Seivewright v. State

THOMAS, LEHMAN, C.J., and Before HILL, GOLDEN, MACY, JJ. LEHMAN, Chief Justice. Stanley jury County found

A Natrona conspiracy, aggra- guilty of III burglary. On robbery, aggravated vated complaints revolve appeal, who testimony of an orthodontist around from had taken a bite concluded kitch- victim's found piece of cheese that, despite re- complaint is chief en. His the State did discovery requests, peated curric- orthodontist's disclose we conclude Because ulum vitae. take failing erred district court whether to determine action violated, ransacked, though only order had been we reverse and re- had been it seemed wallet, $700, containing her missing from trial. mand for new Gone, too,

inside the home. was the victim's van, days which was recovered few later. ISSUES noticed, counter, The victim also on a kitchen Seivewright presents following the issues: a block of cheese with a bite taken out of it. discovery evidentiary Did violations and reported family The victim that no one in her deny Appellant errors a fair trial? responsible cheese, was for the bite of and a. Did the State's failure to disclose infor- the block of cheese was taken into evidence. mation about an orthodontist which the investigation, After an Seivewright ar- was proffered expert deprive State as an 21, 1996, rested on charged November and Appellant right of his to confront aggravated burglary, aggravated rob- against through him witnesses effec- bery, conspiracy. A search warrant is- tive cross-examination? permitting sued law enforcement to obtain a b. Did the district court's failure hold (dentition) impression dental from Seive- evidentiary hearing on Dr. Huber's wright, and the State retained Dr. Emerick testimony deprive Appellant of a fair Huber, orthodontist, a local to take Seive- jury trial as it invited the to convict wright's impression dentition and to make an Appellant based on inadmissible evi- from the cheese. dence? Identity was the main issue at the trial of prejudice c. Can combined of the Seivewright and his codefendant. Over by State's refusal to abide objection, Seivewright's Dr. Huber testified. discovery court's order and the district comparison On the basis of his impres- of the rulings court's erroneous be dismissed sions from the cheese with den- as harmless error? tition, Dr. Seivewright Huber concluded that Wyoming person The State of was the restates who bit the issue: cheese. Seive- wright offered no on the appellant Whether received a fair trial? subject. jury FACTS The Seivewright guilty found ag- gravated robbery, aggravated burglary, and The victim following testified to the events. conspiracy. jury The could not reach a 28, 1996, Around a.m. on October two charges unanimous verdict on the same Casper masked men entered the home of the codefendant, against Seivewright's and a victim two-year-old as she and her daughter hung jury charges. resulted on all three watched television. The shorter of the two jury further determined that is a pointed gun men a at the victim and did the criminal, habitual and he was sentenced to a talking, asking the victim where her "stuff" term of years. appeal 20 to 25 This followed. was. proved uncooperative, When the victim taped the shorter man the victim's hands DISCUSSION together tape with duct while the taller man gun. held a After managed the victim Discovery Violations break taping, free from the initial the shorter Seivewright argues the State failed to dis- man then alternated between hitting the vice- close Huber's and curriculum vi- tim, her, taping telling her to up. shut tae, materials contends were dis- The shorter man gun also held a to the back pursuant coverable ato district court order. pulled victim's head and trigger. The district court's order directed Although click, the victim heard a no bullet "[plursuant Wyoming Rule 26.2 of the taping job fired. The finally completed Procedure, produced Rules of Criminal to be taped when the men the victim's head and begins, any before trial written or recorded hands to the headboard her bed. possession statement of a witness ... in the attorney left, for the of Wyoming

After the intruders State the victim freed telephoned herself and police. Her home which attorney Wyoming for the State of probable specif- of a showingof a existence relate to reasonably obtain which may either ic document but the State denies witness about which the subject matter testify." ... that it is a "statement" within will existence or rule, court the definition of the the trial trial, Seivewright filed "Motion Prior to duty to determine such issues has the Daubert[1] which, in addition to Hearing," inspection or otherwise. in camera admissibility of requesting "discovery relat testimony, requested (Wyo. Hubbard v. any reports, calcula such as ed to this issue 1980) Nickell, (citing U.S. v. 552 F.2d examinations, tests, in tions, other (6th Cir.1977)) (court pow has "inherent arriving at his used in this doctor formation prosecution produce require [wit er to conclusions, copy of this doctor's as well as may get so that the defense statements] ness trial court did not vitae." The curriculum full of eross-examination and the the benefit discovery, and the request for rule on this enhanced.") process may truth-finding be request. the reply to did State Nobles, 225, 231, (quoting v. 422 U.S. 95 U.S. Seivewright correctly points out that State 2166, (1975); 45 L.Ed.2d 141 S.Ct. hearing with the pretrial a did not schedule (1st U.S., Harney 306 F.2d 533 Cir. v. of these matters. for consideration trial court 1962); Robinson, F.2d 280- U.S. However, immediately Dr. Huber tes before (7th Cir.1978) (once bur defendant meets tified, requested a to specifying particulari with reasonable den of testimony would be clarify Dr. Huber's what exists, that there ty that a certain document requested the documents he and demanded "statement," a reason to believe it is is Specifically, pretrial motion. Seive- in his provide it in government that the failed to that, the court de informed wright's counsel Act, the Jencks "a court must violation of prosecutor, the he spite repeated requests to inspection to conduct an in camera then cur copy Huber's had not received rel the document is both determine whether the argument from riculum vitae. Without 'statement.'"); competent evant and a denied the trial court (5th Cir.1978); Resnick, 483 F.2d proceed with the State to motion and allowed U.S., (D.C.App. 633 A.2d testimony "subject objections Jordan v. to Dr. Huber's (The 1993) of mov has the burden questions." After Dr. Huber defendant particular testimony, Seivewright production and is entitled to eross- completed ing his trial for testimony, argu probe Dr. Huber's for the informa moved to strike examine witnesses provide him with the ing failed to judge the State has the affirmative tion. "The trial vitae in violation of report determine, the curriculum presence or the of the duty to out of trial court denied discovery order. The in the exist and are jury, whether statements motion, explanation. so, without this and if government, possession of under the they qualify as statements whether anything court's failure to do The district conduct The trial court must Act." [Jencks] discovery if viola- there was to determine necessary to aid the inquiry is whatever contrary law and that of to our case tion is responsibility to discharging this judge in jurisdictions have considered which other duty "The to determine the statute. enforce procedure determining for whether proper ... exists 'rests with whether a statement witness report or of a State's statement party a burden bears judge; the trial neither by the produced upon demand should be may skew proof persuasion or accused. We have written: Annotation, result.'"); Proper Procedure a re- cannot obtain Although a defendant for or Alleged Determining Statement Whether reports any all combing of or view or be Witness Should witnesses, Report Government with interviews of having to do Demand, Under on Accused's specific Produced production of a he is entitled $500), (18 prima facie Jencks § 1 A.L.R. Fed. If he makes a "statement." Act U.S.C. (1993). Pharmaceuticals, Inc., v. Merrell Dow 1. Daubert S.Ct. 125 L.Ed.2d 509 U.S. (1969).2 26.2, In accordance with W.R.Cr.P. party if a comply elects not to with an order "prima made a facie statement, to deliver a the district court has showing" probable existence of two options three sanctioning that behavior. statements, and the curriculum requires The rule that the trial court "shall vitae, pretrial in again his motion and at trial. (1) permitted order" that the witness not be level, At the trial court the State neither (2) testify; or argued they denied their existence nor were (8) record; witness be stricken from the if not statements within the definition found in attorney for the State elects not to com clearly W.R.Cr.P. 26.2. The documents were ply, the court shall declare a mistrial if in reasonably existence or obtainable before required justice. in interest attempted deadline. The State 26.26). W.R.Cr.P. The rule mandatory signed to have the doctor's March respects; all it does not allow the district evidence, report admitted into and the doctor court discretion to refuse to act in the

repeatedly report during referred to the face of allegations uncontradicted of discov testimony. The doctoralsoadmittedhe had ery prosecution. violations a criminal Al a curriculum vitae but failed to it send to the lowing Seivewright object "particular addition, strong State. there is reason to questions" at trial is not one of the sanctions believe both the curriculum vitae and the Thus, by mandated the rule. it cannot be report are material statements under the argued that the ruling district court's was rule qualify because both could as "written parameters within the despite of the rule its adopted approved ... by statement[s] or the failure to determine if discovery the order 26.2(F). witness." W.R.Cr.P. In the case of had been violated. witness, expert an qualifications in which go admissibility to both weight, a vitae is Seivewright When alleged the State by material information opposing which the comply 26.2, failed to with W.R.Cr.P. party's can challenge expert's counsel district court should have ordered the State See, qualifications credibility. e.g., to submit the documents for in in camera Mannarino, (D.Mass. F.Supp. spection or hearing held a to determine 1994) (informant's handwritten list of crimi report whether the and the curriculum vitae - "statement"). history nal a signed A re fell purview within the of the rule or the port measurements, including observations, pretrial discovery order. Failure to take and conclusions can likewise be used im action at all violated the rule and was revers peach expert's analysis and conclusions. ible error. State, But Fortner v. 932 P.2d 1286- cf. (decided (Wyo.1997) 16; under W.R.Cr.P. on, Before moving we must address supported no evidence defendant's claim that an issue argument raised oral before this expert conducted experiments). tests or process court. In the of moving to strike Dr. When a district court fails to consider a testimony, Huber's Seivewright's counsel in defendant's claim that the violating that, State is formed the district court while he had and, discovery therefore, order provided rules of never copy been of Dr. Huber's procedure, criminal perform it fails to report, its he had stating received a letter Hubbard, duty. 618 P.2d at 556. When Huber's conclusions. At argument oral court, Seivewright this production the State moved for asserted that the of the statements, the trial court duty had a and the letter to counsel were alternate determine, by inspection in camera or other terms used to describe the same document. wise, However, whether the pro documents should be we have neither the letter nor the duced. report before verify us to this assertion. If 2. The (1961); Watson, substance of the Jencks Act was later L.Ed.2d 428 State v. 173 W.Va. 26.2., adopted into compara (1984) ("'Because F.R.Cr.P. which is many 318 S.E.2d ble, identical, although provisions to W.R.Cr.P. 26.2. incorpo of the of the Jencks Act are Wright, See 3B Charles Alan Federal Practice and rated into Rule 26.2, commentators, as well as Procedure, Criminal, (1999); App. C at 274-75 courts, have used Jencks Act cases to interpret it.") U.S., 365 U.S. 81 S.Ct. Campbell 421, 5 reliability, factors should be consid these fact was of that assertion believed counsel emphasized that Id. at 475. We also ered." record argument, necessary at oral methodology by supplemented the State have been should mo- 8.04. No with W.R.A.P. in accordance distinguished from the conclu- should be made. the record supplement tion Thus, expert. judge a trial sion of the not determine the need not and should Clause Confrontation validity of the conclusions offered scientific the State's fail- Rather, contends also expert to decide witness. re- discovery of Dr. Huber's provide ure to admissibility, judge only trial should deprived him of his vitae port and curriculum general sci- consider the soundness Be- right to confrontation. principles reasoning constitutional on which the entific reversal, that, upon confident we are propriety cause relies and methodology applying principles require compliance those will the district court order, will not arise this issue specific facts of the case. it here. not address and we need again, Id. at 472-78. review, performing our it is well Testimony

Expert of the district established that the decision complains the district court reject expert testimony is a court to admit or to deter- failing grant erred solely decision within that court's discretion. admissibility Huber's testi- of Dr. mine the State, (Wyo. Springfield v. 860 P.2d admissibility determining mony. When State, 1993); Betsle v. court's (Wyo.1993); Braley v. P.2d perform it to requires function gatekeeping (Wyo.1987). Recently, expanded on we several duties: of review. that standard First, determine court must kind The trial court must have the same technique methodology or whether deciding an ex- latitude in how to test expert to reach his conclusions by the used or pert's reliability, and to decide whether so, deter- If the court must is reliable. briefing proceedings special when or other testimony proposed mine whether reliability, investigate as it are needed to particular case. the facts of the "fits" enjoys it decides whether or not when 467, Jamieson, P2d 471 Bunting v. 984 testimony expert's is reli- that relevant Dow (Wyo.1999) (citing Daubert v. Merrell opinion in [General Our Joiner able. Inc., 579, 592-93, Pharmaceuticals, 509 U.S. 136, Joiner, 118 v. 522 U.S. Electric Co. (1993)). 2786,2796, 469 125 L.Ed.2d 113 S.Ct. (1997) 512, ] L.Ed.2d 508 makes 139 S.Ct. Jamieson, Bunting we cited Daubert's In v. appeals apply an court of is to clear criteria to be used list of four non-exclusive when it "re- abuse-of-discretion standard of relia guide the trial court's assessment or court's decision to admit view[s] a trial 1) theory technique in or bility: whether the at expert testimony." 522 U.S. exclude 2) tested; has question can be and been 138-39, ap- That standard 118 S.Ct. 512. subjected peer review it whether has been trial court's decisions plies as much to the 3) potential publication; its known or reliability to its as about how to determine along with the existence rate of error Thus, whether ultimate conclusion.... controlling the of standards maintenance not, are, or are specific factors Daubert's 4) degree of technique's operation; and reliability in a reasonable measures com acceptance the relevant scientific within law particular is a matter case Jamieson, P.2d at munity. Bunting v. 984 judge to de- grants the trial broad latitude criteria, however, ap cannot be 472. These termine. step in plied every in case: initial "[the Jamieson, (quot- P.2d at 470 Bunting v. 984 admissibility expert testimo reviewing Carmichael, Co., Ltd. v. 526 ing Kumho Tire the Daubert determination whether ny is the 1167, 1176, 137, L.Ed.2d 148 testimony 119 S.Ct. specific at U.S. apply to the factors (1999)). "Otherwise, judge the trial measures 238 they are reasonable issue. Where 30 Indeed, discretionary authority proper subject expert testimony. need for

would lack the 'reliability' pro unnecessary question ed both to avoid the courts faced with this have ceedings ordinary in cases where the reliabil unanimously concluded that bite mark com ity expert's properly methods is taken parison proper subject of an is a for testi require appropriate pro granted, Annotation, for and to mony. Admissibility See Evi complex in or more ceedings the less usual Tending Identify dence Accused His questioning the ex (1977 cases where cause Marks, Own Bite 77 A.L.R.3d & Co., pert's reliability arises." Kumho Tire Supp.). majority While the of cases Carmichael, 137, 119 at Ltd. v. 526 U.S. S.Ct. bites, approved involve flesh courts have also decision to decline 1176. The district court's involving bite mark identification in cases reliability re hearing to hold a is therefore Ortiz, v. various foods. See State 198 Conn. Id.; (1985) viewed for an of discretion. U.S. abuse (partially 502 A.2d eaten (10th Charley, v. 189 F.3d Cir. State, apple); Banks 725 So.2d 714-16 Nichols, 1999); U.S. v. 169 F.3d 1262- (Miss.1997) sandwich; (bologna conviction re (10th Cir.1999). destroyed versed because state sandwich be examine); Doyle fore defense could Seivewright's Because motion for a (1954) Tex.Crim. S.W.2d 779 hearing provided Daubert the district court (cheese, appeal). but not raised as issue on evidentiary with little reason to hold hear acceptance Given the wide of bite mark iden analyze ing to Dr. Huber's we find tification failure no abuse of discretion the district court's present challenging evidence the method hearing. Seivewright's refusal to hold such a ology, we no find abuse of discretion in the provided motion the district court neither evidentiary district court's refusal to hold an authority methodology to establish the analyze technique testimony. Dr. Huber's being applied was unreliable nor simply exercising The district court was did it assert that another would refute short, "discretionary authority ... reliability. nothing to avoid unnec did boldly essary 'reliability' proceedings ordinary more than assert that Dr. Huber's reliability expert's was unreliable. these cir cases where Under of an cumstances, properly granted." we conclude there was no abuse methods taken for Co., Carmichael, of discretion in the district court's refusal to Kumho Tire Ltd. v. hearing. S.Ct. 143 L.Ed.2d 238. hold a Daubert subjects While this is not true for all of requires Our conclusion on this issue ex expert testimony, we are comfortable that it principle being amination of the scientific is true under the cireumstances of at the case applied. mark Bite identification is based on bar. theory uniqueness. of "Identification of suspect by a matching his dentition with a foregoing, Based on the we also conclude mark bite found on the victim of a erime [or Jamieson, 467, Bunting v. 984 P.2d is theory a substance] rests on the that each distinguishable. There we wrote: person's dentition unique." is 1 Paul C. [Wle believe that the trial court's decision Imwinkelried, Giannelli and Edward J. Sci dispose by precluding expert to of a case Evidence, (3rd ed.1999); p. 583 State entific testimony requires judi- the same level of Jones, v. 124 S.C. explanation supporting cial its discretion- (1979). Although several methods of bite ary decision as the admission of analysis reported, mark have been "[all exception. under the catch-all A single (1) steps: registration methods involve three conclusory applying statement one nondis- dentition, suspect's of the bite mark and the positive Daubert factor is insufficient. (2) comparison of the dentition and bite broadly, Id. at 475. Read too this statement (8) mark, points evaluation of the of interpreted require findings could be to in similarity dissimilarity." or Imwinkelried at However, every expert testimony. case of 585. every subject expert testimony ap- is seriously propriate application does not con for of the Daubert fac- Jamieson, tend that Bunting bite mark identification is not a tors. v. 984 P.2d at 475. Dr. The record establishes that Huber has testimony in Moreover, expert unlike the Jamieson, reliability practicing nearly of the a orthodontist been Bunting v. identification) (bite mark expert's years. being methods In to certified addition board case, in this granted taken for can be in degree orthodontist with a master's unnecessary. a related findings On were field, previously qualified testify he to an as note, Seivewright challenges extent in to the expert. He has also worked the field of Seivewright bit conclusion that Dr. Huber's coroner, odontology, forensic for the local cheese, go weight challenges these completed since 1980 and has numerous reliability of the testimony, not in courses that field. Given these creden (bite identification), and methodology mark tials, we can find no abuse of discretion in jury.> Id. at 472- matters best left to a are permitting testify despite Dr. Huber in the find no abuse of discretion 73. We People lack of certification. ABFO See hold a Daubert court's refusal to district Williams, App.3d 128 Ill. 83 Ill.Dec. hearing. (1984) (Trial 470 N.E.2d court complains that Seivewright also testify properly allowed dentist as bite court's failure to hold expert despite mark identification lack of tes in the admission of inadmissible resulted board certification field of forensic odon- testimony was in timony. He contends the tology. expert only experi "An need have quali because Dr. Huber was not admissible knowledge ence and which is not common to testimony in the field and to offer fied world."). ex admissions under cross that the doctor's reviewing In this out. amination bear complains Hu also issue, keep in we mind that the qualification testify qualified ber was not because of of a qualification determination wit admissions the doctor made under cross-ex expert is vested within the discre ness as an admitting amination. In addition to he was the trial court and that determination tion of Dr. Hu expert, qualified," not an but "most only when an abuse of will be overturned that, training without as a dentist ber stated State, 847 P.2d discretion is shown. Betzle orthodontist, even trial 1022; State, Montoya v. 822 P.2d at opinion counsel could have rendered State, P.2d (Wyo.1991); Noetzelmann v. particular person a bite of a whether a took (Wyo.1986). wit Unless is, however, piece It the function of cheese. unqualified, clearly deficiencies ness jury out the weaknesses and sort weight ac qualifications normally go to the strengths expert testimony. Betzle v. rather than corded witness's Kitts, 1023; Runnion v. 847 P.2d Betzle, 1023. admissibility, 847 P.2d at (Wyo.1975). "Vigorous attacking qualifica Dr. Huber's cross-examination, presentation contrary tions, complaint is that Seivewright's chief evidence, and careful instruction on the bur expert qualified not to offer Dr. Huber was appropri proof the traditional and den of are testimony by not certified the because he is attacking shaky admissible ate means of but Odontologists American Board of Forensic Jamieson, P.2d at Bunting v. evidence." (ABFO), which has established standards Dow Phar (quoting Daubert Merrell expert an in qualification testify to as the maceuticals, Inc., at 113 S.Ct. However, odontology. forensic Seive- field of 2798). at authority establishing wright directs us to no analogous in Runnion find an situation We prerequisite to is a that ABFO certification There, Kitts, highway 1310. expert in the field of forensic testifying as an testimony patrolman expert on the offered Indeed, expert only odontology. an need plaintiff's at the time of speed of the vehicle skill, experience, "knowledge, have sufficient appeal, the defendant's. On its collision with qualify to as an ex training, or education" complained patrolman's testi plaintiff the Therefore, the question the pert. W.R.E. 702. he improper he admitted mony because was qualified was simply whether Dr. Huber is testify despite his lack of ABFO certification. wrote: expert. an This court was not modesty, highway patrol-

With some the an witness the defense as error cross-examination, man, in per answer se. I question have some as to whether question, qualify yourself all, the 'You don't as it constituted error at I but am con expert?, replied, Regardless that, 'No.' conceding vinced purposes error for himself, debate, how the witness classified he did any this error was harmless. The pretty good job expert, and in [dlo was majority opinion, respect to the claims light experience knowledge of his and by Stanley Seivewright, of error can be ability to use the skid calculator tools briefly First, summarized. it holds that the given highway department, to him failure of the trial court to take accepted which had an basis in accident steps in articulated 26.2 W.R.Cr.P. was re investigation. Apparently, jury versible error. Then it is noted that Seive- impressed not that he was as uninformed wright had stating received a letter Dr. Hu attempted as the cross-examiner to make ber's conclusions. The claim of violation of him out. right constitutional to confrontation was addressed, not as well it should not be. Kitts, Runnion v. 531 P.2d at 1310. The majority opinion then addresses similar, situation here is and we conclude Dr. failure hearing, to hold a so-called Dawbert1 go weight Huber's statements to be that rules no abuse of discretion oc given admissibility. his and not to respect curred with to the failure to hold Finally, Dr. testimony Huber's was more Next, hearing. such a majority refutes than involved his admission under cross-ex- argument the orthodontist was not helpful amination would indicate and thus qualified expert testimony. to offer The net only the trier fact. Not did he make the effect is that no error in occurred the ad impressions of the Seivewright's cheese and testimony mission of the of the orthodontist teeth, performed Dr. Huber thorough a more evidence, into but reversible error occurred examination than naked-eye analysis sug- because the trial court never ordered the gested by defense counsel. Huber ex- production or the curriculum plained spacings how he measured the teeth prior vitae to trial. conclusions, reaching in explained in de- peculiar tail idiosyncracies found normally One expect explana- would some dentition, ultimately con- prejudicial, tion of how that failure was but cluded had bitten the prejudice assumed, simply explained. cheese. The helpful was thus testified, Before the orthodontist defense fact, the trier of and we find no abuse of objections: counsel offered these discretion in its admission. Honor, Your I had filed a motion I believe May, requested back late I where

CONCLUSION Daubert concerning the ev- State's witness, idence of their Dr. Huber. The district court's failure to determine And I request again would that we have a compliance with requires order hearing-a hearing-with respect Daubert reversal in this judgment instance. The type testimony. to that sentence entered in the district court is re- versed, and this case is remanded for a new My understanding is that the State's trial. going evidenceis to be that the dentist can

offer concerning impres- dental THOMAS, Justice, dissenting, with piece whom sions of this of cheese that has been HILL, Justice, joins. admitted into evidence.

I dissent from the resolution of challenge type this case I would testimony this of according majority opinion. being-as It treats being proven as to have the failure to reliable, furnish the curriculum scientifically vitae of been and I think we Pharmaceuticals, Inc., (1993). 1. Daubert v. Merrell Dow 113 S.Ct. 2786, 125 LEd.2d information, types of which I be- scientific exactly the clarify what hearing to

need a appropriate prior lieve had to be deemed testimony is. testimony. to his Honor, add, Your that further I would motion, requested I had I filed this when Also, reason I would move to the second the dentist's cre- provided with that I be is that his entire was strike prosecu- dentials, [the I have talked to and of order. violation this Court's believe, tor], couple of times and have I off, any not receive informa- First we did approached the just I him before asked dealing tion with his creden- whatsoever if I asked he had podium today, here and tials, ability obviously my and that affects credentials, and he does not. the dentist's effectively repre- to to cross-examine and what the dentist's I have not seen So my sent client. or not he's are and whether credentials Furthermore, testified that he took he type thing before or this ever done analysis. calculations and notes his qualified to do it. And not he's whether or Well, absolutely information on we had no get that we need to those are issues I feel one letter analysis. his All we have is testify. IAnd he is allowed to into before basically-or stating his conclusions. provide those demand that State would And, Honor, effectively repre- Your to the witness takes to me before documents client, obviously analy- my sent I need his in this courtroom. and testifies the stand pertaining any other information to sis effort, nor counsel then made no Defense any expert testify- that. And I believe submitted, a voir request to conduct any testify to ing-if they going are to prior to testimo- the orthodontist his dire of knowledge anything involving scientific sue- being received. Defense counsel did ny any type analysis or mathe- of scientific object into evi- cessfully to the admission to analysis-the defense is entitled matical report, the orthodontist dence of the which coming prior information to to court that testimony. throughout to his When referred him, and being for able to cross-examine of- the orthodontist was the conclusion of that and being also for able to evaluate objection fered, counsel renewed defense not we need to have determine whether or stated, objected previously to if it and determine someone else evaluate it had not relating to the cheese because valid or not. it's for failure to admitted into evidence been Honor, months the State has had Your custody. The ortho- establish the chain provide to that months and months explained had done in then what he dontist They had never done so. information. compare Seivewright's dental char- order "I says, gets The witness stand of cheese. On acteristics with the block my vitae to just provide didn't curriculum cross-examination, ques- defense counsel attorney being after asked to extensively about his tioned the orthodontist so, get to it." I didn't around do because education, experience special training and Honor, my for is no reason Your testifying. In the course of respect looking when he's prejudice client suffer testified that his the orthodontist penitentiary, because this life delivery accomplished the he never had those get around to it. For doctor didn't attorney. curriculum vitae to the district Honor, reasons, strike. I move to Your of the orthodontist's At the conclusion added.) preju- (Emphasis The nature examination, and redirect cross-examination identified, beyond the suffered is not dice objections, say- renewed his defense counsel present, any more than it is it is claim ing: majority opinion. in the identified Honor, again like renew I would Your me that foregoing tells Testimony of Dr. my to Strike the Motion report nor the neither the so-called two wanted I it is inadmissible for believe Huber. vitae, opportu- he wanted the but my request I curriculum One is that believe reasons. having Tri- them. ap- nity complain about not a Daubert is now deemed 30, and it continued began al June I the doctor testified propriate. believe July rights Motion for through disregard- 1997. The Dau- affect substantial shall be ed. 27, 1997, Hearing May bert was filed on recites, things, among

it other as a reason for 52(a). W.R.Cr.P. We have declared that the the motion: nature, procedural criminal rule is and it adjust any did not substantive law presented 1. The state has evidence to State, way. Hays v. 522 P.2d counsel that it intends to introduce

defense (Wyo.1974). analysis concerning evidence of bite Specifically, defendant. the state intends rules, applying In these we have said: to introduce evidence that the defendant "If by admitting the trial court erred piece out took a bite of a of cheese while evidence, we then must ascertain whether complaining inside the witnesses' home. any rights affects substantial error The state seized defendant's false teeth accused, providing grounds for rever- Huber, D.D.S., M.S., and had Emerick sal, or whether it is harmless. The harm- conduct an examination of the cheese as less error standard is set out in W.R.A.P. well as defendant's teeth. Dr. Huber con- 9.04: impression cluded that defendant's dental error, defect, 'Any irregularity or vari- impression

matches the dental taken from ance which does not affect substantial piece of cheese taken from the home. rights disregarded by shall be the re- viewing court.' 27, 1997, May It is clear to me that as of enough counsel See also W.R.Cr.P. 52. An is harm defense had information to error possibility ful if there know what reasonable going orthodontist was about, might the verdict testify have been more favor enough and at least information if able defendant the error had degree to include his dental and his masters State, never occurred. Kolb v. 930 P.2d degree in the motion. The defense must State, (Wyo.1996); Kerns v. copy report, have had a which was (Wyo.1996). P.2d To demonstrate prosecution offered as a exhibit and excluded error, objected. harmful when the defendant must show prejudice under 'cireumstances which man Stipulated Requiring Discovery The Order injustice, ifest inherent unfairness and 7, 1997, according was filed on March but public conduct which offends the sense of the orthodontist's his notes of State, play.' fair Johnson v. 790 P.2d measurements were discarded after he for- State, (Wyo.1990); see also Roderick mulated his conclusion from the examination (Wyo.1993)." 858 P.2d February, he conducted in likely late State, Ryan (Wyo.1999) 988 P.2d 52-53 were not available as of the time of the (quoting Solis v. (Wyo. event, any order. there is noth- 1999)). difficulty majority opin with the ing prejudice to demonstrate as a result of ion in this case is that it does not articulate being those notes not available. The thrust how these standards were satisfied more of the orthodontist's was not much than argu does in his brief and complicated matching pieces more than of a ment. picture puzzle. prior It is clear from the record that avail- We have formalized in Wyoming our Rules ability of the orthodontistand Appellate Wyoming Procedure and our his curriculum vitae could not have affected concept Rules Criminal Procedure the by the cross-examination the defense attor- appellate provides: harmless error. The rule ney. The orthodontist testified that he sub- error, defect, Any irregularity or vari- stantially reported curriculum vitae dur- ance which does not affect substantial ing by prosecuting direct examination rights disregarded by shall be the review- attorney. request Defense counsel did not ing court. opportunity to voir dire the orthodontist provides: W.R.A.P. 9.04. The criminal rule prior to his about the cheese and (a) error, defect, error.-Any Instead, impressions. Harmless the dental he chose to irregularity cross-examination, may or variance which does not attack that which play."*" Ryan, 988 P.2d at 52-53 (quoting strategic have been a may decision. Counsel preferred have that there be ruling Solis, 36). no on the 981 P.2d at His conviction should expert qualifications of the be affirmed. The State of Wyoming, Natro- prior orthodontist objected because had he to na County, and the citizens should not have qualifications, judge trial obviously expense bear the of another four-day trial would have objection. overruled that It in this case. It is appropriate impose abundantly clear from the record that that burden because of the identification of available, defense had prior at or technical error. cross-examination, report of the ortho- dontist, although he testified that notes and

measurements he made to construct his let-

ter had been destroyed.

The majority opinion does not include in

the discussion of the facts other evidence

that impact has a clear upon any prejudice to Seivewright. day The robbery, before the The STATE Wyoming DEPARTMENT Seivewright neighbor told his that he and his REVENUE, Appellant OF

co-defendant intended to rob some females (Petitioner), Street, on Pine which is the street where the victim's home is located. The information given the neighbor included the fact that AMOCO PRODUCTION COMPANY and Seivewright would do the "manhandling" and Rocmount, Appellees Amoco accomplice would do the talking. The (Respondents).

victim testified she would recognized have No. 98-65. Seivewright's voice since she had known him years. three co-defen- Supreme Court of Wyoming. ex-girifriend dant's testified that Seivewright May 2000. and the co-defendant stayed at her house overnight before the robbery. They left the Rehearing Denied June 2000. morning of the robbery a.m., around 8:45 robbery was initiated around 9:00 a.m. They a.m., returned about 10:00 divided some cash, joked about the robbery, including

the fact that they had taken the victim's van. ex-girlfriend witnessed the two men clothes,

changing and she saw Seivewright

pull out gun lay it on a An table. jail

inmate who had been in with Seivewright

testified that he overheard talk-

ing about robbery, later

told him perpetrated that he had the rob- bery.

All this beyond makes it clear any perad-

venture of doubt there was no possibility

"'reasonable the verdict

might have been more favorable to the defen-

dant if the error had never occurred.""

Ryan, Solis, 988 P.2d at (quoting 981 P.2d ' 36). Seivewright has failed to meet his "' showing burden of "cireumstances which

manifest inherent injustice, unfairness and or -

conduct which public offends the sense fair

Case Details

Case Name: Seivewright v. State

Court Name: Wyoming Supreme Court

Date Published: May 31, 2000

Citation: 7 P.3d 24

Docket Number: 98-56

Court Abbreviation: Wyo.