverse as pelled record somewhat I read the this case. in the the summarization differently from appeal this Because we decide my reading of the opinion. On improper majority claim of reversing on Bennett’s not, record, holding Stephens v. not, the testimony, need do we implicated in (Wyo.1989),is not error. We 774 remaining the claims of address it would any more than this instance trial court was mistaken note that the do a fact witness attorney- any other case which gave power the to waive when it Surely, the as to his observations. testified prosecution witness Sam privilege to client robbery victim of an armed permits him law attorney than Brown rather Brown’s pointed a re- testify defendant suggest that the necessarily do not self. While we watch; him; his wrist at demanded testimo volver resulting limit on Brown’s that the that it. It is certain and took of the sixth amendment ny was a denial not eye witness does that confrontation, such as agree we that cross- right of prerogatives any an invasion incentives the constitute motives or into examination my judgment, the situation jury. false testimo may giving witness materially different in this case is possible given the broadest ny should be example. Hall, foregoing F.2d the scope. States United (5th Cir.1981). light In this 1002, 1008 problem to a propriety of a solution The whether to the decision emphasize per- on the to an extent usually depends belongs sole attorney-client privilege waive exam- problеm is from which spective client. ly to the marked difference often is a ined. There prag- and a solution the academic the record between Stephens, As the case frequently perspective accused, matic solution. against the strong case discloses problem. the definition even affects regret that we over- not without and it is * argument. at time of oral Chief Justice reads time between counsel and Hinton argument
A in this defense popular telegram argument. Coun- record: I call the what urges judge sel or to send some- Now, “Q you from what observed firmly message. I am convinced that one a night, you and at weekends the nature of court needs to consider this Merritt Wilkinson Michael and Curtis message sending traffick- associated with Danny Bennett to be tell that we going Are we them will ers. times differ- each other at different precedents to to extend case endeavor places during period of time that ent may they so that avoid conse- them; limits isn’t correct? you surveilled quences of their antisocial Or behavior? “A Yes. instead we choose shall we tell them actually “Q many you did How times criminals, and we will limit not to coddle dealing drugs? observe Michael Merritt far precedent case application of so opinion? “A My allows to make them an- constitution “Q No, you I want know what actu- prefer I their crimes? more swer for dealing ally Merritt observed—Michael permissive approach. strict attitude to the drugs, handing drugs somebody or confronting court problеm receiving cash? trafficking in impact con- case is coming anything “A saw I never him— upon society. substances Some trolled directly. out his hands as a crime. to describe this victimless tend Wilkinson, “Q did How about Curtis Nothing could the truth. be further from anything directly out you ever see come portion television recently viewed a of a directly? anything of his hands receive night- program that addressed the social “A No. *6 in “crack mare of cocaine” babies born “Q How about Bennett? Realism city New York. demands rеc- “A No. that, ognition of the social costs because “Q you began qualify your But now generated by drug culture and those your questions opinion? demand, supply the all of us are eco- who “A Yes. style this of antisocial nomic victims of “Q opinions that about times You behavior, many us will victims of that; you thought they doing that criminal acts as well. isn’t correct? that point that must first all out Ben- I “A Yes.” attorney engaged an nett’s indeed was examination, prosecutor On redirect Agent suggest that Hin- intense effort to interjected question: then this investigation testimony were ton’s if, “Q Frentheway you Mr. asked record, product of bias. As read drug Bennett your opinion, Mr. clearly attorney introduced the Bennett’s you yes. dealer and said opinion, justified and that matter of “A Yes. was di- inquiry by prosecutor, which “Q Why?” question. ask the next explaining the basis for an- I’ll rected at The given on cross-examination. swer in the record demonstrates What follows as prosecution’s inquiry, function of that, exchange, foregoing Hinton did in the discerned, clearly was to di- judge district had nothing more than reaffirm that he minish, any impression possible, insofar as ques- “yes” to defense counsel’s answered that Hinton was biased. Mr. opinion his as to whether tion about that, attorney Bennett was a dealer. After questions by Bennett’s including testimony, answer interrogating Hinton Hinton’s the course of about opin- quoted page majority at three of the actually whether he observed certain indi- ion, Bennett, nothing more ex- viduals, dealing drugs simply than his including why opinion held the testimony planation that he nev- resulted Hinton’s It is hands had been elicited defense counsel. anything er come out of the saw directly. exchange important also to note that other witnesses individuals these
885
practically
unequivocal
had testified to
all of the infor-
clear and
rule of law was vio-
State,
reported
supporting
Scheikofsky
mation that Hinton
lated.
v.
Because
am of the
that Ben-
affirmed,
respect to the witness’ motiva
tions with
nett’s conviction should be
it is
any potential
testifying as well as
briefly
tion for
appropriate to discuss
the other as-
for falsification. He also had
incentives
majority
sertions of error outlined
questions in
opportunity to ask other
the contention that
opinion. As to
attempt
impeach
to
the witness if he
error occurred when the state was allowed
State,
Aguilar v.
764 P.2d
that two of its
desired. See
to introduce evidence
wit-
Furthermore,
(Wyo.1988).
no offer of
pleas
had entered
to of- 684
nesses
pre
serve to
proof was made that would
arising out of the same circumstanc-
fenses
State,
Story v.
serve this claim of error.
charged
appellant,
the crime
to the
I
es as
1020,
(Wyo.1986),
1011
721 P.2d
65 A.L.R.4th
prosecution
that the
agree with the state
962,
evidence,
479
107 S.Ct.
rt.
denied
U.S.
entitled
use that
both for
to
ce
459,
(1986); Krucheck v.
questions
effort
ruling
challenged by
wood,
(Wyo.1985).
Bennett un-
1282
With re
would be
704 P.2d
evidence,
of error.
spect
der
claim
we note
admission
sound discre
that to be matter within the
post-arrest
respect
statement
With
State,
v.
Hatheway
tion of the trial court.
Jenkins,
co-defendant,
that state-
of the
(Wyo.1981).
possibility
product of deliberations they did disbelieve
strates the other defense order believe
one
and, consequently, there
no
abuse
rel.,
Wyoming,
ex
STATE
WYOMING
ruling on severance.
discretion with the
COMPENSATION DIVI-
WORKERS’
*8
Bruno,
v.
As last claim of HOLLISTER, Appellee closing argument was improper tends that Lance E. made, appealed prej- which the fears and (Respondent/Employee-Claimant), preceded by the of the and was udices inflammatory of irrelevant and introduction LOGGING, TEGELER initially objec- We note no evidence. Employer-Objector. arguments plain made to so the tion was No. 90-21. again is invoked. error standard Wheeler State, (Wyo.1984); Jones v. Wyoming. Supreme Court of P.2d Further- July more, do the claims made quotation from a of the record. flow correct justification find no error with
We pe-
respect closing argument from our