Hayes v. State

subject-matter juris- that it its ion under the circumstances would be advis- exceeded prior adju- ory only. Wyoming Highway diction in connection with the House v. De- partment, Wyo. dication. 203 P.2d 962 Afton, Wyo. Welch v. Town of parties successfully 2. Whether the con- (1947). Cf., rel. P.2d 593 ex Schwartz subject-matter State by stipulation juris- ferred Jones, P.2d 993 Wyo. Campbell diction on the Probate in Court County judgment so that the order and hold that our foregoing The authorities go beyond jurisdiction did not of that proper disposition in such circumstances is court. appeal, hereby to dismiss the and it is dis- against 3. Whether a claim the estate missed. required peti- should be when a verified specific performance

tion for

presented probate court in the proceeding,

estate though even the dis- specific performance

trict court action for

includes an alternative claim for dam-

ages. complaint 4. specific per- Whether a HAYES, Appellant Mike Leanard formance aof contract for the sale of real (Defendant below), property presents against a claim individ- ual defendants who are heirs of the de- Wyoming, Appellee STATE of agreed ceased who convey the land. (Plaintiff below). spoken We have to the first two issues No. 5062. opinion our in Case No. 5029 above. We say need no more other than to note the Supreme Court Wyoming. statutory preservation of an action to en- Aug. 16, 1979. specific performance force petition if the specific performance probate Rehearing Sept. Denied dismissed, 2-5-806, is all as found W.S.1977. In our in Case No. 5029

above the conclusion was reached that the Campbell

Probate County Court did ex- jurisdiction despite

ceed its stipulation parties. course,

Issues 3 and were not

presented in Case appel No. 5029. Had the

lant known disposition of our of that case it quite likely that this case never would filed,

have been filed. Once had the Dis

trict Court in County Converse known of

our disposition of Case No. 5029 this action

undoubtedly would have been dismissed as

moot. While sharply these issues are

drawn, no significant, doubt and somewhat

intriguing, we conclude that are illuso

ry for purposes adversarial because of the injected

mootness into this case our dis

position of Proper applica Case No. 5029.

tion of the principles judicial restraint

leads to the conclusion that we should not

here address opin- these issues because our Gallvin, Director, Wyo. De-

Gerald M. Laramie, Program (argued), fender Aid Defender, Cas- Chapman, Frank R. Public Intern, per, Lara- Kelly, and Kurt Student mie, appellant. appeared on brief Bartels, (argued), Gay Atty. Asst. Gen. V. Gen., A. Troughton, Atty. John D. Gerald Gen., Stack, appeared on brief Deputy Atty. appellee. for RAPER, J., McCLIN- Before C. TOCK, THOMAS, ROONEY, JJ. ROSE ROONEY, Justice. Appellant-defendant appeals here from his conviction on three counts of first gree he was sentenced to murder for which alleges three consecutive life terms. He testimony of a error in connection with the Spencer Anneberg, relative psychiatrist, Dr. responsibility at the time of his mental Specifically, he commission of the crime. testimony Anneberg’s that Dr. contends 7-11-305, was inadmissible under W.S. § 1977; it was admitted in violation that Limine; and that such was an Order in the evidence reversible error inasmuch as the case to the was insufficient to submit Appellant’s testimony. without such Trial, Mistrial, for New for Motions for Judgment Acquittal, Judgment and for Notwithstanding the Verdict were denied. We affirm. guilty,

Although appellant pleaded “not of mental illness or guilty by not reason deficiency and not triable reason of men- appellant did not deficiency,” tal illness or trial, the fact attempt, at the to controvert that he killed the three individuals as al- information, leged in the three-count appeal are those which issues on guilty by not reason of plea concern his deficiency at the time of mental illness or the crime. the aforesaid appellant

After entered Wyoming plea, the court ordered the State observe, report on Hospital to examine and pursuant condition physical his mental and 7-11-303, report In a dated W.S.1977. § 2, 1978, M. June Dr. Bancroft Brooks hospital reported appellant that that just legally competent trial, argued prior but he beginning to stand that motion, appellant requested trial. suffering schizophrenia, paranoid from Anneberg that of Dr. be lim- type, capacity ap- and lacked substantial Appellant argued request ited. preciate of his conduct Anneberg appointment Dr. not and was unable to conform his conduct days receipt made within five after of law at the time of the copy Hospital the Wyoming State (more crime. On June than five 7-ll-303(d); report as required by days receipt report), after Anneberg Dr. did not written submit a re- requested an order examination of him port pursuant of his examination to 7-11- aby designated examiner of own choos- 303(d); and that Dr. was there- (cid:127) ing. August 1, On the order was competent fore witness. made, Elkin, and Dr. psychia- Bernice B. argued also Anne- at Casper, trist was chosen for the examina- berg was excludable under Rule reported tion. She and findings her conclu- Appellant W.R.E.1 conceded that it was 23,1978. sions on August report, In her she proper testify for Dr. as an advised suffering from i. expert pursuant 7-ll-305(d), witness manic-depressive bipolar depres- disorder or e., appel- as one who did examine the not substantially sion. Her conclusions were lant, testify validity but who could as to the the same as Dr. Brooks’ with reference procedures propositions of the and scientific competency stand trial with refer- and of those did examine him. The court who ence to lack capacity appreciate of granted the Motion in Limine. of his conduct and to con- will Additional facts of the case be set requirements form his conduct to the of law required forth as under the discussions of at the of time the crime. allegations of error. appellant’s August On of Uinta Sheriff ADMISSIBILITY OF DR. ANNEBERG’S County advised that he was unable to serve TESTIMONY UNDER § subpoena a 7-11-305, on Dr. Brooks and that his W.S.1977 August whereabouts were unknown. On provisions contends that the 22,1978, the County Prosecuting and Attor- prevented receipt 7-11-305 into evidence ney filed a motion appointing for an order following testimony Dr. Anne- Spencer Anneberg, Dr. a at psychiatrist berg: Sheridan, a designated as examiner of the “Q. Now, you Anneberg, Dr. have did choosing, state’s alleging in his motion that opportunity occasion to examine an and Wyoming examiner from the defendant, State Hos- Hayes? Mike pital, previously who had appel- examined Yes, “A. I did. lant, had “been dismissed for substandard “Q. And when did that occur? professional grant- work.” The motion was “A. That occurred the afternoon and August ed the order made on August. the 20th [sic] examination, making After Dr. Anne- “Q. request? at my Was that berg telephonically appellant’s advised Yes, “A. it was. August 23,1978, counsel on he conclud- “Q. Now, Anneberg, you have heard Dr. ed that the accused did not have mental Dr. Elkin and from both deficiency illness or the time of the regard you to this case. Do Burnett with crime, testify. and that he so would recall that? on, for,

The trial was and held “A. Yes. scheduled August 24, 24, 1978, August ap- “Q. 1978. On And came to certain conclu- pellant case, you a those? filed Motion Limine. It was sions do recall issues, misleading provides: 1. Rule confusion of the or W.R.E. delay, jury, of undue considerations relevant, “Although evidence be exclud- time, presentation of waste of or needless probative substantially ed if its value is out- cumulative evidence.” weighed by danger prejudice, of unfair (§ 7-11-303); (2) the situation in with it Yes, “A. I do. deficiency of which the mental illness or “Q. agree with conclu- you And do those the crime to at the time of accused exists sions? responsibility it the extent that excludes some of their conclu- agree “A. I with crime, the accused the accused for the disagree with others. sions and guilty by reason plea entered a of “not “Q. agree you Do the defendant 7-11-304); (§ deficiency” mental illness or ability substantial to conform lacked the (3) as the second one the same situation of law? his conduct to plea of “not except accused entered disagree “A. I with that.” mental by reason of guilty guilty and not of this in- Since the determination issue (§ 7-11-305). deficiency” illness or legislative of the 1975 application volves the plea appellant entered In this plea insanity relative to the enactment2 by reason of mental guilty, guilty 7-11-306, “not (§§ W.S.1977), through 7-11-301 by rea- deficiency, and not triable illness or analysis of it is in order. deficiency.” illness or son of mental 7-11-301, 7-11-302, Sections and 7-11- problem appears that at least some 306 are not material to our determination. results from a misunder- presented here “facility,” “desig- 7-11-301 defines Section application of standing proper deficiency.” nated and “mental examiner” 7-11-304, 7-11-303, 7-11-305 to §§ pos- has a Section 7-11-302 also definition pleas. presented by appellant’s situations provides: ture. It tried, “(a) person No shall be sentenced ap reference to The situation with punished or commission of an for the mental illness pellant’s contention that his while, offense as a result mental illness of of the trial deficiency existed at the time or deficiency, capacity, or he lacks the to: proceed that he was unfit to to the extent “(i) position; Comprehend his When governed by 7-11-303. with it is § “(ii) object Understand the nature and believe, that exists to so reasonable cause him; proceedings against of the to order an exami section directs the court “(iii) in a Conduct his defense rational designated ex by the accused a nation of manner; and aminer, report written who must file a “(iv) Cooperate his counsel to the with with the clerk of court. his examination3 may any end that available defense be report to copies of the The clerk delivers interposed.” attorney and to the accused prosecuting the disposition the to thereafter, Section 7-11-306 concerns days five or his counsel. Within guilty by not person be made of a found may make a accused both the state and the deficiency ex- reason of mental illness or by a examination request for an written cluding responsibility at the time of the choosing. of their own designated examiner crime. copy furnish a examiner must Such court and report of his examination concern, remaining three sections re- then makes a opposing counsel. The court spectively, the three with which situations issue of finding on the (1) determination and proceed the court in this area: the must (after hearing a if there proceed to situation the illness or defi- fitness in which mental by the the examination made ciency exists at time of the trial to the is a contest to the examiner, if the court proceed designated or extent that the accused is unfit to first deficiency. 7-ll~305(a) obvious- ness or This direction was 2. Section in 1978. was amended by ly legislature so in this section the included 7-ll-303(c) Section directs the inclusion to made in 7-11-304 § that reference could be things report including, among six opinions, other report in the wherein use of the situation the the as to whether or not at deficiency illness or concern was for mental the time of the crime the accused lacked substan- excluding responsibility the time at capacity appreciate tial to crime. his conduct or to conform his conduct to the a mental ill- of law as result of

563 hearing orders a even if there is no deficiency con- both at the time trial test).4 If the is the time accused found crime. is not alleging respect on appeal, to error in this proceed not be fit present due to this it applies situation as to this case is mental deficiency, provision illness or is procedure mentioned because the for it hospitalization made for him. If improperly appellant with intertwined court finds that pro- the accused is fit to procedure involving for the situation ceed, the regular procedure trial continues. excluding deficiency mental illness or re- The accused present nonetheless a sponsibility at the time of the crime. fense of mental or deficiency illness exclud- ing responsibility at the time of the crime. The situation 7-11-304 § e., applies, i. the accused one which Thus, the determination as to or whether plea guilty by enters a of “not reason of not accused proceed is unfit to due deficiency” mental illness or is not material mental illness or deficiency at the time case inasmuch as added to determination, trial is a court not a plea plea guilty,” of “not thus determination. It is not in the nature aof placing con himself under the situation defense to charge. ais threshold trolled 7-11-305. issue, necessary prevent resolved a provides: Section 7-11-305 process violation of due through conviction “(a) couples person plea of a When defendant incompetent to stand trial. plea hot guilty guilty by with a Bishop States, 961, United U.S. deficiency, reason of mental illness 440, (1956); S.Ct. 100 L.Ed. 835 Dusky proof shall be the same submitted before States, United U.S. 80 S.Ct. jury in a continuous trial on whether the (1960); L.Ed.2d 824 Wolcott v. United defendant in fact committed acts States, Cir., 10th F.2d cert. den. charged, on remaining elements of 396 U.S. 90 S.Ct. 24 L.Ed.2d 137 the alleged criminal offense and on (1969); Bettenhausen, Cir., U. v.S. 10th responsibility issue of mental of the de- 7-11-302, W.S.1977, F.2d 1223 fendant. In addition to other forms of supra. jury, verdict to the the court submitted The record in this case does not con by júry shall submit a verdict which the tain a specific order in which the court may guilty by the find defendant not made the compe determination relative to deficiency reason illness or ex- of mental tency However, to stand trial. the reports responsibility. [W.S.1977, 1979 cluding and designated of all the ex Cum.Supp.]5 aminers were to the effect appellant “(b) prosecution beyond a prove The shall proceed was not unfit to with the due trial the doubt all the elements of reasonable present to mental illness or deficiency, and charged responsi- offense the mental and there is no upon record basis the However, bility every of the defendant. court appellant could rule for on the issue mentally be presumed defendant is to of mental illness or deficiency the time responsible going and of first the burden However, trial. the court did rule entering the forward and evidence on against appellant on his several motions responsibility upon issue of mental the premised which were on mental illness or defendant. hearing contesting may (a) party original

4. Even at this § the 5. The subsection 7-11-305 was to desig- by offer in evidence addition to the held unconstitutional this in Sanchez State, l-303(f) provides Wyo., origi- nated examiners. Section 7-1 v. 567 P.2d 270 The part: in provided nal subsection for a bifurcated trial “ * * * which the evidence first heard on whether contesting party any opinion The charged or not the accused acts committed the proceed relative to fitness to has the to by special If verdict criminal offense. persons summon and cross-examine the who did, the found that he evidence was opinion rendered the and offer evidence remaining heard on the of the elements offense upon (Emphasis supplied.) the issue." responsibility. on and the issue of mental “(c) designated competent the examiners are designated The examiners who ex- (subsection (c)); exam- that those pursuant amined witnesses the defendant W.S. are also iners who examined the accused 7-242.3 or 7-242.4 7-11- [§ 7-11-303] [§ (e)); and competent (subsection witnesses competent are witnesses. 304] who have not expert that other witnesses “(d) addition, the state and the as to the may “testify examined the accused may fendant expert summon other wit- and the validity procedures of the followed nesses who did not examine the defend- propositions by stated oth- general scientific experts competent ant. Such are not (d)). (subsection Where the er witnesses” testify as to responsibility the mental unambig- and language plain of a statute is defendant; however, may the testi- construction, uous, and is no room for there fy as to validity procedures impose may not look for and the court followed and general propo- scientific State, supra meaning. v. another Sanchez sitions by stated other witnesses. 5; Wyoming Treasurer footnote State “(e) Those examined the examiners who City Casper, Wyo., 551 P.2d may testify defendant as to the nature of Company Emer- Supply Mountain Fuel examinations, diagnoses their of mental son, (1978).6 Wyo., 578 P.2d 1351 opinions deficiency, illness or and as to appel did examine ability appreciate the defendant’s Therefore, lim was not lant. conduct, wrongfulness of his or to con- expert for an who proper ited to that form requirements his conduct to the (subsection (d)). did not examine law. They may reasonably explain also 7-11-305 for requirement There is no § diagnoses their opinions, be furnishing report of a of the result competence cross-examined as to their various examinations conducted credibility diagnoses and the of their experts except testimony may be insofar as opinions.” appointed presented by those who were also would read into section a previ designated examiners under the two procedure whereby only designated ex- who, therefore, ous sections and submitted give diagnosis aminers could of the ac- previous sec reports required such give cused’s only they condition and could Likewise, requirement there is no tions. ability appreciate as to his approval of appointment 7-11-305 for or wrongfulness of his conduct or to conform days five expert intended witnesses within his conduct of law. required by 7-11- receipt report Any expert only “testify other could as to attorney obviously prosecuting validity procedures followed and appointment such attempted to obtain general propositions scientific stated Anneberg, after the approval for Dr. albeit other argued witnesses.” so Anneberg ap day period, five and Dr. support of his Motion in Limine. pointed; procedure was unneces but this say plain provisions But the section does not that. of sary and futile under the plain 7-ll-305(e) testimony by It is unambiguous saying and that which allows § ambiguity its-propriety of a fair trial Even if there were which would tion the interest intent, require legislative process question us to inherent ascertain and due power and also result would be the same in this instance since statutes are not to be of with reference to limitation the court given meaning invalidating a to nulli- of the number of witnesses—thus fy operation capable any Annotation, their if are See the act. 5 A.L.R.3d 238. interpretation. Rapids authority 706(d), other Grand Furniture Note Rules 703 and W.R.E. Co., Opera Co. v. expert Grand Hotel & House limit witnesses of the court to per number Wyo. 128, (1902), Wyo. 70 P. 838 authority reh. den. has no Rule W.R.C.P. which 128, 148, (1903); 72 P. 687 DeHerrera v. Herr- counterpart precedent in W.R.Cr.P. The creat- era, Wyo., (1977). accept 565 P.2d To by accepting appellant’s ed likely contention would appellant’s contention that the statute arbitrari- greater hardship work a on future ly permitted limited the number of witnesses prose- fendants in criminal actions than on the give expert testimony on the main and control- cution. ling bring fact of this case would into conten- conferences; any pretrial examiner who examined the accused.7 W.R.C.P. relative to appears balancing improper that an effort to read Rule W.R.E. relative to provisions probative against dangers 7-11-303 and 7-11-304 value other and §§ considerations9; 40(e), into only 7-11-305 not resulted in confu- and Rule W.R.O.P. trial, sion at the suppression but also contention relative to of evidence obtained appeal.8 through in this unlawful search and seizure. Rule provides specifically W.R.Cr.P. Accordingly, entirely proper it was “[a]ny objection capable which is defense or for Dr. Anneberg given diagno to have his without the trial of the determination appellant’s sis of mental condition and to general issue be raised before trial given have capaci relative to his specific motion.” But even without rule ty appreciate of his authorization, authority a court has to en- conduct ability and his to conform his con tertain and act on such motions virtue of duct to of law at the time power duty its inherent and to assure a fair appellant, crime. He had examined only proper admit impartial trial and to and his testimony was founded on such improper evidence and to exclude evidence. examination. One of the essential elements authority permits This the modifica- same passed on in the determi tion or rescission of the orders relative appellant’s guilt nation of sanity was the thereto, and for the same reasons. other appellant at the time of the crime. It was words, prior such and orders made motions integral part of the determination of subject to trial con- should be same guilt, State, supra Sanchez v. footnote 5. siderations and results as those made dur- Dr. Anneberg’s testimony was directed to 311; ing the trial. See 63 A.L.R.3d integral this element. 599; Fibreglass A.L.R.2d Indus- Frontier tries, Wyo., Inc. City Cheyenne, ADMISSIBILITY OF DR. ANNEBERG’S Pangarova, P.2d 456 Nichols v. TESTIMONY UNDER ORDER Wyo., 443 P.2d 756 IN LIMINE The Order in Limine was founded on jury received In this premise Anneberg’s testimony that Dr. evidence, only proper appellant’s coun was inadmissible under 7-11-305. Since sel was aware of the nature of the testimo we have premise determined that ny of Dr. which was to be faulty, the improper; Order in Limine was presented being thereof advised —albeit violation of it prejudicial was not only a The evidence was day before trial. Furthermore, error. the record reflects not extensive and was in the same area and the court modified or rescinded the appel general presented by nature as that accepted Order and testimony. witnesses, opin contrary lant’s with a limine, A ruling against appellant motion in a motion to ion. In on his Mo suppress Mistrial, or a Judgment Acquit motion to exclude call tions for pretrial poten determination that Judgment Notwithstanding certain tal and for tial evidentiary Verdict, matters allowing Anneberg’s or items are inad and in missible stand, at the trial. Such motions and the the court either modi rulings proper. Recognition thereon are ex fied or rescinded the Order in Limine court, ists in rules of the such as Rule ruled violative alleged arrangement 7. Error is not with reference to the are not as smooth and readable as 7-6-103, might originally 7-6-102 and §§ W.S. be inasmuch as the same were 1977, relative to designed apply provi- endorsement of witnesses on to bifurcated trial to the objection the information and waiver of subsequently sion which was removed from so, nothing failure to do and there is concern- 7-ll-305(a) by amendment. ing such in the record. 9.See footnote 1. Although plain the enactment under- and standable, language, its references and section us, find the a reasonable but rather yond in Limine. We do not doubt the Order the basis for whether it is sufficient to form appellant which clear abuse of discretion guilt beyond a reasonable inference of demonstrating has to this the burden of by to the doubt be drawn reasonable trial court’s court before we can disturb a light the evidence is viewed when ruling admissibility of evidence. on the Evanson v. to state. most favorable the State, (1979). Wyo., P.2d 839 Boggs v. State, (1976); Brown v. Wyo., 546 P.2d 412 prejudice. We The testi- do not find unfair Nisonger State, Wyo., 581 P.2d 189 mony was relevant to the central issue State, Wyo., 581 P.2d 1094 the Rule case. It was not excludable under Affirmed. It was admissible. It was W.R.E. properly received. ROSE, Justice, dissenting, with whom McCLINTOCK, Justice, joins. OF THE EVIDENCE

SUFFICIENCY that, I am of the because the that the evi- Since contends way the motion-in-limine matter was han- dence without the tes- was insufficient dled, an deprived op- the defendant was Dr. timony Anneberg, of Dr. and since the portunity effectively to cross-examine sub- Anneberg’s proper was and witness, Anneberg, resulting in a denial of ject by jury, further to consideration the by process guaranteed law the due as exposition sufficiency on the of the evi- the United States Sixth Amendment to necessary. dence is not will note that We Constitution, of the and Article Section lay four their observa- witnesses testified to oppor- lack of Wyoming Constitution. The to, prior appellant immediately tions of through no fault tunity came about of, after, the immediately time the and an order of the fense counsel. killings. Their included such lan- extant limited Dr. Anne- court was which guage Hayes”; he as he “seemed like Mike berg’s testimony to allowable under wildly”; up- was acting “not he was “not W.S.1977, 7-ll-305(d), provides: which set” was “all shooting; before he compe- not experts “. Such are irrational”; right”; “he he was “not want- testify responsi- as tent to to the mental movie”; ed go see a he didn’t to “he said defendant; however, bility of gun], want to use it he would if he but [the pro- may testify validity as to to”; prior had was “kind killings to he general followed scientif- cedures and nervous, upset, calm- kind of but he was propositions ic stated other witnesses.” bit”; ing killings, he down a little after the dissent, assume, of this I will purposes For “understood the and the circum- situation was arguendo, order limine stances he in” and who ev- “he knew instance properly entered the first be- was, erybody talking who he to” and examining Anneberg cause doctor “his responsive ques- answers were to was, therefore, “competent.” Never- placed tions I to him.” theless, order, because of defense coun- the doctor sel had a assume that lay The evidence wit of these permitted testify on the would not be coupled Anneberg, nesses with Dr. that of having issue to do with mental ultimate supra, was sufficient the rule under responsibility of the defendant. sufficiency which we test the of evidence on prosecutor called appeal e., matter, in a criminal i. we exam and, contrary the restriction the stand ine accept as true the evidence court, if upon him asked he placed prosecution, leaving out en of consideration doctors) (with the agreed defendant’s tirely the in con evidence of the defendant “the defendant lacked the substantial therewith, give flict and we evidence ability to his conduct to re- conform prosecution every inference favorable law,” quirement of the may reasonably fairly drawn be Anneberg responded, which Dr. way therefrom. Stated is not another —it guilt disagree whether the evidence be- “I with that.” establishes my they not well but judgment This —in the answer were taken because the —was the question prosecu- to ultimate which the judge finally testimony decided that the had been That tor directed not to ask. prejudicial. was not should have Counsel is—his the limitations under order requested prepare a to his continuance prevented asking from In the him it. doctor —but no cross-examination of this hearing on defendant’s motion to strike event, request any such I was made. am Anneberg’s questioned the testimony and that of the violation because trial, judge the agreed motion for new that prosecution, by of the court’s order the question consequent and its answer opportunity defendant was denied the order, prohibited by were the limine but say I effective cross-examination. “effec- testimony prejudicial. held the not to be advisedly. tive” cross-examination For a any here, To that I have it is concern lawyer, without his part, fault on irrelevant that order may have been psychiatrist forced to confront a on the improperly in place. entered the first sanity ultimate issue of his client’s without anwas order of the court under preparation having by and after been led a being parties case was tried and all were to it was court order believe that unneces- bound it. Not were bound prepare experi- him to such an sary for it, right but they had to its rely upon a ence, to, fact, oppor- client the deny is his effects, which included defense counsel’s fairly effectively tunity confront the to right to take he comfort belief that This, me, to is denial of defend- witness. did not have prepare cross-examine due-process rights. ant’s expert upon highly witness technical 308, Alaska, In Davis 415 U.S. S.Ct. subject relating medical to the issue crucial 1105, (1974), the 39 L.Ed.2d 347 United client’s sanity. Supreme States Court said: The testimony Anneberg Dr. crit- “The Sixth to the Consti- Amendment case, course, ical to the State’s because guarantees right accused tution of an all of the expert testimony other in the case prosecution in a criminal ‘to be confront- was favorable to the defendant issue on the against ed with the witnesses him.’ This sanity. doctors that other testified Hayes right secured in state as capacity appre- lacked is for defendants substantial ciate the proceedings his conduct well as federal un- criminal 400, unable to conform his Texas, conduct der Pointer v. U.S. Therefore, of the law. with- (1965). Con- S.Ct. 13 L.Ed.2d out Anneberg’s questioned testimony, being than al- frontation means more get State would not been have able to physically. lowed to confront the witness sanity.1 on the issue construing ‘Our cases the [confrontation] interest se- primary clause hold that a Anneberg in, When testimony came of cross-examina- cured it is the surprise2 defense counsel asserted —which Alabama, Douglas 380 U.S. tion.’ certainly understandable —and moved to testimony L.Ed.2d 934 strike the and for a 85 S.Ct. mistrial. These Wigmore motions were denied —not stated: because Professor give availability lay I1. without of the written no credence whatever to a witness’ him ques- findings highly report on the technical medical where he states his a con- and, person’s sanity report proper tion of a or the lack itof writtin so that a ex- [sic] cise therefore, lay aas matter of law discredit all could be from that. Fur- amination made subject. thermore, on naturally I think that it came as a agreed surprise to me in we had that following partial 2. The record discloses the ar- up not come and I advance would gument of defense counsel: unprepared at time to counteract highly prejudicial “. . .1 it’s answering by think of the ulti- reasons, defendant because it is a made statement issue in the and for these mate by the doctor to the ultimate conclusion I move for a mistrial in the case.” would proper ability without to cross examine 568

“ All of a sudden will be no such encounter. purpose of ‘The main and essential in a to cross-examine upon he is called oppo- for the confrontation is to secure prep- of law—without highly technical field opportunity of cross-examina- nent the will, by defi- resulting efforts aration. His opponent demands confron- tion. The nition, he is some sort unless be ineffective tation, purpose gaz- the idle not for aspect this isolated specialist a skilled in witness, being gazed ing upon the or not re- record does of trial work —and the him, upon by purpose but for the the case. flect this to be cross-examination, which cannot be had personal put- by the direct and except preparation no is ineffective The result of obtaining imme- ting questions criticizing and —without cross-examination original) (Emphasis answers.’ diate be any way can for defense counsel —it 1395, 123, Wigmore, p. Evidence 5 J. of Anne- said that the cross-examination 316, 1940).” (3d 415 U.S. at 94 S.Ct. ed. truly ineffective. berg in this case 1110, therefore, 39 L.Ed.2d at 353. has, resulted preparation Lack of to con- opportunity in defendant’s lack of 740, State, 744 Wyo., In Holm v. 404 P.2d has testified the hostile witness who front (1965), we said: is, It therefore a denial against him. elements of due “One of the most basic of law. right process defendant’s due party process right is the of each to be it when my opinion, the court erred In apprised upon all the evidence testimony not to be questioned held decided, right an issue is to be with prejudicial. examine, explain rebut such evidence. Jersey Optometrists New Board State 422, Smith, 65 P.2d 189 Wash. In State 18, 740, Nemitz, N.J.Super. 21 90 A.2d battery (1937), assault and 1075 745; 241, Gordon, 225 N.C. 34 State v. to refrain order prosecutor violated a court And, 414, right hear S.E.2d his dis- asking about from the defendant upon which a and controvert all evidence and, discharge the Marines honorable from made in adjudication factual is to be objection, though lodged no even counsel cludes the hear and cross-exam prejudicial the court held violation Pennsylvania ine Ath witnesses. State court said: as a matter of law. The Bratton, letic Commission v. Pa.Su propounding ques- . . In 425; 598, 422, per. In re Buch 112 A.2d ruling tion, clearly counsel violated Estate, Cal.App.2d man’s ques- theretofore made. 73, 84, 291, Id., P.2d A.L.R.2d such a and of highly prejudicial tion Cal.App.2d 281 P.2d 53 A.L.R.2d largely consists prejudice that the nature 873, 76 certiorari denied 350 U.S. question. The asking mere S.Ct. 100 L.Ed. 772.” objected to was not question that the fact that an controlling. It well be is not might argued by many perhaps be — though question, even objection to such a counsel even most —that the defendant’s sustained, defend- damaging to a is more “opportunity” was furnished the to cross- could any answer ant’s case than almost required by Davis v. examine as Neither, the circumstances be. under Alaska, State, supra— supra, and Holm v. record, motion to was a shown certainly agree. but I would not He jury to instruct strike the answer and given opportunity effectively any necessary. disregard the same Perhaps I have been a trial cross-examine. disregard event, in view of the deliberate lawyer long, years in the too but those ruling, prejudice the court’s by counsel of vividly permit courtroom me to fantasize mo- presumed, appellant’s must be has not the scene where defense counsel have been for a new trial should tion prepared adversary to do battle himself granted.” 65 P.2d at 1078. psychiatrist ques- with ultimate on the li- the order in have held that sanity tion of his client’s because he relies I would violation, mine, served subsequent its upon there with says the court’s order which as a up conduit set the defendant deprived

manner which him of his cross-examination,

effective thereby struc-

turing an error which the United States Court,

Supreme Alaska, v. Davis supra,

where opportunity to confront wit- issue,

ness was at has described as “ ‘. . . constitutional error of the magnitude

first and no amount of show-

ing of prejudice want of would it.’ cure

I would have reversed and remanded. HAYES, Appellant

Mike Leanard

(Defendant below), Wyoming, Appellee

The STATE of

(Plaintiff below).

WYOMING PUBLIC DEFENDER

PROGRAM, Appellant, COUNTY, Wyoming,

JOHNSON

Appellee.

Nos. 5149.

Supreme Court Wyoming.

Sept.

Case Details

Case Name: Hayes v. State

Court Name: Wyoming Supreme Court

Date Published: Aug 16, 1979

Citation: 599 P.2d 558

Docket Number: 5062

Court Abbreviation: Wyo.