*1 evidentiary that there must be some show- WPCA on all of tbe presented issues by the ing in pleadings. order to make a determination of attorney’s reasonable fees. Durdahl v. Affirmed. Casper, Wyo.,
Bank
2-106, supra, of factors to be considered in
determining the reasonableness of attor-
ney’s guideline fees is to be fol- attorney
lowed charging when a fee.
It is mandatory that a court consider attempt apply each and factor BRUNMEIER, June Appellant awarding when attorney’s reasonable fee. (Defendant), The affidavits and attachments Wyoming, The STATE of relating thereto attorney’s fees show an (Plaintiff). Appellee itemization of the nature of the service performed, expended, the time and the No. 86-140.
hourly customarily fee charged for such Wyoming. Court of service. This information adequate form a basis for the finding Feb. expended
time hourly and the fee
for the itemized services rendered were We, therefore,
reasonable. hold that the
trial court did not abuse its discretion when
it judgment against entered appellants for attorney’s
FLB’s fees.
Appellants also argu advance the
ment appropriate it is not to enter
judgment awarding reimbursement for inci expenses
dental incurred in the conduct of proceedings, foreclosure though even
such reimbursement is allowed
terms of the mortgages, unless there is showing
documentation necessity for
and the expenses. reasonableness of the
Appellants again support fail to argu their citation of authority.
We, therefore, decline to consider their ar
gument. We also decline to answer Munker, Leonard D. State Public Defend- question presented appellants as to Is er, Naylor (argued), Julie D. Appellate sue 2.e. for the they reason that failed to Counsel, Cheyenne, Gallivan, Gerald M. present any argument, cogent or other Program, Public Defender Lara- wise, any authority or cite addressing the mie, Whitaker, and John D. Public Defend- issue. Program, Casper, er appellant. For above, all of the reasons stated we McClintock, Gen., A.G. Atty. Gerald A. find that the district court did not err in Stack, Deputy Gen., Atty. John W. Ren- granting summary judgment neisen, Gen., for FLB Atty. Sr. Asst. Terry L.
266 Intern, Armitage (argued), Legal appel- for she was to furnish the handwrit- lee. ing exemplar. It is well privilege established that the BROWN, C.J., THOMAS, Before and against self-incrimination contained the
CARDINE,
MACY,
URBIGKIT and
JJ.
Fifth Amendment of the United States Con-
CARDINE,
stitution
prohibit
does not
Justice.
a court from
compelling a defendant
to furnish hand-
Appellant
violating
convicted of
was
the
writing exemplars.
In Gilbert v. Califor-
statute,
Wyoming forgery
6-3-602(a)(ii),
§
nia,
1951, 1953,
388 U.S.
18
W.S.1977, and was sentenced to incarcera-
(1967),
L.Ed.2d 1178
the United States Su-
period
tion for a
of not less than 18 months
preme Court held that
nor
$1,000.
more than 48 months and fined
taking
[handwriting]
of
exemplars
“[t]he
single
appeal
The
issue raised on
is wheth-
did not violate
Fifth Amend-
appellant’s privilege against
er
self-incrimi-
privilege against
self-incrimination.
I,
guaranteed by
nation
Art.
11 of the
§
only
reaches
compulsion of
Wyoming Constitution was violated when
communications,
‘an accused’s
whatever
required
produce
she
was
they might take,
form
compul-
the
exemplar.
responses
sion of
which are also commu-
We affirm.
nications,
example,
compliance with a
July
On
appellant cashed a $300
subpoena
produce
papers,’
one’s
Lounge
Gillette,
check at the Horizon
‘compulsion
not
which
suspect
makes a
Wyoming. The check was drawn on the
or accused the source
of “real or
account of Jerome
* *
Kastrow and was made
evidence”
*.’ Schmerber v. State of
payable
appellant.
to the order of
Later
757, 763-764,
384 U.S.
86
evening
manager
the
of the Horizon
1826, 1833,
overwhelming weight might see will. The distinction also (1972), not., by the but also A.L.R.3d mean that the state could obtain blood I, specific wording of Art. which samples person, § from an unconscious but than of the fed- even more restrictive get sample could not from a breath provision. While the eral constitutional person, though conscious even the latter *3 person states that “no provision federal person’s upon pri- is far less intrusive a * * * any compelled criminal shall be short, In vacy bodily integrity. the himself,” to our case be a witness requires affirmative act standard the provides that: state constitution “No overly to fine state make distinctions son shall be significantly not further the * * (Em- case himself in criminal (Citations policies privilege.” added.) phasis omitted.) 1074-1075. Id. at adopt Appellant urges us to the rule reasoning find the of the Utah We Su- Georgia, single jurisdiction followed the and, therefore, preme persuasive Court we has from the rule. departed federal act adopt decline the affirmative stan- Supreme The Court has held that a Georgia urged by appellant. dard produce defendant be Appellant’s is affirmed. conviction I, handwriting exemplar a because Art. 1, Georgia Paragraph XIII of the Consti- § URBIGKIT, J., filed a (1976)protects tution a defendant from be- opinion.
ing “perform an act which results forced to URBIGKIT, Justice, dissenting. production incriminating in the evi- Armstead, 152 Ga.App. dence.” State v. opinion the While accord 56, 233, 262 234 The Arm- S.E.2d the principles of federal constitutional with court, following previously the rule stead by majority of the law enunciated a United State, announced in v. 229 Ga. Creamer Supreme v. States Court Schmerber Cal 511, (1972), 192 350 drew a distinc- S.E.2d 757, 1826, ifornia, 384 86 S.Ct. 16 U.S. forcing tion defendant between to submit (1966); 908 v. L.Ed.2d United States him compelling to an act and affirma- 218, 1926, 18L.Ed.2d 388 U.S. 1149 in- tively perform an act which tends to (1967); 388 v. U.S. Gilbert Utah, Owens, In criminate him. Hansen v. (1967), 263, 1951, 18 I L.Ed.2d 1178 (1980), Supreme 619 P.2d the 315 compelling reasoning persuaded by the am adopted Georgia approach. Utah the In opinions. those In of the four dissenters to 1985, however, Hansen In was overruled. I present situation would ex the factual Utah, Crosgrove, City American Fork v. greater persons tend to un (1985), 701 the Utah P.2d 1069 than Wyoming the those der Constitution shortcomings the Court identified the judicially the apparently afforded dilut distinction, submission/affirmative act stat- Rights Bill of United States ed Con ing: stitution. can lead to irrational standard “[T]he compelled, for Brunmeier June was incongruous results. distinctions defense, case, to give not her own State’s For act example, under affirmative handwriting exemplars so as simulate standard, an accused could not com- forging. checks she was pelled footprint foot in a near place short, required was this defendant [y]et scene of the crime she reenact the crime with which forcibly officer remove ac- could charged, introduced re- and the State place it the track. cused’s shoe and at trial. sulting against her evidence Similarly, could not com- an accused Logic determine that justice should pelled exemplar, provide a voice to be exemplar vio- graph from a matched a voice crime, against self-in- appellant’s privilege recording the time of the lated made at 268 * * guaranteed by Art. *,’
crimination
Schmerber,
cal evidence”
so says
§
reasoning
Constitution.
1832],
S.Ct. at
is not
[86
dissenting opinions
found in the
to the fed-
him
compelling
to be a witness
precedent
relied on
this court
eral
himself. Such an artificial distinction be
compelling,
justifies
and I believe
a broader
things
tween
in reality
are
same
interpretation
of this
than the fed-
my judgment wholly
is in
out of line with
given
courts have
it.
eral
the liberal construction which
al
should
given
ways
Rights.
to the Bill of
See
petitioner
In Sehmerber the
was com-
States,
Boyd v. United
will,
ful was to obtain
ed. And the
hol in his blood at the time he was arrest-
mation to enable a witness to communi-
cate to the
had
him municative nature.’ The sole
this
certainly
analysis
analyzed
blood for
himself strikes me as
nary feat.
“In
compelling
pelling person
[*]
the first
State convict
project
to
a
of the blood was to
both
it could
analysis
prove
[*]
‘communicative’
court and
him to
which
place
extraction of
purpose
a
‘testimonial’ and a ‘com-
to
[*]
him
give
so that the
it seems me that the
‘testimony’
proved
abe witness
give
jury
petitioner
is not
evidence to convict
quite
[*]
his blood to
to be success-
to
an extraordi-
equivalent
supply
project
person
[*]
from some
purpose
petitioner
had alco-
against
infor-
[*]
who
help
to
physical characteristic.
required to use his
soned:
ments testimonial
up and utter the words purportedly uttered
by
defendant
Court
pelled
ply
ment to
himself.
been
ter these
of his constitutional
outside the courtroom is
entitled
court,
“ * * * Had
the robber. The United States
his
held, again
compelled
it is
to be a witness
partial
to a
was not
help
Being
or
plain
Wade been
new trial because of
against
convict himself
dissent,
that he would
to
in
compelled
forced
5 votes to
voice as an
other
abe witness
nature,
right
himself
Justice
equally
compelled
words
not to
at 1942.
to utter state-
but was
the Govern-
identifying
by talking
Black
have
himself.”
violative
in
against
having
to ut-
been
open
com-
only
sup-
rea-
was more or less
drunk.”
U.S. at
opinion, concurring
Justice Fortas’
773,
cused to
physi-
be ‘the
of “real or
perimeter
source
which is within the historical
dissent,
compelled
partial
self-in-
concurrence
with which
privilege
joined, Justice Fortas
Chief Justice Warren
crimination.
jected
jection that
were
obtained
against
violate the
nation,
Amendment.
They
ment of the
from
“ * * *
before
the State’s
the innocent-but-weak
instrument
es us that self-accusation
“This
to his
gious principle.
and
scription of
shield
guilty
goes to
mere
physical characteristic
voice
are,
every
his voice
tion within the cover
“
tion. United
petitioner’s Fifth Amendment
the content of what
Gilbert
by no means
admitted
[******]
the screw used to extort
go
compelling
handwriting exemplar, in contrast
for the accused.
self-incrimination.
or
compulsion of an accused
great privilege is not
which is
story. The
relationship
course,
To
the roots of democratic and
260-261,
handwriting exemplars which
to the
[ojne’s voice and
escape.
or write
they were obtained
body
v.
power
investigation. History teach-
compel
technique
in
California,
citizen
detection, apt
States v.
nature of a free man and
means of communication.
are
incorporated in the
itself,
argument,
him to ‘accuse’ himself
of the state.
follows, however, that
But
compels a communica-
him
prevents
deeper
privilege historically
which
this is not the end
designed
is
and to enable
outside
is an
the state.”
It is also a
Wade, supra, at
at trial
written,
supra, the State
is an unreliable
The court
at 1949-1950.
than the
and
would result
speak
privilege.
confessions.
self-incrimi-
the debase-
in
identifying
its
The roots
merely a
inculpate
held that
violation
over ob-
like
protec-
to use
would
guide
Fifth
right
rack
pre-
reli-
re-
A
observed:
writers
particularly where the
ing requirement as mere
pelled, as
ing
lates the constitutional
should also
and
Compelling such
need
jail
es.
veins while
accused in
writing exemplar.
extracted
mits.
“The
rest and state
compel Any him to himself. is,
attempt my opinion, to hold otherwise perpetuation
a misadventurous of the “arti- things
ficial distinction that are in between
reality same.” Gilbert