Burke v. State

BURKE, (Defendant), Tammy Appellant Wyoming,

The STATE of (Plaintiff).

Appellee

No. 86-67.

Supreme Wyoming. Court of

Dec. Munker,

Leonard D. State Public Defend- er, (ar- Naylor, Appellate D. Julie Counsel Gallivan, gued), M. Gerald De- Olson, Program, Megan Aid and fender Intern, appellant. for Student McClintock, Gen., Atty. A.G. Gerald A. Stack, Gen., Deputy Atty. John W. Ren- neisen, Guthrie, Mary Attys. B. Sr. Asst. Gen., Luckhaupt, Atty. P. Asst. and Gerald (argued), appellee. Gen. BROWN, C.J., THOMAS,

Before and CARDINE, MACY, URBIGKIT and JJ. CARDINE, Justice.

Appellant aiding and was convicted of abetting delivery methamphet in the 6-l-201(a), amine in violation of W.S. §§ 1977, 35-7-1031(a)(ii), W.S.1977, Cum.Supp. W.S.1977, 35-7-1016(d)(ii), Cum. Supp.1985, delivery methamphet 35-7-1031(a)(ii), amine in violation of § W.S.1977, Cum.Supp.1985. She raises the following appeal: issues on have been “I. Whether Defendants protection process equal due denied prosecu- of the of the law the actions avoiding deliberately prelimi- tion obtaining hearing and indictments nary observing minimal standards of without fundamental fairness. grand jury

“II. Whether the current improperly impaneled under Section necessity was no 7-5-102 there body, requiring dissolution for said panel and the dismissal of the indictments. the indictments in these

“III. Whether fatally defective for failure to cases are statutory requirement conform to the ‘A the words the foreman endorse upon Bill’ each indictment. True should be Whether the indictments “IV. the conduct of dismissed because reliability grand jury any indicia of lacks probable cause. the assessment tape recordings up “V. Whether the two methamphetamine. Lauck drove to erroneously under the the Burke were admitted co- residence where Mike Burke gave him conspirator exception hearsay methamphetamine. to the rule. Appel- lant and present Gus Skurdal were when prosecutor’s question “VI. Whether the the transaction occurred. gesture Appellant’s boy- directed at Appellant being friend resulted denied May On Gus Skurdal called a fair trial. Agent up Lauck to set another metham- require “VII. Whether the Court can a phetamine transaction. Lauck testified pay prosecu- Defendant to of for costs that he went to the Burke residence later part tion as a of her sentence.” day gave that appellant and $200 ex- change for grams two and one-half concerning The first four issues the methamphetamine. Appellant testified grand jury presented are the same issues that she had no recollection of this transac- State, in Hennigan to this court tion day question because on the she was (1987). 746 P.2d 360 We determined that under the pre- influence of medication respect there was no error with to those scribed her dentist. and, Hennigan; issues in for the reasons stated, we hold there was no error here THE CO-CONSPIRATORS’ respect with Upon to issues I-IV. the bal- STATEMENTS presented case, ance of the issues in this During direct examination of Officer modify we affirm but the sentence to de- Lauck, prosecutor the offered into evidence probation requiring lete the conditions of two tapes requested audio they and that be payment prosecution of costs of and reim- played jury. for the tape, The first offered attorney bursement of fees. I, support of Count January contained a telephone conversation between FACTS Agent Lauck and Mike Burke in which the 17,1985, January appellant’s On husband up two men meeting set at Decker’s. Burke, Skurdal, Mike Gus and David Lauck tape, second support offered in met at grocery Decker’s East store on II, Count May contained a 1985 conver- Highway in Campbell County. At that sation between Lauck and Gus Skurdal in meeting Lauck, Mr. an undercover narcot- which Skurdal told Lauck that he could agent ics Campbell County for the Sheriff’s come to pick the Burke up residence to two Office, arranged buy to a half ounce of grams and one-half methamphetamine methamphetamine from Burke. Lauck appellant. from objected The defense $1,100 agreed “fronted” to Burke tapes the admission of grounds both on the pick up methamphetamine at Burke’s hearsay and confrontation. The trial residence day. the next When Lauck ar- court objections, concluding overruled the (a rived at the Burke residence “trailer that the statements were admissible under Burke, house” by appellant, shared 801(d)(2)(E),W.R.E., Rule as statements of Skurdal), home, appellant was but Burke co-conspirator a during the course of and in Appellant suggested was not. to Lauck furtherance conspiracy. Appellant of a that search downtown for Burke. argues now that the trial court erred in agreed Lauck and then appellant drove admitting tapes the two because the State several bars and haircutting establish- produce did not sufficient evidence of a inment the downtown stop area. At each conspiracy on either count. Lauck waited in appellant the car while Under the went Rules of Evi inside each establishment to search dence a hearsay statement is not for her husband. She did not find him. home, Lauck drove her and she told Lauck statement is offered “[t]he * * * later, her that husband (E) would call him once party and is a statement he came home. Mike Burke called co-conspirator during Lauck party of a evening from the trailer house and course conspir- furtherance of the told him pick 801(d)(2)(E), that he could come acy.” over and Rule W.R.E. I, respect to Count the State statements be ad- With have held that We following through introduced the evidence 801(d)(2)(E) Rule evidence under mitted into testimony Agent Lauck: Lauck met charged. is not conspiracy if a Jasch even Mike Burke and Gus Skurdal and (1977). P.2d Wyo., 563 money drug pur “fronted” the for the co-conspirator of a In order for statements appellant’s pick chase. He went to home to rule, there must admitted under to be up methamphetamine, only appel conspiracy of a prima facie evidence Appellant lant was there. told Lauck that co-conspirators’ state- independent of the acquired methamphet her husband had State, Wyo., 711 P.2d ments. Dorador v. good quality. it was of amine and if there This burden met Appellant seemed afraid that Officer Lauck permit the trial is sufficient evidence upset methamphet would be because the conspiracy reasonably infer that a court amine not at the house at time. Id. at 418-419. existed. suggestion, accompanied At her own she defines general conspiracy statute Our husband; and, Lauck a search for her on (1) agree- conspiracy as: an the elements of search, actively she while on that tried to persons one or more to com- ment between continually find him. reassured Lauck She crime, (2) act to effect mit a and an overt methamphetamine had been that the ob objective agreement. Section the the get tained and that he could it from Mike 6-1-303, The existence of an W.S.1977.1 At this Burke as soon found him. through agreement may be established cir- point testimony in Lauck’s the trial court cumstantial evidence: correctly tape. admitted the first The testi might agreement suppose “One mony supported an inference that an necessary conspiracy essentially understanding appellant existed between agreement ‘meeting of the like the or husband, understanding being and her the contract, but minds’ which is critical to delivering appellant that would assist Although there this is not the case. con- methamphetamine. active assist the Her uncertainty requirement. tinues to exist some as to the ance satisfied the overt-act meaning word in con- precise of the the II, respect to Lauck tes With Count conspiracy, it is clear that the text May agreeing tified that on after setting is somewhat definition this grams purchase and one-half of meth two A more lax than elsewhere. mere tacit $200, amphetamine from Gus Skurdal for suffice, understanding will and there appellant’s where Lauck went to residence or any need not be written statement appellant he and consummated the transac speaking express- of words which even a terms he had discussed tion on the same * * * agreement. ly communicates point At this the trial court with Skurdal. conspiracies “Because most are clandes- ruling tape. This admitted the second nature, prosecution is seldom tine the correct, supported as the evidence an also evidence of the present able to direct appellant and Gus Skurdal inference that agreement. sympa- have Courts been agreed appellant would or understood problem, and it is thus well methamphetamine thetic to this to Lauck. deliver the require prosecution the the overt-act delivery established that The satisfied tapes properly were admitted. on inferences drawn from the ment. The ‘rely alleged conspira- course of conduct ” MISCONDUCT PROSECUTORIAL omitted.) (Footnotes W. LaFave tors.’ Scott, (1972) appellant, pp. Law at In his cross-examination of the and A. Criminal appel- prosecutor sought to establish that 460-461. admissibility judge, making ruling on the substances Under controlled statute, conspiracy proof drug prosecu- co-conspirator’s of an overt act is not statement in a a tion, 35-7-1042, W.S.1977; Apoda required. prove Section require an overt should the State to The ca v. 627 P.2d 1023 parties not raised this act. Because the general conspiracy stat difference between issue, is satisfied in and the overt-act element conspiracy ute and the controlled substances case, present not decide the issue. we need a trial raises an issue as to whether statute drugs question asked drug Murray. lant user and that were Mr. was a question significance is of no present point in her home. At one to this often case absolutely nothing and has to do during questioning appellant, his guilt defendant, or innocence following exchange occurred: you disregard are to totally it 26th, “Q. Okay. From June 6th to June might given answer that have been you drugs you had friends over and used that. inside that trailer? “You are not to you consider it when No, I “A. did not. deliberate case.” Well, “Q. you in weren’t bed with evidence, After the close of right back there when were defense man counsel renewed his motion for a mistrial.2 drugs?” he had arrested and motion, explaining: The court denied the objected, ap- immediately counsel Defense “Though I improper don’t think it’s bench, proached and asked for a mis- drugs, ask her about the I think the trial: it, manner in which asked Mr. Mur- “MR. WEERTS: I’d ask for a mistrial ray, you asked, when think Mr. bringing up I think Mr. Mur- now. what right very graphic Weerts is detail— —in just totally ray did has ruined this case. about whether she was in bed with this trial, get She cannot a fair think putting very fellow was think nice- we must have a mistrial at this ly you pointed to sleazy- the rather —that point. Bringing up the fact that she was looking individual in the back of the arrested bed with that man has noth- courtroom and asked whether or not ing to do with the case. drugs there were in bed with the two of drugs. “MR. There MURRAY: were them when she was arrested. It’s the “THE anything COURT: It doesn’t have fact that she is with him. to do with the case. The fact that she is, drugs “And the fact there were might doing drugs, might have been course, prejudicial not or not inflammato- drugs might something have had to But, ry any way. point out to the it, might do but the fact with that she woman, jury that this who is a married have been in bed with someone has abso- woman, was in bed I guy, with this think nothing lutely to do with the case all. at prejudicial. that that is going jury “And I’m to admonish the mistrial, going grant “I’m not and the not, they they disregard will that will this, one, the reason is I number don’t question any possible answers, that and prejudicial think that it was so that you bring up and I’ll warn not to those a creates situation where the defendant things again. kinds of get cannot a fair trial. you “I also want to tell that it’s the rule “Secondly, guess they’re and I tied to- you in this courtroom that your conduct gether, major one of I feel reasons [the] from podium.” examination behind the way that is because defense counsel The court took the defendant’s motion un- very beginning, from the even from the advisement, jury der then instructed the dire, jury time of voir told the that this follows: one, drugs, woman used number number Gentlemen, two, “Ladies and want to tell that she lived with some man not husband, disregard that are to jury that last her and asked that the “And, it, Murray’s As I remember the "[MR. WEERTS:] situa- as understand Mr. reason tion, around, Murray Mr. turned himself doing for that was cross-examination as to pointed my boyfriend, client’s who was anyone whether she knew house over a in her sitting in the back of the courtroom. He has period person of time and whether that ever hair, vest, long he is dressed in a T shirt and a drugs had in the house. pretty say, hippie I’d looks like a much. “I think that it’s clear that the real reason for motorcycle something or a fellow or on that Murray doing preju- Mr. what he did was to order, points my to him and asks client about client, jury my dice the and it’s God being arrested with this man while she’s prejudice.” awful as far as bed with him. dealing drugs. prosecutor asked members, going hold that When they if were appellant improper question, had al I think from that moment against her. methamphet used expected ready to hear admitted that she jury on these members addition, something brought up prosecutor In after the It was amine. that. originally, appellant not question counsel and before defense asked it, prosecution.” answered the trial court instructed they terms that should jury no uncertain asserted: response In defense counsel disregard prosecutor’s question. We jury question “In dire I did ask the voir jury must that followed the assume anything would hold about whether court’s curative instruction. Madrid v. against my client it was shown State, Wyo., 592 P.2d 709 Simms v. living in the same house with she was denied 409 Wyo., 492 P.2d cert. man. another U.S. 34 L.Ed.2d asking questions those “My reason for (1972). Appellant to demon has failed living in she was a house with was that prejudice. conclude strate substantial We Skurdal, I don’t think there was Gus prosecutor’s deny conduct did not that the any kind of male-fe- any evidence about appellant a fair trial. relationship between Gus Skurdal male Tammy just Burke. And wanted COSTS OF PROSECUTION jury didn’t think to make sure that the appellant On each count was sen simply living poorly my client years in way tenced to one to two and one-half I in no envisioned the Gus Skurdal. Center and bringing up the fact that she was State Women’s judge man. That fine. The trial sus arrested in bed with another assessed $500 my purpose.” pended days all but 28 of the sentence wasn’t incarceration, gave appellant for 28 credit argues prosecu- Appellant now served, placed appel days previously denied her a fair trial and tor’s conduct years, probation period for a of five lant on declining erred in the trial court conditions, one of subject to numerous considering a claim declare a mistrial. appellant which misconduct, prosecutorial we must re- costs, transportation for of “[p]ay court to determine wheth- view the entire record witnesses, specifical- for which the court prosecutor’s resulted in sub- er the conduct justiciable there was not a ly finds that amounting prejudice to the denial stantial concerning custody and chain of issue State, Lindsey v. Wyo., 725 of a fair trial. results, special- court laboratory and the record, reviewing In P.2d 649 of those costs to be ly finds the amount the state of the evidence we must evaluate sixty-two thirty-two dollars five hundred impact on probability prejudicial of ($532.62).” cents circumstances of the defendant under the State, Stogner particular case. sentencing hearing the trial During the (1984). Appro- Wyo., 674 P.2d for referred to the costs assessed court subsequent curative priate objections and transportation of as “costs witnesses Lindsey may cure error. instructions Appellant asserts that prosecution.” State, supra. pay her to improperly required trial court her sen- prosecution part costs of agree with the trial court that We explain our agree. In order to tence. We highly prosecutor was the conduct of the conclusion, necessary to examine we find it whole, improper. Viewing the record as a relevant statutes as in some detail the however, pros we cannot conclude appellant was at the time when existed deprived appellant of a misconduct ecutor’s sentenced. jury mem During voir dire the fair trial. that a court It is well established they would not tend to indicated that bers case without costs in a criminal with a cannot tax appellant because she lived convict authority. Bernard v. statutory express mar to whom she was not male roommate (1982). At the Wyo., 652 P.2d was or that male roommate ried because Thus, sentenced, legislature authority provision appellant time was deleted the permitting judgment prose- for the costs of prosecution of costs of the assessment result, felony cution in cases. As a cases was found misdemeanor provided authority criminal code no for as- 7-11-516, W.S.1977, provided which that § sessing prosecution against appel- costs of a defendant was convicted of a mis- when lant.3 demeanor, The Code of Civil Procedure con punishment shall the dis- “the be within authority limited tains for the assessment court, penalties limited as cretion prosecution of costs of in criminal cases. law, except payment now 1-14-102, W.S.1977,permits Section the tri may prosecution the costs of be added to * * expert al court a criminal case to assess part and made a of the sentence *.” fees as costs any party witness “in clearly The statute allows such costs to be the discretion of the court.” Absent a stat incorporated into the convicted misdemean- utory provision however, contrary, to the ant’s sentence. liability for such costs is the nature of a sentenced, appellant When was there civil debt enforced judgment means of dealing no statute similar with felo- and execution. The Code of Civil Proce nies. Prior to the revision of the criminal provides dure no authority for the assess 1983, 6-1-105, W.S.1977, provid- code § part ment of costs as of a criminal sentence ed: probation. or as a condition of law, prescribed by the limits “Within State contends punish- court shall determine and fix the 7-l-112(c) of the Public Defender Act § misdemeanor, any felony ment for or permits prosecu the assessment of costs punishment im- whether the consists of probation. tion as a condition of That sec fine, both, prisonment, or or and when provides: tion any person imprisonment is sentenced to “(c) person To the extent that a covered penitentiary, in the the court shall de- by W.S. 7-9.20 is able to [§ 7-1-110] sentence, period clare in its for what he provide attorney, for an the other neces- imprisoned; and in all shall cases of a sary representa- services and facilities of offense, conviction of an the court shall tion, costs, and court the court order judgment against the render defendant him provide payment.” for their prosecution.”

for the costs of The Public Defender Act does not define reading A careful of this statute reveals specify the term “court costs” or the man- sentencing judge “ren- ner in which the court’s assessment of judgment” prosecution view, der for costs of costs to be enforced. our how- cases; but, felony ever, 6-1-105, misdemeanor and both the 1983 amendment to § 7-11-516, represented legislative unlike it did not state that the determination that § payment may costs prosecution such be “added to an assessment of costs of part part sentencing and made a of the sentence.” should not In be a of the event, cases; procedure felony nothing 6-1-105 was amended. In the re- § code, Act, existed, July vised criminal effective the Public Defender as it then contrary corresponding mandates a conclusion. appears statute as 6-10-104, W.S.1977, which reads: § The State contends also that even prescribed law, by

“Within the limits express statutory authority, without a trial fix punish- court shall determine and judge may prosecution assess costs of misdemeanor, any felony ment for or probation dis condition of under the broad punishment 7-13-303, W.S.1977, granted by whether the consists of im- cretion § State, fine, Lansing prisonment, Cum.Supp.1986.4 or or both.” 7-11-505, authority "Payment prosecution may 3. Such is now found in be § the costs of W.S.1977, part to made a of the sentence in provides: added enacted in which any felony or misdemeanor case.” 7-13-303, W.S.1977, Cum.Supp.1986,

4. Section provides: Wyo., 669 P.2d we held that “Section 7-1-112. Determination of needy person. “[sentencing judges have wide discretion determining appropriate “(a) conditions of person Determination of whether a discretion, however, probation.” Such by covered W.S. 7-9.20 is a [§ 7-1-110] unlimited; needy person not it must be shall be exercised within deferred until his appearance first or in authority granted by court a suit for the confines of the payment or reimbursement under See Hicklin v. legislature. W.S. 7-1-114], 7-9.24 whichever occurs ear- [§ 535 P.2d 79 A.L.R.3d 1050 Thereafter, lier. the court concerned legislature, Because the in enact- determine, respect shall pro- to each 6-10-104, W.S.1977, ing supra, specifical- § ceeding, needy person. whether he is a ly language permitting deleted the assess- * # # * # # prosecution, ment of costs of we hold that judge authority by the trial exceeded his “(c) person To the extent that a covered assessing prosecution costs of as a condi- by W.S. 7-9.20 is able to [§ 7-1-110] appellant’s probation. tion of provide attorney, for an the other neces-

sary representa- services and facilities or tion, costs, and court may court order ASSESSMENT OF ATTORNEY FEES provide him to payment.” for their THE UNDER PUBLIC Recovery payment, “Section 7-1-114. DEFENDER ACT “(a) attorney general by The may, suit separate proba As a condition of (6) years within six after the date the tion, appellant the trial court ordered to rendered, services were on behalf of the Campbell “reimburse” the State and Coun state, payment recover or reimburse- ty provided by court-ap for services ment, be, may as the case from each pointed public following defender. The person legal who has received assistance provisions Public Defender or another benefit under this act: Act, appellant as it existed when was sen “(i) entitled; To which he was not tenced, subject payment addressed the “(ii) respect With to which he was not a attorney reimbursement of fees in needy person it; when he received or digent defendants: "(in) respect With to which he has failed Right attorney; “Section 7-1-110. required by make the certification cost; rights. other 7-9.22(b) 7-l-112(b)]. W.S. [§ “(a) needy person being A who is de- “(b) Amount recovered under this sec- officer, tained a law enforcement or paid general tion shall be into the state charge having who is formal under fund.” committed, being or is detained under a quoted provisions clearly indicate that of, crime, conviction a serious is entitled: persons those who seek assistance under “(i) represented by To attorney be an pay the Act for services person having the same extent as a his and costs to the extent that are able entitled; own counsel so pay requested. at the time assistance is “(ii) provided necessary To be with the requirement may This be enforced court representation services and facilities of order at the time the court determines (including investigation prepa- and other need. The need referred to is need at the ration). requested. time assistance is need Such “(b) facilities, attorney, services and may be determined either at the defend- provided pub- time, and court costs shall be at appearance,” ant’s “first some later expense person, lic extent by that the inor a suit the State under 7-1-114. § need, appellant’s arraignment at the time the court determines is At the trial court provide payment.” appellant “repay unable to for their ordered the state for may, by may any modify any "The court shall determine and order at time condition of entered, discretion, duly impose in its probation suspension or of trial or sentence.” Cozad, 664, Ill.App.3d public People of the defender at the rate tion. v. the costs 376, 211, question per appeal of month.” The we face 110 Ill.Dec. 511 N.E.2d $50 564, improperly this order was incor- 116 Ill.2d 113 Ill.Dec. is whether denied porated appellant’s into sentence as a con- Henry, N.E.2d 115 v. Tenn. State probation. (1987). dition Crim.App., 733 S.W.2d 127 This since, particularly was true the defendant sentenced, appellant was the Pub- When State, unemployed. Dryden v. lic Defender Act contained its own enforce- 535 P.2d 483 none of which contem- provisions, ment noncompli- plated criminal sanctions for interpret As the Act as it then ance.5 we COUNSEL AT WHEN ARRAIGNMENT existed, any liability payment or reim- PLEA ENTERED IS debt; constituted a civil and an bursement 86-34, In Deckert No. dismissed pursuant to the Act was not order entered 27, 1987, July initially occasion was afford- proper sentencing proceed- of the element which, subject ed to discuss this in detail ing. the district court erred We hold that reason, again for whatever was not briefed requiring appellant to reimburse the commutation, appeal. in this After public for the services of her defend- State appeal pub- Deckert was dismissed without probation. er as a condition of her opinion. Except lished to illuminate the

Affirmed as modified. portrayed procedural events in travail of record, compre- the defect will not be URBIGKIT, Justice, dissenting in hensively analyzed opportuni- since further part concurring part. ty likely will be utilized another of these grand jury appeals to evaluate this incom- IV COUNTS THROUGH prehensible violation of both constitutional State, Wyo., My Hennigan dissent imperatives specific provision and the (1987) 746 P.2d 360 addresses Issues I requiring assignment Rule W.R.Cr.P. IV, through and is now included refer- represent every stage counsel “to him at reamplification. ence without proceedings appearance from his initial before the commissioner or the court AND ASSESSED ATTORNEY’S FEES through appeal, ap- unless he waives such COSTS IN SENTENCE pointment.” attorney’s concur deletion of fees 25, 1985, After indictment on June arrest appellant’s and witness costs from sen- arraignment on June with five oth- Observing legislature tence. has persons following er on June oc- recently subject more reexamined the curred: statute, 7-11-505, passage present §

W.S.1977, May effective not it is Tammy “THE COURT: Burke? timely now to consider the constitutional “DEFENDANT BURKE: Yes.” implicit in issues incarceration for debt if general group: address to the noted, ability pay is To absent. be how- you plead guilty “And not ever, any statutory is that authorization or questioned questioned, or asked to be justification lacking constitutional for the you may any refuse to answer as an- here, procedure presented where the ac- give swers can and used cused defendant without is or- resources against you. monthly payments during dered to make “During any questioning you may stop the course of defense order to be afford- right representa- answering ed the constitutional at time. 7-1-112, W.S.1977, appears needy person

5. Former now shall order the as a condi- § court 7-6-106, W.S.1977, following probation repay and contains § tion of sentence or provision: expenses provided state for and services pub- attorneys probation appointed pursuant to the state “If the court orders before sen- tence, suspended probation, schedule." sentence or lic defender’s standard fee vised and-abetting The trial court 1977, and then said: sult with an answer charged with a violation “And would “THE COURT: 1031(a)(ii).” “So, her about the statute and ^[*] if you questions ^[*] are convicted of both statute, attorney. then advise ^[*] Miss you should first con- comprehensively ad § you ^[*] 6-l-201(a), Burke, you Section ^[*] if you aiding- counts 35-7- ^[*] W.S. do Thereafter, about income and assets session in a manner which was pointed attorney, prosecution, and to make receive a maximum years make restitution for (Emphasis could be “Do “DEFENDANT BURKE: “In there is addition, you you any. understand that? she was added.) $20,000 extensively questioned if could be penalty you fine. pay your court-ap- have restitution, the costs required Yes, essentially open-court one; up to 20 sir.” you if you negative.1 could plead guilty or to both counts * * * Burke, Miss how old are "DEFENDANT BURKE: No. "THE COURT: Well, you making you? "THE COURT: if are not on, money enough your BURKE: 24. to live room- "DEFENDANT you supporting you, obviously you Are married? mates “THE COURT: aren't Separated. you living? haven’t starved to death. How are “DEFENDANT BURKE: just you any Do have children? "DEFENDANT BURKE: Fine. I don't —I "THE COURT: up morning BURKE: No. wake in the and do house clean- “DEFENDANT you anyone ing everything. it. "THE COURT: Do live with else That’s right. by yourself? "THE COURT: All or Living my bookkeeping. “DEFENDANT BURKE: Do "DEFENDANT BURKE: with you "THE COURT: Do have an automobile? roommate. "DEFENDANT BURKE: Half of it. I share "THE Who is? COURT: roommate, Impala my "DEFENDANT BURKE: Gus Kurdol and Ken- a '62 Gus Kurdol. I work on that. dall Smith. you anything Two roommates? "THE COURT: Do own else? "THE COURT: Yeah. "DEFENDANT BURKE: No. "DEFENDANT BURKE: speak up. they Are last one was "THE COURT: You have to "THE COURT: —the No, Kendall, BURKE: sir. is that a man or a woman? "DEFENDANT named you “THE Do have debts? "DEFENDANT BURKE: Man. COURT: Yes, men; living "DEFENDANT BURKE: sir. "THE COURT: You are with two "THE COURT: What debts? is that correct? Hospital, telephone, "DEFENDANT BURKE: “DEFENDANT BURKE: Yeah. you working? Are credit bureaus. "THE COURT: you hospital quit Memorial “THE COURT: What do owe the “DEFENDANT BURKE: for? weekend." injury. going try Foot queries "DEFENDANT BURKE: After about her Colorado you returning owe? to Gil- “THE COURT: How much do to find her husband and then lette, inquired: of it “DEFENDANT BURKE: I can't think the trial court further sup- right [your off hand. COURT: Are roommates] "THE Well, give you right COURT: me an estimate. porting now? “THE Something. supporting $30. BURKE: No. I'm “DEFENDANT “DEFENDANT BURKE: right. $30? All How much to myself, “THE COURT: as far as I can. Well, working, you credit bureau? are not "THE COURT: forty-five. you yourself? BURKE: Another supporting “DEFENDANT how are ceramics, right. you Selling else do “THE COURT: All Who “DEFENDANT BURKE: money doing to? paintings, murals on the walls and owe company. Phone Te- "DEFENDANT BURKE: stuff. levents. You are an artist? How much "THE COURT: you How much do owe them? money you "THE COURT: do make? hundred-some- “DEFENDANT BURKE: Six BURKE: It varies. Sometimes "DEFENDANT company thing phone in Colora- just— to the back I do it free. free, you don’t do it do. "THE COURT: When judgment COURT: Do make? "THE how much do against you? $50 here "DEFENDANT BURKE: It varies. No, It’s BURKE: sir. “DEFENDANT and there. Well, my making husband. COURT: then are not "THE obligated on, right. he enough obviously. your "THE COURT: All Was Are room- to live pay you? that account? supporting mates bond, regard appearance Right. “MR. to the ROSENTHAL: county attorney stated and the trial court Rosenthal, “THE Mr. COURT: if I start- appointed

advised reference to coun- with setting some ed of these down within sel:' days to 10 pleas, you about 8 for up, I “MR. MURRAY: Let me back going to be able to consult some with Burke, can, Honor. On Miss her Your people? these community ties with the are somewhat so, “MR. hope ROSENTHAL: We would partic- I tenuous. And think that yes. circumstances, light ular set of “THE you. COURT: Thank unemployed really that she’s fact

has no ties to the community, her hus- ^{[*] [*] [*] [*] [*] [*]} band questing a cash or on Miss Burke. ^[*] is out of # state, # corporate surety ^[*] we would be re- ^[*] bond ^[*] yours to have an “Miss your plea hearing is Burke, you set attorney at 8:15 on are also enter an Monday, July is also set given appearance, days 8th. at, Murray, you up “Mr. come to the would Cusson, Blanchard, Boykin, “Mr. Mr. Mr. (At for a moment. which time the bench Barnett, public and Miss defender is bench.) Murray court and Mr. met at the represented appointed represent is —or my “THE It’s intention to then COURT: Tammy not you. each of [But Burke.] assign attorneys you, to those of as I 8:30, your “And cases are all set for said, attorneys. that need to have [Tam- Friday, morning, Friday, July 8:30 the my Burke was not included.'] 5th. you going give you “The I’m rest of you your “At that time can pleas enter get attorney. some time to an these cases. going tentatively I’m “And set a date Barnett, Boykin, “Mr. and Miss and Mr. you at which time will return court Blanchard, you the three of are all re- your plea, request and enter rather than $50,000 leased on a unsecured bond.” having you today to do so without con- Considering any the absence of resources attorney. sulted with an and the decision that she would not be “And see that we still have someone released, the disinclination of the trial court public present. from the office defender’s appoint attorney at that time to an not Rosenthal, you spoken “Mr. have with State, understood. Hoskins v. your possibility director about P.2d reh. denied 553 P.2d 1390 sending help up some to take care of 956, cert. denied 430 U.S. these cases? State v. Hen 51 L.Ed.2d 806 Yes, have, “MR. ROSENTHAL: Your ry, supra, 733 S.W.2d 127. Honor. Thereafter, Burke, July Tammy “THE COURT: And what was his on re- sponse? having jail having remained in without ar- bond, ranged again taken before “MR. ROSENTHAL: We’ll have to take the trial court. ourselves, initially of it care but we will getting help some later. “THE COURT: Looks like we have Miss right. up begin “THE COURT: All For trials and Burke here first so we’ll things? those sorts that case. is in in criminal Court session why “DEFENDANT BURKE: That's we’re “DEFENDANT BURKE: No. took I— my deposit, just recently looking got out of and I started for him. all these bills. getting my It the bills in husband’s name. right. "THE COURT: All I understand that. overdue, about 4 months over- was due. months And how much do owe Televents? "DEFENDANT BURKE: Seventeen-some- Okay. "THE COURT: Do other thing. debts? monthly charge "THE for a COURT: Just Yeah, I can’t "DEFENDANT BURKE: but then? right think of them now." No. State of charge versus Tam- “To the that on the day 18th January, my Campbell Burke. County, Wyo- ming, you did aid and abet the commis- Burke, you presently “Miss under felony, sion of a the delivery of metham- drugs? the influence of alcohol or phetamine, you plead? how do No, “THE DEFENDANT: sir. “THE DEFENDANT: Not guilty. you “THE COURT: Do have mental II, “THE COURT: And to count that on impair your defect which would ability to or about day the 22nd of May, 1985, in proceedings? understand these Campbell County, Wyoming, you did un- No, “THE DEFENDANT: sir. lawfully possess deliver or with intent to “THE you COURT: Are the same Deb- methamphetamine, deliver you how do Tammy bie—or Burke —excuse plead? me—that

appeared June, here on the 27th of 1985? “THE guilty.” DEFENDANT: Not Yes, “THE DEFENDANT: sir.” Consequently, without resources and with- attorney, out an days 12 after incarcer- reinquiry After charges about ation, the indicted required defendant was faced, which she was the trial court further plea, a disregard enter of the Consti- unrepresented examined the defendant: tution, discussion, 6, counseled and Rule Burke, recall, “THE COURT: Miss as I I W.R.Cr.P. ordered attorney have an enter an appearance in this today, case before THE WHETHER TAPE RECORDINGS I don’t see that that has been done. WERE ERRONEOUSLY ADMITTED Why is that? UNDER THE CO-CONSPIRATOR EXCEPTION THE idea, “THE I TO DEFENDANT: have no HEARSAY RULE sir. I trying. have been Although agree I tape that the “THE COURT: Who have talked to? co-conspirator’s statements should be ad- “THE Nobody yet, DEFENDANT: missible, I concur with the court on this guess. just trying. been I have general issue to state agreement on the been 12 days, here for and I got haven’t adopted conclusion strong but concern with nobody. process standard and the to be “THE you ready COURT: Are to enter a used for by admission as shown this record.

plea in this case? majority correctly The state that in order can, sir, “THE yes. DEFENDANT: for statements co-conspirator of a to be “THE right. COURT: All Why don’t 801(d)(2)(E),W.R.E., admitted under Rule you please stand. proper proof2 there must be conspir- of a proper proof heavily adjudicated What is a relevancy). We also decline to address the question. In by most recent consideration coming circumstances in which the burden of Supreme United States Bourjaily Court in proffered forward to show that the evidence is — States, U.S.-, 2775, United 107 S.Ct. appropriately placed inadmissible is on the (1987), L.Ed.2d 144 preponder the test was "a nonoffering party. Cleary, See E. McCormick proof." ance of Id. at 2776. The cases are not Evidence, 53, 136, (3d p. 1984). on § n. 8 ed. agreement even in ed whether admission is cover Finally, express opinion we do not an on the by 104(a), only, Rule W.R.E. or whether proper proof order of that trial courts should (b) applies providing subsection the criteria concluding preponderance follow in support finding." "evidence sufficient to a on-going standard has been satisfied in an Enright, (6th United States v. 1978). 579 F.2d 980 Cir. States, Bourjaily supra, trial.” v. United prima frequently A facie test is stated. 2779, S.Ct. at n. 1. However, case, Bourjaily in the Justice Rehn 477, 619, Lego Twomey, 404 U.S. 92 S.Ct. quist, stating 'by preponderance after in text a (1972), 30 L.Ed.2d 618 Justice White defined the proof,” expressly reserved: " * * * prepon- test for admission of a confession as a We preliminary hold that when the considering derance of the evidence in a Jack- 801(d)(2)(E) facts relevant to Rule are dis- hearing. son-Denno The substantial-evidence puted, offering party prove must them Florida, Wilson, preponderance standard is used in State v. of the evidence. [Fn.l] (1985), Fla.App., 466 So.2d for initial proper We intimate no intro- ‘‘[Fn.l] view on the proof questions falling preponderance standard of duction and a at trial as then under 104(b) (conditional Federal Rule of Evidence meeting answered failure of the burden

acy independent Jasch v. co-conspirator’s See 563 P.2d 1327 exists, statements. If such (1977), J., evidence then McClintock, dissenting, and foot- the trial court reasonably infer that a note citation therein of United States v. existed, the state Nixon, conspiracy whereupon 418 U.S. ments become hearsay. admissible as not L.Ed.2d 1039 quoting the rule. Edrington, United States v. 726 F.2d 1029 procedural disaffinity portrayed by Williams, Cir.1984); United States v. (5th pretrial this record is the absence of a Rule (9th Cir.1981); State v. Gor 668 F.2d 1064 hearing W.R.E. on the admissibility of tarez, 141 Ariz. 686 P.2d 1224 significant evidence. See Rule Steccone, People v. 36 Cal.2d 223 P.2d 1101(b)(1), W.R.E.3 People, (1950); Williams v. Colo., 17 724 through Defense adequate counsel pre- Nirschl, State v. (1986); P.2d 1279 208 preparation, trial judge and the trial in an 111, State v. (1971); Kan. 490 P.2d 917 should normally re- orderly process, trial Meredith, La., Com (1981); 403 So.2d 712 significant solve such evidentiary questions Bongarzone, monwealth v. 326, 390 Mass. Denno, in a Jackson v. advance of trial Cornman, State v. (1983); 455 N.E.2d 1183 368, 1774, 378 U.S. 84 S.Ct. 12 L.Ed.2d 908 Mo., State v. Stev (1985); 695 S.W.2d 443 (1964) hearing.4 particularly This is er, Mont., true Carr v. (1987); 732 P.2d 853 because of the State, proof differentiated stan- 238, (1980); 96 Nev. 607 P.2d 114 dard derived from Rule 104 and Rule State, Okla.Crim., Laske v. 694 P.2d 536 1101(b), 801, as well as Rule Gray, State v. W.R.E. (1985); Utah, 717 P.2d 1313 Guloy, (1986); State v. 412, reject any suggestion 104 “We Wash.2d abol- (1985), 705 P.2d 1182 ishing cert. denied bootstrapping rule, 475 U.S. the Feder- 1020, 1208, (1986). 106 S.Ct. 89 L.Ed.2d 321 al Rules of changed Evidence have 16, W.R.Cr.P., curative instruction or a mistrial. Prima facie motion under Rule and conse- California, initially Steccone, People is used in v. quent proceedings Mayer in advance of trial. v. 234, (1950). 36 Cal.2d 223 State, P.2d 17 Colorado 127, Wyo., (1980); Annot., 618 P.2d 128 satisfaction, utilizes to the trial court’s Williams where, may 63 A.L.R.3d 311. Cases occur ab- Colo., People, (1986). v. Prepon 724 P.2d 1279 limine, suppress sent motion to or motion in Washington, Guloy, derance is used in State during issues are first found to rise trial and 412, (1985), 104 Wash.2d 705 P.2d 1182 cert. separate must inquiry then be addressed in 1020, 1208, denied 475 U.S. 106 S.Ct. 89 L.Ed.2d cases, jury many excused. the Jackson- (1986). employs adequate 321 Massachusetts hearing may effectively dispositive Denno be of probability, Bongarzone, Commonwealth v. 390 proceeding. Hayes criminal See 326, (1983). Mass. 455 N.E.2d 1183 See excel (1979). Wyo., 599 P.2d 558 See also Shields v. consequent adoption pre lent discussion and of Carnahan, (1987) Wyo., regard 744 P.2d 1115 test, ponderance Enright, supra, United States v. pretrial to amendment or rescission of order. rejecting and as a second trial instruction on availability and use of the Jackson-Denno Petrozziello, weight. See also United States v. hearing should be much broader than the volun- (1st Cir.1977). 548 F.2d 20 inquiry tariness of confession as to include mo- "(b) inapplicable. Rules rules other —The suppress tions in limine or to initiated under respect privileges than those with do not 16, Commentary, Rule W.R.Cr.P. The Motion in apply following in the situations: Trump Litigation, Limine: Pretrial Card in Civil "(1) Preliminary Questions of Fact.—The (1974); 27 U.Fla.L.Rev. 531 Rothblatt and Le- questions prelimi- determination of nary of fact roy, The Motion in Limine in Criminal Trials: A admissibility of evidence when the Technique Preju- the Pretrial Exclusion issue is to be determined the court under Evidence, Ky.L.J. (1971); dicial ment, 60 611 Com- 104(a)." 1101(b)(1), Rule Rule W.R.E. Ruling The Evidence at Pretrial in the Courts, (1966). Federal 54 hearing Cal.L.Rev. 1016 4. The fair mandated Jackson v. Den- no, Suppression supra, generally on a search and seizure issue is is called the Jackson-Denno jurisdictionally hearing. Feeney State reserved to the district ex rel. v. District court. Court of 40(e), District, 1259, scope Rule pre- Seventh W.R.Cr.P. The wide Judicial 607 P.2d (1980), liminary inquiry broadly reh. involving denied 614 P.2d 710 and decision con- hearing pretrial prelimi- sidered in Rule 104 determination “in which should also include underlying nary questions concerning qualification both the factual issues and the vol- of a witness, person actually untariness of privilege, his confession are to be a existence of a determined," Denno, evidence, reliably supra, admissibility Jackson v. or the with exclusion 380, 1101, proceed- U.S. at applicability 84 S.Ct. at 1782. This of Rule and the of subsection ing (b), 3, usually quoted supra significant. should be initiated with a defense n. Marcus, hearsay co-conspirator exception such Prosecution and Defense of Crimi longer ‘firmly that it is no rooted’ in our Cases, Conspiracy nal at 5-75 § 505[3][b] legal bootstrapping tradition. The rule (strict Annot., conspiracy); 44 A.L.R.Fed. proof to the method only relates 627, Annot., 46 A.L.R.3d 1148 exception has been satisfied. It does (1972). See also United States v. Washita change any not co-conspir- element of the Co., Construction (10th 789 F.2d exception, ator which has remained sub- Cir.1986); Petersen, United States v. stantively unchanged adoption since its (10th Cir.1979), F.2d 1313 cert. denied 447 Bourjaily v. United country.” U.S. 100 S.Ct. 64 L.Ed.2d 854 — States, -, -, U.S. 97 L.Ed.2d 144 fn.4. coconspirator’s “Before a statement Rehnquist apparently Justice says that ini- pursuant admitted to Rule preponderance tial admission is “by a 801(d)(2)(E),the State is to es proof,” evidentiary but that effect as to foundation, proper tablish a showing that within proof conviction falls beyond a rea- requisite elements of this rule have sonable doubt. been satisfied. Specifically, require we Preliminary admissibility decisions on (1) that the State show conspiracy that a pursuant to Rule W.R.Cr.P. and Rule exists, (2) membership of the declarant 104, orderly presentation W.R.E. for coconspirator and the defendant such preparation by advance highly counsel are (3) conspiracy, and that the declaration preferable. Obviously, the opportunity for was uttered the course of and in fur request defendant hearing depend- a is therance of the conspiracy. e.g., See upon knowledge ent by as furnished United States v. Womochil (8th Cir. prosecutor that introduction of Rule 801 1985), 1311, 1314; 778 F.2d United anticipated. evidence is Cf. United States (9th Cir.1981), States v. Perez 658 F.2d Valencia, v. (2d Cir.1987), 826 F.2d 169 654, 658. apparently government where request- Court, “The pursuant District to Rule hearing. ed the say This is not to that in 104, M.R.Evid., is to determine the discretion management of the court in whether requirements of Rule case, of the particularly with trial time 801(d)(2)(E) reaching have been met. developments, exceptions no may properly determination, require we now recognized occur. It is also that trial of a admitted, before testimony such be conspiracy strict singularly case is differ- conspiracy District Court find that a ex- ent than trial of a defined crime where one by preponderance ist a indepen- of the proof of the elements of through is derived dent differently, evidence. Stated we re- co-conspirator Rule 801 statements. quire that the State show the existence apply the standard used in juris- other conspiracy by preponderance of the a dictions, permit and would not the trial independent the evidence and exclusive court to admit statements under the cocon- coconspirator’s of the statement itself. spirator hearsay exception unless and until proof “While we note that the order of is presented evidence is support “sufficient to typically within the discretion of the trial finding” a conspiracy. 104(b), of a Rule judge, require we further that the Dis- W.R.E. Absent sufficient evidence sup- trict Court admissibility make this deter- port finding, the statements should prior mination to the introduction of the not be by subsequent made admissible trial alleged coconspirator’s statement.” evidence, except in the abnormal situation Stever, supra, State v. 732 P.2d at discretionally to be handled conditional “preferred proof” rule for order of introduction which should normally occur proof” capsulized and “burden of the strict or conspiracy prosecu- classical Annot., States, carefully Paoli v. United Judge tion. defined Barrett of the Ad- missibility against conspirator United Appeals as Tenth Circuit Court of of extra- Peterson, judicial declarations States v. coconspirator supra, as reenunciated —Su- preme cases, (1956); Court 1 L.Ed.2d 1780 Metropolitan United v. Enter- States 866 Inc., (c) 444, (10th conspiracy; 448-449 of the that the statement

prises, 728 F.2d Cir.1984), adopted during fair and should be was made the course and in fur- emplaced by this court both conspiracy. workable therance of the If the dis- supervisory and in re- adjudication case stage trict court concludes at this sponsibility: proceeding prosecution has not issues, 801(d)(2)(E) proof of the Federal met its burden of on these Rule

“Under Evidence, an out-of-court state the statement should not be submitted in Rules of ” hearsay if it offered ment is not is evidence.’ by a party and is a statement United States v. Washita Construction during co-conspirator party of a the Co., supra; Petersen, United v. States su conspir course and furtherance of Andrews, United States v. pra; 585 F.2d statement, acy. Admissibility of such (10th Cir.1978). 961 See also in other cir however, dependent upon the estab is general approach cuits where the same proof by preponderance lishment of taken, although variously phrased, United 1) conspir there was a the evidence Scott, 795 F.2d 1245 (5th States v. Cir. 2) particular acy; declarant and the 1986); Holloway, United v. States 731 F.2d conspir defendant were members of the (6th Cir.), 1021, 378 cert. denied 469 U.S. 3) dur acy; and the statement was made 440, (1984); Unit 105 83 L.Ed.2d 366 S.Ct. ing the course of and in furtherance of Williams, supra, ed States v. 668 F.2d * * * In United States conspiracy. Vinson, 1064; United States v. F.2d Cir.1979), Petersen, 611 F.2d 1313 (10th (6th Cir.1979), cert. denied 444 U.S. denied, 905, 100 rt. 447 U.S. ce 756, 100 S.Ct. 62 L.Ed.2d reh. we S.Ct. 64 L.Ed.2d 1668, 64 denied 445 U.S. suggested procedures, referred certain United States L.Ed.2d 251 ‘preferred proof,’ to as the order of to James, (5th Cir.), F.2d denied cert. guide in this the district courts Circuit 442 U.S. 99 S.Ct. 61 L.Ed.2d 283 deciding hearsay whether to admit state encompassing A different rule the co-conspirators. ‘pre ments of This Bell-Petrozziello rule exists in the First proof’ procedure ferred order of recom United States v. Eighth Circuits. and mends that: (1st Cir.1984); Drougas, 748 United F.2d 8 “ ‘(1) alone, pursuant The judge to Rule (1st Ciampaglia, v. States 628 F.2d 632 104(a)Fed.R.Evid., the makes determina- Cir.), cert. denied 449 U.S. admissibility hearsay as to of co-con- tion United States L.Ed.2d 221 spirator statements. Petrozziello, (1st Cir.1977); v. 548 F.2d 20 “ ‘(2) The Court makes a threshold deter- States, (8th Llach v. United F.2d 1322 upon indepen- mination based substantial Bell, Cir.1984); United States 573 F.2d dent evidence. Cir.1978). (8th “ ‘(3) preferable possible It is whenever stating process preferred and require government first intro- standard, proper apparent it that I am independent proof conspiracy duce countervailing procedure reject called to thereto, subsequent and to establish the unjustifiably broadly created without connection of the defendant with the con- placed precedential support in Dorador v. admitting spiracy hearsay before declara- Jasch Wyo., 711 and P.2d co-conspirators. tions of State, supra, 563 P.2d 1327. “ ‘(4) At the of all the evi- conclusion dence, must determine the district court PROSECUTORIAL MISCONDUCT prosecu- as a factual matter whether the I concerned that this court and the am preponderance tion has shown trial courts in dismiss too casual- independent the evidence of the state- existed; ly problem prosecutorial misconduct. (a) conspiracy ment itself that a barrage Campbell (b) In the course of the co-conspirator the de- that and cases, County grand jury we have seen co-conspira- fendant whom virtually every type prosecutorial misbe- is offered were members tor’s statement “I imaginable, in this case oc- would ask the court to declare a mis- which havior case, court, pros- trial in this and the when the the court curred on cross-examination record I’m sure is clear as to the defendant: what was ecutor asked by Murray Mr. said cross-examination 26th, 6th to “Q. Okay. From June June client, my Tammy Burke. drugs over and used you had friends situation, I “As remember the Mr. Mur- inside that trailer? around, ray pointed turned himself my No, “A. I did not. boyfriend, sitting client’s who was in the Well, “Q. you in that weren’t bed with long back of the courtroom. He has right you were man back there when hair, vest, he is dressed in a T shirt and a drugs? arrested and he had much, pretty say, and I’d looks like a object, I and I ask to “MR. WEERTS: hippie motorcycle or a fellow or some- approach the bench. thing order, points on that himto and Yes, you may approach.” “THE COURT: my being asks client about arrested with exchange place: following took this man while she’s bed with him. I'd ask for a mistrial “MR. WEERTS: “And, it, Mr. Murray’s understand bringing up I think Mr. Mur- now. what doing reason for that was cross-examina- totally did ruined case. ray just has anyone tion as to whether she knew trial, get She cannot a fair think period over a her house of time and that we must have mistrial at this person drugs whether that ever had Bringing up fact she point. the house. man noth- arrested bed with that has “I think that it’s clear that real rea- ing case. to do with the Murray doing son for Mr. what he did drugs. There were “MR. MURRAY: prejudice jury against my was to anything “THE It doesn’t have COURT: client, it’s preju- God awful as far as to do with the case. The fact that she dice. might doing drugs, might have been mean, “I here we have thirteen citizens drugs might something have had have sitting up they something there and hear it, might do with but the fact that she this, they’re expected put like been in with someone has bed abso- impossi- out of their minds? think it’s lutely nothing to do with the case at all. ble. going I’m jury “And to admonish the flagrant “I think it’s a violation of due not, they disregard will will process, my right client’s to a fair trial. answers, question any possible only “I’d also ask that we not have a you bring up and I’ll warn not to those mistrial but that the case be dismissed things again.” kinds of prejudice. My for that is with reason The trial court took the defendant’s mo- I in before clear. have been situations tion for mistrial under advisement and then prosecutors just the been where jury: admonished the fumbling around and a mistrial occurs gentlemen, really

“THE I haven’t known what COURT: Ladies and because you you disregard they’re doing. to tell want that are to question by Murray. that last Mr. asked Murray exactly “In this case Mr. knew question significance is of no to this doing. what he was It was a calculated absolutely nothing case and has to do thing. purpose. He did it on He wanted guilt with the or innocence of the defend- doing, to. He knew what he was and he ant, you disregard totally to it are it, just my it to did and was disastrous might any answer that have been rights, any right kind to a client’s to given to that. jury I can fair trial. don’t think the it, forget why I ask for the you “You’re not to consider it when de- and that’s liberate case.” mistrial.” The trial court ruled:

In the course of the trial court’s later Well, ruling ruling mistrial, my is that it on the motion for counsel “THE COURT: I don’t improper for the defendant stated: is cross-examination. improper jury think it’s to ask her about the the that she cannot receive a fair drugs. I deny trial this matter so the motion for his “Though I improper [mis]-trial. don’t think it’s to drugs, her I think the ask about the

ray, when Weerts about whether she was fellow was I think ly looking individual in the back of the manner in which —that is you pointed right —in asked, very graphic putting to the rather asked Mr. Mur- bed with this it it, I very think Mr. detail— sleazy- nice- motives for similar to this going “[I]fs “ * * * # to be my If we have ^[*] belief that doing very and it ^[*] concerned about it, comes anything Mr. my ^[*] Murray. admonition to up again, # remotely ^[*] your I’m courtroom and asked whether or not jury was sufficient to take care of drugs in there were bed with the two of problem in this case.” she It’s the them when was arrested. Although I grand would hold that the fact that she is him. with jury’s impropriety in this case was suffi- is, drugs “And the there were fact reversal, to I cient warrant will also ad- course, prejudicial not or not inflammato- dress whether the trial court’s admonition But, ry any way. point out to the jury was sufficient to avoid error. It woman, jury that this who is a married certainly important deplore is im- woman, guy, bed with this think proper employed by prosecution. tactics prejudicial. that that is message This court needs to send a clear going grant “I’m not the mistrial * * *.prosecutors govern- and trial courts that # ^{[*] [*] [*]} $ # delivery system mental officials who serve must adhere to high justice stan- conduct, dards and that district courts you, Murray, “I would warn Mr. that rigorously police any question- should more proper don’t believe that that’s cross-ex- Perhaps only able actions. this court’s amination, and it’s now on the record willingness to reverse those ill-obtained proper don’t believe it is cross-ex- convictions will induce discontinuance and amination. procedural guarantees assure the basic instances, happens “If it other fairness to which the is defendant constitu- it, you’ve been warned about and I think tionally entitled.5 happens again put it it would theory credence in Mr. Weerts’ admonition, Warning, supervision, or manner, was done in a calculated and if aside, whatever the first and immediate case, I highly objec- that’s the will find it question is whether misconduct in this under those tionable circumstances. case, irretrievably jury process invades the “I don’t has so so that believe however that it fairness and evenhanded evaluation prejudiced eyes jury the defendant in the could not be reclaimed 5. We should adopt appreciative undoubtedly dismayed reputa- concur- when the thoughtful rence the conclusion of Justice profession their tion of diminished re- Frank D. Celebrezze in his fair and concerned improper argument. for or bukes unethical Quelling analysis, Prosecutorial Misconduct: the prosecutorial "Such need not be misconduct Improper Jury, Tide Comment to the The of byproduct jus- an inevitable of our criminal 51, Prosecutor, 1987, Vol. 21 No. 1 Summer at education, system. Through diligence tice 54: trial, vigilance at the bar bench and must profession "It would be a disservice to the give any encourage respect for the standards which suggestion credence to a that most guide responsible argument. Prosecutors angels prosecutors avenging are ruthless who proper argument must stress that is the most go any length guilty verdict. It would for and efficient the of effective means to ends my experience, has been appellate judge, both as a trial and justice Preventing and a fair trial. the occur- overwhelming major- the improper argument preferable of is far rence ity prosecutors hardworking, deeply of are leaving it to the courts to reverse convic- attorneys conscientious who desire to see that impose damage tions or sanctions after the done, justice is rather add than to another already been done.” has prosecutors conviction to their record. These

869 wiped of Surreptitious interdiction be from the brains of jurors. defendant. the surrogate evidence of bad character The admonition therefore becomes a fu dissenting in guilt. my See discussion tile collocation of words and fails of its State, 1110, Brown v. Wyo., 736 P.2d purpose legal protection as a to defend * * *.' " (1987), Testimony In 1117-1125 Prior Bad-Acts Quoting from Paoli v. ants For Evidence of troduced Substantive States, 232, 247, United 352 U.S. 77 S.Ct. States, Berger v. United Guilt. See also 294, 302, (1957), 1 L.Ed.2d 278 78, 629, L.Ed. 1314 295 U.S. 55 S.Ct. 79 and: discussion, (1935); and as a foundational suggested limiting “It has been Gershman, Misconduct, 9, Prosecutorial Ch. actually compounds jury’s instruction Misconduct in the Presentation of Evi difficulty disregarding dence, the inadmissi- 9-1. at Broeder, hearsay. ble See The Universi- practical ineffectiveness of the limit ty Chicago Jury Project, of 38 Neb.L. ing comprehensively instruction was dis 744, (1959).” Rev. 753-755 Id. 391 U.S. dissent Clarke v. Vander my cussed 129, 4, 1625, at n. 88 S.Ct. at n. 4. meer, 921, (1987), Wyo., 740 P.2d 929 but in prejudicial the more circumstances here ev concurring in Krulewitch v. opinion idenced we should be reminded in both the States, 440, 453, United 336 U.S. 69 S.Ct. justice supervisory responsi search 716, 723, (1949), 93 L.Ed. 790 Justice Jack- bility prosecutorial to deter misconduct. son, concurrence, stated: benefit, augmenting The limited not the “ * * * assumption The naive preju- instruction, limiting factor has fre dicial by effects can be overcome instruc- quently emotionally been considered in the * ** jury practicing tions to the all law- effectuating by circumstance criteria yers unmitigated know fiction.” Supreme United States Court. Justice Sixteenth Annual Review Project, See States, Brennan, in Bruton v. United 391 of Criminal Procedure: United States Su- 1620, 1624, U.S. 20 preme Appeals Court and Courts L.Ed.2d 476 stated: “ 1985-1986, Misconduct, Prosecutorial ‘The fact of the matter is that too often (1987).6 Geo.LJ. We should not against such admonition misuse is intrin- ignore complete sically principle as well estab- ineffective the effect of such a nonadmissible declaration cannot lished law that 6. The Judges, It sic Misconduct Prosecutor’s Role as an cutorial Misconduct: The Limitations Misconduct: U.L.Rev. 1095 accept volving Md.App. torially in a recent sis. Misconduct, Courtroom ment to the "But for the fact that the evidence defeat from the reverse this case and remand it for a new convinces us that the trial. Our review of the Mark Tibbs was assistant State’s zeal did not Grew, In addition to subject the admonition 50 Tex.L.Rev. 629 a case of clear murder noticed in substantial review and 20 Ala.L.Rev. 227 Misconduct supra, see Maryland Quelling Jury, supra. deny prosecutorial Federal Prosecutors —and How attorney's jaws A.2d overwhelming, despite Tibbs due the Tide Gershman, Celebrezze, answer, by case, prosecutor’s am not Advocate, Prosecutors and Trial (1967); King, See also victory, Tibbs v. misconduct is edi- record, however, efforts to snatch guilt, even process Improper Singer, easily Prosecutorial Prosecutorial misdirected as evidence 14 Suffolk though we would Alschuler, Upon of law. able to (1987): Foren- Prose- analy- Com- in- would have been aborted threatened with a boundaries. abide erned "The ated over the least twelve different occasions. on at least one of those free to to the area within the boundaries and "Although court. itative. If that had a little less ly “We tea or other hand, the court for proceeding, perhaps recognize boundaries in prosecutor ^[******] by specific it is not trial many fight. years, the rules and remain within the the trial paternal polite of the issues raised in this Contests that a trial is not an afternoon have laid out in this case was admonished rules. questionable social event. On the other $500 judge occurred, which and a little by are, combat. The fine for It is he should have did occasions, at trial.’’ however, counsel’s 'keep carefully we think it like- adversaries conduct on at more author- Additionally, contempt confined she was duty deline- courts, lid on’ appeal been gov- * * * prosecution fueled

“[a]ppropriate objections and sub- achieved ad- sequent curative instructions a trial forejudgment. verse character * * * court cure error [but we] reasons, I would re- For these various prosecutorial reverse for misconduct verse the conviction. (Em- prejudice.” results in substantial State, Wyo., added.) Lindsey v. phasis (1986). 649, 656

725 P.2d State, Wyo., 522 P.2d 1004 Hays See also Peterson v. P.2d prejudice easily Substantial

Case Details

Case Name: Burke v. State

Court Name: Wyoming Supreme Court

Date Published: Dec 3, 1987

Citation: 746 P.2d 852

Docket Number: 86-67

Court Abbreviation: Wyo.