*1 (Defendant), GRIEBEL, Appellant Marc E. Hamilton of Hamilton Law Charles Wyoming,
The STATE Riverton, Associates, for (Plaintiff). Appellee Gen., Meyer, Atty. B. John W. Joseph Gen., Renneisen, Paul Deputy Atty. S. COEN, Appellant George Bob Rehurek, Gen., argued, Atty. ap- for Asst. (Defendant), pellee. THOMAS, CARDINE, C.J., Before Wyoming, The STATE MACY, JJ., and URBIGKIT and (Plaintiff). Appellee BROWN, J., Retired.* 87-179, Nos. 87-180. CARDINE, Justice. Chief Wyoming. Supreme Court guilty to interference Appellants pled 28, 1988. Oct. 6-5-204(a), W.S. police with a § each received a sentence of 120 fine. and a $250 irregularities in the they procedural claim sentencing procedure. Specifically, the dis- positive issue judge1 appel- failing erred in to disclose to lants, that he had videotape taken of them while viewed a custody. they We reverse. FACTS August arrested Appellants were River- violating provision for illegal, except makes City ton Code which a minor specified under upon any to “be or remain city streets, public places alleys or midnight until hour of 12:00 after the ** taken Appellants were A.M. 6:00 station, where an to the Riverton Keabler among Officer erupted altercation result of this As a youths. and the two charged with as- appellants were activity, perform- engaged saulting an officer duties, felony. 6-5- ance of prelimi- 204(b), W.S.1977. hearing, Keabler testified nary Officer occurring police station. the events the offi- which followed During a recess prosecutor allowed testimony, cer’s videotape which the counsel to view fense in the evidence offer as planned to * Judge County Hall was the sen- partic- Donald continued to 1. Retired June appealed tencing ipate pursuant this case the court in decision July 1, Ranck, Judge, who af- to order of the court District Court entered Robert firmed the sentence. *2 videotape,
preliminary hearing. everybody your else for conduct. I’ve jail security system, purport- product of the in-depth in analysis your seen that of appellants striking each other edly showed Griebel, Mr. situation even from the time injuring in face them- and otherwise parents your you that lost control of sir jail selves while confined in the cell. After you apparently deny any still serious plea defense counsel viewed the problems drugs. with alcohol and/or bargain appellants pled was entered and Mr. in differ- Coen a somewhat guilty charge to the reduced of interfer- ent situation. But inherent in both of peace ence a misdemeanor. with these cases all I’ve heard was how the 6-5-204(a), W.S.1977. The record picking you gentle- have been does not reflect that just recently your episode men and as in viewed in court or received in boy Jackson that the local preliminary hearing. at the arrested, pursued you and I were appellants’ sentencing, the court in- suspect Mr. Coen that alcohol also pre- formed that it had received incident, involved that wasn’t it? reports sentence and asked at- Well, you gentlemen both of have been torney provided copies if he had been through episodes numerous with the law. Appellants’ attorney responded them. you apparently deny Both of still that provided the affirmative. The court then you problems serious because for him to on Mr. comment your versions submitted to the presentence report, Coen’s which recom- tence officers in these cases and view jail mended “a time combination things you that said to the Court. probation.” Appellants’ attorney informed night, privacy my I viewed last arranged that Mr. Coen had VCR, my home on part attend alcohol rehabilitation classes. It your procedures city jail. arrest I was also to the court’s attention your also viewed hand- while that Mr. drag- Coen had been involved in a cuffed, you, your It both cells. racing incident in Jackson several months you to me that occurs both of deliberate- Riverton incident and that he had ly banged your cell, against heads dropped college. out of The court then your injuries upon bodies and inflicted announced that it was Mr. Coen each other in a effort to deliberate make term of 120 and a fine of you up look like the had beaten $250. your story apparently to substantiate Turning Griebel, to Mr. the court asked you’re sticking about what still if defense counsel he “had a chance to these matters. I find that kind of think- review all of the information submitted [to ing totally totally strong- I weird—and — attorney replied his case.” The him] ly suspect view of the fact that the the affirmative and said that he did not reports I that have received that neither wish to address the court that about infor- you that were involved in the presentence report mation. Mr. Griebel’s alcohol, consumption you that “probation recommended with conditions * * spaced kind, drugs were out on of some directly usage related alcohol because cannot for the life of me visu- announced that Mr. Griebel by you alize conduct which I saw two would receive the same sentence as Mr. gentlemen your your actions and lan- following then Coen. made the guage, you spaced out on comments: drugs, just don’t think because that you gentlemen my “Now let me tell both somebody engage in rational would impressions. just again I’ve heard it to- reasons, plus conduct. That is one of the day you throughout that both of your past your records and continual de- your course of conduct in relation to your prob- nial of use of alcohol and charges your have read versions of you being fit quite these offenses Both of lems causes candi- carefully. you tendency have the probated to want to blame dates for a sentence at this my judgment terial contained in the may appeal You time. presentence investigation and through your coun- you if wish afford or his adjourned.” sel. Court thereon. The ma- hearing terminated *3 to the his terial disclosed defendant or the Appellants contend that sen- point. the counsel shall also be disclosed to relying on the tencing judge erred video- attorney (Emphasis for the add- state.” tape without notice ed.)
DUTY TO DISCLOSE imposes obligation upon This the rule sentencing court to disclose the informa- sentencing A entitled to court is report presentence provide tion the and information presented to whatever opportunity his for the defendant or assist it in the difficult is available that will upon that information. to inform needs task policy helps to insure that the defend- surrounding about the circumstances itself ant is on the basis of accurate sentenced relating facts to the events and the the information. It also insures that the State, Wyo., 706 P.2d MJP v. accused. meaningful a fendant is matter, (1985). sentencing a 1108 On mitigate presentence infor- to rebut or the has discretion to consider a court broad mation, or it is accurate. variety of factors about the defendant wide presentence Cavanagh Wyo., disclosure of informa- his crime. v. of the (1973). 311 Much this informa tion addressed Standard 18-5.4 P.2d 505 ABA Justice which presentence the Standards Criminal tion will be included 33(c), provides: report prepared under Rule W.R.
Cr.P., provides: which the “Fundamental fairness to defendant deroga-
“(c)
requires that the
of all
investigation.
substance
Presentence
tory
adversely affects
information which
“(1)
probation
When Made.—The
service
has
the
interests
defendant's
presentence
the
shall make a
court
disclosed in
not otherwise been
investigation
report
court
to the
be-
the
should be called to
attention
or
imposition
of sentence
the
fore
attorney
defendant and defense
the court
granting
probation
give
adequate op-
form sufficient to
directs.
otherwise
Ill
portunity for
ABA Stan-
rebuttal.”
“(2) Report.
—The
Justice,
for Criminal
Standard
18-
dards
investigation
pri-
shall contain
tence
5.4,
(1980).
p. 363
criminal record of the defendant and
or
make it
this standard
information about his characteris-
comments
such
discourage
tics,
in order
evasion
condition and the cir-
clear that
financial
requirement “it
un-
affecting
must be
his behavior as
disclosure
cumstances
obligation con-
that the disclosure
may
helpful
imposing
be
sentence or
derstood
templated
all
data
in the correc-
here runs to
granting probation,
or
court,
defendant,
regardless of
reach
and that will
tional treatment
whom,
con-
by
and how
may
prepared,
be re- when
other information as
re-
court,
principle
by
veyed.” Id. at 376.
quired
the court. The
before
jurisdic-
sentence,
flected in the case law of several
disclose to the
imposing
shall
tions.1
his counsel all
ma-
or
597,
(1963) (“In
passing
lim-
Phelps,
should
Pa.
301
Commonwealth v.
450
678,
(1973)
Supreme
learned in the course
(Pennsylvania
it himself to what he has
A.2d
679
him,
standard);
hearing
and the
before
adopts
v.
ABA
Commonwealth
637,
reliably
Schwartz,
officially
recorded
Pa.Super.
A.2d
638
information
275
418
presentence report.”); Bartholomey
(1980)
("[A]ny
parte
received
ex
information
(1972)
706
297 A.2d
fn. 13
disclosed to
267 Md.
should be
("Any
influence
information
so that he
have an
a defendant
* * *
sentencing judge
judgment
should
dispute
accuracy.”);
of the
examine it and
its
Leckis,
attention
N.J.Super.
called to the defendant’s
165
192 A.2d
strange
The State concedes that the video
It seems to me most
if this
apparently
presentence
not in the
judge viewing
business about the
report,
argues
that we must affirm
surprise
came as a
or their
counsel,
sentences because the record
something would have been said at
does not demonstrate how the court ob
sentencing.
objection
No
was made nor
disagree.
tained the
We
explanation
comment made or
re-
disclosure
rests
the court.
quested.
sentencing judge
never had
clearly
The record
discloses that the video
question
a chance to rule on the
now before
possession
which had
been
Supreme
Court.
deputy county attorney,
somehow came
the court should not consider
sentencing judge.
into the
matters not
to the attention of the
*4
Under
it was the re
Furthermore,
lower court.
this court
sponsibility of the court to make a record
should not consider
matter
concerning
disclosure of the
silent,
Mentock,
the record is
Mentock v.
way
same
that it made a record of disclo
(Wyo.1981).
known to The record reveals during
that it was viewed a recess at the
preliminary hearing. The record further
discloses the trial tape.
stated that he had viewed the presence, as to afford him an judg- to refute or his ment, influence the it."); Sanford, F.Supp. discredit should be called to his attention Zeff (N.D.Ga.1940) ("[A]ny information not re- that he be afforded an to ob- same.”). ject ceived from the accused himself or not to its use and to rebut