*1 CARDENAS, Thomas J. (Defendant), v. Wyoming,
The STATE of (Plaintiff).
Appellee
No. 89-274.
Supreme Wyoming. Court of
May 1991.
Rehearing Denied June *2 failing to
II. Did the court err upon of de- grant a continuance motion where: fense counsel 1) Monday Jury trial set for and was previous was the counsel advised Wednesday that the victim had died testify to or for and was not available cross-examination; Munker, Defender State Public Leonard 2) immediately defense The counsel Gallivan, Wyoming Defend- M. and Gerald (on Thursday) filed for such a continu- appellant. Program, for er Aid ance, set matter and the trial court the Gen., Meyer, Atty. John W. Joseph B. Friday for on afternoon and Gen., Renneisen, Atty. Karen A. Deputy continuance; summarily denied said Cook, Attys. Sr. Asst. Byrne, Dennis C. and and Gen., appellee. for 3) The defendant was denied effec- counsel, of a tive assistance of because C.J., URBIGKIT, and Before prepare lack time of a reasonable THOMAS, CARDINE, MACY and very for of a case? the defense serious GOLDEN, JJ. in not III. Did the court below err issue granting a directed verdict the OPINION instructing abandonment and in the jury on that defense? MACY, Justice. IV. the conviction for Is defendant’s appeals Appellant Thomas Cardenas a aggravated assault reversible under first-de- attempted
from for his convictions analysis the plain error where evidence aggravated gree assault and assault sexual conflicting properly was not battery. and the crime? instructed on elements the We affirm. 12, 1989, evening April the On the Appellant following the issues: raises Dorothy the Tripp arrived at victim and process, due confronta- I.Whether Appellant in her apartment find victim’s witnesses, underlying tion of values Appellant across the hall kitchen. lived fair- hearsay the rule and fundamental and apartment, and he the victim another are violated admission at ness for had been friends several months. giv- testimony of prior trial of the victim Appellant began argue vehe- victim and en where: at a mently, Appellant and the victim asked 1) Prior law has restricted the case re- apartment. Appellant After leave her opportunity for motive cross-ex- leave, attempted to call fused to victim hearing. amination a police. Appellant knife retrieved a 2) has limited Applicable law tele- from the kitchen and tried cut the investiga- opportunity time and phone dropped The victim the tele- cord. discovery prelimi- before tion Appellant grabbed phone, and her hearing. knife on her throat. At that placed the 3) There was no indication apartment and point, Tripp ran out of the for trial would be unavailable witness police. police called the arrived removing any incentive a apartment victim’s and knocked on th[o]rough cross-examination. they get response, door. When did not 4) at trial Counsel for defendant ap- they apartment, went into the which preliminary. counsel at peared struggle, be the scene of effectively pre- Appellant in the bath- 5) found the victim The defendant sitting floor testifying the admissi- room. The victim was on the from vented in her was strad- prior conviction? underwear. bility of 13, 1989, dling legs, pants the victim’s and his were and the court set the trial for partially pulled August unfastened and down. hearing, Appellant’s preliminary
At
July 28,
On
the victim died from
*3
testified,
alia,
the fol-
victim
inter
about
injuries
in
which she suffered
an automo-
lowing
Tripp
after
events which occurred
Appellant subsequently
bile accident.
filed
apartment. Appellant
to
left the
continued
a motion to bar the use at trial of the
and
hold the knife to
victim’s throat
preliminary hearing testimony
victim’s
and
going
her that he
to kill her.
told
a
for a continuance. After the dis-
motion
Next,
apart-
he
door to the
locked the back
hearing,
trict court held a motion
it denied
ment,
against
and he threw the
victim
Appellant’s
both of
motions.
struggled
wall. The
for several min-
two
Appellant
A
convicted
for commit-
Appellant pulled
utes as
around
victim
assault,
ting attempted first-degree sexual
apartment by
her hair and struck her
aggravated
battery,
assault and
and inter-
Appellant
with his fists.
demanded that
police
ference
officer. The
with a
district
clothes,
the victim take off her
and he hit
court sentenced him to confinement in the
her and threatened to kill her when she
Wyoming
Penitentiary for mini-
State
a
disrobed,
Finally,
refused.
the victim
ex-
forty-five years
mum of
and a maximum of
underwear,
cept
Appellant
for her
and
be-
fifty years
attempted first-degree
for
sexu-
gan
pull
her into a bedroom. The victim
assault,
eight years
al
a minimum of
and a
in
broke free and locked herself
the bath-
years
aggravated
maximum of ten
as-
Appellant
room.
in
kicked
the bathroom
battery,
sault and
and a minimum of five
pulled
pants
door and
down
and under-
his
years
years
and
of six
a maximum
Appellant
wear. The victim stated that
police
interference
officer.
head,
grabbed
pushed
her
it
his
towards
attempted
court ordered the sentences for
said,
penis, and
After the
or else.”
“[D]o
first-degree
aggravated
sexual assault and
resisted, Appellant pulled up
victim
battery
concurrently
assault and
to run
and
victim,
pants, hugged
apologized
and
police
interference
the sentence for
with a
point,
open,
her. At that
the door burst
consecutively
officer to run
to the other
police apprehended Appellant.
two sentences.
police
Appellant
arrested
charged
attempted first-degree
him with
Admissibility
Preliminary
of the
Wyo.Stat.
sexual assault
in violation of
Hearing Testimony
(1988),aggravated
6-1-301 and 6-2-302
§§
challenges
Appellant’s first issue
the ad-
battery
Wyo.
assault and
in violation of
missibility
victim’s
hear-
(1988)1
Stat.
6-2-502
and interference
§
804(b)(1)
ing testimony.
provides:
W.R.E.
police
Wyo.
with a
officer in violation of
following
Hearsay exceptions.
(1988).2 Appellant pleaded
Stat.
6-5-204
—The
§
hearsay
rule if
are not excluded
guilty
charges.
July
all
four
On
as a witness:
the declarant is unavailable
granted Appellant's
the district court
(1)
Testimony. Testimony
Appellant’s
Former
counsel’s motion to withdraw.
—
appearances
July
given as a witness at another
new counsel entered
on
(iv)Intentionally, knowingly
recklessly
or
1. Section 6-2-502 states:
bodily injury
(a)
a woman
causes
whom
person
guilty
aggravated
A
assault
pregnant.
battery
if he:
knows is
(i)
bodily injury
(b)
battery
felony
Causes serious
to another
Aggravated
is a
assault and
intentionally, knowingly
recklessly
or
under
punishable by imprisonment
for not more
manifesting extreme indiffer-
circumstances
(10) years.
than ten
life;
to the value of
ence
human
cause,
(ii)
intentionally
Attempts to
or
or
charged
complaint
Appel-
2.
also
The criminal
knowingly
bodily injury
causes
to another
kidnapping. The district court refused
lant with
deadly weapon;
with a
kidnapping charge
jury's
for the
to submit the
consideration,
(iii)
deadly weap-
Threatens to use a drawn
Appellant
appealed
has not
necessary
reasonably
on on another unless
po-
from his conviction for interference with
person, property
defense of his
prevent
or abode or to
lice officer.
another;
bodily injury
serious
discrediting
motive of
the vic-
because the
proceeding,
of the same or a different
compliance
was the same in both
deposition
or in a
taken
tim’s identification
trial,
same or
course of the
with law the
party
if
proceeding,
subjected
another
the victim
the defendant
because
testimony is now
against whom the
cross-examination
fairly
to a
extensive
or,
offered,
proceed-
action or
a civil
Id. issue
her identification.
interest,
had an
ing,
predecessor
op
In this
had the
similar motive
opportunity and
direct,
the victim. Af
portunity to cross-examine
develop the
cross,
prosecuting
examination
a direct examination
or redirect
ter
[.]
*4
attorney, Appellant’s counsel asked the vic
added.)
requirements
(Emphasis
Three
relationship
Appellant,
tim about her
to W.R.E.
pursuant
must
satisfied
be
alleged
leading up to the
about the events
ad-
804(b)(1)
a
can
the
allow
before
assaults,
the amount of alcohol she
about
testimony:
former
mission of
assaults,
alleged
before the
about
drank
First,
must be unavailable
the declarant
*
* *
drugs, and
possibility
the
that she had sold
Second, the
testi-
at
former
trial.
kind of clothes she wore when
about the
must
mony sought
admitted
have
be
district
Appellant.
she was around
testify-
given
been
the witness while
limit the cross-examination.
court did not
ing
hearing
deposition.
or
in another
* * * Third,
against
party
the
whom the
Next,
Appel
we must determine if
had “an
is offered must have
statement
the
at
lant’s motive
cross-examine
victim
opportunity
to devel-
and similar motive
his
preliminary hearing
the
was similar to
direct, cross,
redi-
op
testimony by
the
her at
motive to cross-examine
the
hearing.
prior
the
rect examination” at
of
Appellant’s cross-examination
the victim
410, 413
Rodriguez v.
preliminary hearing
the
indicates that
at
(Wyo.1985)
804(b)(1)). Ap-
(quoting W.R.E.
attempting
analyze
and discount her
was
pellant
he did not have an
contends that
alleged
her
the
assaults and
version of
opportunity
develop
and similar motive to
general.
appellate
From his
credibility
pre-
the
the victim’s cross-examination at
brief,
Appellant’s primary
we discern that
liminary hearing.
the victim at trial
motive to cross-examine
Rodriguez,
In
that
this Court held
the
the
credibility
her
in front of
was
test
admissibility
preliminary hearing
of
testi-
similarity, Ap
jury. Despite
apparent
the
upon case-by-
mony
depend
trial
a
at
would
that his motives were dif
pellant contends
In
analysis.
case
that
the defendant
prelimi
of
purpose
the
a
ferent because
breaking into
of
was accused of
the home
a
(the
proba
nary hearing
determination of
woman,
seventy-nine-year-old
tying her to a
cause)
purpose
different than the
ble
chair,
robbing
point.
her at knife
(the
guilt). He as
determination of
police
When the
took her statement and
that, during
hearing,
preliminary
the
serts
array,
police
photo
when the
her a
showed
beyond
go
not motivated to
his counsel was
the
as
the victim identified
defendant
the
finding
attempting
probable
rebut
again
man
robbed her.
victim
who
more
cause since a
extensive cross-exami
preliminary
the
at
identified
defendant
the
him to
his
have forced
reveal
nation would
being
hearing as
the man who had robbed
argument
theory of defense. That
demon
testimony
her. Her
Appellant’s
that
cross-examination
strates
challenged
fairly
was
cross-
extensive
hearing
preliminary
the
at
victim
days
examination. The victim died five
by a
deci
may have been limited
tactical
trial,
preliminary
before the
at which her
sion,
not indicate that his motive
but it does
hearing testimony
jury.
read to the
prelimi
at
victim the
to cross-examine
Id.
412. We held that the district court
to his motive
was not similar
804(b)(1)by allow-
did not err under W.R.E.
Rodri
her
As in
at trial.
to cross-examine
ing
preliminary hear-
the admission of the
in both
guez,
where the defendant’s motive
ing testimony
because
defendant had
victim,
was to discredit
the witness’
opportunity
proceedings
an
cross-examine
ing
prelimi-
suffi-
to hear the
testimony, Appellant’s motives were
victim’s
First,
ciently
admissibility nary hearing testimony.
similar to warrant
the victim
hearing testimo-
the victim’s
gave
preliminary hearing testimony
her
804(b)(1).
ny under W.R.E.
she was under an oath to tell
while
Second;
attorney represented
truth.
Rodriguez
King
In
and in
present
and was
when the victim
(Wyo.1989), we also discussed
gave
preliminary hearing testimony.
her
admission
the district court’s
whether
Third, Appellant’s attorney cross-examined
hearing testimony violated the
Fourth, Appellant
the victim.
has failed to
the United States
confrontation clauses of
indicate that
cross-examination
Wyoming
Constitu-
Constitution
victim at trial would touch on a new line of
tion. We said:
inquiry. Appellant
only
has indicated
testimony
under
Former
is admissible
credibility,
the victim’s
which was the focus
clauses of both the con-
confrontation
of his cross-examination
Wyo-
stitutions of the United States
hearing,
primary
have
tar-
would
been
gave the former
ming if the witness who
get of his cross-examination at trial.
testify
is unavailable to
at trial
addition,
corroborating testimony given
*5
prior testimony
an “indi-
and if the
bore
“
by Tripp
police
officers who arrest-
reliability”
cia of
sufficient to
‘afford
Appellant provided
ed
with a suffi-
satisfactory
fact a
basis for
the trier of
upon
cient
which to
basis
evaluate
evaluating
prior
truth
state-
of
”
preliminary hearing
truth of the victim’s
56,
Roberts,
ment.’
v.
448 U.S.
Ohio
testimony. The district court’s allowance
66-67,
2531, 2539,
100
65 L.Ed.2d
S.Ct.
of the admission of the victim’s former
Stubbs,
(1980);
408
597
Mancusi v.
U.S.
testimony
Appellant’s right
did not violate
204, 214,
2308, 2313,
92
33 L.Ed.2d
S.Ct.
against
to confront witnesses
him.
(1972);
State, Wyo.,
649
Grable
663,
State,
(1982);
Martinez v.
831,
Wyo.,
(Wyo.1980).
Appellant’s
611 P.2d
Motion for a Continuance
Rodriguez,
Prior
indi-
bears
1989,
a motion to
Appellant filed
continue
reliability
prior testimony
cia
of
when
begin
his trial which was scheduled to
four
oath,
given
given
was
under
when it was
court held a
days later. The district
motion
represented by
while the defendant was
stated:
and
counsel, when the defendant’s counsel
August
As I recall we set the
7th trial
should and did cross-examine the wit-
upon agreement
date
of all of
attor-
ness, and when cross-examination which
anything
I
from
neys, and don’t see
[the
would be conducted at trial would not
affect the in-
death that would
victim’s]
upon any
significantly
touch
new and
vestigation
deny
in the
so I will
inquiry.
material line of
motion[.]
Roose v. sorry everything going was 1988) (quoting Gentry right. to be all (Wyo.1986)). Appellant’s trial Q: Did, umm, you anything did hear appearances July counsel entered pulled pants back before *6 agreed August to the up[?] Appellant and his counsel trial date. new produce fa- than three weeks to had more A: No. develop evidence and to alternative
vorable Q: anything? hear You didn’t addition, Appellant of defense. theories (inaudible) A: specify he material evidence which failed Q: he happened next after sat What produced if the district court could have you? you hugging down beside granted his motion for a continuance. had Umm, every- kept telling me A: State, (Wyo. Stogner See kept I going to be all thing was 1984). Appellant that failed to We hold go get my clothes and he telling him to court abused its dis- show that district said a minute and that he would and just his for a cretion when denied motion got open and then I then the door kicked continuance. got my and ran closet. out Abandonment 30(a) prescribes the criteria for W.R.Cr.P. Appellant that he claims abandoned acquittal. granting judgment attempt first-degree to commit sexual his 30(a), Wyoming Rules of Under Rule therefore, that, the district assault Procedure, trial court shall Criminal granting judg erred not him a court acquit- entry judgment of a order the charge. acquittal Appel that ment of if the is tal motion evidence insuffi- upon upon argument the testimo lant bases to sustain conviction. cient at the ny given the victim evi- must assume that the State’s court hearing, hearing. During that the follow give the State the dence is true and must colloquy occurred: ing legitimate all inferences. A benefit of Umm, Q: exactly say what did he then reviewing only can overrule the pants he had his once down[?] acquittal motion when denial of a He told do it or A: me to else. evidence from there is no substantial Q: right. Al[l] persons say could which reasonable that And, telling I him kept A: no. guilty beyond is a reason- defendant Q: What did he do next? able doubt.
“
(B)
intercourse,
responsibility
considering
Sexual
‘Our
cunnilingus,
fellatio, an[i]lingus or anal
propriety
ruling on a
intercourse
of a
motion
with or without emission.
judgment
acquittal
is the same as
* * *
that of
court.
It
the trial
is Section 6-1-301 states:
proper
grant
judgment
a motion for
(a)
person
A
guilty
of an attempt to
acquittal only
if there is no substan-
commit a crime if:
tial evidence to sustain the material
(i) With the intent
to commit the
allegations relating to the offense
crime,
that
any
he does
act which is a sub-
”
charged.’
Haight
Wyo.,
step
stantial
towards commission of
(1982)
the crime. A
[(quoting
step”
654 P.2d
“substantial
is con-
duct
strongly
which is
corroborative of
Aragon v.
person’s
firmness of the
intention
(Wyo.1981)) ].
complete
the commission of the
Dover v.
crime; or
1983). We must determine if the record is
(ii)
intentionally engages
He
in con-
void of substantial evidence which sustains
duct which would constitute the crime
allegation
the State’s
com-
had the attendant circumstances been
attempted first-degree
mitted
sexual as-
person
as the
believes them to be.
sault.
(b)
person
A
is not liable under this
first-degree
elements of
sexual as-
if,
section
under circumstances manifest-
sault
are set out
6-2-302. That sec-
§
ing a voluntary
complete
renun-
provides
pertinent part:
tion
intention,
ciation of his criminal
he avoid-
ed the
attempt-
commission of the crime
(a) Any actor who inflicts sexual intru-
by abandoning
ed
his criminal effort.
sion on a victim commits a sexual assault
meaning
subsection,
Within the
of this
degree
in the first
if:
purpose
renunciation of criminal
is not
(i) The actor causes submission of
voluntary
motivated,
if it is
whole or
through
applica-
victim
the actual
circumstances,
part, by
present
tion, reasonably calculated to cause
apparent
inception
person’s
at the
of the
victim,
physical
submission
conduct,
*7
course of
which increase the
confinement;
force or forcible
probability
apprehension
of detection or
(ii) The actor causes submission of
or which make more difficult the accom-
death,
by
the victim threat of
serious
plishment of the criminal intention. Re-
bodily injury,
physical
extreme
pain or
complete
nunciation is not
if it is motivat-
kidnapping
anyone
to be inflicted on
postpone
ed
a decision to
the criminal
reasonably
victim
believes that
advantageous
conduct until a more
time
the actor
present ability
has the
or to
the
transfer
criminal effort to an-
objective
execute these
other
similar
or victim.
but
threats[.]
State,
In Haight
v.
6-2-301(a)(vii)
Wyo.Stat.
(1988) states:
§
1982),we stated that a defendant could not
(a) As used in this article:
attempt
abandon
to commit a crime if
[******]
his cessation of criminal
activity
was moti-
vated,
part, by
at least in
the belief that a
(vii) “Sexual intrusion” means:
circumstance existed which made the con-
(A)
intrusion,
Any
slight, by
however
summation of the crime more
In
difficult.
any object
any part
person’s
or
of a
supported
the evidence
the infer-
body,
mouth,
except
tongue
penis,
the
or
defendant,
ence that the
who knew that the
genital
opening
into the
or anal
of anoth- victim had not consented to a sexual intru-
person’s body
er
if that sexual intrusion
sion, stopped
attempt
his
to commit first-
reasonably
being
can
be construed as
for
degree sexual assault because the victim
arousal,
purposes
the
gratifica-
sexual
open
refused to
her mouth. We held that
abuse;
tion or
jury
the
could infer that there “were no
Appellant
has
voluntary
Bradley,
at 1164.
manifesting a
‘circumstances
plain
inten-
demonstrate the existence
criminal
failed to
renunciation of his
complete
”
that the
he
not
error because
has
shown
at 1242.
tion.’
Id.
of an
clearly establishes the breach
record
to the
legitimate inferences
Giving all
unequivocal rule of law.
Bland
See
State,
not void of
hold that the record is
we
(Wyo.1990).
reasonable
evidence from which
substantial
say
guilty
be-
could
persons
Jury
Aggravated
Instruction
jury could
A
yond a reasonable doubt.
Battery
Assault and
to a
that the victim had not consented
infer
issue, Appellant
his final
asserts
With
Appellant aban-
intrusion and that
sexual
reversible
that the district court committed
first-degree
attempt
to commit
doned
plain
it
error under the
error doctrine when
refused
assault
the victim
sexual
because
ag-
jury
on the elements of
instructed
he heard
open her mouth or because
Specifically,
gravated
battery.
assault and
entering the
The district
police
apartment.
district court
Appellant contends that the
by deny-
discretion
court did not abuse its
instructing
jury
on the
erred
judgment of
Appellant’s motion for a
ing
of a
definition
threat.
acquittal.
duty
The district
has the
argues that the dis
Appellant also
jury
general principles
on
instruct the
gave an erroneous instruction
trict court
applicable to the case.
Sanchez
Af
abandonment.
jury
issue of
(Wyo.1988).
The court is not
751 P.2d
presented
ter the court
three abandonment
it has a
required to define
term unless
jury
primarily
which
instructions
“definite,
meaning
technical
under the law
6-1-301,
following
gave
quoted §
ordinary meaning
from the
different
instruction:
might
jury
therefore not under
which
if the at-
stand.” Durham
a defense
Abandonment is
(Wyo.1967).
“threat” is not
tempt
freely and
The term
to commit a crime is
term,
act is
such a
instructions
voluntarily
before the
abandoned
adequately informed the
process
execution and
the court
put
of final
prompt-
aggravated
the elements of
assault
there is no outside cause
where
battery. Plain error does not exist.
ing such abandonment.
trial, Appellant
object to the
Affirmed.
At
did not
fact,
Appellant used
instruction.
URBIGKIT,
Justice, dissenting.
Chief
argue
entitled to
instruction
that was
Therefore,
we
judgment
acquittal.
justification
we
Much of what
do
plain
examine his
under our
must
claim
apply a
affirming a criminal conviction is
*8
49(b);
doctrine. W.R.Cr.P.
W.R.A.P.
error
concept to the
default or counsel failure
7.05;
103(d);
806
W.R.E.
Ramos v.
provided
appealed
legal
for the
services
(Wyo.1991);Bradley
P.2d 822
635
creating
or mine
quagmire
case while
(Wyo.1981);
Leeper
P.2d 1161
defense
in future cases
field for
counsel
(Wyo.1979).
determination of
Our
fully
fail to inform themselves
about
who
plain
subject to the
whether
error exists is
An-
developments in the law.
current
See
three-part
following
test:
notation, Admissibility or
in Crimi-
Use
First,
Testimony
the record
clear as to the
Trial
Given at Prelimi-
must be
nal
of
Proceeding by
Sec-
Not Avail-
alleged
incident which
as error.
Witness
(1985),
ond,
Trial,
and
party claiming
the error
I would be more comfortable if the ma-
*9
jority
practicing
right
cross-ex-
had clarified for the
bar
limitation of defendant’s
to
illustration,
tape prelimi-
change
1.
see the
2.
should not
unannounced in
As
video
This
come
concept.
already
that there
We had
established
nary hearing
depo-
evidence documented like a
only
thing
was no
as a limited one use
such
(Ala.Cr.
Ready
v.
So.2d
sition
574
894
discovery deposition. Reilly Reilly,
v.
prosecution
App.1990). The
took no chances
1983).
Waggoner v. General
330
See also
injured
inability
about the
victim’s
to attend the
(Wyo.1989).
Corp.,
Now
Motors
trial. The victim could not attend and the trial
clarify
equally
determination of
we
probable
that
permitted
tape
the
the use of
video
to
cause,
hearing
preliminary
the
serves
assure the conviction.
may
evidence which
be there-
to create recorded
after introduced at trial.
might prepare
A.2d 326
his defense.”
Tyler, 587
v.
[the accused]
animation. Com.
by
is
Consequently, the initial
at 828. That
ambush case
Id.
(Pa.Super.1991).
tempted
today by any
clearly,
criteria
might be
outdated
examining commissioner
constitutional,
this
duty meet
case is
then
has
has no
to
if this
Vines
say
to
that
only
superseded
oper-
effectively
in future
responsibility
to be
constitutional
presentation
I
by
preliminary hearing.
comes
of the
As
remedy for failure
ations
preliminary
later,
comprehensive
of his
product
case
the written
shall discuss
of
attempted
Supreme
thereafter
is
hearing if
of the United States
Court
law
McClanahan,
Kan.App.2d
hearing
preliminary
if
State v.
that
evidence at
Cf.
(1990).
trial,
410,
ty only is issue 804(b)(1), Wyoming conditions of Rule Const, Wyo. art. provision decision. The Evidence, are The defen- Rules met. “life, liberty or not differentiate does § opportunity to show would have an dant property.” prior the court that the good cause to not be admitted be- subject prelim- on this should initial case injustice arising out usage in- of manifest inary hearings with of the filed cause greater cer- grand jury indict- of the circumstances. The formation instead Vines, helpful to who tainty would counsel Wyo. be ments State any they if perceive would know that That case was based advantage the client at cross-examina- to the defen- thesis of denial of information tion, they pursue prelimi- today should at the dant and little function but serves They nary examination. would under- rule that the hear- the obsolete prior testimony be used to “a disclo- stand would ing could not be secure trial, would that he burden evidence in order admissible sure the state’s process protect initial philosophic concepts, it and does not delineate and Within due sion reject necessary hearing hypocriti- accom- presentation, what should be we long plished by as is not to this case as it be prosecution cally di- add another result-oriented benefitting prosecution another one-sided result adaptation into the of our rected standards deterring If counsel defense. defense has prosecution system. pro- entire criminal proper exami- to a cases, demeaning preliminary cess presentation not deterred inane nation and discussed, by this should have been hereinafter non-incur- reference to limited examination or or, summarily superseded decision noted as discovery, into then this case sion contended Particularly, significant part, overruled. *10 see delivery and will serve well the search for truth State, (Wyo.1980) and v. P.2d 231 Weddle 621 justice delivery system. finding of fact However, for the 212, (1936). Vines, Wyo. 54 State v. 49 P.2d 826 only admis- if this case affects
999
upon
be
explain why
the defendant to
should
acquisition
abandon the accidental
should not be admitted.
In most eases
concept
expressly recognize
and
an inten-
the result would be no different from the
preparatory
tional
function and result
in
majority opinion
result of the
in
case
this
essence,
preliminary hearing.
except
that counsel would know that
deposition
State,
used in Martinez v.
611
they
forego
could not
cross-examination
(Wyo.1980)
P.2d 831
should serve identical-
expectation
relying upon
with the
ly
preliminary
with the
hearing testimony
lack of
cross-examination
defeat
provided
adequate
oppor-
examination
admissibility
prior testimony
of the
tunity
Pointer,
400,
afforded.
380 U.S.
S.Ct. 1065.
Id. at 416.
Having
presented
found
why
reason
principal
issue then
addressed
;properly
preliminary hearing
taken
testi-
State,
King
(Wyo.1989)
v.
must be
wit
rights
the
of
now
properly provided
particularly
majority
is
is
so since this
cess
cross-ex
usage.
concept
impresses
ness
Confrontation
if active cross-
waiver
defen
be available to
deliberately (or
amination must also
accidental-
examination was
comprehen
dant. See an informative and
case,
ly)
pursued:
not
“In this
Wigmore,
in
history
confrontation
sive
of
the
opportunity
* * *
had the
to cross-examine
Right
The
Not
be
district
did not
victim.
The
court
Confrontation:
Of
Convicted on
Hearsay
the
Declarations
of
limit the cross-examination.”
1990 Utah L.Rev. 855
Accomplice,
regard,
analysis
In that
the
of
motive
majority requires
this
As
consideration.
layman
peace
of
issue
justice
The
the
developed
is
the law now
from this
Court
in Thomas
Justice
described
of
pre-
motive
the
the
for cross-examination at
(Wyo.1975)
County,
natives
prosecu-
remedy
although
time to seek the same
addressing
subject confining
princi-
application
tion. Within the
of the
examining
function of the
commission-
ples
opportunity”
er,
of “fair
as a search for
with which I did not then and do not
justice,
considering
but
the real world of
accept,
preclude
judi-
now
cannot
effective
by public
preparation
limited
time
defend-
by
examining
cial administration
com-
occurring,
surprises inevitably
ers and trial
required
perform
missioner now
the as-
message
by
now
this case is
signed
function created
this case.
prepared!
well defined. Be
A
through
comprehensively
search
Again,
appropriate
to con-
would be
written decisions of the United States Su-
1246,
clude that
Wilson v.
preme
relating
Court
to confrontation and
(Wyo.1982)
explicitly
is also
overruled
preliminary hearing evidence authenticates
only pur-
to the extent that it states “[t]he
problem
unsolved
created
an unan-
pose
preliminary hearing
of a
is to deter-
question;
swered
namely, “why
do it
probable
mine if
cause exists to believe
right the
time?”
first
It is that thesis I
that an offense has been committed and adopt
augment
the preliminary hearing
charged
that the defendant
has committed purpose
disjunctive
probable
as
to find
145,
People King,
it.” See
v.
412 Mich.
prepare
cause and also to
for the criminal
(1981).
N.W.2d 629
To the extent
diligence
trial. The distress in due
dia-
presented,
witnesses are
since the testimo-
hypocritical analysis
tribes and
relative
trial,
ny
may
reappear
adduced
later
the “unavailable” witness is eliminated.
preliminary hearing is converted in essence
justification
Result-oriented
guilt
to affirm
something essentially
deposition
into
like a
can
by recognizing
conviction
be minimized
session
the normal civil case.
In addi-
prepared
right
the statement: Be
it—do
tion to what
is called a bind-over
the first time.
jurisdictions,
some
McCaffrey
State ex rel.
court,
cases,
This
in the course of its
has
Shanks,
216,
v.
124 Wis.2d
Mattox
Mississippi,
410 U.S.
the first trial to be
witness at
See also Chambers
a deceased
subsequent
retrial. The
Green, 90 S.Ct. '399 U.S. adoption general principle of a adverse to 1956-1957. constituting signif- criminally accused change. procedural icant Review of concerns expressed those
My answer to testimony of the later transcript of the system should not be simple. justice prosecutrix this deceased accepting what was prostituted into *14 effectively that nei- hearing demonstrates really Pre- what it was. characterization counsel, particularly not defense ther but hearing examinations should be liminary counsel, anticipated being then thoroughness what was expertise and conducted with the seminal deposition might done time become principal doctor as would the prosecution to convict in a Preliminary evidence for malpractice case. a medical very rape charge. than a matter of serious hearings should be more initiating for the provide form to a method Although apparently unrecognized an into proceedings the criminal court to move warning suitably provided had been recog- jurisdiction. It should be the trial special Justice Thomas in his concur- Chief really preparatory nized as what it is—a 416, Rodriguez, rence in 711 P.2d directed both to step proceeding in trial provided in this case decisive decision now probable cause exists determine whether application retroactive constitutes ab- and, develop preliminari- process, in that law, essentially rupt change Wyoming ex may in fact ly possible which applied as here. post function See facto being presented Accept- at trial. result Const, 1, Wyo. Hopefully 35.7 art. § that by the trial court and counsel ance opinion, publication of this counsel will al- prepared pro- and have the they should be carefully anticipate ways ceeding done will obviate the con- hearing testimony may become decisive tri- hypocrisy and addressing cerns criticized evidence. al system If does denied confrontation. Consequently, respectfully I dissent. and ade- not serve to answer confrontation very I emphatically, issue Even more performance prelimi- quacy of counsel warning for future strongly considered hearing, party neither should then prelim- A proceedings. of criminal conduct justification fruits have available its when case, is, this to be more inary hearing after might later exist for introduction within criminal trial way station in the than a unavailability witness some character of journey.8 concept at trial. justice confrontation for fu- I find by decisively recognizing that
ture cases supersede and overrule character-
we inexpert
izations about the limited and at- hearing pro-
tributes Wilson, 655 P.2d
ceeding by discussion al, review, retroactivity’s regard- effect on the administration albeit in a civil 7. A relevant purposes retroactively justice, to be served ing application decision of a Young, in the current case of Woods new rule. 613, 621, 315, See, however, Cal.Rptr. Superior legislation Tapia 807 P.2d 53 Cal.3d (1991): Cal.Rptr. (People), 53 Cal.3d Court public policy of fairness [C]onsiderations given only may require that a decision be * * * current time has at least once in 8. This court application. prospective Particular involving accepted the con- a writ of certiorari retroactivity de- considerations relevant to the in advance of duct of the include the reasonableness of the termination rule, the court into district the movement of parties' on the former the na- reliance change procedur- Bowden v. No. 89-189 ture of the as substantive MONN, Appellant Leslie Curtis
(Defendant), Wyoming, STATE of (Plaintiff). Appellee
No. 90-117. Wyoming.
Supreme Court
May Defender, Munker,
Leonard State Public Gallivan, Director, Wyoming De- M. Gerald H. Program, Christopher Aid fender *15 Intern, (argued), appel- Hawks Student for lant. Gen.,
Joseph Meyer, B. A. Atty. Sylvia Hackl, Gen., Byrne, Deputy Atty. Karen A. Lauer, Gen., Atty. Theodore E. Sr. Asst. Lee Program, Prosecution Assistance Intern, ap- (argued) F. Jantzen Student pellee. URBIGKIT, C.J., and
Before CARDINE, THOMAS, MACY and GOLDEN, JJ.
CARDINE, Justice. Appellant Curtis Monn was convicted incest, mi- taking indecent with a liberties nor, degree and second sexual assault. he presents issue whether the eliciting of his her examination wife testimony, improperly put into evidence gave investiga- his wife statements challenge to the tor. Because no proper made trial in the form of a objection, we examine this case under plain error doctrine. affirm.
We the issue: Monn states recorded state- allowing “Whether previously witness Sar- ment convicted ah Monn to be read into evidence erred allowed otherwise trial court 5/22/90). rights anticipated court considers If of confrontation be if district realistic invalidity pro- provided, are hereafter not resort to the the ceeding might endanger further validity might remedy unexpected. a subse- kind of be same Certainly guilt jurisdiction quent to remand if a verdict of is thereafter district court adequate could rendered. a more