*1 SCHMUNK, F. Robert (Defendant), Wyoming,
The STATE of (Plaintiff). Appellee
No. 84-176. Wyoming.
Supreme Court of
Feb.
Terry Mackey W. and Robert W. Tiedek- Terry P.C., en of Mackey, Cheyenne, W. and (argued), James M. Shellow Stephen M. Glynn, Shellow, and Janice A. Rhodes of S.C., Glynn, Milwaukee, Wis., Shellow & appellant (defendant). McClintock, Gen., Atty. A.G. Gerald A. Stack, Gen., Deputy Atty. John W. Ren- neisen, Atty. (argued), Sr. Asst. Sylvia Gen. Hackl, Atty. Lee (argued), Asst. Gen. Kay Schmunk County and occasions. Peasley, Converse on numerous D. Frank physicians several also examined appellee (plaintiff). Atty., for Pros. her headaches other respect to ROSE,* C.J., THOMAS, Before 6, 1981, May she problems. On medical CARDINE, ROONEY,** JJ. BROWN neurologist Wyo- Casper, was seen *3 report: in a written ming, who stated CARDINE, Justice. at least 15 has had headaches for “She charged with violation Appellant was up for These can continuous years. 6-2-101, and this stat- W.S.19771 under week, Except past 2-3 for this weeks. murder guilty degree of first ute found fairly has headache free for she been Kay drug death of his wife overdose They begin with a cervi- several months. appeals He Schmunk. fullness, Marie ringing of the ears cal muscle jury’s verdict judgment entered occipital pain. She is often nauseat- and imprisonment. life his sentence of hemicra- ed and vomits. Headaches are nial, change sides. is but Vision occa- for question presented The critical blurred, pho- sionally and she does have errors determination is whether several our tophobia. trial, course when occurring during the headaches, “Her has less severe mother prej together, created sufficient considered and her son has headaches associated trial. deprive appellant of a fair udice to history with tension. Past includes rheu- may as question cumulative error Without report age matic at 13. does fever She proportion in such that reversal semble and, fact, being very depressed has State, Wyo., required. v. Browder has wondered about suicide. She re- (1982); Allies, Mont. P.2d 889 State counselling.” fused P.2d 1043 Schmunk, Schmunk, Kay Robert and her We reverse. son, Duncan, played game Bill a card evening July Kay 1983. Schmunk FACTS and, complained of a headache about mid- Schmunk, Kay Appellant Robert night, appellаnt administered intramus- were married 1972 while resi- Schmunk narcotic, methadone, injection cular Michigan. It was the dents of pain. game her The card continued relieve Kay each marriage for of them. second thirty perhaps another minutes before for prior children from her Schmunk’s two appellant for Kay Schmunk and retired marriage, Theresa Duncan and Bill Dun- a.m., evening. appellant About 2:00 was can, Kay with lived Schmunk and, pain that wife was aware still during they resided in the State of time her, after some discussion with adminis- 1979, appellant, Michigan. During his wife injection, tered another narcotic demoral. Duncan, Schmunk, Kay and her son Bill asleep. fell He Appellant then Douglas, appel- Wyoming where moved again Kay awakened about 4:30 a.m. with general practice of medi- commenced a lant advising him her Schmunk headache cine. severe, the was more worst she ever injected mi- Kay had suffered had. then her with a Schmunk severe many drug, morphine. years prior for third narcotic About 6:30 graine headaches a.m., he Appellant prescribed oral medi- awakened observed that his her death. breathing. Appellant in- wife was not at- cation and administered intramuscular tempted headaches resuscitation was unsuccess- jections medication these "(a) purposely premeditat- Whoever and with Retired November 1985. * * * malice, being ed guilty kills human ** degree. of murder in the first Retired November "(b) person A convicted of murder in the first degree punished by shall death life W.S.1977, 6-2-101, provides: 1. Section imprisonment according to law." case, prosecutor, summarizing Mrs. Sehmunk taken the emer- ful. the State’s said: County room at the Memo- gency Converse Hospital to re-
rial where further efforts “Why say buy- Dr. Sehmunk did he was failed, pro- her girlfriend? suscitate and she was for his He didn’t [a rifle] say anybody nounced dead. that to who had an axe to grind, just Dr. Erickson. don’t think 16,1983. autopsy performed July An girlfriend. may. there is a You You autopsy apparent disclosed no cause of this; read is fair. toxicology testing The results of death. Sure, given you “Profit? we have testi- drugs two of revealed the narcotic mony profit. Everything is in the injected by appellant times were three wife’s name. He has been divorced once amount would be consistent got quarter before. He’s million dol- reported by appellant. Appellant dosages *4 almost, lars, in assets in her name. quantity he could not account said for the Maybe know, is a that motive. You it drugs by toxicology found and insisted would be a fair one. A little bit of insur- injected only he had the lesser amount he insurance, proof big ance. no There’s reported. had The cause of death was nothing, anot fourteen million dollar for- to determined be acute narcotic overdose you tune hear in like about some of these resulting respiratory depression and exciting cases. No million dollar life in- pulmonary edema. acute surance, it could but have been a motive. began State the trial in this case might I think I prove have. didn’t it. telling jury required that it to was not really try I just didn’t to. I laid it out motive; prove that it would nevertheless here. produce evidence that would establish for “Revenge? leaving? Was she Was she motive, why the reason Dr. going go? to Could that be tied wife, Kay Sehmunk Robert killed his Marie money property? going and the Was she theory It was the Sehmunk. go Michigan to everything to back with diametrically Dr. Sehmunk had “two Revenge stop her name? to her from personalities.” opposed Dr. There was one leaving. suggested, prov- was It not person, who was a worked Sehmunk devout it, you play en. If want to go with church, selflessly appeared for his and who ahead. loving relationship a to have normal with No, “Jealousy? we didn’t see evi- and happy marriage. his wife a The other things, dence of that. There were little Sehmunk, claimed, Dr. the State a man was out, you thrown little teasers but I’ll tell married, unhappily imper- whose wife was Iwhat think. fect, permanently leaving and who was him man, “I think there a dark side to this imperfection a divorce. to obtain inability I think to his mind. he has an Kay apparent Marie Sehmunk was an ref- accept to and what is real and confront to migraine erence hеr severe headaches Kay could imperfect. accept He not dependency drugs. respect With impierfect, was real and and what he Sehmunk, prosecutor the second Dr. puts he accept, sleep. can’t That jury, told the there is “a dark to this side is, in this I’m what he did case. There man, to mind.” sure, sad, man’s in this mind some sick perhaps pathetic why reason he did what State Wyoming staked its entire did, get can’t he but I it out of him. degree propo- first murder case of out.” didn’t come dark, mysterious sition there was a Sehmunk, split side to Dr. a a Thus, man with Wyoming the State conceded that personality imperfec- accept who could not girlfriend Dr. had no Sehmunk and that the Kay who, pre- with killing profit revenge tion Sehmunk and not for or malice, put sleep meditated her jealousy, mys- because of but because of a drugs. argument jury, In final Dr. terious side of Sehmunk that caused interview, following At imperfect. the end of
him to kill what was questions were asked answered: no evidence from claims there possessed he find that could informa- “[Investigator]: Based on the side,” side,” “split “mysterious a us, you “dark a given a you’ve tion that him to kill what that caused personality” polygraph a test? willing to take claims that the State’s imperfect. He it; I would “[Appellant]: I wouldn’t take dark, side, mysterious prove effort any circum- polygraph a under take upon specula- rested split personality, I was anybody whether stances resulting tion, innuendo conjecture and no, questionable, guilty, innocent admission a video- from the erroneous polygraph. would not take interview, hearsay and other evidence tape you ex- a bad “[Investigator]: Have being cumulative effect testimony, you had one perience with them or have * * * deny him a fair trial. before that determination, as for our The issues taken “[Appellant]: polygraph I had are: appellant, framed charges my daughter’s in reference have de- Should a mistrial been me, against totally errone- which was “[1] prosecutor, in violation when the I’m, willing clared take just I’m ous and ruling, polygraph introduced prеtrial hinge polygraph anything on what al- the, with defendant’s uh, suggest. results connected polygraph might leged prior misconduct? added.) “[Investigator] (Emphasis Ok.” *5 abuse discre- Did court its the trial “[2] evidence videotape was received into conjecture admitting in witnesses’ tion by during jury and and heard the viewed speculation? and Appellant in con- the case chief. State’s in hearsay Was admitted violation “[3] questions and answers tends that the above 804(b)(6) the W.R.E. and Confronta- of the video- should have been deleted from Clause? tion tape into evidence before it was offered in prosecutor’s expression Was the by jury. Appellant claims and the “[4] viewed opinion of defendant’s summation of his videotape erroneously put that the unedited insanity plain error?” act jury prior a bad before the evidence of (the daughter charge by his in the state of by will not other issues raised We address test, polygraph of Michigan), the results unnecessary to appellant they are because test, polygraph take a and his refusal to decision in this case. our in of the court’s order that it was violation INTERVIEW VIDEOTAPED in limine. the September request at of On PRIOR ACTS OF MISCONDUCT case, investigator appellant in went the this learned, viewing as a of result in- voluntarily office to be to the sheriff’s previ- videotape, charge some had the Kay concerning the death of terviewed against by ously brought been interview was recorded on Schmunk. The the al- daughter. his contends knowledge. videotape secretly, without leged not have prior misconduct should photographed appellant The video camera by into evidence the State been offered mostly at a showed seated table excluding this court’s order because of the Appellant coop- side and back of his head. exclusionary came evidence. The order investigator giving fully erated with the when, hearing upon trial about before at question no There is interview. limine, change of and in motions for venue given voluntarily interview following transpired: knowledge with full and waiver of Change “Gentlemen, beginning with the rights. day following the in- Miranda know, terview, You I have read by the appellant was indicted Venue: Counsel, submitted, you charged degree articles that grand jury with first brief, espe- your and I take note with murder. place goes into ters that were or have taken article which daily of the one background past from in the in the Defendant’s Defendant’s life.” reports added.) Michigan (Emphasis and recites or fair which—of cent, such matters as main those insinuation quitted of a nature paper tion, way sphere the mind of the Michigan and the another, conversations being the only, obviously, grant Motion for a against a Motion “Of “THE COURT: “In either course, trial even obviously, must have come to charges story something reading the Defendant (Emphasis In Limine. case, gentlemen, though that was hearsay prejudice course, event, may not result in a or minds of some citizens that where there charge and is type good implication were the Defendant. Court, produce attempted * acquittals into public sometimes has a that isn’t *6 * * when a deal added.) people, properly in this something of that The next motion is reporting Change * * *. may have been might I am person reported, there. found get one side community brought in an atmo- of Venue informa- going does, charges hearsay So that still having inno- ac- re- dence without appellant, in next trial eotape, charges Michigan, During the ter. particular portion which video move for a dismissal virtue of the reason for polygraph our client and would not take a clear “Judge, I think we have an curred with tor indicated on charge by his cause of the substantial “Although, I jury. stating: morning, a result of a matter I think that the tape still virtue The court [*] where, chambers, State’s him not before the trial respect containing prejudicial effect that the daughter our case in this matter of the video believe—I [*] number was received into evi- case in polygraph, and the that video that he adjourned; taking to his and then viewed implication moved for a mis- [*] had to do with a * * *. discussion, that references the matter chief, onе, assumed, daughter, tape obligation commenced, in this mat- [*] polygraph the Doc- and the had oc- the vid- and the [*] very be- by cut out Michigan stuff would be all the Honor, the Motion “MR. BURLEY: Your everyone would monitor that to and that filed in Limine that has been Speaking would be done. see that that is directed to in this matter Defendant I standpoint, think from a human allega- respect to certain matters with you’re just expect- guards down and ’are Defendant, Dr. actions that the tions or in control ing that the one Schmunk, may may not have commit- evidence, their as well witnesses certain prior time. ted at a or video evi- as demonstrative evidence concerning “Particularly any matters dence, primary one that has that is the in Practices Board or Michigan Medical responsibility. Michigan to the State the State of Michigan vs. Dr. Robert Schmunk.” [*] [*] [*] [*] [*] [*] attorney stated: response, appellee’s In you, Counsel. Thank “THE COURT: Burley Mr. agree with “We would deny Well, going I’m gentlemen, * * from the State as far as the information it, I the time I heard motion. [A]t concerned, it would be— Michigan is Michigan— by the fact that shaken it in our proper for us to introduce not be mentioned, and the Michigan was even case in chief I wish it hadn’t been accusation. limine, And, upon the motion in ruling I think I to delete it. there. do want fact, very court stated: if we make probably it, this special instruction Limine as to some In grant “I will the Motion strictly up to Counsel—this could—this in chief as to mat- the State’s case 730 jurors’ to call it jury great
could serve
to the
atten-
to violate
principle,
that a
tion,
party
or it
to soften
could serve
the effect
is not to be convicted of one crime
”
it;
by proof
I
quilty
don’t know.
he is
of another.’
State,
Gabrielson v.
534,
Wyo.,
510 P.2d
“However, gentlemen,
leaving
that I am
(1973) (quoting
536
from Rosencrance v.
really
to Counsel.
don’t
believe it’s the
State,
360,
Wyo.
239 P.
job
watchdog
State’s
to be the
over the
.
(1925))
plethora
entire
of evidence
that has
come
the case.
I wish it
into
hadn’t
haveWe
also stated that:
added.)
happened.” (Emphasis
jurisdiction
is settled law in this
“[I]t
charges, accusations,
that mere
and ar
changed
the venue for
court had
this
innocence;
rеsts are consistent with
Sheridan,
Douglas, Wyoming
trial
they
inquired
should not be
into if the
Wyoming
prejudicial
to avoid the
effect of
purpose
prosecution
of the
is to discredit
pretrial publicity
concerning
extensive
eyes
jury
the witness in the
of the
charges
appellant
against
in the State of
convey
jury knowledge
that such
venue,
Michigan.
changing
the court
charged
witness was
with a crime.” Ga
prejudicial
stated that
effect of the
State, supra
brielson v.
(quoted
at 536
Michigan charge “may not result
in a fair
State,
Bishop
supra,
731 occasions, so, being videotape two or three That it was also to reveal to the jury fact not relieve the State the the results of a lie detec- alone did adverse respect obligation the the to delete references tor examination with those Michigan appel- charges. incidents. We think li- this evidence in the lant’s THE ATTEMPT COURT’S TO ruling pre-
mine motion and the court’s CURE-DELETION FROM served error. THE VIDEOTAPE EXAMINATION POLYGRAPH court, viewing by after viewing the jury from also learned jury, concluded that the reference to the videotape charge Michigan test lie detector * * * polygraph “had a taken videotape should be deleted from the * * * just totally erroneous and [was] informed of the deletion. willing polygraph to take a [in therefore, close jury, was instructed at the case].” of the case follows: poly por- “You are that a certain
Generally, the results of
instructed
21,
being
are not admissible
tion of State’s Exhibit
the same
graph examination
State,
tape recording,
v.
Wyo., 565 P.2d
a video
admitted into еvi-
evidence. Cullin
445,
(1977).
has
deleted.
are there-
Improper
455
reference
dence
been
You
portion
has
polygraph
of a
examination
fore instructed that
deleted
results
Bird
See,
e.g.
you
must not be considered
as evi-
held reversible error.
been
State, Okla.Crim.App.,
786
dence.”
song v.
649 P.2d
Green,
153,
State v.
(1982);
271
531
Or.
Appellee
improper
contends that
reference
(1975).
245,
We
ties,
poly
of a
admission of the results
concedes, however,
appellant's
where
State, Wyo.,
graph examination. Daniel v.
case,
credibility plays
role in
a vital
Cullin v.
(1982);
P.2d
178
644
preju-
polygraph
reference
stipula
at
In the absence of a
supra,
455.
Thus,
re-
criminal conviction was
dicial.
admission,
must be
tion for
a conviction
by prosecu-
because of references
versed
polygraph
results of a
reversed when the
polygraph examination
tion witness to a
v. Suther
State
jury.
revealed
are
defendant,
cautionary instruc-
despite a
land,
(1980);
527, 617
1010
94 Wash.2d
P.2d
from
no inferences
tion to the
to draw
Kilpatrick, Kan.App.2d
2
578
Brevard,
the references. United States v.
to admit
P.2d 1147
The reluctance
Cir.1984).
(4th
The court
739 F.2d
or “lie detector”
polygraph
the results of a
instances where the
noted that
are
“[t]here
stems from
fact
examination
exposed
jury is
to inadmissible
have not
results of these examinations
strong impression
which could make such
stems
established as reliable.
It also
been
disregard
may not
instructions to
may give too much
jurors
a fear that
effect.”
Id. at
prejudicial
remove its
examination,
weight
the results
States, 391 U.S.
See also Bruton v. United
guilt
proof
it as
perhaps accepting
even
123, 135,
L.Ed.2d
S.Ct.
innocence.
Holt,
(1968);
Throckmorton v.
*8
476
552, 569,
474, 481, 45 L.Ed.2d
21 S.Ct.
U.S.
polygraph exami
The results of the
(1901).
by
did not
appellant
here
nation
referred
credibility was cru-
Here Dr. Schmunk’s
charge
appellant
for which
pertain to the
nothing
pro-
He
but his own
trial,
previously
cial.
offered
charge
on
to a
was
but
to rebut the inference
Michi
fession оf innocence
brought against him in the
State
experts
testimony
the State’s
was
from the
already held that
it
gan. We have
present
of narcotics
charge
regarding
quantity
the
jury
to inform the
body.
improperly
Michigan.
in Mrs. Schmunk’s
against
in the State
implicating
“[Investigator]
him in
admitted evidence
some
Ok.”
disclosing his
mysterious crime and
failure Thus,
videotape
containing Dr.
pass
polygraph
test would have so Schmunk’s refusal to take a lie detector
jury
affected the
that no instruction could
jury
test
it retired to
went with
when
credibility
restore Dr.
or over-
Schmunk’s
repeated
and was
for
deliberate
available
prejudicial
come
effect.
its
edited,
viewing
jury.
by the
As
the video-
tape
only his
contained
refusal with no
REFUSAL TO TAKE
pur-
explanation or reason therefor. The
POLYGRAPH TEST
pose
putting
the refusal in
was
serious, however,
Even more
was
as,
prosecutor
paint
stated
“it did
the court’s decision to receive evidence
personality”
bit of the Defendant’s
and re-
Dr.
which informed the
Schmunk
“pretense
coopera-
vealed defendant’s
had refused to take a lie detector test in
trying
tion while at the same time
to ma-
this case. That occurred in this fashion.
nipulate
investigation.”
21,
videotape,
Exhibit No.
was
effect,
prosecutor
saying
In
played
jury. Appellant
for the
moved to
and,
dismiss and for a mistrial
as one of
the refusal of Dr.
to take the lie
Schmunk
motion,
grounds
for his
stated:
detector test
tended to show “conscious-
one,
“[Njumber
the Doctor indicated on
guilt,”
surely only guilty
ness of
for
man
poly
that he
not take
video
would
“try
manipulate
investiga-
would
* *
graph
prosecuting attorney,
tion.”
referring to Dr. Schmunk’s refusal to sub
uniformly
It is
held that evidence that an
test, responded:
mit to a lie detector
accused has refused
take a lie detector
paint
“I think it did
a bit of the Defend-
test
is not admissible to establish “con-
personality,
thought
ant’s
which we
guilt.”
sciousness of
29 Am.Jur.2d Evi-
significance
of some
in the course of the
Thus,
prose-
reference
dence 296.
investigation,
pretense
cooperation
cutor to a refusal of the accused to take a
trying maniрu-
while at the same time
reversal,
required
lie detector test
State v.
investigation.
late the
Driver,
255,
(1962),
38 N.J.
733
greater
testimony
Id.
is even
in the
of
test ***.”’
339
where
results
such
videotape,
form of a
for:
at 999.
P.2d
unique.
“Videotape testimony is
It en-
The court then said:
jury to
ables the
observe the demeanor
frequently
is com-
“All too
this court
testimony
the
and to hear
of the witness.
judgments
guilt in
pelled to reverse
of
equivalent
It serves as a functional
of a
important criminal cases
of over-
because
Binder,
live witness.” United States v.
duty
prosecution.
the
of
zealous
It is
595,
(9th Cir.1985).
600
F.2d
guard against
prosecuting officers to
the
case,
jury
In this
the
could
incompetent
of
evidence.
have observed
introduction
and
Dr.
the
Overprosecution of an
should
heard
Schmunk on
edited video-
accused
tape,
refusing
permitted by
repeatedly
emphatically
In
not
the trial court.
attorney
to submit to a lie detector
instant case the
in-
test without
the
district
reason,for
stating
great length
his refusal. His credi-
upon
at
introduction
sisted
bility
crucial to his defense.
testimony
into
of
Unit-
evidence
[refusal
Binder, supra,
judge
the
lie
is uniform-
ed States v.
trial
take a
detector
test]
jury-
replay
videotape
incompetent,
allowed the
the
ly held to be
in an unbroken
fashion,
appellate
an
and the
throughout
abridged
the na-
line of authorities
stating:
court still reversed the conviction
Id.
troublesome 0F something myste- that there is dark years Duncan was William them about Dr. Schmunk and leaves rious school, high living age, attending concerning speculate wonder and his mother at time of might reason for the doctor’s refusal as inves questioned He was incident. killing his motive for wife. relate concerning tigator trial the death before not several occasions but did his mother on practice sending note that the We here he believed Dr. Schmunk then state videotaped testimony witness to of a trial, Then, during he had killed her. repeated viewing during jury room for testified: danger unduly poses deliberation Wyo- “Q. you Douglas, leave Why did testimony over all emphasizing that ming? testimony danger in the That other case. Constitution, 1, question. apply. We a close Wyoming pro- does not It is
2. Article
questions
a lie
person
testify
compelled to
think the refusal
answer
"No
shall be
vides:
against
**
very
from a
different
A
detector examiner is
criminal case
*.”
himself
questions
at the
questions
of a detective
response
to answer
involves a
refusal
police
lie detector test
suspect
may
A
has
constitutional
interrogation,
suspect
station.
A
wish
asked
examiner.
silent,
right
to refuse
questions
to remain
the answers
to answer those
because
Arizona,
S.Ct.
may
451 U.S.
polygraph
him or the
dis-
Edwards
incriminate
(1981).
might
L.Ed.2d 378
Evidence
incrimi-
the answers to be lies that
close
right
polygraph
to remain
might
exercise
him.
that a
comment
nate
said
long
prejudicial error.
been held
in nature and
silent has
examination is not testimonial
Wyo.,
against
“Under Rule Douglas pertinent Billy son left was irrelevant to perceived firsthand the events matters, opinion jury. his or testimony or inference issue before His rationally percep- based on his prejudicial. must be both inadmissible and tion; testimony rejected must be if HELPFUL TO A CLEAR inadequate observation was
his firsthand opinion.” UNDERSTANDING support an 3 Louisell and Mueller, Federal Evidence 376 at 618- § opinion lay witness must also helpful understanding be to a clear of his 701, W.R.E., testimony. supra. Rule Joy Manufacturing Company In v. Sola Where a witness is asked Industries, Inc., supra, 697 F.2d at Basic 111, said: it was “whether conduct issue was ‘un lawful’ or ‘wilful’or whether the defend requiring is in essence
“The court
‘conspired,’
ants
terms that demand an
the best evidence available—first-hand
understanding
scope
of the nature and
knowledge
knowl-
verses second-hand
law,
may
the criminal
the trial court
edge
jury for
presented to the
use
—be
properly
any response
conclude that
its deliberation.”
helpful
to the trier of fact.
Inc.,
Lines,
Tank
Gorby v. Schneider
witness,
unfamiliar with the con
(7th Cir.1984),
1015, 1021
the testi
741 F.2d
law, may
tours of the criminal
feel that
mony
proposed
of a
who
to state
witness
higher
legal
standard is either
‘everything
that “Welch did
he could
”
really
is. If
event is
lower than
either
accident,’
“Gorby
avoid
and that
[the]
jury may
much
true the
accord too
re
could have avoided
accident” was
legal
weight
to such a
conclusion.”
jected by
they were
the court because
471,
Baskes, 649 F.2d
United States v.
upon speculation rather than first
based
(7th Cir.1980), cert. denied 450 U.S.
478
knowledge or observation.
It was
hand
101
Pursuant
of Rule
It is a
rule that
evidence
804(b)(6), W.R.E., infra,
is not
opportunity
State served
admissible. There is no
25, 1984,
cross-examination,
appellant
April
with a notice on
for confrontation
or
30, 1984,
April
second
judging
and a
notice on
ad
there is no manner of
the credibili-
vising appellant
ty
person making
of the name and address of
the statement or
it,
testify
hearsay
weight
given
the dеclarant who
to be
there is the
Kay
concerning
potential
statements of
Schmunk
for memories to dim with the
time,
passage
potential
her desire to leave
and return to
and a
for inaccu-
Michigan.
place
the state of
of trial
rancies and even falsehoods in the second-
by change
hearsay
had been transferred
hand
statements offered as evi-
venue
Douglas,
general
Wyoming
hearsay exclusionary
this inci
dence. This
—where
Sheridan,
Wyoming.
incorporated
dent occurred —to
rule was
Rule
into
party
makes known to the adverse
W.R.E.,
provides
hearsay
is not
suf-
ficiently
in advance
the trial
except
provided by Wyo-
or
admissible
hear-
provide
ming
by
with party
of Evidence
other rules
the adverse
Rules
it,
Supreme
opportunity
prepare
adopted
Wyoming
to meet
Court
fair
W.R.E.,
his intention to
Rule
sets forth
the statement statute.
offer
twenty-four exceptions and Rule 804 sets
it,
particulars
including
the name
exceptions
forth
six
an additional
(Empha-
address of the declarant.”
hearsay
excep-
exclusionary
added.)
rule. These
sis
permit
receipt
hearsay
tions
804(b)(6)
provision
Rule
was a catchall
requirements
exceptions
if the
are which,
proposed
adoption
when
as fed-
satisfied.
804(b)(5),
eral Rule
encountered considera-
hearsay
clear that almost
seems
opposition.
ble
tortured
statement can
some
fashion
Judiciary
“The
pro-
House
Committee
the exceptions
fit into one of
claimed to
posed
provision altogether,
to delete the
provided by
803 and
W.R.E.
*13
Rules
along
language
with identical
which the
hearsay fits
But to
that all
into one of
hold
Advisory
proposed
had
Committee
is
exceptions
the
and therefore
admissible
804(b)(5).
accompanying
Rule
Com-
exception
hearsay
to
to
permit
is
the
the
Report
mittee
the concern
reflects
that
excluding hearsay
rule
the rule
to swallow
inject
these
provisions
catchall
‘too much
is,
general
And so the
rule
and
evidence.
uncertainty
the law of evidence’
into
and
remain,
hearsay is
should
not admissi-
impair
practitioners
ability
‘the
of the
to
court,
”
ble.
the trial
under the
Nor should
(Footnotes omitted.)
prepare for trial.’
guise
of liberal construction
the Rules of
Mueller,
4 Louisell
Federal
Evidence
Evidence,
hearsay
giving
admit all
without
437 at 463.
guarantees
due
consideration
generally
Congress
Courts have
noted that
requirements
and other
trustworthiness
rigid
intended
enforcement of the notice
Ordinarily
compliance
the
strict
rules.
requirement
have refused
admission
of the
to
requirements
exceptions
with the
804(b)(5)
hearsay
pursuant
to Rule
and,
enforced;
hearsay
rule should be
to
where
notice of intent
offer
reasonable
hearsay
if
cannot
proposed
meet those
United States
hearsay
given.
was not
strict
it should
requirements,
be excluded.
31,
(2nd
Rodriquez,
v.
706 F.2d
Cir.
case,
respect
In
clear that with
to
this
Atkins, 618 F.2d
1983);
v.
United States
hearsay
proposed
Kay
statements
(5th Cir.1980).
giving
of no
30, 1984,
April
there
Schmunk noticed on
in cases in which the
tice has been excused
compliance
requirements
with the
hearsay
at
proponent of
was not
fault.
804(b)(6)
provides:
which
Rule
(3rd
Bailey,
United
ADMISSION OF background there exists sufficient infor- NOTICED STATEMENTS concerning mation the circumstances un- APRIL 1984 hearsay der which the statement was provide made to with an ade- complains further Appellant quate veracity.” its hearsay Kay statements of basis evaluate all of the evidence, i.e., P.2d at 132-133. into both Schmunk admitted State, Hopkinson supra, must than error in order to We said v. be reversible proving treatment, has the plain the State burden merit error nor how to of the five listed and existence elements given determine whether a error is more satisfy providing background sufficient error, than the de- serious reversible for sug- Clause. Confrontation finding plain cisions error reflect little gests satisfy that the State must its burden more than the conclusions reached a ad- and thе court make determination of court, the attempted definitions are missibility though no appellee even makes probably only general best in- viewed as receipt hearsay evi- objection to inquiry. dicators of the nature of the Appellant is in this con- dence. not correct * * * * * suggested as im- tention. To hold plain “A determination of will be error pose impossible upon trial an burden made examination of the whole to, motion, proof require on its own court Imagination required record. in reliv- opposing counsel has not demanded. assessing the trial the effect Besides, opposing may counsel choose not error, the asserted decision will and each object receipt of the offered evidence upon the facts case.” particular turn in a many strategy may reasons. dic- for Trial Mueller, 1 Louisell & Federal Evidence may objection; opposing party no tate 119-124. at the offered be favor- believe evidence will Bradley Wyo., P.2d able; opposing party may believe (1981),we 1163-1164 said: impeachment may damaging more to exclude evidence. Rule object choose not “A failure to a waiver constitutes 103, W.R.E., respect admissibility occurred, error unless the of whatever provides: of evidence plain error. A error rises to the level of “(a) three-part test has established may predicated upon Error been determining ruling which admits whether an or excludes First, right party achieve the status of error. unless substantial affected, must be the inci- the record clear as to pears evidence, brought to the attention of the court.” stantial “(1) “(d) Nothing notice of In case the rights although they record [*] timely objection in this plain [*] *15 * * ruling errors *. rule [*] is one precludes affecting [*] * * * admitting were [*] sub- tak- ap- violated. that a substantial dent clear ed to him and as a ly prejudiced.” party which is plain error claiming Finally, unequivocal result alleged must demonstrate that the right he has been party rule of law was has been error. error amount- must material- Second, denied that a prove 804(b)(6), requires that added.) supra, (Emphasis Rule hearsay be “evi proposed statements pro There was no Appellant con dence of a material fact.” April posed hearsay in the identified proffered hearsay state tends objec notice. In the of an absence Kay not evidence Schmunk were ments tion, erroneous of this hear admission therefore, and, not ad material fact of a plain it will be say must rise to error before is requirement The material fact missible. by this has said: considered court. been hearsay proposed if the statement satisfied [plain suggests term obvious- “The error] Loui- offered into is relevant. ness, defining phrases and most and Mueller 491 at 1202. sell at- Most of the include this element. Relevant evidence is tempted suggest definitions also having any tendency to make plain something error is more fundamen- “evidence any is of conse- *. existence of fact that than error tal or serious reversible of the action matter, however, to the determination practical quence it is As a than it probable or less probable more clear how much more serious an said, be without the evidence.” Rule As we have declarant’s state of mind in this W.R.E. was not an issue nor material fact unequivocal A clear and case. rule of law is not Evidence which is not relevant admis- hearsay in that the was not of was violated sible, Kay Rule W.R.E. Of course and, therefore, a material fact was not is no more rele- Schmunk’s state mind exception provided admissible under vant nor material in this case than was the 804(b)(6), Rule W.R.E. The admission of Hopkin- Vehar in state of mind of Vincent hearsay appellant denied a substantial State, supra, son v. where we said: right. of Vincent Vehar mental state “[T]he
prior to his death is irrelevant. There is
Appellee offered considerable evidence
allegation by
no
the defense that his
respect
hearsay
to these
statements.
any
death
suicide or in
other manner
extensive,
appears
The evidence
which would make his mental state an
complete,
nothing
and there is
from which
issue.”
“These are all statements
if
may
state of mind and her intent
be received
that is the matter ulti-
declarant’s
plan
get
Douglas,
mately
proved
if she
the statements.
out
could,
there.”
and Mueller
440 at 518. Thus:
and her dissatisfaction
Louisell
marriage,
to time on the surface of
is used to evidence
a declaration
“When
issue,
*.
directly in
one
this dark counter-current
of mind
a state
******
difficulty
justifying
encounters little
the admission of
of mind
existent or
ular
refusing
ple, to show: intent
issue in a wide
“The declarant’s state
Statements
competency, affection or
frequently other evidence
domicile,
has to be
to deal with
inadequate.
a customer’s
the declaration. State
variety of contexts.
proved
to establish a
admitted,
a
of mind
supplier,
alienation
reason
some
may
for exam-
is non-
motive,
partic-
be an
way
*.”
with in the back
motive.
has
in their
important as to
“Why did
“Remember,
“I
“We have the three of them
want
[******]
nothing to do with
underground
you
he kill her?
motive is a fun
to listen for it. I want
guilt
your
home.
or innocence.
it,
* * *
heads.
but there is a
thing
living alone
[I]t’s
play
you
pieces.
to hear the bits and
I'm not
supra, at 803-111.
Burger,
4 Weinstein &
you
it is now.
I’ll
going to tell
what
mind is
Ordinarily,
state of
declarant’s
you
closing."
what I think it is in
tell
third
of the state of mind of a
not evidence
added.)
(Emphasis
here,
state of mind of the
person. As
declarant,
Schmunk,
Kay
During
was not evidence
examination of the State’s wit-
nesses,
appellant,
prosecutor suggested possible
of mind of
of the state
provisions of
under the
Dr.
was not admissible
motives. He insinuated that
Schmunk
W.R.E.,
803(3),
supra.
girlfriend.
sug-
bought
Rule
a rifle for his
He
money,
gested that Dr. Schmunk killed for
State, Wyo.,
487 P.2d
Alcala v.
proceeds
of an insurance
property or
(1971),
cert. denied 405 U.S.
Kay
policy. Witnesses
testified that
(1972),
said:
744
THE DISSENTS even if that were not so and there were no objection, plain we would hold it error to patently there is much It is obvious that videotape jury send the to the room. disagreement majority serious between the dissenting justice. Upon crit- Second, and the one it is said there no rule in was however, point, ical there is and clear concerning sending transcript effect Thus, agreement. it is stated in one of the part testimony jury room. dissents that reference to with disagree. Again, against we The rule send- ing testimony jury,
“the unfairness which results from a
to the
room is as ancient
jury viewing
tape
jury
in
a video
as the common law itself. The reason for
and, thus, giving
emphasis
room
undue
Having
the rule is obvious.
some testimo-
agree.
I
portion
testimony,
again
to a
ny to read
and consider and discuss
should,
rule,
by
deliberations,
believe that this Court
jury
likely
unduly
in
is
any
ques-
direct that
verbatim record
emphasize
testimony
over that which
testimony,
tape
tion-and-answer
video
or
days
may
was heard
before and which
have
otherwise,
deposition, or
whether admit- begun
memory.
fade from
impact
otherwise,
ted
an
or
shall
as
exhibit
not
testimony
videotape
oral
of visual and
on
subject
jury inspection
other than
greater.
dissenting justice
As the
even
permitted
during
to be read or shown
states,
it is “unfair” and should not be
part
of the trial in which evidence is
“permitted.”
being received.”
Wilson,
In
State v.
Kan.
360 P.2d
“unfair,”
although
It
is then stated
it
(1961), quoting
from
v.
State
right
videotape,
appel-
all
for the
was
with
Solomon,
500, 509,
96 Utah
87 P.2d
test,
polygraph
lant's refusal to submit to a
(1939),
court,
noting
per-
after
go
jury
to the
room in this ease for two
go
mitting
jury
exhibits to
with the
reаsons.
discretion,
committed to
court’s
stated:
“
First,
objection by
it is said there was no
testimony
‘But the
a witness is
chambers,
disagree.
appellant. We
be-
category.
provision
Such is
different
room,
tape
jury
went to the
fore
and the
al-
of the statutes
common law
following
Appellant’s
occurred.
counsel
ways
depositions
excluded
and written
stated:
being
testimony from
carried from the
**
“Judge, I
move for a dismissal
by
jury.
can
bar
We
see no reason
prejudicial
the matter
virtue of the
why
depart
the court should
from the
* * *
tape.
effect
video
[of]
[T]he
hap-
rule.
It
well established
often
Doctor indicated
video that
he
testimony
pen that the
on one side is oral
polygraph,
would not take a
and the rea-
produced
jury,
from witnesses
before the
taking
polygraph
him
son for
testimony
while the
for the other side on
as a result of a matter that had occurred
deposi-
essential matters is
the form of
respect
daughter,
charge
with
to his
or
transcript
testimony
tions or
from
daughter
by his
*.”
hearing.
previous
hearing
at a
If the
length
purpose
objection
give
of an
no-
for
of time
lasts
and the
judge
depositions
transcript
tice of the claimed error so that the
takes the
to be
opportunity
has an
to rule or correct the
read and discussed
the oral evi-
while
here that
contra has in a
error.
cannot be claimed
there
dence
measure faded
memory
jurors,
no such
it is
notice.
made
trial, and, during
motion in limine
that the side
before
obvious
sustained
writ-
trial,
given
and for
ten evidence is
an
moved
dismissal
mistrial.
undue advan-
Surely
gave
tage.
permit deposi-
these
The law does
motions
notice to
preserved
appellant’s
go
court and
for review
tions witnesses to
room.
videotape
Why
go
permitted
because
con-
should a witness be
tained,
stated,
testimony?
as he
the doctor’s statement
there
the form of written
356;
polygraph.”
Moody,
“that he would not take a
But
18 Wash.
51 P.
ROONEY, Justice,
Company,
v. Insurance
23 W.Va.
dissenting,
Welch
”
*20
THOMAS,
Justice,
288;
Judd,
joins.
whom
Chief
v.
BROWN, Justice, concurring. appears tion or motion to strike agree that this case must be reversed. record, ground stating specific objection, specific ground if the paragraph majority In the last * * * context; apparent from the opinion, reference is made to cumulative ****** error. It seems that the doctrine of cumu- “(d) Nothing in error, terms, Plain this rule simple lative is that several error. — precludes taking plain notice errors error; up big small errors add to a affecting rights although substantial standing none of the small errors while brought they were not to the attention of reversal, the sum of alone is sufficient the court.” the small errors becomes substantial man- arising error as The rule does not address dating continuing prob- reversal. I have a from an accumulation nonerrors. lem with the nebulous doctrine cumula- applica- again tive error and do not believe has addressed in Rule Plain error case, 49(b), standing The errors in this W.R.Cr.P.: tion here.
alone,
justify
affecting
are sufficient
reversal
“Plain errors or defects
sub-
resorting
rights may
although
noticed
to cumulative error.
stantial
without
by deceased in
brought to the attention of
statements made to her
they were not
February
and June
October
the court.”
rule is to
said that the
We have
cautiously
only
excep-
exercised
April
Appellant does not contend that the
State,
Ketcham v.
tional circumstances.
25, 1984,
timely;
objec-
notice was not
no
(1980); Leeper
burden.
notice,
25, 1984,
and in fact he did meet it
(1981).
P.2d 1107
April
at trial. The evidence nоticed on
majority
Wyoming
April
case cited
the
The
similar to that noticed on
was
errors as a
opinion
25, 1984,
to validate cumulative
and it too was met at trial. Ade-
evidenced,
reversal concerns the cumulation
basis for
quate
thereby
notice was
and
the same
activity,
a cumulation
and not
there
no error
in admission of the
was
case,
Brow-
In that
separate
activities.
ground.
on this
State, Wyo.,
(1982),
the
der
639 P.2d
But,
majority opinion
finds the state-
repeated
and conduct
cumulation was
acts
irrelevant,
event,
any
since
ments to be
prosecutor.
they pertain to the deceased’s state of
event,
any
agree
I cannot
that reversi- mind,
appellant;
and since there
not that
issues
error exists with reference to the
ble
the de-
was no evidence to reflect
Addressing these issues:
appeal.
on
leave
communi-
ceased’s intention to
was
appellant,
testimony
irrel-
cated to
was
MRS.
I. TESTIMONY CONCERNING
However,
majority opinion
evant.
AS
STATEMENTS
SCHMUNK’S
relevancy
of the statements
overlooks
HEARSAY
context;
i.e., to meet
the de-
in another
25, 1984,
theory
marriage
of the de-
given pur-
fense
April
notice was
On
W.R.E.,1
happy one
804(b)(6),
was a
Rule
that de-
ceased
suant
to
ap-
mother,
was an accident.2 The
would
the death
ceased’s
sister and brother
testimony
pellant, through
regarding
separate
made to each
testify to
statements
marriage, sought
prove
the death
April
happy
by deceased in
and June
of them
appellant.
accidental and not intentional. Evidence to
concerning her intention to leave
appellant’s
disprove such and to attack
given
April
A similar notice was
credibility
impeach
ought
testimony
reference to
to be
with
—to
him —
prosecution.
Of
equally .available
given by deceased’s mother
to similar
W.R.E.,
excep-
804(b)(6),
excep-
provides
ment
not be admitted under this
as an
1. Rule
proponent
hearsay
of it makes known
tion unless the
rule:
tion
sufficiently
party
in advance of
to the adverse
by any
specifically
covered
"A statement
hearing
provide
trial or
the аdverse
having equiva-
foregoing exceptions
but
opportunity
prepare
party
a fair
guarantees
lent circumstantial
ness,
of trustworthi-
it, his intention to offer the statement
meet
(A) the state-
if the court determines that
it,
particulars
including
name
and the
fact;
material
ment is offered as evidence of a
of the declarant."
and address
(B)
probative on the
the statement
is more
State,
(1983).
Wyo.,
reference to this issue. HE
II. CHILD’S TESTIMONY THAT LEFT DOUGLAS OF “BECAUSE III. PROSECUTOR’S CLOSING ARGU- THE SUSPICIONS OF MY FATHER MENT KILLING MY MOTHER” majority opinion is critical of the Again, majority opinion forgot to hit prosecution’s potential reference to *22 starting ball to the before run around the appellant having appear- two characters or opinion improperly bases. That considers one, attitude, given ances —a double that to question, you “Why the answer to the did public happy the marriage; relative to his Douglas, Wyoming?” leave to have been two, being the given and dark side suspicions I my “Because had father privately by at home as testified witness my However, killed had mother.” the an- by testimony and Duncan the referred to given Duncan, (Billy) swer William thе supra the “Testimony in section entitled deceased, appellant of child and was “Be- Concerning Mrs. Schmunk’s Statements as my killing of suspicions cause father Hearsay.” objection There was no my plain. mother.” The answer was His argument. closing father had been of of accused the crime majority opinion recognizes pro- The the killing atmosphere his The in mother. priety prosecution presenting the of its the- Douglas “suspicions.” reflected such The ory jury, reviewing of the case to the the of changed venue the action was because jury, suggesting evidence with the and in- surprising them. of isn’t that the child recognizes ferences based thereon. It also Douglas in them. uncomfortable with predicated only can be if reversal there is activity Douglas His in must been have plain objection error when no was made to “suspicions.” affected because of the He closing argument. the But it does not find Douglas suspicions left because of these plain closing in the the elements error community, the he so the and answered argument except as cumulated with other say question. He did “I left because errors, citing alleged again quoting and thought my my father killed mother.” He from Browder v. State support thereof. the suspicions he left said “Because already the supra, As noted situation in father my killing my (Emphasis mother.” entirely Browder was different and distin- added.) so, being This the discussion of guishable from that in case. this majority issue in opinion the is not pertinent. plain do The elements error not exist issue.3
Additionally,
trial
the
for this
The record'
clear as to
the
to
incident,
question
relevancy.
appellant
prov-
its
late
the
but the
has not
was not to
unequivocal
and
objection made to this issue was that
en a violation
a clear
plain
unequivocal
quoted
error
in the
and
rule of law was violat-
elements for
as
clear
majority
Wyo.,
opinion
Bradley
Finally,
prove
party must
v.
ed.
that a
(1981),
right
P.2d
are:
635
1164
denied him and
substantial
has been
“* * *
materially prejudiced.
a
he has been
First,
result
as to
the record must be clear
»»
* * *
alleged
Sec-
incident which
аs error.
State, Wyo.,
ond,
v.
562 P.2d
See Daellenbach
party claiming
that the error amount-
ed
to
error must
demonstrate
prosecutor
present-
law. The
majority opinion
rule of
The cases cited in the
to
support
holding
limiting
and
facts
that a
instruc-
theory
case
event,
In
tion is insufficient in such situation concern
support thereof.
there was
far
right
aggravated
factual situations
more
no denial of a
substantial
no
than here.
prejudice.
is the
material
Such
reason the
opinion
to
majority
attempts
cumulate oth-
Brevard,
In
F.2d
States
United
alleged
to
at
er
errors
arrive
reversible
(4th Cir.1984),
one of
in the
those cited
error.
majority opinion, repeated warnings were
given
poly-
the witness to
refer
to
to
IV.
AND
ADMISSION
USE OF VIDEO graph tests. At
least
three references
TAPE
objections
were made to it after
and warn-
potential problems
are
ings by
exasperation,
There
three
with
the trial court.
In
(1)
tape:
the video
reference to the Michi-
the trial court instructed
n incident; (2)
gan
previous
polygraph
nothing
references
do
reference
(3)
case,
test;
they
no
polygraph
reference to refusal
were
draw
polygraph
reversing
inferences from them.
take
current
test.
conviction, the Fourth
recited the
Circuit
Michigan Incident
general rule to be:
“ *
**
impermissible
an
Where
refer-
preclude
The motion in
limine
polygraph
interjected,
ence to a
been
has
tape
prior
reference
the video
bad acts
usually may
court
cure
Michigan
presentation
in the
striking
instructing
prosecution’s
in chief.
case
* * *”
disregard
it.
739 F.2dat
*23
granted,
tape
was
the
motion
but
video
was
182.
not edited to delete
before
the reference
However,
jury.
shown
the
repetition
aggravated
was
to
was shown
the
na-
and
fact,
objection.
appellant stipu-
In
without
ture of the references in
case were held
the
presump-
lated to its admission into
When to be sufficient to
the
evidence.
overcome
Objections
objecting
properly
the
motion
made the
tion.
were
and
was
next
made,
day,
tape
promрtly
and the references were
the
was edited before it went to
repeated
aggravated
and
in
jury,
limiting
the
and a
instruction
United States
was
Brevard, contrary to
in
given
that
this case.
jury:
por-
States,
“You are instructed that a certain
In Bruton
U.S.
v. United
391
21,
being
(1968),
tion of State’s Exhibit
the same
20
88 S.Ct.
L.Ed.2d 476
tape recording,
a video
into evi-
majority
admitted
another of the cases cited in the
problem
admissibility
has
You
opinion,
dence
been deleted.
are there-
the
the
was
impli-
portion
fore instructed that the deleted
co-defendant’s statement which
by you
not
cated
must
be
as evi-
the defendant. The co-defendant
considered
cross-examination; it
dence.”
was not available for
joint
was a
trial and there was a substan-
passing
In
view
the
reference
the
tial
threat
defendant’s constitutional
Michigan charges,
had a polygraph
viz. “I
rights.
recognized the
Supreme
The
Court
my daughter’s
in
taken
reference to
general rule thus:
me,
against
totally
charges
which were
er-
*“ * *
every
Not
admission of inadmis-
roneous,”
juries
pre-
and inasmuch as
are
hearsay
sible
or other evidence can be
given
the
sumed
follow
instructions
considered
be reversible
unavoid-
them,
Wigwam
Inc. v.
Agency,
Hursh
through limiting instructions;
in-
able
Inc.,
Homes,
(1983);
Wyo.,
P.2d 27
664
every
in
stances occur
almost
trial where
Peters,
Highway
Commission v.
in, usually
creeps
inadmissible evidence
(1966),
Wyo.,
Such to Take a Current Refusal Test Polygraph limiting instruction this case was general within the rule with reference well was not motion limine based Michigan incident. polygraph refusal a current to take *24 objection Nor was an made at test. trial. Previous Polygraph Test tape played the to the After was and previous said in That the subsection of objected, appellant finally when and al- limiting to a this dissent with reference though take a current the refusal to test Michigan to curing instruction relative the mentioned, objection of the was the thrust equally applicable incident is to that rela- therein of the was to the inclusion Michi- previous polygraph the test. The tive to and, gan perhaps, poly- incident with the portion tape of the was deleted and the graph taken in connection therewith. The disregard the jury was instructеd to delet- objection was: “ * * * part. ed implication the is think that majority opinion making very by tape clear of the video and discusses virtue jury, particular portion the which had to do of the test known to the the results where, one, a number the polygraph cites cases thereto. Certain- with and it relative that he suggestion no the Doctor indicated on video that ly is that results of there polygraph, and the rea- Michigan polygraph case were made not take a the taking polygraph son him a was jury, concern- for not known discussion that had occurred misplaced. is as a result of a matter If such discussion such daughter, charge respect with to his the statement of founded gave a clear daughter, which indi- polygraph “I had a in reference that taken me, previously against cation that he had been daughter’s charges my to activity; criminal charged some that (emphasis was with totally erroneous” which 750 and, prejudicial polygraph a test is to take polygraph had had been offered
he thus, precedent polygraph.” taken a reversible error. presumably “ * * clear-cut, in the A.L. that as reflected not assigned unless Error not be annotation, supra. R.2d made thereto objection has been matter to which statement of the distinct 406, v. 190 Kan. 375 Emory, In State grounds for is made and the (1962), the cases referred P.2d 585 one of indicating with defi- objection, this majority opinion, the court found in the to particularity the error as- niteness and the to take test admission a refusal Sulphur Texas serted Gulf error, distinguishing the reversible Robles, Wyo., 511 P.2d Company v. the case those State v. facts 968 (1960), Smith, P.2d 510 187 Kan. 353 question there no but Accordingly, can be admonished, and re- which only ground on this can reversal In a error was not found. later versible plain error The elements for plain error. case, Roach, Kan. v. 576 State 3, supra. forth note are set (1978), Kansas court held P.2d 1082 emphasized in connection must this only admission that not only objection made with was no that not polygraph defendant to submitted refusal to to admission of the reference error, but re- test was reversible test, its admission was the current but take into evidence were sults thereof admitted stipulated by appellant. The actually stipula- view a not reversible error in only with in limine to do motion parties the same. to admit tion Michi- Michigan perhaps incident and Driver, N.J. A.2d gan polygraph. opinion (1962), majority cited in the Accordingly, application prosecutor to a that “reference hold caution requires more rule even take a lie detector of the accused to refusal was ad- instance wherein the evidence reversal,” required there much test potential stipulation. Again, the mitted on prose- by the a mere “reference more than exceedingly great. error is for invited statement, pros- opening In his cutor.” foregoing is Although I believe the dis- references made a number of ecutor issue, I on two positive of this comment take test. Portions de- refusal to First, the relative thereto. considerations taped mother’s statement were fendant’s existence of error question defendant, relative and after each played concerning testimony in admission segment, was asked take a defendant poly- willingness of a defendant to take empha- prosecution test. polygraph “ in cases in only presented test is graph saying ‘every so sized the refusal to do ” so, often refused to do he least four witnesses he refused.’ At time the fact seeks to evidence defendant, defendant interrogation testified Second, willing cases can to do he was so. testify it came time for them when *25 in which it to reflect instances cited be test polygraph to a he was asked take “ to admit to reversible error the held be refused, sup- they that ‘I am testified ” cited the testimony, and cases can be or a similar re- to mention that’ posed any can cited wherein contrary. Cases During prosecutor the sponse. the trial instruction, by an error was cured such ques- “numerous” references made it was not. See can cited wherein cases could not be men- answer which tion and prejudiсial ef- Propriety and Annotation: The court concluded tioned. “[t]he or as to accused’s of comment evidence fect handling lie detector test as- entire test. 95 willingness to take lie detector prejudicial clearly reveals pect of the case (1964). A.L.R.2d prosecu- part of the on the overzealousness tion, appellate court with no and leaves an quotes majority opinion cites the conviction.” but vacation of recourse contention support three cases proposition does not stand for The case to refusal any admission or reference fact, by prosecutor” requires “reference stipulated that it be an exhibit. reversal. And the does not make viewing in appeal. room an on issue People,
In Mills v.
139 Colo.
(1959),
P.2d 998
to take the
refusal
test
I do not
is
believe there
reversible error
offered
over
as evidence
in the admission and use of the
tape
video
“
”
guilt
flight.’
similar
‘of
to evidence
this
case.
Obviously,
purpose
such was
not the
by appellant
comment made
on the video
V. THE FOUR ISSUES ON APPEAL
tape
pur-
which was accepted into evidence
NOT
IN THE
stipulation
REACHED
objec-
suant to a
without
MAJORITY
tion.
OPINION
summary, then,
In
I believe that whether
agree
I
that the other four
alleged
errors
a reference
refusal
or not
or to the
by appellant will not warrant
reversal.
willingness
polygraph
to take
test is
a
re-
depend
versible
will
the circum-
Dr.
Testimony
Graber’s
case,
of each
factors
stances
such as
it,
emphasis given
the manner in
Appellant contends that it was error to
intentionally
which
reference occurred—
allow the emergency
physician
room
who
inadvertently nonresponsive
ques-
or
to a
—
testify
attended Mrs. Schmunk’s death to
error,
tion,
stipulation, etc.,
invited
through
prescribe
that he would
drugs
narcotic
guilt
or not
evidence of
whether
the other
“[bjecause
for his own family
I don’t trust
exceedingly
weak,
strong
exceedingly
or
myself making therapeutic decisions about
ap-
and similar
considerations.
same
members,
family
and also it’s too hard tо
should
proach
be used in each case to de-
get into an abusive matter.”
instruction,
limiting
if a
if
termine
one was
error,
Admission of
given, was sufficient
cure the
within the
if
error there was.
court,
sound discretion of the trial
and its
ruling thereon
be reversed
will not
absent
case,
stipulation
In this
for admis-
showing of a clear abuse of discretion.
sion, the manner in
which
reference
State, Wyo.,
occurred,
Hopkinson v.
pellant testified as deceased’s pellant showing plain of has burden only Not history. does medical exceptional do error. The circumstances show a clear abuse of discretion fail to exist, appellant has far not here fallen ruling, but he also does not the court’s establishing plain short error. ruling. any prejudice demonstrate toxicology The results tests were jury through testimony of before the (1) Prosecution Evidence Admission of toxicologist. The tests were State’s Toxicologist Concerning Result Of appellant’s The fact that own conclusive. by Appellant’s Expert, Test As Found toxicologist agreed with them is of no real (2) Concerning Per- From Witnesses importance, being let of material alone “Personality Changes” Ob- ceived prejudice. testimony If sim- anything, the (3) Deceased, From In- served In appellant’s ply credibility of went to the vestigator Concerning His Reasons concerning testimony the tests. own Investigative Procedures For Likewise, the comments witnesses by Him Used changes” concerning “personality observed cross-examination, appellant was On part of of little on the deceased were toxicologist he employed if asked weight placed in context of that before the findings prosecution’s review patholo- The many-day in this trial. did, toxicologist. Appellant said that he testimony gist’s concerning “theories” examination, and, he acknowl- on further. was in truth factual recitation of expert agreed the find- edged that his purpose autopsy. manner and prosecution’s toxicology ings and far Again, appellant falls short his bur- toxicologist. den to establish error. investigator through” testimony of some of the witnesses “walked investigation “personality by him in perceptions procedure taken contained doing so, appellant by them in deceased. could changes” observed the matter. possibly objected have the words used. pathologist testified as to the “theo- done, meat of the If such had been autopsy under- ries” under which undoubtedly testimony have been taken.
753 counsel, placed jury precise pendence discourage before the in a more of defense cases, proper acceptance object assigned manner. failure to may have been with intent that the testimo- attorney undermine trust between ny emphasized up.” not be or “cleaned In and client. event, considering
any the extensive testi- “Thus, deciding a court an actual ineffec- mony presented jury, I see no mate- judge tiveness claim must the reason- prejudice piece testimony. rial from this challenged ableness of counsel’s conduct Applying plаin cautiously, error rule particular case, on the facts of the the decision that there was no in viewed as of the time of counsel’s con- testimony proper. this is more than A making duct. convicted defendant claim of ineffective assistance must iden- Assistance Counsel tify the acts Ineffective or omissions of counsel that alleged are not to have been the result of allegation bases his that he professional judgment. reasonable had ineffective assistance of counsel on the whether, court must then determine in assumption properly that counsel did not light circumstances, of all the the identi- object to certain evidence. I Since do not fied acts or omissions were outside the any find error with reference to the other range wide professionally competent appeal, allegation issues on this has no making assistance. that determina- substance. tion, the keep court should in mind that presumed competent, Counsel is and the function, pre- counsel’s as elaborated in upon gauge competency standard which to vailing norms, professional is to make reasonably is “that which would be ren testing process adversarial work reasonably competent attorney dered particular time, At case. the same under facts and circumstances of the recognize the court should that counsel is State, Wyo., case.” Hoskovek v. 629 P.2d strongly presumed to have rendered ade- 1366, (1981). The decision whether or quate significant assistance and made all object any particular not to instance is a decisions in the exercise of reasonable strategy resting matter of trial with the professional judgment.” lawyer. State, Hopkinson Wyo., v. Murry Wyo., Also see v. 713 P.2d 43, 908, P.2d cert. denied 464 U.S. 104 S.Ct. (1986). 262, (1983). Applying L.Ed.2d 246 I following would affirm. test set forth in Strickland v. Washington, 466 U.S. 104 S.Ct. THOMAS, Justice, — dissenting. Chief U.S. -,
80 L.Ed.2d
reh. denied.
(1984),
104 S.Ct.
that this court is in the course of the
about what occurred
jury’s deliberations. LERCH, (Plaintiff),
William Wyoming STATE of ex rel. WYOMING Jackson, Horn, appellant. Robert W. for WORKER’S COMPENSATION McClintock, Gen., Atty. A.G. Gerald A. (Defendant). DIVISION, Appellee Gen., Stack, Deputy Atty. John W. Ren- No. 85-209. neisen, Atty. Terry Sr. Asst. Gen. and J. Harris, Gen., Atty. Cheyenne, ap- Asst. Supreme Wyoming. Court pellee. Feb. THOMAS, C.J., BROWN,
Before MACY, CARDINE, URBIGKIT JJ. URBIGKIT, Justice.
The district court denied a claim for compensation benefits to a ski worker’s employee area who sustained work-relat- injury, by holding employment ed on was not the ski race crew extrahazardous 27-12-106(a)(lv), as defined W.S.1977 § (1983 Replacement). disagree. We parties jointly presented ques- one to the district court: tion employee’s require an duties ski- “Where provide public service but do not guiding compensation include clients for employee employee is such a covered 27-12-196, meaning within the W.S. 27-12-106(a)(lv), W.S. [sic] [§ 1977].” brief, appellant, by also raised an court, equal-protection issue in the district again appeal. issue submits employed by William Lerch was the Jack- Corporation son Hole Ski as a mem- crew department. ber of the recreational race department That sets race courses and su-