*1 being pos- underlying conviction of felon complains that of a firearm. Smith
session specified have
the district court should existing to be credited on the
time that was
sentence, a function of the execu- but department government. If Smith is
tive in the future because of an
entitled to release computation of the time served on
incorrect sentence, remedy available to he has
him at that time. Judgment of the Court and Sentence
is affirmed.
Tracy FORTNER, (Defendant), Wyoming,
The STATE of (Plaintiff).
No. 96-20.
Supreme Wyoming. Court of
Feb. 1997. *2 Defender;
Sylvia Hackl, Public Lee Comía; Domonkos, Ap- D. Deborah Donna Counsel, pellate appellant. for Hill, General; Attorney William Paul S. U. Rehurek, General; Attorney Deputy D. Mi- Attorney Pauling, chael Assistant Sr. Gener- al; Lauer, Director, E. Theodore Prosecution Elrod; Program; Assistance T. Alan Michael Iozzo; MeKinzie, A. In- Clinton C. Student terns, for appellee. TAYLOR, C.J., THOMAS,
Before MACY, LEHMAN, GOLDEN JJ. GOLDEN, Justice.
Tracy appeals from his conviction obtaining property by and sentence for false pretenses, § violation 6-3- Stat. 407(a)(i). several errors He claims trial court in denial of his to a resulted error, Finding fair trial. no we affirm the conviction and sentence.
ISSUES (Fortner) Appellant Tracy pres- following ents the issues for our review: I. Appellant denied fair trial Was when the called Officer notifying as an witness without Appellant intent to call of its discovery stipulation? contrary pretrial fair Appellant denied a he believed II. Was the codefendant, Hauge, Dan wrecked his truck. trial when intentionally ran his testified driving Fortner maintains that he was cliff, ultimate issue in this truck off the truck his brakes failed and ease? jump forced to out of the vehicle before it *3 Appellant denied a fair III. Was the injured went over the cliff. Fortner was not argued closing in trial when the State scene, in the accident. At the Fortner told Hauge pled guilty argument that since Mr. highway responding patrol the officer that he jury Appellant on his the could convict the traveling per was between 45 and 50 miles testimony alone? failed, hour when his brakes but that he stopped almost the vehicle before it went Wyoming submits similar State trial, cliff. over the At Fortner testified that issues: going per the vehicle was 45 miles hour when Appellant’s right a fair trial I. Was to jumped out. notify Ap- did not violated when the State pellant to call Shortly testimony of its intention Officer after Fortner’s as to the witness, a and when the district speed prior leaving high- of the truck to the permitted to call court the State Officer way, the defense rested. The then Dye as a rebuttal witness? Dye (Dye) called as a rebuttal Officer witness, objected Fortner witness. Appellant a fair trial II. Was denied ground that rebuttal was not Hauge Dan testified that when witness justified, produced that the State had not Appellant intentionally ran his truck off Dye’s expert reports prior to statements Canyon? highway in Shell Wyo. pursuant trial to R.CRiM. P. 16. The improp- III. Did counsel for testify court allowed to to district rebut that, erly argue in because witness speed Fortner’s as to the the truck Hauge pleaded guilty charges to to similar traveling jumped was when he out. Based against Appellant, jury those should scene, Dye on his observations of the esti- Appellant Hauge’s testimony convict rig eight at mated the between alone? per it went and ten miles hour when over the cliff. FACTS During closing argument, after the State’s 15, 1989, April Fortner’s 1967 Interna- On accomplice in mentioning Hauge was an drilling rig tional truck with a mounted on Fortner, pled guilty helping the crime and to a cliff in ran off the road and over the Shell Hauge’s testimony, say- counsel referred to Canyon presented a claim to area. Fortner jury ing that the could “convict this Defen- insurer, Company, and CIGNA Insurance on Mr. alone.” dant based $36,752.02 paid was for the loss. jury guilty of ob- returned verdict taining property by pretenses. false Agent Burnett of the Division of While Investigation investigating Criminal en- appeals the district court’s deci- Fortner involving Hauge, vironmental crimes Dan allowing Dye testify. alleges He sion also Hauge him that his business told former al- plain error occurred when Fortner, intentionally ran partner, his 1967 intentionally that Fortner lowed drilling rig off a International truck with ran the truck off the cliff and when the Canyon in area. After an cliff the Shell concerning prosecutor made statements investigation, charged with ob- testimony. conviction and by pretenses taining property false for inten- tionally running truck off a cliff in order STANDARD OF REVIEW proceeds. Hauge to obtain insurance object Hauge’s charged pled guilty accessory Fortner did not testimony that ran the part fact for his in the crime. Dim- after the made ing entry guilty plea, Hauge stated truck off the cliff or to statements of his oc- the accident truck was amount- which he contends prosecutor did not inform curred. The State error. ed to reversible Dye and Fort- to call Officer that it intended trial, raised at was not When issue 1) parties into a dis- claims entered ner alleged establish that appellant must covery stipulation included disclosure object at Failure to plain error. error 2) documents; reports or any expert alleged a waiver of the trial constitutes pro- parties to trial court ordered both error rises to the level error unless the in of trial and a witness list advance duce plain error. bears burden Dye was not on the list. error, establishing plain and the rule is only special cir- applied sparingly and controlled Discovery in a criminal case is cumstances. perti- which states R.CRiM.P. (Wyo.1989) King 780 P.2d *4 part: nent State, 350, v. 769 P.2d 357 (quoting Lauthem (a) by the state. Disclosure of evidence (Wyo.1989)). (1) Subject to Disclosure. Information plain find error when This court will clearly alleged incidents shows the record Appellant must demon- plain error.
as unequiv- and the violation of clear strate (D) and Reports of Examinations law, that a substantial ocal rule of of a de- -Upon written demand Tests.— fendant, appellant and that has been denied permit the defen- the state shall materially prejudiced. inspect copy photograph or dant to and State, 200, (Wyo.1994) P.2d 207 James v. 888 any reports physical of or results or State, 716, 721 (citing v. 875 P.2d Lobatos examinations, and of scientific mental omitted)). (citations (Wyo.1994) thereof, copies experiments, or or tests rulings custody, evidentiary possession, A trial court’s which are within the state, appeal not be disturbed on absent a clear the existence of will or control of State, known, by 874 of abuse of discretion. Wilson which is or the exercise known, 215, (Wyo.1994). diligence may Fortner has the to the P.2d 218 due become state, proving attorney of the trial court abused its and which are burden for the Dye preparation it de- discretion when allowed Officer material to the of the testify objection. over counsel’s are for use fense or intended trial. state as evidence chief at the to demon- appellant has the burden an exists.
strate that abuse discretion A court does bounds less it acts reason in a manner not abuse its discretion un- under the circumstances. which exceeds the (d) Regulation [*] court. [*] [*] an determining In whether there has been
Pearson v. 1991) whether has been said to mean an error committed stances. abuse of conclude (citations or not the court could as it did. An abuse of discretion discretion, the ultimate issue is by the court under the circum- omitted). 811 P.2d 704, reasonably 707 of law (Wyo. that a grant (2) brought permit Failure to rule, party the course continuance, the court has failed to Comply. [*] discovery [*] attention of the court may [*] or —If prohibit order such proceedings, or comply at inspection, any party time with par- ty introducing evidence not dis- from DISCUSSION closed, may or it enter such other order Dye’s testimony Officer just circum- it deems under as may specify court stances. The Fortner claims the trial court abused time, making the Dye place and manner of it allowed Officer discretion when may pre- discovery inspection and concerning speed the and as
1287
defendant, opponent
scribe
conditions as
or
such terms and
are
his witnesses.
just.
Alexander, Wyo. 324,
State v.
324 P.2d
cert,
831,
denied,
(Wyo.1958),
363 U.S.
Dye
Fortner claims
conducted
(1960).
80 S.Ct.
timony Dye inspected in the record that scene, copy provided with a of the acci asserts, but does not es report, report, photo dent reviewed the tablish, prejudice flowing unfair from the graphs and taken at measurements the scene Dye’s trial court’s decision to allow testimo applied principles physics established ny. vigorously cross-examined measurements, and mathematics to those no regarding opinion effectively elicited supports claim that evidence Fortner’s testimony that his estimates experiments. conducted scientific tests were not as certain or Apparently, any not have State did evi as inconsistent with Fortner’s scope dence fell within the paint attempting them. The 16(a)(1)(D). P. R.CRIM. regarding Dye’s testimony lack of notice did *5 that Fortner next contends the State deprive not Fortner a fair of trial. The trial Dye going knew it was to call before trial. court is allowed in considerable latitude ad contention, Based that he claims the State mitting rejecting or rebuttal evidence. Alex potential should have disclosed as a ander, 324 P.2d at The 839. trial court did work at witness disclosed his the scene. not abuse its permitted discretion when it claims that failure to Fortner the disclose testify. to potential this witness an ambush tech was nique and him fair trial. denied of a Howev er, Fortner fails to our direct attention to Co-defendant any Wyoming requires rule or case which the prosecutor Fortner claims the notify to the of its defendant intent to improper opinion testimony elicited concern Further, expert call an rebuttal witness. the ing whether Fortner drove the
trial court’s scheduling April order dated argument truck off the cliff. This is without 1995, expanded requirements the agree opinion testimony merit. We that con only P. 16 to the extent that the R.Crim. cerning guilt the is defendant’s treated as parties provide were to list of a the names se, per prosecutor. error when elicited a may and addresses of “that witnesses be State, your (Wyo. in in Bennett v. P.2d used case chief.” The 881 State’s 1990). 24, 1995, Summary” May However, “Trial filed on ex it is clear from the record pressly counsel, reserved to State, the State’s call un that Fortner’s not the used named rebuttal if such witnesses became transcript Hauge’s guilty plea pro the from necessary. Finally, support is no in there ceeding placed transcript testimony the record for the Fortner’s contention that the complains he of into evidence. Counsel was parties stipulated provide possible to a list of apparently trying argue Hauge’s to that tes rebuttal witnesses. timony plea guilty proceeding at his was belief, subjective objective based on a not an Clearly, could not Fortner be sur During Hauge fact. examination re-direct when, prised after he that truck testified the merely testified that he was certain the act going per jumped was 45 miles hour he intentional, thought not that it, out of the State to called an rebut guilty charged. the crime No error testimony. Dye’s testimony gain that did not defendant, exists when counsel for the significance until testified he was State, opposed to the counsel for elicits testi fairly speed at a high when the mony concerning a went off an element of crime from truck the cliff. Rebuttal always impeach is admissible to contradict a witness. ever, key issues troublesome. One the is argument
Prosecutor’s speed of vehicle at in trial was the this prosecutor that the Fortner claims From the time of the accident. the accident improperly used evidence co-defendant report, aware of the the State was prove is Hauge’s guilt to that defendant and, response, suggesting defendant argue it was guilty. Fortner does not that investigate. requested an the State argue prosecutor for to disclose or error however, expert, was not to revealed guilty. that Hauge pled that He concedes until after the defen- court or defendant jury. that before the put his counsel matter speed, to consis- dant testified following excerpt complains of report. tent with accident closing argument: from State’s My purposeful if this concern that Hauge for a min- Let’s talk about Dan part it undermines tactic on accomplice ute. this crime. He was policy discovery purports to serve. Defendant, pled guilty helping this He discovery policies is the Among the serves helping Defendant’s crime. conceal this merit, disputes on their not on resolution of You convict Defendant based can Further, surprise it tactics of counsel. visits You Mr. alone. have so judge thoughtfully antici- on a trial who has much is a sole business- more. pated through difficult issues addressed gain? man in What he have to town. did process. Finally, is- pretrial presents vengeful Did like witness out he look appeal sues for which would be unavailable get Tracy you Fortner? I submit merely presented the evidence had the State you any he was as reluctant as witness case in chief. available was a man. He risked saw. He broken business, marriage, his his reputation, family’s friendship testify. He everything. risked
Fortner contends this statement amounted telling jury that because Mr.
Hauge pled guilty, should found be
guilty. simply This is not the case. The jury
State told the that it could “convict Kimberly CRAWFORD, Appellant Defendant based Mr. (Plaintiff), alone,” guilt, Mr. not on because v. guilty. Fortner has not met pled Lynn AMADIO, Tracy proving through a clear record his burden of (Defendant). closing argument unequivocal prosecu- rule of law was violated Tracy Lynn AMADIO, Appellant argument. tor’s (Defendant),
v. CONCLUSION Kimberly CRAWFORD, Appellee err The district court did not (Plaintiff) .
allowed from a wit- ness not on the State’s case- who was listed 95-233, Nos. 95-234 and 96-18. in-chief witness list. The record does not Supreme Wyoming. Court support Fortner’s other claims of error. Therefore, we affirm. 27, 1997. Feb.
LEHMAN, Justice, concurring, with whom
TAYLOR, C.J., joins. analysis pre-
I concur with the technical majority.
sented The use of rebuttal, how- witness