*1 apply corpo- to all the the transfer restriction
rаtion’s shares. implied that a court also district as to
disputed existed issue fact actually Frank voted favor of
or not persons agree. Six
restriction. We do not meetings: Be attended the October
linda; Jean; Frank; Phillips; Creager; and attorney, Bishop corporation’s Marvin Belinda, Jean, Bishop Creager, and III. in favor of the that Frank voted
averred during de Phillips testified
amendment. he think Frank
position that did not voted amendment, he but conceded
favor looking Frank he was not at when the equivocal Phillips’ taken.1 state
vote was genuine did not a issue of mate
ment create that, on rial fact. We conclude the record us, it is that Frank
before clear voted he, there
favor of amendment
fore, the transfer consented to have restric apply to his
tion shares. do not need to address remainder We appellants’ because have issues we that the 1995 amendment to the
determined
bylaws applied to Frank’s shares. pro-
Reversed remanded further
ceedings consistent with this decision.
Roy RYAN, Appellant (Defendant), Dale Wyoming,
The STATE of (Plaintiff). Appellee
No. 98-279.
Supreme Wyoming. Court 8, 1999.
Oct. ing validity given general proxy at a interesting that Frank a vote 1. It is to note had meeting. Phillips' Phillips proxy 3, 1995, As to vote concern- to vote his shares the October directors’ ing rule, amendment, that, meeting. general Apparently, we shareholders’ note voted, instances, Phillips proxy in Frank's is revoked when the shareholder in some meeting. Phillips meeting place at the 18A Am.Jur.2d directors’ testified attends the votes. (1985). Corporations proxy Consequently, voted in favor of the that he Frank’s amendment, although when on the the minutes of the di- Frank voted amendment bylaws, effectively authority, meeting Phillips’ not state that he voted on he revoked rectors’ do any, proxy. We if as his that issue. make no decision here concern- to vote *4 Representing Appellant: Sylvia Lee Hackl, Defender; D. State Public Donna Do- monkos, Defender; Assistant Public and Mi- pro- Dinnerstein, suggesting have a Public Defender. that batterers Assistant chael they pensity to kill those whom have Argument by Mr. Dinnerstein. abused? Woodhouse, Appellee: Gay Representing deprive Appellant the trial Did court V. Rehurek, General; Attorney Deputy Paul S. process right of his due to a fair trial General; Pauling, D. Attorney Michael Sen- by refusing to bar evidence that the General; Attorney Karen Assistant ior prosecution with a war- had obtained Attorney Byrne, Special Assistant Gener- A. from court that did not have rant Byrne. Argument Ms. al. jurisdiction Appellant’s case over LEHMAN, THOMAS, C.J., and Before in a manner in the defense had GOLDEN, MACY, JJ.; and opportunity been denied the to be KALOKATHIS, D.J. heard? deprive Appellant of Did the court his VI.
KALOKATHIS, Judge. District right constitutional to confront wife, murdering Appellant Convicted against by permitting witnesses him him his alleges deprived numerous errors remotely testify a witness to under trial. right a fair we find that While jury, in which the circumstances *5 impermissibly by Appellant profiled was ex- court, counsel, appellant could testimony, pert harmless be- error was not observe the witness’ demeanor yond Appel- a reasonable dоubt. As none of and the could not see witness meritorious, we lant’s other contentions are accused? affirm. Appellant deprived Was of his VII. due
process right trial to a fair when a I.ISSUES security to officer demanded know a was close to ver- Roy Ryan (Ryan), pres- Dale Appellant, dict? eight issues for our review: ents the court im- VIII. Is sentence that deprive Appellant the trial court I. Did upon posed Appellant for second de- right his constitutional to a fair gree' illegal murder it is because def- ju- it prospective trial when told the inite rather than indeterminate? appellant rors that was there because (the State), he murdered his wife? Wyoming Appellee, State more succinctly rephrases the issues as: deprive Appellant trial II. Did the court right to a fair of his constitutional single I. Did a comment the trial by refusing grant trial to a mistrial court create error? reversible juror a her fellow after shared with so, jury tampering, there and if II. Was jurors the fact that she had been did it error? constitute reversible damaged? threatened and car her pres- III. was Was child witness who Appellant deprive Did the trial court III. ent at the of the murder com- scene right a fair of his constitutional to petent testify? to permitted it trial when a witness who expert IV. Did the of an wit- years only time of was five old at the рlain ness create error? though testify incident to even properly V. Did trial court admit capacity not she did have the mental legally a suf- obtained from the time of to re- the occurrence ficient search warrant? impression an of it and ceive accurate Appellant memory VI. Was allowed confront not have sufficient did against him? independent witnesses retain recollection of the occurrence? Appellant deprived fair Was of a trial VII. deprive Appellant security trial when a officer made a casual IV. Did the court juror during right a fair comment to a smoke of his constitutional a trial when it to bar break? refused Appellant’s illegal Ryan responded, life “It an VIII. Was sentence was accident.” Ryan, it Officer then because was a definite rather than Brennan asked “Who had gun,” responded, and he both indeterminate sentence? “We did.” Hospital was taken to LDS in Salt Utah, City, subsequently Lake where he fell II. FACTS into a coma several weeks. When he 11, 1996, On December the Green River awoke, memory he claimed have no Department a call from Police received a incident, although present he did a nurse asking man for assistance and ambulance. read, miss,” with a I note which “How did stayed only The caller on the line for a picture next to a of a heart. seconds, dispatcher matter of but the investigation Further revealed that Keri the call able to trace to an address in the had once in been shot the neck. The bullet Valley Shelter Trailer Court. Green River cord, lodged spinal causing in her instantane- Police Cezanne Brennan and Officers Stan paralysis patterns ous and death. blood Brannum were the first to arrive at the investigators in the back bedroom led scene. body conclude that Keri’s had been moved approached trailer officers shot, gun after she had been and the had knocked on the outside of the residence. placed been under her someone hand else. ajar, slightly The front door was and after Moreover, judging position from the of Keri’s knocked, dog black officers small shot, body likely at the time she was it was pushed open enough door far lying only partially that she was down or They officers could into the see trailer. saw sitting up on bed at time she man, Ryan, lying later identified as in a shot. The evidence that Keri indicated pool They of blood in the kitchen. entered struggle prior death, involved in to her *6 residence, approached Ryan, and ascer- and of the location the wound indicated that in tained that he had been shot the chest. she had not committed suicide. Ryan, Officer Brennan asked “Who shot Derringer found under Keri’s hand you?” Ryan responded, and “I did.” spent contained two Federal brand car- protec- Officer Brannum then conducted tridges. Ryan’s mother that admitted sweep young tive of the trailer. He found a gun belonged produced partially to her and boy five-year-old girl apparently and a asleep empty cartridges box of Federal brand in pro- one bedroom. Officer Brannum then gun ordinarily kept her home. The was in a ceeded into the back and bedroom found an gun cabinet, was and did broken not (Keri), Ryan Ryan’s infant in a crib and Keri lock, Ryan’s parents’ Ryan in home. Both wife, lying pool on the bed in a of blood with equal gun, and Keri had access to the as both magnum Derringer a .22 two-shot under her Ryan’s parents’ frequently. visited home In- hand. Brannum that Keri determined was vestigators Ryan Keri found and each dead. He returned to the kitchen and hand- gunshot had residue on hands on their Ryan. cuffed night shootings. of Within seconds the officers’ arrival at Ryan marriage Keri had a turbulent scene, began treating EMT’s arrived and punctuated Ryan’s physical abuse of his Ryan’s Ryan attempted wound. to thwart wife, admitted An which he at trial. exhaus- their efforts and stated that he did not want friends, neighbors, and tive list of coworkers blood, to be As he treated. lost more howev- mental, Ryan’s physical, testified to and emo- er, Ryan his efforts became less effective. throughout tional Keri the course abuse of of transported hospital, was and Officer produced marriage. their The State wit- accompanied Brennan him collect his nesses who testified to several incidents clothing possible and other evidence. Ryan punched Keri in where and kicked fits continued, Ryan’s rage. Additionally, produced As of again treatment he the State Ryan became not to stated combative and asked be treat- witnesses who controlled emergency Ryan ed. In Keri. room an unidentified and isolated would allow Keri Ryan, happened?” go anywhere permission, individual asked without “What evidentiary rulings of she relevant to review to know where was he demanded State, (Wyo.1999): v. According to Solis 981 P.2d with at all times. who she was coworkers, Ryan called her at work Keri’s Evidentiary rulings are within the sound during her shifts to check times or more ten the trial include discretion of court and Ryan up on her. There was adequacy determinations of the of founda attempted to commit suicide Keri’s had relevancy, competency, materiali tion and There presence on one occasion. was testi- ty, of Punches and remoteness evidence. Ryan emotionally Keri mony that abused State, 1131, (Wyo. P.2d 1136-37 1997). There ex- through constant criticism. generally court will accede to This Ryan’s about excessive tensive determination the ad trial court’s having Keri jealousy. He accused often missibility that court unless she extramarital affairs with customers clearly its Brown v. abused discretion. work, more spoke State, with at and on than one (Wyo.1997); 944 P.2d spoke he men who occasion assaulted (Wyo. Wilson v. 874 P.2d 1994). Keri. determining the trial whether discretion, query is court abused its Ryan early left November of 1996 Keri reasonably could con whether the court family protection had a violence order did, ruling clude it whether its against Ryan on November issued arbitrary capricious. Vaughn v. subsequently That order was dismissed (Wyo.1998). 151-52 P.2d request. separation During peri- Keri’s establishing burden such lies with abuse od, expressed Keri her desire return to the defendant. Barnes v. school; began dating another she man and (Wyo.1993). begin suggested Ryan dating other by admitting If the trial court erred Ryan For his did part, women. not handle evidence, must we then ascertain whether separation depressed well. He became rights error affects substantial weight and had noticeable loss. accused, grounds providing for rever- degree charged with first mur- sal, or it The harm- harmless. in violation Ann. der Stat. 6-2- less is set error standard out W.R.A.P. 101(a).1 deliberations, lengthy After 9.04: convicted lesser included offense error, defect, Any *7 irregularity or vari- degree, in the of murder second violation which does not ance affect substantial Wyo. § of Stat. Ann. 6-2-104.2 re- rights disregarded by the re- shall sentence, timely appeal ceived a life and this viewing court. followed. See 52. An is harm- also W.R.Cr.P. error ful if possibility there is a reasonable that III. DISCUSSION might have the verdict been more favor- A. EVIDENTIARY CLAIMS OF ERROR able if had to the defendant the error State, never Kolb v. 930 P.2d decisions district court occurred. concerning (Wyo.1996); of witness admission Kerns v. testimo ny procured (Wyo.1996). and the of evidence P.2d To demonstrate admission error, from a second search of the trailer are re harmful the defendant must show prejudice under of under viewed the same standard review. “circumstances recently injustice, inherent We summarized considerations manifest unfairness and (LEXIS 6-2-101(a) 1999) (LEXIS 1999) Wyo. pro- § Stal. Ann. 2. Stat. Ann. 6-2-104 provides: vides: (a) premeditat- purposely Whoever and with purposely maliciously, but Whoever malice, of, attempt perpetration ed or in the or any being premeditation, human without kills assault, arson, perpetrate, any to sexual rob- guilty degree, is in the of murder second arrest, bery, burglary, escape, resisting kidnap- any imprisoned penitentiary shall be for ping age or abuse of a child under the of (20) twenty during years, term not less than (16) years, any being sixteen kills human is life. degree. guilty of murder in the first аgitated they they offends sense when public or conduct which feel that are los- ing they control. play.” 790 P.2d that When feel that that of fair Johnson person actually going them, (Wyo.1990); to leave see also Roderick v. dangerous then it more (Wyo.1993). becomes far victim, because the violence will esca- Id. at 36. late prevent to whatever it takes to this 1. SEPARATION VIOLENCE —THE person They actually leaving. are BRATTON TESTIMONY control, losing they losing are access to individual, very very danger- this and it’s Rosemary experi- Bratton has extensive ous time for victims. working ence with both battered and batter- Now, Q. separation this violence is what ing spouses and previously has testified as an this; you’ve termed correct? expert subject on the of Battered Woman (BWS). A. That’s correct. Syndrome experts generally BWS explain to attempt the irrational behavior Q. And have there been studies done spouses, seeking battered such as withdrawal Wyoming here in on that issue? protective continually returning order Yes, study A. there have. There’s a Here, however, spouse. to an abusive sponsored. our coalition We started this State made known to defense counsel that ’90s, study early in the and we went back testify Bratton would also about the charac- to looked those incidents of teristics batterers the kind conduct state, dоmestic in our homicides and one of they Ryan objected tend exhibit. to that interesting facts we learned was portion testimony pertaining of the Bratton that of the —of the 38 that— individuals anything might he have done. While part research, that are a of our of16 those judge having trial admitted that he was trou- actually relationship. had left the determining relevancy ble of Bratton’s added majority Bratton Ryan’s possi- concerning actual or study women involved killed with were actions; ultimately, ble she was allowed to guns. then She described those characteris- testify. tics exhibited batterers. She testified trial, began by explaining At Bratton that batterers tend to control and isolate calls, now familiar characteristics of BWS spouses by their such means as constant jury. explained cyclical pattern She place employment, demanding to their present violence often relation- they are, with, abusive they know where who are ships phe- and then on to went describe they when will return. Bratton stated that termed, “separation nomena violence”: often batterers will threaten to commit sui- partner cide in order force their to remain Now, Q. any particular phase is there relationship. in the testified that batter- She cycle
this of violence which tends to be spouses emotionally ers tend to abuse their dangerous more than another? *8 through constant criticism. also testi- She actually A. Yes. And we term it now as pathologi- fied that batterers to exhibit tend separation violence. What I know from accusing jealousy spouses cal often their my experience and what we know from the having adulterous affairs with random literature and the research that has been strangers. done is that that the time the victim is planning prosecutor argued, to leave or has left this relation- The and the district ship greatest danger. agreed, the separation is time of court that a violence is logical Ryan argued That’s time are more homicides com- extension of BWS. mitted, 404(a), great- that’s the time when there’s under W.R.E. such extension is not 404(a) physical injury, er happens prohibits and it because admissible. W.R.E. use of perpetrators person’s of domestic who violence need evidence of a character if used to power prove conformity to maintain and control over their he in acted therewith. 404(b)3, partner extremely nervous, upset, pursuant become If evi- offered to W.R.E. 404(b) (b) crimes, provides: wrongs, 3. W.R.E. Other or acts. —Evidence character, presumption good ... admissi- with a implies bad character is dence which simply to show matter of purpose, limited but not it clоses the whole ble for a but large character, A conforming disposition reputation on character. conduct testimony part portrayed The prosecution’s case-in-ehief. state person ex- angry and violent who may prior as an not show defendant’s trouble pressed violence his wife was law, acts, toward specific criminal or ill with 404(b) That reasons. admitted for W.R.E. though among neighbors, name even purpose was not offered for might persuasive logically facts such conformity acted in there- showing that he by propensity perpe- probable he is a intent, motive, with, rather to show but inquiry is trator of the crime. The not separa- identity. expert on irrelevant; rejected because is character however, violence, under not offered tion contrary, weigh on the it is said to too and, 404(b), therefore, we must de- W.R.E. overpersuade much with and to so 404(a). if it violates W.R.E. termine prejudge gener- them as to one with a bad deny 404(a), opportunity him a fair provides pertinent part: al record
W.R.E.
against
charge.
a particular
to defend
(a)
generally.
Character evidence
—Evi-
overriding policy
excluding such evi-
person’s
or a trait of
of a
character
dence
dence,
value,
despite
probative
its admitted
pur-
for the
is
admissible
his character
experience
practical
that its disallow-
conformity
is
proving that
pose of
he acted
issues,
prevent
tends to
confusion of
particular
a
ance
occasion[.]
therewith on
surprise
prejudice.
unfair
and undue
Kirkpatrick explain
the rule’s
Mueller
way:
purpose this
Id.,
475-76,
at 218-19
335 U.S.
S.Ct.
404(a)
principle
crucial
FRE
states the
(citation
omitted).
and footnotes
person
that evidence of
character of
outset, we
At the
must determine
generally
prove
conduct
inadmissible
separation violence evidence falls within the
impor-
particular
occasion. There are
on
syn-
emerging field of
“social framework
exceptions,
principle applies
but
tant
and oth-
general,
drome” evidence.
BWS
broadly in
civil
criminal cases.
both
proper
syndrome
is considered a
er
is that character should not be
The idea
subject
expert testimony,
for
and does not
used,
part,
for the most
circumstantial
as
against
implicate
proscription
character
principle
evidence of behavior. The
blocks
Kirkpatrick,
evidence. See Mueller and
“general propensity” argu-
resort
ed.1994).
Evidence,
(2d
§
Ac-
Federal
is,
argument
person
ment —the
that since
cording
Kirkpatrick:
to Mueller and
instance,
violent,
by disposition
it fol-
likely
lows that he
committed
violent
Usually
syndrome evi-
framework and
charges.
giving
present
act
rise to
by prosecutors
offered
and re-
dence is
B. Mueller
Kirk-
Christopher
and Laird C.
victim,
assault
lates
as
sexual
Evidence,
patrick,
1 Federal
at 539
it
and child abuse trials. But sometimes
(2d ed.1994). Justice Jackson more forceful-
by the
relates to de-
offered
defense and
States,
ly explained in Michelson v. United
fendants,
setting
of homicide
69 S.Ct.
often 401, provides: consequence 4. W.R.E. determination *10 probable probable the or less than action more having “Relevant evidence” evidence means any tendency any existence of it would be the evidence. to make the fact without 56 (1988) (Evidence 916, N.E.2d profile prove does not tend to 526 921 show the
dant fits
ing
perpetra
of child abuse
physically
defendant
characteristics
particular
that a
way probative
tors was
no
or relevant to
abused the victim.
question
of whether the defendant com
also, Percy, 507
at 960
Id. at
A.2d
399. See
crime.).
mitted the
(Evidence
rapists
other
often excused or
way
profile testimony
assuming
Even
is
explained
conduct the
the defen
their
trial,
relevant.);
degree
some
relevant to the issues at
Clem
dant did was not
State v.
(1989)
ents,
411,
447,
danger
prejudice to the
770 P.2d
of unfair
accused
244 Kan.
454
(Evidence
generally
outweigh
has
found to
only
been
describes the charac
typical
probative
Percy,
value.5 See
507 A.2d at
offender has no rele
teristics of
960-61;
157; Maule,
Simpson, 910 F.2d at
vance to whether
defendant committed
99;
780;
A.2d
Duley,
State v. 304 Or. P.2d 743 testimony explain the behavior of a bat (1987) (That 161 child abusers use certain State, spouse. Trujillo tered v. 953 P.2d See techniques get near their no victims has 1182, 1183(Wyo.1998). person bearing on whether a who does these abuser.); things People is a child v. We must now determine whether the 545, 523, Bradley, Ill.App.3d Generally, profile 172 122 error was Ill.Dec. harmless.7 evi- provides: any given 403 W.R.E. 702. W.R.E. situation. Sorensen v. (Wyo.1995) (quoting 895 P.2d relevant, Although may be excluded (Wyo.1993)). v. 849 P.2d Frenzel See also probative substantially if value is its out- Flanagan So.2d danger weighed prejudice, of unfair (sex (Fla.App.1993) profile offender does issues, misleading jury, or confusion States, Frye meet test v. United established in delay, of undue considerations waste of (D.C.Cir.1923)); Steward, F. 1013 and State v. time, presentation or needless of cumulative (1983) (no Wash.App. evidence. testimony baby scientific sitting boyfriends that live-in basis children). likely are to abuse additionally 6. We note that there is a serious lack showing of evidence that the scientific basis expert develop is in such state 7.Several have found similar courts harmless, expert improper, permit ment there so as to a rea but where was sub make D.L., opinion guilt. sonable about the conduct stantial evidence of In the Interest of batterers in *11 trial, compilation Stephanie of At consists of a otherwise demonstrated that she dence characteristics, coupled birthday, age, an im- knew her her innocent with where she went school, address, conduct plicit invitation to infer criminal from telephone to her her num- case, present ber, In the those characteristics. ages and people the names of the however, profile of the characteristics and animals with whom she re- lived. She acts, prior indepen- of which have consist bad membered that she used to live in Green is, evidentiary significance. they That dent parents. River in a trailer her She intent, motive, prove identity. tend to remembered her teacher and fellow students from her time in in school Green River. She body prior
Aside from the formidable
stated that she knew the difference between
evidence,
acts
there was
bad
substantial
gave
the truth
lie and
examples
and a
indicating Ryan’s guilt.
physical evidence
each. She also
that
stated
she understood
lying prone
was killed
on the
Keri
while
bed.
promise
oath to
to
body
gun placed
be a
God.
Her
was moved and the
her
was
under
hand after she
shot. There
Stephanie then testified that on December
struggle
no evidence of
or suicide. After
11, 1996,
parents
fighting
her
had been
Keri,
shooting
Ryan admittedly shot himself
throughout
day.
She
remembered
his,
and called
but it was
rather than
Spaghettios
her
her
mother made
for dinner.
Keri’s, impending
prompted
demise
Ryan telephoned
She testified that
em-
call.
ployer and
that he
stated
could not come to
objectionable
statements consist of work
evening.
testimony
This
cor-
during
short answers made
more than a
two
by Ryan’s employer.
roborated
Stephanie
testimony,
prosecutor only
week
say,
then
Ryan
testified that she heard
briefly
testimony
closing-
discussed the
going
“We’re
this out
to work
until
both
we
here,
Where,
argument.
there is substan-
evening,
die.” At
later in
point
some
guilt,
tial
and the State has not
Stephanie
say,
Keri
also heard
“Please don’t
unduly
objectionable
emphasized the
testimo-
kill
deposition
me.”
with her
tes-
Consistent
ny,
say
we cannot
there is
reasonable
timony, Stephanie stated
were
that officers
probability that the
would have
result
been
present
beg
when
heard her
she
mother
Ryan had
more favorable to
the error never
presented
her life.
also
The .State
occurred. The error was harmless.
from
parents
Keri’s
and a
counselor
Counseling
Southwest
Service
inter-
who
2. TESTIMONY OF
STEPHANIE
April
Stephanie
viewed
RYAN
Stephanie’s
showed that
had re-
Ryan
pretrial
also
claimed
motion that
throughout
period
mained
be-
consistent
Stephanie Ryan
five-year-old
(Stephanie), his
shootings
tween the
and trial.
daughter,
incompetent
testify.
Ste-
inaccurately
phanie
during
deposi-
her
stated
competency of
child witnesses
say
that she
mother
tion
heard her
“Please
application
five-part
determined
of a
police
kill
don’t
me” when the
were in the
test. The
must
child
demonstrate:
trailer. As Keri
at the
was dead
time the
(1)
arrived,
verifiably
understаnding
obligation
officers
this statement was
(2)
stand;
speak
on
Additionally,
inaccurate.
the truth
claimed that
witness
parents,
custody of
capacity
Keri’s
who took
the chil-
the mental
of the
time
shootings,
undisputed
concerning
after the
bore
dren
occurrence
which he
to testi-
it;
fy,
impression
toward
had
malice
influenced Ste-
to receive an accurate
(3)
proposed testimony.
phanie’s
memory
inde-
The trial
sufficient to retain an
(4)
occurrence;
judge
Stephanie’s deposition
pendent
read
and found
recollection
express
capacity
that while there were some inconsistencies in
memo-
words his
(5)
occurrence;
testimony,
competent
ry
child’s
capacity
she was
testify.
simple questions
it.
about
understand
201;
bach,
1019;
58; Sanders,
Quigley,
N.W.2d
890 F.2d
13 at
Wal
310 N.W.2d
303 S.E.2d
132;
key,
Cal.App.3d
Cal.Rptr.
Loe
*12
testimony
present
(Wyo.
of its intent to
trial motion
982 P.2d
English v.
Hopkins, a
because
1999),
via video teleconference
(quoting Larsen v.
Moreover,
a
Georgia,
we have said
was in the midst of
(Wyo.1984)).
resident of
guiding
that,
age,
by
is the
advised
“Intelligence,
high
pregnancy
not
and had been
risk
competency
determining
of a
Hopkins
the
criteria in
not to travel. Before
her doctor
(quoting Baum
745 testified,
Id.
judge
witness.”
advised defense
the trial
(Wyo.1987)).
usually delay
P.2d
that there is
a
inherent
counsel
and defense
counsel
tеleconferences
under-
Stephanie
an
demonstrated
procedure
prior to
the
should view
himself
speak the truth
standipg
obligation to
of the
testimony.
avail
Hopkins’
Counsel did not
promise
was a
by
that the oath
her statement
opportunity.
himself of this
accuracy with which she recalled
The
to God.
night her
about
the
the verifiable details
testimony
Hopkins
was transmitted
that she had
was shot demonstrates
mother
Community
Wyoming
College, and
Western
an
capacity to receive
accu
sufficient mental
jury
receiving unit.
was seated before the
Stepha
That
impression of the event.
rate
testifying, Hopkins was sworn
Before
point
memory proved fallible on one
nie’s
Georgia. Hopkins testified about instances
of an inde
the absence
does
demonstrate
Ryan
witnessed between
of abuse that she
memory of
pendent
Her
recollection.
Keri,
only
jury
re-
after the
was
in as
must be considered
event as a whole
facility
did
moved from
teleconference
certaining
actually had an inde
whether she
Hopkins’
move that all of
defense counsel
Clearly,
pendent
of the events.
recollection
testimony be stricken. Defense counsel as-
Her recitation of
events
she did.
demeanor,
he
not view her
serted that
could
night has not
privy
was
on that
which she
Ryan, exсept
could not see
for
and that she
interview, and much
changed since her initial
defense counsel stated
the moment when
testimony has been corroborated with
of her
questions. Defense counsel
that he had no
question
knowledge.
is no
out her
There
inability
argued that the
to assess
Stephanie
able to communicate
has been
credibility
inability
Hopkins’
and her
to see
simple
what she recalled and
understand
Ryan
right
confrontation.
violated' his
questions about the event.
judge
The trial
stated:
Regarding Ryan’s
Stephanie
claims
counsel],
you,
agree with
[defense
I will
by
grandparents,
her
we
has been tainted
saw,
images
the three
that we
supporting
a claim.
find no evidence
such
images
River audience and
of the Green
English, supra,
stated that a
Recently, in
we
attorneys speaking
quality.
of one
was
party claiming that a child’s
has
image
was the
from the —the
between
by improper influences must
been tainted
[Cheyenne].
[operator] in
improper
influence
show “some evidence”
necessary.
competency hearing is
before a
Okay.
quality
That was
in-between
English,
P.2d at 146.
has failed to
delayed image,
but it was of a
did have
Stephanie’s mater-
present
evidence that
felt,
quality picture, I
and then the
better
prosecution,
anyone
grandparents,
nal
quality
image, which was of a third
third
else,
either un-
influenced her
witness,
image
of the —the
Ms.
outright
suggestiveness or
coercion.
due
testifying.
I
Hopkins, who was
do not
We find that the district court’s determina-
deprived
that this
the Defendant of
believe
competent
testify
Stephanie
tion that
confrontation,
deny-
I’m
right
his
so
proper.
ing your motion.
HOP-
3. TESTIMONY OF JEANETTE
The Sixth Amendment
KINS
and Article
States Constitution
United
Wyoming
secure to
(Hopkins),
Constitution
Hopkins
who had been
Jeanette
school,
right
“to be con
high
all criminal defendants
Keri’s friend since
had witnessed
against him.”
with the witnesses
abuse and control Keri several times.
fronted
pre-
right
to confrontation:
notified defense counsel
The State
“(1)
Therefore,
give
question
will
.confrontation.
pre-
insures that the witness
picture
impressing
poor
quality
sented is whether
statements under oath —thus
can
eviscerate
character
him
of matter and
the face-to-face
of tele-
seriousness
and,
so,
guarding against
possibility
technology
lie
conference
if
(2)
such
penalty
perjury;
forces the
was the case here.
*13
cross-examination,
witness to submit to
the
In
Bergstrom,
Commonwealth v.
402 Mass.
‘greatest legal engine ever invented for the
534,
(1988),
The trial that, picture jurisdiction exclusive to man- mony, while that court has and determined deprive perfect, age discovery, pursuant it did to W.R.Cr.P. 16. was not There was no right confrontation. responds Wyo. Ann. Stat. State sound, objection quality of the and no 7-7-101,9 county court which authorizes they not hear the could complained one warrants, controlling. judges to issue Moreover, testimony. Hopkins’ authority county court to issue prior merely of other bad cumulative statutory and cannot be a search warrant is properly The district court acts evidence. abrogated court rule. Pursu- or altered Hopkins’ to strike testimo- denied the motion (LEXIS §Ann. 5-2-114 ant to Stat. ny- 1999): *14 WARRANT Wyoming may 4. SEARCH supreme SECOND court of repeal adopt, modify and from time to time discovery the State In a motion for general governing plead- forms rules and out- requested to the trailer so that its access ing, practice procedure, in all courts of In could examine it. expert of-state witness state, purpose promoting this “Well, stated, I response, counsel defense liti- speedy and efficient determination of to dealt with as a think that that needs be gation upon its merits. consenting.” I’m search warrant. court and counsel then discussed whether However, authority grant permis to district court had (b) abridge, rules shall neither en- Such to enter without a search sion State modify rights large nor the substantive any party produced perti warrant. Neither any jurisdiction any person nor the question, authority on the and the mat nent change provisions any the courts nor understanding if ter was left with statute of limitations. legal court] basis for district [the “there’s a 5-2-115(b) (LEXIS 1999). Wyo. Ann. Stat. a warrant or re to issue an order without Therefore, county courts cannot be divested warrant, approach it [the will] move a State authority of their to issue a search warrant way, know it’s com [defense counsel] let by W.R.Cr.P. 5.1. not, ing, do a search [the will] and if State Ultimately, warrant.” the State did seek Ryan correctly notes that the dis county was issued a search warrant from the jurisdiction trict сourt has exclusive to con suppress any evi Ryan court. moved to discovery. authority, trol Pursuant to that search, from the and that dence obtained “may any the court at time order that the motion was denied. denied, restricted, discovery inspection or be deferred, or or make such other order as is county contends that the court 16(d)(1). appropriate.” There jurisdiction W.R.Cr.P. the search was without to issue fore, power warrant, while the district court has no to as the case had been transferred prevent pursuant the issuance of a warrant from the the district court to W.R.Cr.P. 5.18 court, authority Additionally, Ryan county it does have the asserts that once a case (a) provides part: Any judge, pertinent district district court commis- 8. W.R.Cr.P. 5.1 sioner, county judge, county court commis- (a) Right. preliminary If the examina- —... sioner, waived, adjunct county court commissioner au- tion is the case shall be transferred to 5—167(e)(iii) proceedings. pursuant district court for further W.S. or thorized 5— (b) finding. the evi- Probable cause from any justice peace may issue a search —If appears probable that there cause to dence it any property: warrant to search for and seize charged believe that the offense or lesser in- has been committed and that cluded offense (iv) property things When thе to be seized it, judicial the defendant committed officer item, any or constitute consist of finding shall enter an order so and the case a crime has been commit- which tends to show district court for shall transferred ted, particular person that a or tends to show proceedings. further has committed a crime. (LEXIS 1999) pro- § 7-7-101 Stat. Ann. pertinent part: vides in litigants seeking prevent gentlemen, before it from attorneys Ladies and warrant, or, pursuant pointed have out I search to W.R.Cr.P. to me that said that 16(d)(2), “Mr. using is here not because he hit evidence obtained there- his wife, but because he murdered wife.” trial. In the of such an his absence order said, however, I should have “He’s not here because directing discovery, litigants are wife, charged hitting he’s with he’s pursue any free to authorized avenue of dis- charged here because he having covery available them. murdered her.” I did imply not intend to There has been no contention that any opinion guilt that the Court has as to supported by probable was not warrant fact, or innocence of the defendant. cause, Ryan’s right to be free from innocent, presumed Defendant is to be unreasonable searches and seizures has been proof the burden of is on the State to violated, or that the district court abused its prove guilty beyond that he’s a reasonable admitting discretion the evidence. There- doubt, and what the Court thinks about fore, we find that admission of the evidence innocence, guilt if anything, is irrelevant by the obtained second search warrant was because that is the decision for the proper. alone. We have stated that: B. TO THE JURY STATEMENTS *15 judge [T]he trial must “‘be careful and cautious and not comment on the evi- 1. TRIAL JUDGE’S STATEMENT ” Phillips 456, dence.’ v. 597 P.2d inquired extensively counsel Defense (Wyo.1979) (quoting Peterson v. spousal during about abuse voir dire in an (Nelson’s Estate), 444, McMicken jurors effort to ferret out could who not 499, (1954)). 266 P.2d In a trial judge presented the case on the evidence jury, before a judge the trial must abstain Ryan because had abused his wife. At one expressing indicating, by word, from or point, attempted challenge defense counsel to deed, otherwise, personal feelings or his on juror potential for cause because she ad weight quality the or of the evidence. Id. strong feelings mitted that she had about expressions opinion Comments on the spousal response challenge abuse. to the tendency evidence which have the to indi- cause, judge for the trial stated: judge’s cate part bias on the trial are regarded being infringement an on the Well, counsel], [defense what I’ve heard jury’s prejudicial duties and are to the say spousal hеr is that is not she for defendant. Id. domestic abuse. That is a criminal act. I you think if people, you ask all “Do these (Wyo. Harris v. 933 P.2d strong murder”, 1997). feelings they have about probably say,
would “Yes”. That does not Ryan judge’s asserts that the trial disqualify serving jury. them from on this comment per rises to the level of error se. important they sepa- I think it’s be able to disagree. We More than a mere misstate rate, two, perhaps, the that Mr. necessary ment that to show the trial wife, here not because he hit his but be- judge improperly expressed opinion his on wife, cause he murdered his and whether Moreover, the evidence. the curative in they strong feelings or not have about any possible prejudice struction alleviated to wives, hitting domestic violence or their Ryan. going disqualify that isn’t them from serving jury. on this 2. STATEMENTS DIRECTED TO THE THE TRIAL JURY OUTSIDE conference, During next the in-chambers de- trial, asserting fense counsel for a moved mistrial In the middle of the while leav that the ing night, statement tainted the entire the courthouse for the one of the panel. denied, jurors The motion say, was and the trial heard an unidentified male “We judge gave following now, they they the curative instruction know who are and better find upon returning juror to the courtroom: him innocent.” The certain that Ryan, witnesses, by them in was not made to communicate with statement statute, appears and it that fаther, told violation or his brother. She another prejudiced, it defendant was or that does juror immediately thei'eaf- about the incident prejudiced appear not that he not ter, morning she told other the next granted. thereby, a new trial be should jurors it effort ascertain whether brought something ought that to be generally rule Id. 932. This has been attention. the bailiffs establishing improper commu viewed as that presumptively prejudicial are nications comment, learning trial Upon defendant. Romo v. 500 P.2d juror whether judge and counsel asked course, (Wyo.1972). Of where 681-82 defendant, any animosity toward the she felt improper content can communications fair, could to be whether she continue proven, prejudicial measurement its she felt intimidated the comment. whether effect lies within sound discretion that indicated did not blame She she Goettina, Wyo. district court. See State others, for the comments of that incident n ** (1945) (“ fair, ability not affect her to be would think, right, trial to con court had the we she did not feel intimidated. Defense Lavery clude the affidavits Tom immediately moved for mistrial. counsel deputy did [the sheriff] not discuss judge brought juror each The trial instead case, jurors relating and, anything they them chambers asked what into hence, ground conclude we must that no incident, it whether would knew about shown.”). trial new has been fair, ability affect their to be Here, the district court found that the first responded they Each felt intimidated. comment, although potentially troubling, was they they continue be fair and could generally ignored jurors, and he was Additionally, feel did not intimidated. bearing assured that it would have juror was judge made sure that each aware *16 on their verdict. court found second by Ryan, that the statement was not made improper comment to be harmless small but father, or his Given these assur- brother.. establishing talk. Without further evidence ances, the motion for mistrial was denied. prejudice, say we the dis- actual cannot deliberations, During members of improperly trict court denied the motions for permitted go who smoked were to mistrial. a area of the common outside courthouse. jurors one of the was in this While common C. OF LIFE SENTENCE IMPOSITION bailiff, area, company in the a a courthouse MINIMUM TERM WITHOUT juror security guard approached the and Ryan was sentenced to serve the asked, close, they even and “[I]f were he said prison; his natural remainder of life a no, that was it.” counsel and Defense moved § by Wyo. Ann. 6- authorized sentence Stat. mistrial, that, “[I]mplicit asserting for a 2-104. minimum term established No is, know, ‘Hey, you that communication by the district court. contends that hell, just get guy’s guilty as let’s this and prohibited imposing the court was a go we with so can all home.’” The over term, definite and that a minimum term must judge disagreed district and denied the mo be established. tion, finding that such an innocuous comment illegal “An sentence is one which prejudicial. was not limits, statutory multiple imposes exceeds early made As as 1910 we known offense, imprisonment terms for the same jurors that communications between or otherwise violates constitutions or the parties improper. were third Nicholson State, 149, law.” v. P.2d Sanchez 982 150 298, Wyo. (1910),
v.
18
Wyo., not- 1010-1011 upon compelling viction is founded otherwise possible ed that such sentences would be evidence. under the statute. He stated that judge in that case have “could sentenced GOLDEN, Justice, specially concurring
Richard to not than nineteen [Jahnke] less THOMAS, dissenting, years, twenty-nine with whom eleven months and Justice, joins. days.” legislature The has not amended response the statute to Justice Brown’s Although majority’s I in the affir- concur observation. Ryan’s conviction, disagree mance of I Duffy (Wyo.1986). P.2d “Separa- its treatment of the issue entitled legislature Duffy took notice of Testimony.” tion Violence—The Bratton legislative changed Wyo. the next session majority objectiona- holds two short present Stat. Ann. 7-13-201 into its form. testimony pertain- ble answers in Bratton’s timing amendment, From the con- we ing separation violence were inadmissible legislature clude that the intended to address ruling contrary the trial court’s preamble error, Justice Brown’s concerns. The majority albeit harmless. The applicable law session also reflects that apparently finds that these two short an- being the statute provide amended to “separation swers Bratton’s violence” tes- imposing “that an indeterminate timony sentence tended to establish that fit a felony in a case the court shall set mini- And, particular profile, e.g., spouse batterer. mum tern no more than 90% of the apparently, majority holds that such imposed.” maximum 404(a) term Sess. “profile evidence” violates W.R.E. Laws, Ch. 157. proscribes admissibility of evidence of person’s purpose character trait for the As we find no indication that proving conformity that he acted in therewith legislature abrogate holdings intended particular on a occasion. *18 Dolence, intеrpret Jammillo and we my judgment, record, statute to mean that the court In district is not on this trial required judge to establish a minimum term where did not abuse discretion when he imposed a life sentence is but not re denied trial defense counsel’s motion in li- quired by statute. are mindful testimony. We of the mine and allowed Bratton’s -IAs statutory record, provides rule of construction which read the trial defense counsel if legislature express only that deletes an concerned that Bratton’s statute, provision in a it opinions must have meant to would be in the “concerning form of change way. Nylen the law in Day might some what the defendant have done or ton, 1112, (Wyo.1989). might An particular, not have done....” In at opposite interpretation statute, February 19, hearing howev the motion on er, only ambiguity objected would not fail to cure “opinions trial defense counsel 7-13-201, § Ann. concerning Roy Stat. but would how would have acted effectively abrogate permissive also life under the circumstances that at the existed behavior, may bookkeeping, jargon shooting, ... that nizational [Bratton] time of the ... say drug trafficking, [an abuser] that because he in trials for crimes such as well syndrome spousal gambling, prostitution. and this was an abused and interstate Id. at ease, more frantic that he would become Refuting 2. 632 n. the claim that framework left, things gоt ... that out of his wife evidence, when evidence is inadmissible character propelled him towards would have control they explain violence, fact, exactly hap- and in that’s what Despite affinity the obvious with charac- this pened. He shot his wife as a result of evidence, argument powerful ter seems ” spousal syndrome issue.... whole veiy qualities separate expert that the that Responding to trial defense counsel’s con- syndrome testimony framework and cern, assured him and the prosecutor conventional character evidence mean that judge express would not trial that Bratton evidence, handled, properly such need not Ryan or would opinions that either his wife proof be wholesale of charac- classified Instead, way. prosecu- a certain behave ter. Instead it can be viewed as evidence relying part tor stated that he was on psychological capacity condition or permits expert’s testimo- W.R.E. 702 dynamics. general as a account human ny to “assist the trier of fact to understand all, explanatory After much of the force explained that Bratton the evidence.” He comes from models or studies of human testify general would terms about her area behavior, appraising personal rather than expertise, including the actions of an subject. qualities innate in the The indi- spousal victim and the reactions abused evidence, cated conclusion is that such explained that tes- the abuser. He Bratton’s handled, enough properly is dissimilar timony providing general context or frame- from character evidence to remove it from jury to understand the work would assist the FRE control of FRE and FRE 404(b) evidence which the trial court W.R.E. 608. passing, In it must be had ruled admissible. Id. noted that has not raised W.R.E. 404(b) appeal. Referring to Profes- issue on prosecutors properly here handled Kirkpatrick’s Mueller and evidence trea- sors testimony. They spe- framework Bratton’s tise, 632-634, pages 637-639 Section cifically having testify avoided Bratton (1994), admissibility of ex- which treats the Roy Ryan battering spouse was a frameworks, pert testimony describing social spouse; they specifi- and his wife a battered prosecutor strong ease for the made having testify cally avoided Bratton about admissibility general of Bratton’s context thought happened, what she or that either testimony. According to Profes- framework way. Roy Ryan his wife a certain behaved Kirkpatrick, expert Mueller and testi- sors opinions Bratton no such or conclu- offered mony relating to social frameworks describes my judgment, judge trial sions. “patterns human and mеntal atti- behavior prosecutor handled the Bratton testimo- tudes, typically persons experi- who have correctly. ny There was no error. psychological enced various kinds of stress usually arising particular experiences, out of THOMAS, Justice, specially concurring ” relating physical to sexual or abuse.... GOLDEN, dissenting, with whom Christopher Mueller and Laird C. Kirk- B. Justice, joins. (2d Evidence, patrick, at 632 Federal Ryan’s ed.1994). agree I conviction should also They explain “[t]he term affirmed, join concurring and I in the ... relates to social or familial ‘framework’ *19 dissenting opinion In ad- of Justice Golden. settings similar to those in which the events analysis presented by discerning dition to the largely in suit occurred but rests on case Golden, I have cases Justice believe that we those In other studies unrelated to events. justify of Wyoming in the exercise dis- something very settings, like frame- criminal admitting in by the trial court years.” cretion evidence has been admitted for work testimony. jury The was confronted example, experienced law enforce- Bratton Id. For patterns orga- by that seemed difficult to reconcile. agents ment often describe of events charged, from testimony mind to do the act the Bratton was my judgment, duty mental state it is inferred that he jury in its to determine this useful to the (Footnotes the act.” omit- in did commit facts this case. ted.) analyzed from a differ- I the matter have agree I perspective ent than Justice Golden. In Marker v. testimony treat Bratton’s
that we should not quoting language (Wyo.1988),after the above under Coleman, as character evidence W.R.E. adopt we went on to me, relate For the W.R.E. 404 issue would following language: only spousal to the evidence of abuse Graham, Wright Practice Federal presented other witnesses. did 5239, pp. § and Procedure: Evidence 465- admissibility of that evidence. not contest the (1978) states: admissibility of Bratton’s then The identity] exception proof is [for “The evaluated under W.R.E. 702 and should be usually involving thought of as W.R.E. 703. committing of a method of crimes that is obviously These rules raise far different ‘signa- so distinctive as constitute questions question than the of character evi- only culprit. But one ture’ this is primary concern in the exercise dence. way in which evidence of other crimes trial is whether the court’s discretion may identify actor. serve to Identi- expert will assist the trier of fact to under- may ty also be shown when the other in stand the evidence or to determine a fact crime establishes that the defendant presupposes issue. This determination persons one of a limited class determination relevance under W.R.E. capacity the crime commit weighing require- and thеn invokes the » n :Ji n case, ments of W.R.E. 403. In this the issue added.) (Emphasis In Kolb v. trial, case, as I understand the 1238, 1242(Wyo.1996), P.2d we said: shot This evidence who whom. was definite- admissibility of such is a deciding ly jury in useful helping function of understand Ryan had shot the victim and then shot particular how conduct the accused or himself, or, alternatively, whether the victim alleged part victim can as be viewed in first wounded who then killed her behavior, greater pattern rather than protecting himself. anas isolated event. factually distinguishable, language While exactly why I am convinced that is the trial in that we invoked Coleman v. admitting court committed no error may (Wyo.1987), P.2d been well have testimony. Bratton Viewed as an isolated prophetic: event, perceived the circumstances could be permissible purpose It was offered nothing tragic more than a accident. motive, Coleman, show the state of mind of Ryan’s When conduct and that of the victim intent, purpose, continuing and a course of “greater pattern are viewed of behav- conduct. It was material because evidence ior,” however, it is much easier to understand of motive can lead to an inference of identi- going what was on that resulted the death ty which is an element of this crime. That wounding Ryan. of the victim and the concept appropriately stated J. Wein- Berger, M. Evi- stein and Weinstein’s error, I would hold that there no dence, supra, at 404-108: 404[14] that error occurred but was harmless. ‘supply[ing] “Motive has been defined as nudges
the reason that the will and
prods indulge the criminal mind to evidentiary steps
intent.’ Two are in- of other is ad-
volved. Evidence crimes has a
mitted to show that defendant having requisite
reason for state of