*1 presents picture case vivid wrong jus- much that is with our criminal system.
tice have a We defendant who senselessly,
brutally, cruelly savagely
beat, strangled, raped; stabbed he left dead, persons seriously injured.
two one ordering
He admits the murders to “leave has, oath,
no witnesses.” He under con- open
fessed to the crimes twice in court. are,
Yet here entering the case its ninth court,
year with struggling still toward disposition of Mr. Osborn’s case. This saga multiple hearings,
sad trials and
courts required reading should be involved legal studying writing scholars improve
about what can be done to justice system.
criminal At this time it can again
be found journey through on another system.
the federal court
Jerry OSBORNE, Appellant
(Defendant), Wyoming, Appellee
The STATE of
(Plaintiff) (Two Cases).
Jerry OSBORNE, Osborne, Jerre a/k/a (Defendant), Wyoming, STATE (Plaintiff). Appellee
Nos. 90-66 to 90-68.
Supreme Wyoming. Court of
Feb.
ISSUE appellant’s pro- Whether conviction and bation revocations should be reversed insufficiency due to of the evidence? II ISSUE appellant’s Whether attorney had opportunity sufficient to discover the State’s evidence? III
ISSUE appellant’s Whether pro- conviction and bation revocations should be reversed due to ineffective assistance of counsel? IV ISSUE by failing Whether the trial court erred to dismiss for lack of a trial? Appellant Jerry Osborne ran a business Casper A-l known as the Escort Service. operation The business attracted customers through newspaper listing a advertisement a number to call. The caller answering would reach an machine and tape message hear a recorded with requesting lant’s voice that the caller leave Appellant a number. would then return arrange meeting the call a with a wom- prostitution. an who would solicit an act of Appellant working had five women for Munker, Leonard D. State Public Defend- call, Upon receiving her. she would send er, Weerts, Steven E. Asst. Public De- Sr. one of them out to meet a customer. She fender, Slaughter, Legal and Donald K. “employees” instructed these how much (argued) Intern for they charge precautions should and what upon meeting to take a customer. These Gen., Joseph Meyer, Atty. B. John W. precautions checking included the customer Renneisen, Gen., Deputy Atty. Karen A. identification, checking in for with her af- Gen., Byrne, Atty. Sr. Asst. Charles A. rendered, completion ter of the services Moore, (argued); Breer and Donald G. Le- money. “employ- and collection of the Intern, gal appellee. go appellant’s ee” would then house and URBIGKIT, C.J., Before pro- deliver to her share of the THOMAS, CARDINE, Charges ranged MACY and ceeds. from $60 $120. GOLDEN, “employee” plus tips, retained $50 JJ. appellant kept the difference. CARDINE, Justice. Appellant charged promoting with
Jerry challenges Osborne her conviction prostitution under W.S. 6-4-103 on Decem- procuring receiving money from 27, 1988, ber 1988. On December she prostitution. The conviction also resulted her preliminary waived probation in revocation of her on two other January hearing. prelimi- On charges. appeal, this consolidated she nary hearing was County held Natrona challenges those revocations as well. Court, and the case was bound over for in district court. A criminal informa- January charg- tion was filed on We affirm. ing appellant with violation of W.S. 6-4- 103(a) conspiracy to violate W.S. 6-4- 103(a), brings following provides: issues: “(a) felony following if he: person program A commits Alternatives her release prison. “(i) Knowingly intentionally- entices or compels person another to become a THE SUFFICIENCY OF EVIDENCE prostitute; reviewing challenge When to a criminal “(ii) procures, Knowingly intentionally *3 sufficiency conviction on the basis of procure, person agrees or offers or a evidence, examine all the evidence purpose person for another for light most favorable to the State. Mendi prostitution; State, 1240, (Wyo. coa v. 771 P.2d 1243 “(iii) Having control over the use of a 1989). favorable, We then draw all reason place, knowingly intentionally permits or able inferences from this evidence to deter person place pros- another to use the for mine whether rational trier of fact titution; or found, beyond could have a reasonable “(iv) money property other Receives or doubt, necessary the elements of the crime prostitute, from a without lawful consid- for a conviction. v. 749 P.2d Griffin eration, knowing it earned in was whole 246, (Wyo.1988). apply 248 We this same part prostitution.” or in standard whether trial is to a or to the Appellant’s arraignment was scheduled court as in this case. Tennant v. February for but was rescheduled 761, 776 P.2d 763 February due to inclement weather. At a The evidence at the trial included 16, arraignment, appellant pled 1989 testimony Casper police from a officer and trial, 15, guilty. May The scheduled for “employee,” a former A-l plus records 1989, upon appellant’s was continued mo- telephone from A-l transactions and a an request- tion. On June the State swering tape. machine The an setting ed a trial. The court for scheduled swering tape captured appellant’s machine 10, a trial for October services; describing voice A-l and the trial, conspiracy charge Prior to was in appellant’s handwriting records doc trial, day dismissed. On the customers, umented the names of lant moved for dismissal due to lack of money split amount of received and the motion, speedy trial. The court denied the proceeds “employ between her and her attributing part of the fault for the delay testimony ees.” appellant established to the arrangements made prostitution for acts of (ii) in violation of subsection and received court, Following appellant a trial to the money from it in violation of subsection guilty was found of violation of subsections (iv). appellant’s witnesses, Even one of (ii) 6-4-103(a), (iv) procuring of W.S. Meastas, testimony implicated Tina whose person purpose prostitution appellant proprie herself instead of as the receiving money prostitution. for At the business, tor of admitted that conviction, appellant time of this was on participated in numerous factions of the probation for an insufficient funds check enterprise money and received from it. charge guilty in pled to which she 1985 and charges check of fraud and misde- directs attention to the case of larceny by pled meanor to which Konopisos Wyo. bailee she v. 185 P. revoked, (1919), guilty probation proposition in 1987. Her was that a convic- garnering appellant promoting prostitution each revocation two to tion for cannot years prison four served solely to be concur- stand when the evidence consists conviction, rently. ap- prostitution Konopisos For the admissions the defendant. pellant given running of 13 to a sentence 16 was convicted of a house of ill prison consecutively solely testimony fame based on months to be served of two Konopisos to the sentences. This sentence men who stated that revocation maintained replaced suspended with a sen- such an establishment. 185 P. at We year probation tence of which included reversed because this evidence alone was one delicti, Casper Community corpus to establish a six-month term at insufficient (as state, trol of the existence of which is i.e., a “cat house” the existence known, the exercise of due dil- said, may “whatever that Blume Justice may known, prose- igence to the Boscketto, become be,” Wyo. Boschetto cuting attorney; and (1959)) and women “(3) holding testimony P. at 356. Recorded of a defendant staff it. 185 grand jury. application no here. The before Konopisos has appellant consists not of “(b) documents, evidence to convict books, papers, Other at defendant all but of admissions tangible objects places. Upon motion — concerning plus testimony activities of a the court order the physical type prosecuting attorney permit the defen- evidence. evidence copy photograph inspect of evidence dant type similar to the Belondon books, documents, papers, tangible ob- (Wyo.1969), P.2d 238 Casper, City of *4 copies jects, buildings places, or or or challenged suffi appellant where the the thereof, portions are within the which ciency for of of the evidence convictions of possession, custody or control the prostitution main soliciting act of and an state, upon showing materiality of the a taining prostitution. of In Belon a house defense, preparation to the of his and don, testimony included that the evidence request Except that the is reasonable. the the directed the activities of (a)(2) provided as in this subdivision rule premises, the prostitutes, controlled and discovery does not the or in- authorize possession money. marked had of spection of memoranda or reports, other presented at 240. Sufficient evidence governmental internal documents made any rational of fact this case for finder by governmental agents connection to ele beyond find reasonable doubt the prosecution investigation with the or of necessary ments of the crime to conclude case, by the or of statements made state 6-4-103(a)(ii) that W.S. appellant violated prospective witnesses or state witnesses (iv). and (other defendant) governmen- than to the agents provided in except tal as subdivi- TO THE STATE’S EVIDENCE ACCESS (c) of sion this rule. in her Appellant contends second is “(c) production Demands state- of for prosecutor improperly sue that the denied reports ments and witnesses. of her to the State’s evidence. W.R. access “(1) After witness called the state discovery Cr.P. 18 deals with in criminal examination, has testified on direct the pertinent part: It states in matters. shall, defendant, the court on motion of “(a) statement; report of Defendant’s any produce order the state to statement tests; examinations (as defined) defendant’s hereinafter of the witness grand of jury testimony. Upon motion — possession state which the of the relates defendant, may court the order the subject as to which the witness matter permit attorney the state to the de- If entire contents has testified. the of copy inspect photo- or fendant subject the any such statement relate to graph any relevant: witness, testimony matter of of the the “(1) Written or recorded statements or it the court shall order to be delivered by the confessions made defendant or directly to for his examina- the defendant thereof, copies the possession, within tion use. state, the custody or control of the exist- “(2) If the claims that state- state known, or exer- ence of which the produced under ment ordered to be known, diligence cise due become of which subdivision contains matter does attorney; prosecuting the subject of not relate to the matter the “(2) witness, reports physical testimony of the court Results shall mental examinations and of scientific the to deliver such statement order state experiments the court in inspection tests or made connection the cam- case, Upon delivery the court particular copies with such shall the there- era. of, portions of such statement possession, custody excise within con- issued, subject appellant’s relate to the matter trial counsel admits
which do not testimony of the witness. With oversight. In absence this was due to excised, the court shall such material order, prose- an cannot find that the delivery of such statement to then direct engaged Capshaw cution in misconduct. If, pursuant for his use. the defendant any portion of such procedure, to such also advances this issue from the defendant statement is withheld maintaining prosecutor granted objects to such with- and the defendant attorney permission her trial to view the the trial is continued to the holding, and station, police evidence at the evi- guilt of the defen- adjudication of dence technician never let her see the evi- dant, statement the entire text such however, attorney, dence. Her admitted state, preserved shall be police went to the station al- appeals, event the defendant shall be she never appellate made available to the court for though she called station. evi- purpose determining the correct- dence technician recalled a call ruling judge. ness of the of the trial during attorney he invited the any statement is delivered to Whenever police inspect come to the station to rule, pursuant to this Appellant’s attorney evidence. maintained discretion, upon application court in its *5 permission she never received over the tele- defendant, may proceedings recess in phone. attorney’s Neither the statement may the trial for such time as it deter- nor the evidence technician’s statement reasonably required mine to be for the were made under oath or in an affidavit. by examination of such statement said brings competency of either ver- preparation defendant his for its use question sion of events into and demon- confirmatory writing strates the need for “(3) comply If the state elects not to litigating procedure. within the rules of with an order of the court under subdivi- Valenzuela-Bernal, United States v. Cf. (1) (2) sion hereof to deliver to the 858, 873, 3440, 3450, 458 U.S. 102 S.Ct. 73 any such statement or such (1982). predicate L.Ed.2d 1193 We cannot direct, portion thereof as the court might transpired error on what have be- the court strike shall from the record tween the evidence technician and testimony witness and the trial attorney. Appellant lant’s has the burden proceed shall unless the court its dis- showing to make an affirmative of error. cretion shall determine that the interests Cooke, 766 Charter Loan justice require that a mistrial be de- Thrift 522, (Wyo.1988). A record clared. amounting to unsworn accusations does not “(4) The term ‘statement’ as used in sub- showing. amount to such a (1) (2) (3) divisions of this rule relating by to witness called assume, if arguendo, ap- Even we that state, means: pellant counsel’s version of these events is “(a) A written statement made said accurate, prose- we cannot find error. The signed adopted witness and or otherwise obligation permit cution was. under no him; approved by discovery Capshaw, absent an order. “(b) mechanical, stenographic, A electri- P.2d at 351. recording transcription cal or other or a thereof, substantially which is a verbatim recital of an oral statement made said ASSISTANCE OF COUNSEL agent
witness
an
of the state and
Appellant presents
contemporaneously
this issue as the other
recorded
with the
making of such oral statement.” W.R.
side
the coin to her
issue.
second
She
Cr.P. 18.
argues that
if her access to the State’s
prose-
evidence was not attributable to the
26, 1989, appellant
On June
filed a motion
cutor,
it should be
to inef-
pursuant
then
attributable
discovery.
to W.R.Cr.P. 18 for
however,
No order
discovery,
was ever
fective assistance of counsel.
complaint
filed
at 94. The
assistance
filed.
Id.
Establishing ineffective
13, 1988. Trial was held on
meeting two
on December
requires
at the
of counsel
span
days. Ap-
of 301
coun October
must
demonstrated
It
tests.
hearing
pellant’s preliminary
was moved
was so deficient
representation
sel’s
11,
January
December
that were so
showing errors were made
1989,
she waived her
after
functioning in
that counsel was
serious
hearing. Thus a 15-
speedy preliminary
guaran
the constitutional
with
accordance
day delay is attributable to the defendant.
per
the deficient
counsel and that
tee of
Mur
prejudiced
formance
Rule 204 of the Uniform Rules for
206,
(Wyo.1989).
776 P.2d
ray v.
Wyo
of the State of
the District Courts
120-day
from the
ming contains a
deadline
Although appellant’s trial counsel
indictment or information for
filing of the
dis
pursued her motion for
have
should
bringing a defendant to trial
order to
attempted to have the court
covery and
advisory
trial. This rule is
ensure
order,
preju
an
no demonstration
issue
in nature and is a factor to be considered
appar
of this dereliction
dice as a result
774 P.2d at
balancing
Harvey,
test.
must
a reasonable
show
ent.
errors,
that,
counsel’s
probability
but for
against appellant
An
information
Fri
would have been different.
13,
the result
January
filed on
1989. She was
as v.
1989. This
brought to trial on October
probability
probability is a
days. Delays
A reasonable
caused
span
is a
undermine the outcome.
Id.
on a motion of the defendant
sufficient
continuances
opportunity
span
to review the
had an
from this time
when
Counsel
are subtracted
Appellate
delay.
computing
before trial.
the amount of
Rule
State’s evidence
204(c)(3)
(d)(1).
as
had access to this evidence
counsel also
appeal. In
included in the record on
it was
May
The trial was first scheduled
*6
requisite showing of
to make the
order
12, 1989,
May
appellant’s counsel
1989. On
evidence
something in the State’s
prejudice,
for,
granted,
and the court
contin-
moved
a different
suggest
that
would have
26, 1989, the
filed a
uance. On June
State
Appellant did
probable.
was
verdict
setting for a
trial. The
request for a
bench
in this evidence to
point
anything
us to
10,
the trial for October
court set
of a different ver
suggest
probability
the
days
period
42
the
from
We subtract
say
cannot
that the trial counsel’s
dict. We
to the
date the trial was first scheduled
the
the
prejudiced
ineffectiveness
request for a
the State filed its
date when
setting.
TRIAL
SPEEDY
Thus,
the
length
the
of time between
es
speedy
analysis
trial
is well
Our
and the date of
filing of the information
balancing test for
We use the
tablished.
appellant
is 228
the trial not attributable
the
evaluating speedy
challenges
trial
Subtracting
15-day delay for the
days.
the
Supreme Court formulated
United States
hearing
along
preliminary
waiver
speedy
U.S.
92
Wingo,
v.
407
Barker
continuance,
42-day delay for the
with the
(1972).
2182, 2192,
Reason
the Defendant
delay is due to the court’s
Prejudice
key
Much of the
element in the
is a
Appel-
schedule as well as the weather.
balancing
necessary one.
test but not a
arraignment
delayed from Feb-
lant’s
Caton,
Prejudice to the
morning of her trial when she moved for Appellant vigorously are neutral. did not speedy a lack dismissal because of of a trial, right speedy assert her to a and al- Appellant right trial. did not assert her though counsel, she had the benefit of she when the court scheduled the trial. The pressed setting. never for an earlier She appellant urged trial court stated that had prejudice in has no setting June that the October was too shown caused the de- late, adjusted lay. then court would have its These considerations lead us to con- setting. schedule to accommodate an earlier appellant’s right speedy clude that Appellant renewed her motion after the not trial was violated. rested its State case. asserted raised, Finding no in the error issues this vigorously less than did the case is
lant in P.2d Robinson v. Affirmed. Robinson, In pressed speedy issue two weeks URBIGKIT, Justice, concurring. Chief put before Id. at 171. We little weight Robinson; opinion on in the and decision of this factor in I concur place majority, except even less here. I remain concerned on Captions 401. filed documents. the Uniform of the ineffectiveness about State District Courts 402. of statutes. Citation Rules is like a ineffectiveness Wyoming. This and of 403. Format of briefs instruc- by nonenforcement. spreads tions. disease Preparation of orders. 404. the administration of under Interrogatories. 501. Harnsberger, Harry S. Justice Chief depositions. 502. Audio-visual adopted the Supreme Court
Wyoming practice. 601. Pretrial Procedure which were of Criminal Rules rules, jurors. patterned after federal but 701. dire of Voir generally addition, included, Rule in 52: interrogation. 702. Juror 801. decorum. Courtroom Wyoming Judicial Conference make amend rules time to time from 802. of conference calls. Use in the district courts governing practice recording equipment by 803. Use Wyoming Rules not inconsistent with counsel. applicable or stat- Criminal Procedure 901. Sanctions. Copies rules and amendments utes. under 902. Cases advisement. shall, upon promulgation, their so made Disposition of exhibits. Supreme Court. furnished to be strong perception regarding have a Conference, cre- Wyoming Judicial If Rules for the District Courts. Uniform partici- initially agreement ated advisory only, one their number is then composed is was then and now pants, advisory. advisory, If such as all are judges district members trial, speedy they can neither effective Court; today, Wyoming Supreme limiting for benefit nor for restriction and Supreme judges five district if Rule 204 supervision. Specifically, seventeen explaina- reasons not District Courts on justices. For Uniform Rules Court history purgato- exists somewhere any understanda- trials written ble case, status, ry advisory as as we now state real independent ble every category of the Uni- then each and the Uni- judges, of the district perceived, form Rules for the District Courts is advis- Courts, unlike Rules for the District form ory might mean. I can- whatever that rules, not receive any other state court do advisory conceptualize rules to be court Supreme direct Court consideration either of the other on either require approval for effectiveness. its subjects analy- My addressed. review and Rules for the District The Uniform Phillips sis as stated form, Courts, present address the follow- Justice, spe- (Wyo.1989),Urbigkit, ing subjects: cially concurring, Harvey Rule No. Justice, Urbigkit, (Wyo.1989), Appearances. *8 concurring, unchanged. specially remain Appearance and 102. withdrawal if I am concern that then led further counsel. Wyoming depend cannot on the citizens of operation- adopted 201. Continuances. efficacy of our court rules, judi- is al what then there about limits. 202. Time justifiable for process cial that is trust Default; pros- 203. dismissal for lack is king’s-X aptitude A not ac- reliance? ecution. ceptable me because it leaves indeter- to Speedy 204. there rules actu- minate are which whether Filing motions. impose ally provide obli- benefits Filing discovery documents. litigants gations upon lawyers advisory concepts 303. Proof of service. for whatever only or are purpose they then serve. 304. Official court files. orders, demands, prac- Regarding the constitutional and
305. Form of
trial,
are,
of a
there
notices of motion.
tical issues
question
exceptions
without
ates a
and within
realistic method to calculate total
provided
lapsed
Rules
compliance.
Rule 204 of the Uniform
time for rule
Conse-
Courts,
quently,
request
District
state court criminal
as in this case where the
being
trials that
tried and
seasonably
reassignment
can and are
was
made for
not
completed
fact,
by
to
this is the
by
verdict.
defense counsel but
the state’s
universal,
predominate,
attorney,
if not the
status
duty
would assess a further
today
Phillips
objection
anxiety
after the shock of
and Har-
immediate
if
about the
vey has been defused. This court has at
rescheduled date is to be converted into
responsibility
this time either
appeal.
the moral
issues for claimed error on
required
do what is
to make
Uniform
It
be that Rule 204 of the Uniform
Rules for the District
firm and en-
Courts
Rules for the District Courts would be im-
repeal
forceable or to rescind and
what
proved by
flexibility provision providing
trap
otherwise becomes a
and snare for the
for a
excep-
reasonable extension of time
unsophisticated litigant.
tion to accommodate crowded dockets after
I concur in
requested
this case because it can be
initial extension
by
is
either liti-
per- gant.
established that the extensions of time
I do not need to reach such an
however,
satisfactorily
exception here,
mitted were
within the 120-
when no resched-
day
application
request
time frame
so that
by
ule
was made Osborne after the
schedule followed did not
Rule 204
obviously
violate
initial continuance
extended the
of the Uniform Rules for the District
time. It is not sufficient to establish a rule
Despain
Courts.
prosecutor only days is extended of 120 intent exceptions. application
justified serves including participants, all
system, speedy trial interest of obligation and community, but only the benefits which Likewise, other twen- the victims. also society and rules serve both uniform
ty-five expe- fair and in the search for
participants justice.
ditious spirit that purpose both conclude Rule 204 of Uniform applied text of was not vio- District Courts
Rules passed intervening time by the lated rescinded, was held. Until the trial
before effectively fully and rule should be I concur with the Consequently,
enforced.
affirming decision. WHEATLAND, OF TOWN (Plaintiff), Short; FARMS, INC.; Del M.C.
BELLIS Landen; Landen; Allen L. H. Jean mar Cook; Cook; Thomas R. A. Carol Burns; Burns; County A. Barbara Platte, Wyoming; Jesse Jen State of Wilhelm; Wilhelm; kins; Janet John Wilhelm; Wilhelm; Cheryl
James Omaha, Appel Land Bank of Federal (Defendants). lees INC.; Short; FARMS, Al M.C.
BELLIS Cook; Cook; A. Jesse Jen len L. Carol Wilhelm; Wilhelm; kins; Janet John Wilhelm, Wilhelm; Cheryl James (Defendants), Appellants WHEATLAND,
The TOWN OF (Plaintiff). Appellee 89-180, 89-181.
Nos. Wyoming.
Supreme Court
Feb.
