Lapp v. City of Worland

I criminal trials. verdicts in mous lan- implicit policy

believe Constitution and

guage enactments.

subsequent legislative Supreme Court

fact that United States (as date) struck down as Constitution

violative of the United States of two other provisions

the constitutional in those states policies which set the

states is of verdicts

to authorize non-unanimous to Wyoming’s relevance materiality

no

position. case on the

I would reverse this W.R.Cr.P., which 32(a),

ground that Rule verdict, was not en-

requires unanimous court.

forced LAPP, Appellant

Leland Duane

(Defendant), WORLAND, Appellee

CITY OF

(Plaintiff).

No. 5270.

Supreme Wyoming.

June Gish, Basin, signed

Robert A. the brief of appellant. Gorrell, Worland,

Floyd signed D. appellee. brief of RAPER, J., Before C. and McCLIN- TOCK, THOMAS, ROONEY, ROSE JJ.

RAPER, Chief Justice. appellant-defendant appeals The from an order of the district court which affirmed his conviction in ap- court of pellee, City (City), for driving Worland while under of intoxicating the influence liquor (DWUI). appeal, In this as well as in appeal to the district defendant asserts that he was demand, entitled to on DWUI, charge court for the and that the district court erred because he right.1 was denied That is significant though issue defendant also claims a defect in the chain of evidence with respect breathalyzer test results.

We will order of reverse the court and remand the case with directions trial in the defendant a munici- pal court.

The April defendant was on arrested 1979, by police City after officers they they observed what considered to be being given erratic driving. AFter various tests, was taken sobriety field he to the he police station where consented to a breathalyzer resulted in a test which read- ing of 0.22%.

Defendant was a citation for issued City DWUI in Worland violation of § complaint Code. A and warrant were pleaded arraignment, served. At guilty a trial demanded by summarily which was denied munici- was pal judge.2 guilty. Defendant found impediments, 1. Because of technical we could “The demand of Defendant for trial very hearing July not reach this Petit came on same City A.M.; appearing appeal the basis Dixon of Wor 1979 at 9:00 Robert A. Gish land, Floyd Wyo., for the D. Defendant and Gorrell pearing The advised for the Plaintiff. Court judge provided: attorney 2. The Order of the Defendant’s that no sentence to 31-5-1214 Highways, fic on 31-5-101 §§ the district court because appealed He jury. The district court of a trial denial “ * and uniform applicable affirmed conviction. political state and all throughout holding our misconstrues therein. municipalities subdivisions Municipal rel. Weber State ex however, adopt by may, Local authorities Jackson, P.2d 698. Town of Wyo., ordinance, either simi- regulations traffic herein, only held under the circum or That case contained regulations lar to there, enter long they this would not are stances as regulations so additional of to the issue this prohibition provisions tain a writ reach of not with the in conflict shall act, we have us. The ultimate hold authorities now and the said local to said authority enforce ing express was that the defendant’s of case have by action regulations adopted, so disposed through of traffic claims must be municipal local respective and we in their procedures appeal, ordinary of W.S.1977; 31-5-109, see extraordinary writ of courts.” Section employ would not also, W.S.1977. to of entitle prohibition question § reach the a trial. We do now have the ment to of Wor- authority, City to this Pursuant appeal, on a directly before us question ordinance, 14-3, Worland adopted land Weber. procedural present fact Code,3 jail a sentence which authorized City thirty days parallels and more of not than time this of at The offense DWUI 31-5-233, W.S.1977. proscribed by case was defined in and arose for Jus- W.S.1977, Procedure The Rules of Criminal prior written its as Municipal and Courts tice May 1979. Our of Peace Courts amendment effective this (W.R.Cr.PJ.C.), adopted by provi- mandated 5(d), 23, 1974, provides: by Rule Regulating Traf- October Act Uniform provisions foregoing paragraph of imposed “5. be event of Defendant’s would limiting (b) construed as conviction. shall not be “Thereupon any competent denied Defendant’s evidence of other introduction bearing upon 5(d) pursuant demand or not the whether for Justice of the Rules of Criminal Procedure intoxi- was under the influence of Municipal and of the Peace Courts.” liquor. cating Worland Code: Section Every violating person “(d) convicted “SECTION 3: guilty a mis- pro- shall be deemed this section “(a) punishable It is as unlawful and punished (e) be a fine of (d) demeanor and shall and of this sec- vided subsections any person or more than one hundred dollars tion for is under the influ- not imprisonment who days thirty intoxicating degree liquor, than which for not more ence safely incapable driving imprisonment. a renders him mo- fine On or both such vehicle, any subsequent tor to drive motor vehicle within be or shall second conviction he city. punished by imprisonment than for more “(b) prosecution and, for a vio- days criminal sixty in the discretion of the (a) of driving this section relat- lation ing subsection of not than two hundred dollars. fine more a vehicle while under the influ- Every “(e) sec- convicted under this intoxicating liquor, ence of the amount of shall, penalty in addition to the above tion provided, blood at the time alcohol alleged the defendant’s suspended license driver’s analysis chemical shown division of the state tax the motor vehicle blood, urine, breath other bod- defendant’s or period thirty days for the commission for a ily following substance shall rise and, upon second first offense conviction of a presumptions: offense, have his license sus- driver’s pended by motor division of the vehicle percent If “3. there was that time 0.10 period one tax commission for a state by weight of more alcohol the defendant’s and, days twenty or sub- hundred for third blood, presumed it shall be that the defend- conviction, sequent shall have his driver’s intoxicating ant was liquor under influence by the motor vehicle division license revoked incapa- degree to a safely driving renders him period of the state tax commission vehicle; ble of motor year.” one may additional rules of be “(d) court. —There Jury trial in necessary proper shall be no to demand for the conduct of found courts; courts unless sentence provided, that the such ; in all imposed upon conviction but general not conflict with the same do pro- as otherwise respects, except other appeals to the dis- laws of state vided, trial shall be conducted in like judgments and deci- trict court from are tried before manner as criminal cases justices al- sions of said added.) justices peace.” cases, lowed, appeals in all further, proceeding helpful it is provided by Before law taken in the manner now background of this outline the historical justices peace.” appeals governing court’s to make rules (Bracketed marks jus- procedures municipal courts Therefore, this court drafted uniform rules then peace general tice of the courts in to both applicable which are 5(d) particular. Rule justice peace of the courts. justice of the municipal Prior to and 29, W.R.Cr.P.J.C., provided that Rule regulated by were peace procedures court 5-6-207, superseded W.S. W.R.Cr.P.J.C. § year, statute. In that the enact- 5-130, W.S.1957) which (formerly § 5-4-207, ed W.S.1977: § provided: Wyoming is supreme “The court of violations police court for “Cases powers hereby supervisory vested with and city ordinances shall be tried de- justice courts of the state over justice without the by police termined shall, by and rule of the su- Wyoming, trial of jury, intervention of a and the court, procedures and preme establish justice police such such cases before expedi- for the effective and regulations respects, in all not herein be conducted of the tious administration business for, in like manner as provided otherwise of the state and justice system court justices criminal cases and costs for said shall establish fees peace.” courts.” superseded in addition The W.R.Cr.P.J.C. specifically mention That statute does 5-136, 5-6-302, (formerly § W.S.1977 § courts, but courts were W.S.1957) provided: court justice peace because of the affected judgment or sen- “Appeals from the applied municipal courts. procedures incorporat- police justice 5-6-106, tence of such [of Section W.S.1977. * * * to the district may be taken ed towns] procedure “The pro- manner as is now in the same court nearly possible courts shall as conform justices’ appeals from by vided law for general laws of provided to that cases, and shall be dealt courts in criminal justice in courts of the of the state cases.” by the courts as criminal incorporated city or peace, but such (Bracketed supplied.)5 provide such material may by town4 ordinance 5-6-101, hereto- “In addition to all other methods W.S.1977: Section law, provided by appeal from the an fore hereby in in “There is created and established justice police judgment or sentence incorporated each the cities or towns of the special any city operating under or town Wyoming, incorporated whether state of commission, manager or commission charter or en to the district court is now gener- existing special or a or under a charter may manager government, be tak- form of act, here- al and whether now in existence or same manner as incorporated after under the laws of appeals law for from state, municipal for the trial of all court cases, justice and shall be in criminal courts arising in- offenses corporated city under ordinances of said by the courts as criminal cases.” town, dealt with may be.” as the case 7-442, 7-16-201, (formerly § W.S.1977 Section also, supersed- W.S.1957, 5. The W.R.Cr.P.J.C. Session as amended ch. § following ed the sections: 1969): Wyoming, Laws of judg- 5-121, may appeal 5-6-107, (formerly from the “The defendant § Section W.S.1977 peace justice 29-1805, W.C.S.1945): ment or verdict W.S.1957 and § County, District of Sheridan trial at provide The net effect was justice peace court 1023. At time municipal and Wyo. novo V, and eliminate de Wyo- level Art. § was in existence there furnishing familiar and district ming Constitution: procedure appeal an record usual final deci- lie from the “Appeals shall the district court. peace and justices Wyo. Heberling, This State pursuant to such cases and magistrates in in detail outlined may prescribed by regulations a trial de novo in history of elimination of law.” justice appeals the district court in from V, Wyoming Art. section and § That tacitly to the district court and resolution of repealed by were Constitution establishing proce- proved its own rules general ratified at legislature in justice appeal taking dure proclaimed in effect on It and municipal courts. election peace specific stead, noted in addition to 17,1967. there their actions January granted to procedures establish V, Wyoming Art. years, in the same § courts, justice peace to authorize sub- was amended Constitution 5-18, (now § W.S.1957 W.S. may, by the legislature “as ordinate courts “adopt, 1977), this was authorized to law, from time ordain general establish covering practice rules modify repeal” to time.” of this state.” “in all courts held that The Suchta case W.S.1957 It was noted 5, when a meant that case supra, footnote (now W.S.1977) provides such § the district violation reached of ordinance “review,” “trials” govern rules could court, it tried a criminal case must be as being: the restriction the district court originating in “(b) abridge, rules shall Such neither by jury. This court decided included trial enlarge rights the modify nor substantive statutory the basis of inter- upon the case jurisdiction of any person any of nor the approvingly from 9 change provisions pretation of the the and cited courts nor any Ed., Corporations, statute of limitations.” 3rd McQuillin, Municipal 27.39, right of a defendant “[T]he State, Wyo.1979, v. Again, in Petersen judgment upon appeal jury trial [from 978, approved proce- the this court provi- depends upon the of the prescribed this court for selection court] dure * *.” applicable We there local statute jury of a in the minor courts. proce- with “[mjatters dealing noted that court v. example, As an the cited Stutsman courts, dure, in the are particularly 1911, 499, minor Wyo. Cheyenne, 18 province of this court.” entirely within the 322, 323, approved P. 594 P.2d at 982. in for no trial de novo providing statute court, jury allowing for a district but intruding We are this court what in rel. level. held State ex Suchta court previously ment, regard county errors or without technical court to which taken court of the in defects, prejudiced appeal shall which have not sub- had. The the trial was (30) entry rights party, thirty days stantial of either within case, justice judgment, power order of pealed verdict or final has full over the entries, return, appeal peace, from. Notice of the his docket writing justice justice and filed of the case accord- administer peace.” law, ing judgment and shall accord- (formerly ingly.” W.S.1977 Section W.S.1957): State, Wyo. Johnson v. The dissent cites cause, appealed, opinion “The when thus as inconsistent with our 532 P.2d herein. That case justice court in stand the same manner that trial anew the district at the decided it prior should been peace levels and district court nearly justice, tried before the and as as adoption of W.R.Cr.P.J.C. practicable upon issue of an indict- as an fact guarantee has even The aim of the purposes, For our Stutsman that, when it held greater significance right by jury preserve to trial is to is a matter of taking appeal jury of trial by substance of the “[t]he taking and consists in statu- mere matters of distinguished from form tory steps higher to transfer the case to a particularly concept procedure, retain the added.) (Emphasis *.” that issues of law are to be resolved case, jury trial was in the court and issues of fact are be deter court, appeal was on the jury appropriate mined under in The court transcript the district court. structions Baltimore & Caro court. method of tak- held all that “relates to the Line, Redman, 1935, lina Inc. v. 295 U.S. added.) ing appeal.” (Emphasis 1636. The con 55 S.Ct. 79 L.Ed. Further, holding of Stutsman cept jury trial is not inflexible all agrees in that there is no meaningful it details, long so as the essential elements requirement by jury constitutional preserved. Byrne the institution are mu- appeal in the district court on from a Matczak, 3rd Cir. 254 F.2d cert. a violation nicipal judgment finding den. 358 3 L.Ed.2d 58. U.S. S.Ct. of an ordinance. Nor is there constitu- The essential elements of a trial are problem tional in the fact that trial would impartial jurors, there be who unani jury persons be to a of six mously un controversy decide the facts I, Wyoming Art. Constitution: judge. People the direction of a der jury “The of trial shall remain Schoos, 1948, 399 Ill. 78 N.E.2d cases, inviolate in criminal but A.L.R.2d 1096. civil cases in all courts or in criminal record, may consist cases courts not foregoing proce cases involve men, may pre- less than twelve leading up to a trial and the dures ” * * * scribed law. termination of its function and do not deal in what court a with the A court of record. municipal court is not a place, trial must first take in a case where 23(a), W.R.Cr.P.J.C. granted. trial is We case, then, the there is a Since Suchta that, general proposition, as a it conclude new provision new constitutional and stat- difference whether makes no substantive utes which court the au- give supreme the in right jury place the to a trial takes the thority procedures to fix in all courts tier of a two- municipal court at the first legislature’s rule. We do not disturb the at the second tier level. It is system tier or in misdemeanor right require jury to a trial procedural. purely in for ordi- municipal prosecutions cases The of the United States Supreme Court only nance violations. We move the trial In Lud reached the same conclusion. has by jury procedurally from the district court Massachusetts, 427 96 wig v. U.S. find, to for the municipal the court. We 49 L.Ed.2d the Court con S.Ct. case, purposes of this that the Wilson,1888, 127 sidered Callan v. U.S. right the to intended to an individual it left 32 L.Ed. which 8 S.Ct. jury municipal trial for violation of a ordi- issue was the undisturbed. In Callan at right nance. We consider it a substantive validity system of a two-tier person, legislature by to the reserved only second tier. by jury for trial 5-2-115, supra. we have reached Once The Court stated: charged with the conclusion that a “ * * * grade class or Except in that an offense in court is entitled to offenses,’ which, ‘petty of offenses called difference jury any a does it make law, may be according to the common in court or whether it be held the tri- summarily against proceeded court, It is de novo? concluded pur- for that legally constituted and bunal only practice that it is a or impartial jury to guaranty of an implications. pose, has the no substantive Constitution, but rather the United States prosecution, in a criminal the accused guaran- a exercising or either in the name or was a “mode” conducted States, authority United under the trial. It was considered right jury teed to enjoy to right him the that secures to unduly burdensome.” “fair and moment, first mode of trial the in Lud majority the point of The put trial for he is on whatever ” * proce a wig is that purely it is matter (Empha- charged. the offense With the the trial is had. Id., dure as to where at 1307. sis S.Ct. selected, by jury at a trial we have method Callan words, the held In other Court tier, survive the could also we the first place in jury trial must take the that dissent, objections per- first in which first tier —the leg-, that Therefore, comfortable we are appear. is required son tried regard right to the direction with islative Ludwig, the Massachusetts’ two-tier municipal violations has by jury for trial of Cal- challenged system was case, we In this do kept been intact. was not lan jury for reason that a legislature could elim consider whether Rather, first tier. the first allowed by jury inate trial ordinance by a trial trial was opportunity generally petty considered tier, violations similar to the de novo the second changed this before offenses.7 system rule. The observed that under it Court rule It is unfortunate pur- jury served its basic system, adopted by this court retain pose corrupt or “safeguard against is prosecutions trial against the com- prosecutor overzealous court must as ambiguous, for which this biased, plaint, judge.” or eccentric The A responsibility. rule sume expenses, also the added stated statute, Sayre effect of a the force and an harsh- possibility unvindictive but Roberts, 1938, Wyo. v. appeal, psy- and the adverse er sentence on same and is to be construed manner chological physical effects that de- Brill, 1907, 15 Wyo. Phillips to a as a v. lay engendered did not rise violation of statute. 1182; trict, taking see 95 Idaho 6. The decision the dissent < n =22, also, Digest System, Jury. position by jury, strong in the court West’s trial constitutionally original jurisdiction re- is statutory specific grant of In the absence of a way quired and there is more involved than offenses, petty none guarantee is It allowed. Shak, required. supra; Austin State require it individual considered irrational to Denver, County supra. go anguish through of a trial burden provi- other Under the Sixth Amendment or judge obtaining alone before States, of the United Constitution noted that the trial. dissent jurisdiction police justice limited guilt though tarnish of even on the remained imprisonment $100 fine for not not to exceed trial, second the defendant was vindicated a petty to three months is for offenses exceed of verdict innocence. The dissent concluded Shafsky by jury required. is and no trial that a defendant should have had the kind of a 1971, 468, City Casper, Wyo. 471. 487 P.2d to trial he was entitled in the first instance and provision The observed that the justification it no was shown for to be other- 10, I, Constitution, Wyoming is similar to Art. wise. and “little more need Sixth Amendment what been said in addition to discussed Many provi 7. hold constitutional re- courts that with to no constitutional above” reference right jury quirement petty sion that trial shall remain for a offenses. require jury petty Shafsky inviolate does not a It must be clarified that Examples relating that the fact offenses. of such cases are: Gold observation 1975, Kautz, 431, legislature jury had a trial in man v. Ariz. that the denied 111 1138; Shak, 612, 1970, municipal prosecutions at level. State v. 51 Haw. 466 422, 930, 191, argues that of DWUI P.2d den. S.Ct. Defendant the offense cert. 400 U.S. 91 190; City County petty a 27 is than offense because of L.Ed.2d Austin v. more Denver, 600, 448, consequences suspen- resulting from 170 462 serious Colo. cert. 69; den. license. We also need 398 90 L.Ed.2d sion of the driver’s U.S. S.Ct. 26 Dutton v. in this case. District Court of Third Judicial Dis- reach that

«75 reason, jury a for that and it is entitled to ambiguity present, When is 90 P. 443. tried the defendant to be so construction. to rules of we must resort the sentence ulti Herrera, regardless of whether Wyo.1977, 565 P.2d DeHerrera impris a term of permits mately imposed includes of no that 479. We know not. of Fremont v. Keat punishment City established onment or to alter the a court 114; 468, 118 N.E. ing, as authorized 96 Ohio St. municipality, White, 1943, 73 Village a of New Miami v. say do not mean to that legislature. We 664. The to a upon plea App. have discretion a Ohio 53 N.E.2d judge does not au jury punishment or a court trial is tested jury guilt verdict of guilt particular City in a case to assess a offense. finding guilt non-jury thorized for allowed, Wilhite, 1972, 255 La. penalty maximum Monroe v. less than the mandatory. it is So.2d 535. unless 5(d) of Rule that is troublesome part

The penalty The authorized no part stating “[tjhere is major relevance in particular crime is of a trial in to demand enough it is serious determining whether be im- jail unless a sentence is to courts Louisi by jury. Duncan v. justify a trial The upon conviction.” posed ana, 1968, 88 S.Ct. U.S. apparently con- judge in the case hand ordinary prosecu criminal L.Ed.2d 491. In could, it to mean that he authorized, strued severity penalty tions determination that he make an advance actually imposed, is the relevant not the one sentence, even impose jail would not a has, fixing a The measure. of not to exceed one though jail sentence judgment of seriousness. penalty, made mak- by the ordinance States, 1969, month was United U.S. Frank v. We con- ing DWUI an unlawful act.8 162. 23 L.Ed.2d S.Ct. that, 5(d) to mean if the ordi- strue Rule 31-5- Legislature, State charged pro- is nance under which Worland, 233, W.S.1977, City of and the and demand jail vides for a sentence offense, that the have declared made, the defendant is trial is then jail DWUI, justify enough serious is jury as a matter entitled to trial is what month. That up sentence of to one right. in this requirement creates the interpretation place would Any other case, has been made. proper demand when require judge cart before the horse and the When both State at the time of sentencing enough exercise discretion serious charged declared the offense before trial. The idea arraignment sentence, then we as a court justify language concept rejected by right to municipal judge have no 5-6-208, W.S. opening sentence of § serious and we consider it less say that guilty, 1977: “If the be found basis. trial on that grant refuse and assess shall declare police justice punishment upon It is the authorized judgment and render ac- punishment, whether there should we to determine focus ” * cordingly. the lesser sentence by jury, a trial 5-131, W.S.1957) (formerly That section imposed. that can be by Rule superseded was not ques the second will not decide We respect appellant, provides tion raised When an ordinance chain of evidence. break in the part penalty, purported be a of the imprisonment may proceedings trial transcript is No of the under the law of the state accused may regulated imprisonment, ordi- municipal judge as set A has no 8. ; greater punishment provided, providing shall be nance any no fine aside an ordinance (1) one hundred dollars W.S.1977: one offense than offenders. Section costs, ($100.00) no im- with recoverable “Any before the convicted (3) longer prisonment three time than justice under the ordinances of offense months.” fines, city punished accused persons trial —from nor was the record part pears — punisha- not 4.03, offense of an settled, Rule court required record explained As I through jail sentence. ble W.R.A.P. rel. ex in State my dissent in detail the dis- through and remanded Reversed Jack- Town of Court of Municipal Weber court for trial trict 5-19, (1977), son, Wyo., 567 court. prohibits W.S.1977] W.S.1957 [§ adopt- Supreme Court Justice, concurring part ROSE, “abridge, en- McCLINTOCK, rules which ing “procedural” in which dissenting part, rights of modify the substantive large Justice, joins. [or] any person.” holding that majority’s I concur with defendant-appellant, net effect on this which majority opinion I concur with promul- Court’s Wyoming Supreme of this application that the seems to hold 5(d) and W.R.Cr.P.J.P. of Rules gation to this defendant rules “procedural” court’s 5-130 supersede M.C., purport §§ which is lawful announced therein in the manner and 7-16- 5-6-207 W.S.1957 [§§ majority’s application alter this defend- not does W.S.1977] protecting the effect rules has The reason is that rights. ant’s substantive by jury. trial right to a substantive the new and under under the old statutes however, dissent, from the inevitable I rules, guar- this defendant “procedural” which effec- majority opinion result of the trial. anteed lawfully may this tively holds question: this I am bothered But have the rules of adopt pro- charged does What the offense if municipal-court defend- denying a effect of appear, would jail sentence? It vide for the issue of jury trial where ant a of Rule majority’s interpretation under the derogation not involved—all sentence is there in those circumstances 5(d)1 that statutory right to a of such a defendant’s jury trial in the be no would by jury. However, had this court. 448,supra, abrogate undertaken 7— charged with municipal-court jail would still punishable an offense not conferred legislatively enjoyed upon appeal jury Thus, of the ma- import

district court. away take a substantive

jority decision is to majority bility imprisonment. states in arguing trial to his entitlement to a argument need not appellant pointed 7 that this out that the this Nonetheless, apprehensive provides charged violating I am reached. statute he was for an automatic plain argument suspension has been reached of the accused’s this W.R.Cr.P.J.P.M.C., 5(d), language Appellant upon ar- driver’s license gued conviction. majority’s rule. consequence defense of that so serious as to possi- quite apart from the warrant a

Case Details

Case Name: Lapp v. City of Worland

Court Name: Wyoming Supreme Court

Date Published: Jun 16, 1980

Citation: 612 P.2d 868

Docket Number: 5270

Court Abbreviation: Wyo.