*1 756 five
pra, sufficient in the context of the duced to thousand was dollars. You ha- doubt standard. reasonable ven’t been able to raise that amount? No, your “MR. HARLEY: honor. error, Harley of In his second claim going “THE You’re COURT: to be challenges the failure of district court either, suppose? able to give pre-sentence to credit for confine No, respect your maximum sen “MR. HARLEY: ment with to the honor.” statute, our rule tence. In absence Harley It is our conclusion that is the determination whether to prior confined to trial because was un pre-sentence grant deny for con credit post indigency. able to due bond to his is finement within the discretion the trial pre-sentence confinement added to the court if: maximum the statutory sentence exceeds “ * * * (1) presentence is custody [T]he days maximum 117 that he was indigency; not due the defendant’s prior imposition to the confined of sen (2) spent time sum of the illegal, tence. The sentence was and Har custody presentence plus sentence ley days against to credit entitled for 117 does not exceed the maximum allowable years imposed maximum sentence of 10 State, Wyo., sentence.” Jones v. 602 by State, court. See Heier v. (1979). P.2d supra; State, Hedge supra. v. State, Wyo., Munden See also v. 698 P.2d guilty We affirm verdict of and the (1985); State, Hedge Wyo., v. 696 P.2d judgment sentence of court as cor- pre-sentence custody If the Harley giv- rected our mandate that indigency attributable and maximum en days against credit of 117 his maximum plus pre-sentence sentence confinement sentence. sentence, statutory exceeds the maximum illegal held the we have sentence mandated
either correction remanded
the case to the district court for correction. State, State, v. supra; Pote v.
Munden (1985); State, P.2d 617
Wyo., 695 Heier v. urges P.2d 707 The State pre-sen- given
that credit fact was given tence it was confinement when KESER, Randy (Defendant), against the minimum sentence. It is clear v. State, supra, v. and Hedge from Heier v. State, supra, ap- that the credit must be Wyoming, The STATE of plied imposed. the maximum sentence (Plaintiff). Appellee plus pre-sen- If the maximum sentence No. 86-167. tence confinement time exceeds the statu- sentence, Supreme tory illegal, Wyoming. maximum it is Court of Heier State, supra, simply v. it is discretion- June ary the trial whether it also pre-sentence credit wishes to confinement
on the minimum sentence. urges Harley also
The State was not test,
indigent, indigency but under our
premised on the inability the defendant post Hedge supra; bond. Jones State, supra. arraignment, At his dialogue
following between court and
Harley occurred: * * * “THE Harley, your COURT: Mr. dollars,
bail is set at five thousand *2 BROWN, C.J., THOMAS,
Before and CARDINE, MACY, URBIGKIT and JJ. CARDINE, Justice. court, jury county appel-
After a trial in Randy lant Keser was convicted of reckless driving, 31-5-229, W.S.1977, en- reckless § 6-2-504, W.S.1977, dangering, destruc- § property, 6-3-201(b)(i), W.S.1977, tion of § animals, 6-3-203(a)(ii), cruelty and single appeal W.S.1977. The issue on whether the district court erred in affirm- ing county court’s denial of his motion trial. We affirm. 9, 1984,
On November a criminal infor- charging appellant Randy mation filed Keser with the four offenses described An above. affidavit of a member of the office, County Natrona sheriff’s filed information, support of the contained the following statements: your “2. That Affiant was informed Joseph Joslyn, one Jr. and one Allan J. 3, 1984, September Franklin that on p.m. approximately 4:00 were walk- ing of on the southbound side Cole Creek approximately 150 feet south of Road Road, which is located in Natrona Jade County, Wyoming; that one late 1960’s early yellow medium vehicle 1970’s pipes heading northbound with loud approached Road and to- on Cole Creek them, Allan; Joseph Jr. wards centerline and vehicle crossed the said (6) a six month old and killed struck black, sandy shepard, mix white and Zeus, belonged to one Jo- named Sr.; nearly vehicle seph Joslyn, that said Allan, Joseph coming said Jr. and said hit them. or three feet of within two your Affiant was informed “3. That Franklin that the driver said Allan J. vehicle, laughed aforesaid Oldsmobile Gosman, signed Jeffrey Casper, C. striking killing shepard said after presented argu- oral brief mix with said vehicle. ment. Affiant was informed your “4. That McClintock, Gen., Joslyn, Jr. and said Allan J. Joseph Atty. John W. said A.G. Hackl, Randy one Keser was the Renneisen, (argued), Sylvia Lee Franklin Gen., the aforesaid Oldsmobile ve- signed Attys. Asst. the brief driver Sr. hicle.” appellee.
Appellant arraignment, running entered a that it had not waived since Febru- guilty plea ary of not and demanded of 1984. that he insisted trial. Springs Day inwas Rock on the Labor weekend when the incident occurred and prosecution heavily relied At trial on that he did not run over eyewitnesses, of the Al- two Franklin, age Joseph Joslyn, lan J. Appellant’s neighbor testified that Jr., age 14. Allan Franklin testified that parked *3 photograph vehicle been Jr., Joseph Joslyn, walking he and were appellant’s yard year in a for over and that along Cole Creek when car of Road a he last in February saw it run March of “cream color” with a “tannish-like roof” appel- 1984. Another witness testified that dog; Joseph’s struck that he observed the lant and wife with his were her in Rock car; appel- driver of the and that he knew Springs the when incident occurred and the lant was driver because he saw his they Springs that not Rock did leave until cap usually the sideburns and he wore. He September day dog the after the was previously testified that he had seen also killed. appellant driving the car around town and The jury appellant found guilty on all sitting that it was now broken down and in trial, appellant counts. After the inter- appellant’s cross-examination, yard. On young boys, viewed two Domenick and Allan that appellant stated his father and Rittenhouse, Joshua who were friends of well; get along very not did that his father boys the two who testified for prosecu- the complaint had filed charging ap- a criminal boys appellant tion. Rittenhouse told 1984; pellant battery in the that witnesses, prosecution one the that Jo- charge was dismissed two months later. seph Jr., Joslyn, had them he told that did photo- Defense counsel showed Allan a dog. not see who ran over his March On graph gold-colored of a vehicle which was 20, 1986, Keser a Mr. filed motion for new by appellant later identified as broken a trial, alleging that he had discovered new sitting yard. down car in his Allan said that prosecu- which showed the photograph that the car in the was tion witnesses committed that dog. appel- car that hit He identified they had the killing not witnessed of the “posi- lant and said he that dog. appellant person tive” that was the who dog. ran over the In of his motion for new appellant filed an of his coun- affidavit trial Joseph Joslyn, Jr. testified that the car sel, following who made statements: dog “yellowish that struck the was a cream “1. attorney That he was the for the roof”; color with black a that he saw the Defendant above-entitled action. dog; strike he car that was three feet dog; from the car when it struck that poten- “2. That he was not aware of the endangered; felt he that he did not see tial of Domenick Rittenhouse all; he driver that had seen and Rittenhouse, and Joshua two friends of ridden in the car On before. cross-exami- until, witnesses, prosecution the chief af- nation, he said that he did not know if ter the trial of the action. above-entitled appellant dog, over recog- ran but he “3. regarding That the information nized the He ear. said was not sure Rittenhouses was discovered the De- photograph whether the car April fendant himself after trial held car that ran dog, over the but the color was 25,1985, interviewing members right. Finally, he Allan testified that neighborhood his on Cole Creek Road Franklin’s had dad “talked to him” about and neither the Defendant nor counsel appellant and that Mr. Franklin “doesn’t for the Defendant Affi- best of like him.” knowledge any ant’s had information prosecution After the concluded its that there were witnesses [who] testify prosecutor’s took the stand. He that testified chief wit- he owned the car in the photograph perjured nesses had themselves. appoint- credibility Affiant made an attacked the of the your “4. That State’s wit- tri- Rittenhouses after the ment with the nesses and that under this court’s decision up your they to show al and failed Grable shortly there-
Affiant understands (1983), newly regard- discovered evidence Rittenhouses moved.” after the ing credibility of a witness is not suffi- grounds cient for a new trial.1 of Domenick Appellant also filed affidavits appealed then to the district Ritten- court which Rittenhouse. Domenick and Joshua county affirmed the court’s house stated: denial of the upon motion new trial the same neighbor your “4. That Affiant was a grounds. Appeal is now taken to this personal friend of Joe and close court. family whose owned early September In Joe Jos- reviewing court’s denial of a telephone me on the and told lyn called upon newly motion for based run over. me that his evidence, discovered reverse did not see it was He said who *4 appellant affirmatively unless an shows over, dog they all heard was that ran abuse of discretion the trial court. Gra- squeal, * dog yelping. and the
the tires
State, supra,
ble v.
at 532.
Saldana v.
$
*
*
*
*
State,
1121,
Wyo.,
P.2d
1123
Joslyn
I then talked to Joe
several
said:
“7.
“
dog
days after the
was killed and asked
composite
‘Judicial discretion
a
is
anything
they
him if
had found out
about
things,
many
among which are conclu-
they
found
dog
and he said that
criteria;
objective
sions drawn from
it
out who had killed their
Joe said
judgment
means a sound
exercised with
him
guy
swerved to hit
and A.J.
regard
right
under the circum-
what
they jumped
the road
Franklin and
off
doing
arbitrarily
stances and without
so
guy
their
and the
hit their
with
bikes
capriciously.
the decision or
Where
story
dog. I did not believe this
because
order of the trial court is a matter of
phone
he had told me on the
after
discretion, it
disturbed on
did it.
was hit he didn’t know who
except
showing
review
on a clear
just prior to
“8. On one other occasion
discretion,
is,
abuse of
discretion
date,
Joslyn
me and
the Court
Joe
called
unreasonable,
manifestly
or exercised on
just spoken
A.J.
said that he had
with
grounds, or for untenable rea-
untenable
”
Franklin,
acquaintance
who was also
Quoting
sons.’
from State ex rel. Car-
mine
Franklin’s Dad told
and A.J.
Junker,
12,
79 Wash.2d
482 P.2d
roll v.
Court,
say
them what
because
(1971).
get
person
were
wanted
Thus,
occurs
an abuse of discretion
when
running
dog.”
blaming for
over the
acts in a manner which exceeds
following
made the
Joshua Rittenhouse
circumstances.
of reason under the
bounds
statement:
State, Wyo.,
There is a difference between evi self-serving affidavits of alleged new evi- merely goes dence credibility conflicting dence with evidence at impeaches by calling a witness his credibili (now penury) called and be ty question into entitled to an and evidence which is of evidentiary hearing and then “eyewitness” fered to another trial show an to a crime and, that, affidavits, after gave more false more testimony. identification hear- ings, and more trials by appellant evidence offered ad in this infinitum. The essence of our criminal impeaching; system it also falls into the latter *5 represented that citizens be category, by as it was offered to counsel show that and Franklin, by afforded one trial Allan only they witness which who produce all of crime, claimed to see the evidence defendant commit the available reasonably present upon was not at the dicoverable scene of the crime. they rely choose to impeachment they Unlike the and that offered be by bound result of that Grable v. trial. Were State Salaz v. otherwise, supra, system criminal evidence is so material that it quicksand would sink into probably produce of multiple, a different verdict. Thus, evidentiary endless hearings the district court and trials was not correct in never a ruling disposition. final appellant’s that motion and affida vits failed to any ground upon Appellant has failed to demonstrate that which a may granted. new trial this, through diligence exercise of due evidence could not have been obtained be- held, however, We have that even if fore trial. Accordingly, his motion for new reasoning incorrect, lower court’s its trial must fail. decision should not be reversed if it is sustainable on theory. another DeWald v. Affirmed. State, Wyo., We find failed to meet his burden of URBIGKIT, J., filed a dissenting proving that his failure to discover the opinion. evidence before trial was not due to lack of URBIGKIT, Justice, dissenting. diligence. “Whether diligence sufficient justification In factual for societal incar- was used must ordinarily be determined being ceration of a human eight months composite from the knowledge and conduct days, evidentiary and ten pano- of both the accused and his counsel.” 3 rama unfolded.
Wright, Federal Practice and Procedure: Criminal 2d 557 at prosecutorial evidence, 327-329 As the Allan J. this case the affidavit of the having officer de Franklin testified to eye-' scribing proposed witness, testimony of the two identified the car that struck the witnesses was filed with dog the information. as cream-colored with a tannish-like roof, and his counsel knew before trial and identified the defendant as the only prosecu- other tion witness who Joseph Joslyn, the driver. —that witness, the car as the de- identified claimed to see the defendant tion commit the cream-colored ve- yellowish, present fendant’s —a crime was not at the scene of the a black roof. hicle with agree majority I crime. with the that this type ground upon of new evidence is a affidavit, Ritten- Domenick post-trial In a granted. Yet, may which a new trial house, age stated: majority affirm defendant’s convic- Joslyn I to Joe several then talked the defendant failed to tion because meet dog was killed and asked days after the proof his that his failure to dis- burden anything out about they him if had found the new evidence was not due to lack cover had found and he said diligence. majority their Joe said concede that the had killed out who A.J. guy accurately express legal swerved to hit the correct stan- they jumped off the road 34, W.R.Cr.P., Franklin and Rule dards under but guy and the hit their with their bikes strongly disagree majority’s appli- with the story because dog. I did not believe deny of that standard to the defend- cation phone after the he had told me on opportunity ant a curative if did did it. dog was hit he didn’t know who occur. prior to one other occasion “8. On Initially, significant I think it is that the date, Joe called me the Court trial court did not base its denial of the just spoken that he had with A.J. said for a trial on the defendant’s motion Franklin, acquaintance also an who was diligence, prove defendant’s failure to due told mine and A.J. Franklin’s Dad and this court is not constrained Court, say because them what customary standard of deference which at- person they were get wanted taches to factual determinations made running dog.” blaming for over the the trial court. Rittenhouse, age also stated Joshua diligence I think that should be evaluated affidavit: light surrounding circumstances. of all neighbor your Affiant was a “4. That charged In this the defendant was Franklin, friend of A.J. who personal It is unrealistic concerning the with four misdemeanors. in the case was involved *6 to can- expect killed. a misdemeanor defendant Joslyn’s that was to neighborhood try to and locate vass the telling I A.J. Franklin “5. overheard who will able to demonstrate persons be school that his friends on the bus one of lying, star is going prosecution’s on Cole the witness by car fast that he saw a blue relying Joe called the defendant is particularly Road and that where Creek said, you Did see Perhaps after that and it have defense. would on an alibi go car down the road because diligent attempt a blue to discredit been more to my dog. hit testimony, I false but would expected the from sitting in the seat across lacked due I was that the defendant not conclude Franklin when this conversation preparation A.J. of his defense diligence in the to overhear the place took and was able Unfor- exculpatory evidence. or search for any without trouble.”. conversation the not know about tunately, you what do is can witnesses what existence of relevant any particular brilliance It does not take and Wright, Federal Practice you. hurt lying, particu- tell that someone was to 2d 557 at Criminal Procedure: § trial had the larly so since the defendant * * “ * party that his cream- testimony of a third diligence was sufficient Whether operational for car had not been colored from ordinarily be determined used must incident oc- eight months the about before knowledge conduct of composite the curred. All his counsel. accused and both the diligence, not ordinary required is is majority opinion concedes that The at diligence.” Id. highest degree of pros- tended to show that the new evidence 327-329. gave identifica- eyewitness false ecution’s on
Although
pursuant
the burden is
the defendant
cured
to Art.
6 and Art.
§
diligence
Wyoming
in his search for the
10 of the
Perju-
to show due
Constitution.
evidence,
unexposed
ry
previously
pollutant gnawing
this court
is an insidious
at
very
easily
adjudicatory
too
makes the fulfillment of that
essence of the
processes
case,
In this
burden
the level which serve as the
unattainable.
hallmark of our demo-
majority place
society.
the due-dil-
which
cratic
igence
logical
is
requirement
without
process by
The
which
factual contro-
legal justification. United States v. Wa- versy in this case should be
resolved
(7th Cir.1980).
ins,
In
cases where this court has af-
lyn,
witnesses,
prosecuting
Jr. as
Do-
firmed a trial court’s denial of a
for
motion
menick Rittenhouse and Joshua Ritten-
emphasized
this court has
contestants,
house as factual
then
knowledge
defendant
of the exist-
sulting testimony should be
to
informative
bring
ence of
to
witnesses
failed
them.
realistically dispositive.
the court and
Ei-
State,
Siegert
Wyo.,
See
present
ther the defendant would
and Salaz v.
661 P.2d
sufficient for a
new trial
dismissal
the defendant was
charge,
jus-
criminal
or he would not. But
possible
aware of the
witnesses who
tice
have
been served and
af-
reason
now
to
know
be classmates of the com-
forded
know
Rather,
that an innocent man did
plaining witnesses.
it is clear that
go
jail
viciously
per-
on
concocted
existence
these
witnesses came
jured testimony.
light only after his trial and
conviction
appears
what
appellant’s
continued
A standard should be established
effort to avoid incarceration after his con-
presented,
here
circumstance
that a court
principal-witness
viction
on
perjury.
based
required
grant
is not
a new
on
evidence,
when
affidavit
but
there is rea-
The dialectic created
the affidavits
peijury,
sonable evidence of material
and new-trial motion is that either feloni-
trial court should hold
evidentiary
hear-
ous
was committed
the trial
*7
ing.
hearing
criteria can be emplaced
conviction,
witnesses to obtain a criminal
or
standard
normally
within the
rules
enunci-
false
by
affidavits were filed
otherwise
regard
prem-
ated in
to new
motions
persons
uninvolved
of the mo-
newly
ised
discovered evidence
de-
on
as
tion
By
for a new trial.
dispo-
this court’s
fined for discretion and decision.
sition
on lack
diligence,
based
of due
we
countenance a more serious crime than
previously
has
This court
followed
a
involved,
originally
permitting
without
the
general way the rules outlined in United
true
be
facts to
ascertained.
685,
Cir.,
Pope,
(8th
415 F.2d
States v.
1969),
397 U.S.
cert. denied
90 S.Ct.
I cannot find in
obligation,
constitutional
(1970):
973,
probably would have in order require that due-diligence criteria conclusion; (3) party seeking the diligence, every adult to demonstrate by surprise when the trial was taken in Natro- every nonadult area or immediate given or did false inter first been County should have na *8 falsity until after the trial. of its know had talked he or she see whether viewed to balances fair We think this test best these events. complainants about to the dangers unrelia- protections with the argue from conclusion majority testimony.” v. bility of recanted State pos asserting since it was premise by Robillard, A.2d at 713. supra, 508 dil establish, not due it was later sible to discover. earlier to failed igence to have course, will not reverse Of this court require logic such would The extension motion for new trial trial court’s denial of a 764
Einstein’s theories to been discovered have Apparently this court in cavemen. TAGEANT, Phillip opinion current now converts this case (Defendant), witness-perjury question from a to an inef- v. fectiveness-of-counsel status within the purview Washington, 466 of Strickland v. Wyoming, The STATE of 668, 2052, U.S. 104 S.Ct. 80 L.Ed.2d 674 (Plaintiff). Appellee accept application. I decline No. 86-257. I reverse would and remand for an evi- hearing dentiary directed to determine Supreme Wyoming. Court of perjured whether false 4, June given complaining witnesses. recognize The majority Randy Keser
may innocent and have may been con- testimony, by perjured
victed and then af- discovery
firm because earlier had re-
vealed classmates with whom confidences exchanged. recognition
had been This Wyoming system
result establish process by perjury.
due confined This goes undermining public
sult far toward judicial in Wyoming’s system.
confidence case,
Although not intentional in this falsity, actually existent,
where if prosecution, to the known would be-
lieve Bagley, that United v. 473 States 667, 3375,
U.S. 105 87 S.Ct. L.Ed.2d 481
(1985), majority philo- and dissent applicable.
sophically Napue See also
Illinois, 264, 1173, U.S. 3 79 S.Ct.
L.Ed.2d 1217 and United States 97, 2392,
Agurs, 427 U.S. S.Ct. apply
L.Ed.2d 342 the stan-
dard enunciated the North Carolina Su-
preme McDowell, Court State v. (1984):
N.C. 310 S.E.2d “ * * * evidence, Would had it been to the
disclosed which convicted de-
fendant, in light other all jury heard,
which that likely have cre- jury’s
ated mind a reasonable
doubt which did not otherwise exist as guilt?”
defendant’s newly discovered evi-
dence, disclosed, it been almost certain-
ly would have created mind of the
jury a reasonable doubt as defendant’s
guilt.