State v. Heiner

Petitioner, Wyoming, The STATE HEINER, Respondent. F.

Deon

No. 83-83. Wyoming.

Supreme Court

May prosecuting attorney

informed the of his responsibility to demonstrate the reason- ableness of the seizure of evidence. The Wyoming sought review of these Gen., McClintock, A. Atty. Gerald A.G. pretrial rulings pursuant petition to a for Stack, Gen., Allen C. John- Deputy Atty. writ of certiorari. It is our conclusion that Gen., son, L. Hub- Atty. Michael Sr. Asst. authority this court does have the and.re- Adcock, bard, Gen., Roy D. Atty. and Asst. sponsibility pretrial to review rulings such County Atty., petitioner. for Lincoln judges trial in the exercise of its discre- Goulding L. and Ted C. Frome Gerald tion. The facts and the law disclose that Afton, respondent. Goulding, Frome & rulings of the trial court were errone- ous, and we therefore will reverse those ROONEY, C.J., THOMAS, and Before rulings. ROSE, CARDINE, and JJ. BROWN 22, 1982, On December a criminal com- THOMAS, Justice. plaint justice peace was filed of the County, charging Lincoln Deon urged In this instance this court is § 6-7-101, Heiner with arson violation of authority of its address W.S.1977,1 and with arson with intent to review, certiorari, pursuant to a writ defraud his insurer violation of 6-7- granting of a trial court a motion to 105, W.S.1977.2 Deon Heiner then was ar- suppress evidence in a criminal case. If pursuant upon rested to a warrant issued authority present we then are asked 11, complaint, January the criminal and on the State of to determine 14, 1983, 13 and preliminary full-blown inventory personal property whether examination justice was held before the destroyed in a claimed to have been fire peace. At pre- the conclusion of that suppressed involving should be in a case liminary justice examination the charges of arson and arson with intent to peace probable found that there was cause injure company. and defraud an insurance alleged to believe that the crimes in the pretrial ruling by We also must address a complaint had been committed and that the impose upon the district court which would defendant had committed those crimes. demonstrating burden of 15, 1983, February transcript reasonableness under constitutional stan- On justice peace dards of the seizure of evidence obtained at proceedings court, by investigators February the scene of the fire em- filed the district and on 1983, ployed by company. 22, the fire insurance an Information was filed granted sup- substantially district court the motion to district court which was iden- press complaint the evidence in the form of an un- tical to the criminal earlier filed. inventory personal property sworn fur- The arraignment case then was set for on adjuster, 28, 1983, 22, February February nished to a fire insurance and and on 6-7-101, W.S.1977, 6-7-105, W.S.1977, provides provides 1. Section as fol- 2. Section as fol- lows: lows: “Any person willfully maliciously "Any person willfully who and who and with intent to injure sets fire to or burns or causes to be burned or or defraud insurer sets fire to or aids, burning procures attempts who counsels or burns or to do so or who causes to house, aids, any dwelling occupied, procures whether unoc- be burned or who counsels or vacant, kitchen, cupied any shop, burning any building, per- or or stable structure or thereof, parcel property, or other outhouse that is or sonal ter, of whatsoever class or charac- belonging adjoining any property to or thereto or whether the of himself or of another, standing land, public privately timber on or owned at the shall time be insured property person, company corporation against whether the of himself or of another, fire, guilty damage by guilty shall arson first loss shall be of a thereof, thereof, degree, felony upon conviction be sen- conviction be sen- penitentiary penitentiary tenced to the for not less than tenced to the for not less than (5) (2) (20) (1) twenty years." years.” two nor more than one nor than more five ceived admitted pursuant into evidence and no entered order was testimony reset for March or comment shall be received matter was which the same, counsel. list request respecting of defense and the is here- at the the case suppressed, being the court set March said list identified On 2,May to be held on pretrial conference Plaintiffs Pretrial Memorandum date defendant on that same Exhibits 76 Suppress Evidence filed a Motion being evi- “2. Before admitted into Thereon, stating: Limit Comment dence, any other exhibit that makes ref- herein and now the Defendant “Comes through erence Plaintiffs Exhibits 76 to suppress court all evidence moves the to 87 shall have the material that makes employees and gathered by agents reference to Plaintiffs Exhibits Company, by of- Insurance Farmers from the 87 blocked out Exhibit Wy- employees of the State of ficers jury. not be to the so to visible re- the time that the State oming after suppress “3. to all Defendant’s motion line fire tip on hot ceived a their preju- other is denied without by caused at home of Defendant was dice.” ‘Mer- his read was Defendant until arson In the meantime the State had filed the reason Rights anda’ [sic] sought order Motion Limine which on, was moment the Defendant counsel not to ex- “directing the defense suspect for that crime. following amine witnesses as State’s alternative, deny court “In the should the -gave to whether or not said witnesses motion, then Defendant moves the above warnings prior the defendant Miranda gained as to strike all evidence the court their interviews of the defendant: to Cheryl taped of a interview with a result “Jerald Hansen Defendant, Heiner, taken the wife of Greg Cline by Deputy Fire on December Halladay Brent Reikofski, Marshall, or- Tim and for an inter- limiting any Lynn Borg comment in that der matter; and, this the trial of at .view inquiry in mat- “Plaintiff states that for an “The Defendant moves to be would be both sought excluded ters list of suppressing as evidence a to case order immaterial and irrelevant to by police Defendant offi- personal property given were that the witnesses Hansen, adjuster an insurance behalf Farm- acting Gerald cials were on Co.; inquiry by Group, Insurance and such employed Farmers ers Insurance limiting any on order comment would tend to confuse defense counsel Moreover, of this were jury. that list at trial case.” the interviews non-custodial.” 4, 1983, hearing held April On by the court. was denied Sup- This motion the court to deal with the Motion There- press and Limit Comment Evidence May 17, was reset for the case On on, unavailability of and because 20,1983, 13,1983, May on and on trial June hearing weather that witnesses due Review, or Writ of Writ a Petition for May May 1983. On was continued Certiorari, Prohibition, or Writ or Writ of Sup- 16, 1983, its the court entered Order in this court Mandamus was filed perti- provided in pressing Evidence which 25, 1983, an May Wyoming. On part nent follows: was en- Granting Writ of Certiorari Order hereby and DECREED “It ORDERED and the Writ Certiora- tered this court that: trial court. Pursuant ri issued to the further Granting Writ of Certiorari the Order suppress “1. Defendant’s motion were in the district court proceedings items household items other list of on disposition of the case stayed until the Hansen to Gerald given by Deon Heiner re- certiorari. list shall not be granted and the to this court the State dards reasonableness of the seizure of In its brief wire, presents photographs, its statement of is- evidence such as burned sample follows: and a of a chemical substance from sues as by investigators the scene of the fire em- THE TRIAL ERR IN “I. DID COURT ployed by company. the fire insurance THE INVENTORY SUPPRESSING regard we note that the essence of the BY GIVEN SHEETS VOLUNTARILY ruling by municipal judges in City THE DEFENDANT TO INSUR- THE Mengel, supra, Laramie v. THREE AF- was that evi- ADJUSTOR DAYS ANCE FIRE, dence of a person THE ON THE BASIS OF refusal an accused TER TO submit to a chemical test to determine ENTRAPMENT OR FAILURE PRO- MIRANDA WARNINGS? blood alcohol content was not at VIDE admissible the trial of the in City case. We did note “II. DID THE TRIAL COURT ERR IN Mengel, Laramie v. that review IMPLICITLY HOLDING THAT THE of pursuant providing to the statutes for a bill AMENDMENT APPLI- FOURTH WAS exceptions city. of was not available to the CABLE TO THE SEARCH AND SEI- ..opinion quoted language In that we BY PRI- ZURES ACCOMPLISHED INVESTIGATORS, Afton, Wyo. Call Town 278 VATE INSURANCE of P.2d 270 in REQUIRING THEREBY THE which the court ob AND in served substance that the writ of certio- STATE TO SHOW THE REASONABLE- good purpose THE A rari subserves a NESS OF SEIZURES AS FOUN- instances PREREQUISITE (or exceptions) AD- DATIONAL TO which bill of plain, speedy adequate. MISSIBILITY?” is not With respect rulings suppress impor to which The defendant articulates the issues to be tant evidence to be offered the State in way dealt with in this in his brief: inadequacy a criminal the of Supreme juris- “1. Does the Court have the acquittal bill of after an appeal? hear diction to patent. simply We then would add to the does, it “2. If it should decline to hear in City authorities cited Laramie v. of general policy grounds? such cases on Mengel, supra, references to State v. John Supreme “3. Should the Court overturn son, Tenn., (1978); 569 S.W.2d 808 State suppression the Trial Court’s Order on of McCormick, Tenn.Cr.App., 584 S.W.2d 821 evidence? (1979); Bradfield, Wash.App. investigative employees “4. Should the (1981); 630 P.2d 494 Exchange of Farmers Insurance treat- be Chatmon, Wash.App. P.2d police ed like officers and should their (1973). respec In these several cases the gathering conduct in information be held recognized propriety tive courts of a required to the same standards as that pretrial rulings of certiorari to review writ police Wyo- officers of the State of relating suppression to the of evidence. ming?” case, In this City like Laramie v. question authority The threshold of the rulings Mengel, the of the district court evidentiary of this court to review these premised constitutional rulings by pursuant were trial court to a writ grounds, presentation which results in the principle by certiorari is settled this court of issues of City decision of this court in constitutional Laramie v. Mengel, Wyo., magnitude. protec In the Whether constitutional P.2d 340 rulings respect inculpatory instant case the of the district court tions with state suppressed personal property a list of ments of accused and evidence obtained destroyed damaged person property claimed to have been from the or of the accused private in the fire which was furnished are to extended to individuals is adjuster employed by significant question impression defendant to an of first company required Wyoming. fire Consequently, insurance the State of we justify importance under constitutional stan- conclude that of the because respect use of tant item of evidence with suppressed or the the evidence specific denied to the State intent. The State potentially also magnitude of constitutional Wyoming; urges that this evidence is relevant because raised; importance of and the helpful issues it discloses motive which would be respect to such determining rule with reaching identity a conclusion as to the Wyoming, the court matters the State person who set the fire. its discretion exercised appropriately The basis for the of the district certiorari this case. the writ of granting inventory personal suppressing court a consideration of then to We turn property is elusive. as evidence his suppressing as ruling of the district Suppress Motion to Evidence and Limit property pur- personal list of simply Comment Thereon the defendant re- destroyed in the fire damaged portedly quested suppression inventory. by Deon Heiner to the furnished which was Support Sup- In his Brief in of Motion to employed by the fire insurance adjuster press, urged the defendant demand background A resume company. brief proof signed for a formal of loss and sworn helpful. respect this document is with furnishing the defendant and his discloses that on December The record pursuant the same to the fire insurance fire, adjuster day after the (the policy inventory prior rendered the list Heiner, who was concerned met with Deon question) inadmissible because would might he be reimbursed for how soon about upon by relied the insurance not have been in the fire. The ad- the loss he sustained company adjusting During the loss. him that one item juster informed dialogue course of between counsel and the necessary for his claim would be would be position paraphrased court the court the of inventory personal property of which an the that constitu- the defendant to effect fire, damaged destroyed had been guarantees a foundational tional would be the adjuster informed de- The insurance admissibility matter for the testimo- for the that he had commitments fendant ny company investigators if the insurance following Monday Tuesday and and could peace were fact officers. Valley, Wyoming, on not return to Star dialogue the court indicated Later the inquired if he could days. Heiner those § W.S.1977, 6-7-105, understanding of 1982, if the inven- return on December inventory that the would not to the effect time, by that tory prepared could be if it were not relevant to the fraud count be adjuster agreed to do so. the insurance compa- upon by to relied the insurance personal articles included the list of The judge emphasized this at ny. The district furnished Heiner on December property dialogue he indi- point in the when another 10, 1982, inventory numerous and the were grant inclined to the cated that he was $65,- aggregate value of some indicated inventory “on the basis suppression of the At that time it was the conclusion rele- have a foundation of that order to adjuster that some of the items shown the fraud, vance, you then must on an issue of in the home at the the list had not been on the basis of use that document which was the criminal the fire. After time claim, something alleged fraudulent not the Hein- against filed Deon charges had been alleged fraudulent that used for the wasn’t proof of loss was filed with er a verified claim, thing was used actual that but the company the fire insurance alleged fraudulent claim.” Subse- for the $9,983 person- only made for for claim was the court quently considering the statute destroyed in the fire. property lost or al ques- admissibility not a that was indicated Wyoming is that theory of the State of question the relevancy but that tion of inventory is furnishing of the initial the the Fourth upon admissibility was based second count respect with to the relevant guarantees Fifth Amendment with in- charging the commission of arson Essentially guarantees. Amendment Sixth an insurance com- injure tent to or defraud admissibility question of he stated that the extremely impor- pany, that this is an spect If or not there to relevance. must be based whether this was the court’s eminently it is intention correct. and seizures. unreasonable searches were this, court then ruled Having all the said respect With to the exercise personal property respect the list with the court’s discretion under Rule insurance gave the W.R.E., which Deon Heiner we the read Memorandum the problem with that exhibit adjuster that Court to the that end it that concluded foundation, granted the obtaining on and he unfairness evidence became a Finally, weighed against exhibit. factor to be suppress probative motion petition proffered value of the granted this court had exer after evidence certiorari, cise of its discretion. say court insert- We must the district a writ district court that however that of the reasonable in the record Memorandum ed appeared construction it to the court is Court, copy of which is attached hereto erroneous. The manner in which relevant memo- Appendix A. The thrust of that is evidence obtained lead a conclu time, inject, the first into randum is to sion that it is not evidence. admissible proceedings proposition See Rule W.R.E. If the is of the was a conclusion basis court’s not admissible there is no occasion for W.R.E.,3 pursuant Rule court to exercise its discretion under Rule in con- court had exercised its discretion Wright Graham, W.R.E. Fed cluding probative value was sub- Procedure, eral 5213, pp. Practice and stantially outweighed danger of un- judge 258-259 The district must prejudice. fair have concluded that the exhibit was admis proclamation by This last the district having sible unlawfully been ob disposes question of relevance tained when he invoked Rule W.R.E. inventory in A this case. conclusion resolved, then un to be correct, the evidence is relevant is 403, W.R.E., preju der Rule whether gravamen because the offense found impact dicial of the evidence at trial § 6-7-105, W.S.1977, fraud, is not the substantially “unfair” and if so whether setting burning but instead it fire or outweighs probative value. 2See Loui- attempting any building, to do so § Mueller, Evidence, sell and Federal Í26 structure, etc., injure “with intent to or Graham, (1978); Wright Feder State, defraud the Johns insurer.” Procedure, (1978). al Practice and (1940); Fla. 197 So. 791 Common effect, ruling, then The district court is Cooper, 264 Mass. 162 N.E. wealth that it unfair the of is for (1928); Greer, 243 Mo. to attempt prove to that Mr. Heiner set fire 968, 28 147 S.W. Ann.Cas. 1913C 1163 to with the intention of defraud his home (1912). State, See also Parb 143 Wis. ing company by injecting into his insurance N.W. an instance in inventory personal evidence inflated of charged proof which the State is with of a property allegedly damaged destroyed in or doubt, specific beyond intent a reasonable ruling the fire. This is tantamount to that of potential the relevance false claim of though even the of the State has burden specific to the of intent loss issue the beyond proof it un reasonable doubt obvious to all. The advice the district any fair that for to introduce evidence premised court that it had its might incriminate the defendant. We are discretionary authority an' its exercise of any from record unable to discern the 403, W.R.E., any Rule under renounces ear authorities which have been called to our it may preju- lier comments have made with re- the manner in unfair attention which W.R.E., issues, misleading the 3. Rule reads follows: confusion of the delay, relevant, jury, or of undue considerations "Although evidence be excluded time, presentation of of probative substantially waste or needless its if value out- weighed by danger prejudice, evidence.” of cumulative unfair uncontradicted, agents, lieves is the context attaching to this exhibit dice substantially out- of the case employees the trial servants and of the insurance of the exhibit. probative value weighs the gathering company were evidence for specific purposes: purpose two For fact whether in Finally we consider determining company insurance inventory judge that district ruled claims, activities; payment and civil into evidence be be admitted should not they gathering pur- evidence were investigator was an insurance cause the charged poses proceedings.” with agent of law enforcement criminal warning any Mr. that state duty of Heiner that in- The district court concluded in evi made would be admissible ments he investigators agents surance were him, against dence and could used State, also that but concluded because prior right to counsel informing him of his they gathering pur- were for the evidence are any such statements. We taking pose of criminal their activities essentially Mr. reminded that subject would be to the same rules that mo with his position connection Heiner’s apply to officers re- law enforcement with suppress. tion spect investigations. to criminal It well upon the theory part depends This may be that it was on this basis that regard following collo- facts. In this no court concluded that there was founda- closing part quy appears per- the list admissibility tion for the suppression hearing: record of that property sonal because it is conceded help to If it makes “THE COURT: present adjuster did not the insurance Frome, that concludes you, Mr. the Court respect any advice with to his Deon Heiner investigators private these insurance rights prior obtaining the constitutional purposes of gathering were conclusion, inventory him. is our It prosecution. however, if that is the basis for “MR. I’ll then move on FROME: ruling it was erroneous. district court’s next statement. they court has determined “Since the with this last appropriate It is deal State, alter-ego or an agents were ruling by the district possible basis for the of law enforcement— of the second in the broader context say I I con- didn’t that. “THE COURT: argued by Wyoming. issue gathering agents these were cluded that propriety the district This involves the prosecution. purposes evidence for must the State requirement court’s n n n n * * seizures of evi- the reasonableness of show company’s find in- The Court didn’t fire insurance “THE COURT: dence agents of the they were State. extends vestigators implicitly people insurance Court finds these Amendment protections of Fourth purposes of gathering for were of the United States the Constitution prosecution. obtaining of evidence America to perhaps well as ADCOCK: As “MR. Conceptually there is private individuals. company. their insurance distinguish between good no reason There two “THE COURT: were the Fifth Amend- Amendment and Fourth things,— United ment to the Constitution “MR. “THE COURT: absolutely n ADCOCK: Yes. ^[*] no —Mr. n Adcock, ^[*] about ^[*] there n that. ple. S.Ct. reh. denied States 1684, See America Mapp 6 L.Ed.2d 368 U.S. v. Ohio, 1081, A.L.R.2d discussing 871, 367 U.S. 84 82 S.Ct. this 643, princi- 23, 933, 81 7 v. Boyd United (1961); L.Ed.2d 72 has right. “THE All The Court COURT: 524, States, 616, 29 L.Ed. 6 S.Ct. 116 U.S. it concludes already indicated that (1886). 746 be- evidence which the Court 636 overwhelming weight authority Hyem, supra, points out that other states effect that Fourth country having style is to the pro- the same of constitutional are not invoked protections

Amendment vision have adhered to the usual rule distin- private evidence is obtained when guishing private individuals from law en- justified by This view still is individual. forcement officers. the other On hand one 465, McDowell, 41 256 U.S. Burdeau v. conclude, could having perused well (1921). 574, The cases 65 L.Ed. 1048 S.Ct. history somewhat tortured that rule by in- specifically involve evidence Montana, the State of that the rule is chim- companies vestigators fire insurance Unfortunately erical. in this instance Deon Cal.App.3d People Mangiefico, are v. 25 persuaded Heiner judge the district to fol- (1972); 1041, Cal.Rptr. Lester v. 102 449 low that rule essence. 847, State, Ga.App. 244 S.E.2d 880 145 We have considered the cases cited to us 74, (1978); Vlcek, Ill.App.2d People v. 114 attempt Deon Heiner to discover (1969),cert. denied 400 U.S. 252 N.E.2d 377 espousing in basis for this state a rule 42, (1970); 822, 50 91 27 L.Ed.2d S.Ct. majority other than the rule. We can find Commonwealth, Ky., 418 S.W.2d v. Stone In Stapleton Superior none. v. Court of (1967), cert. denied 390 U.S. 88 Angeles County, Los 70 Cal.2d 73 Cal. (1968). Cf., 1259, 20 L.Ed.2d 161 Ro S.Ct. (1969), Rptr. 447 P.2d 967 the court Company, v. Home Insurance mano exclusionary invoked the rule because aof (N.D.Ga.1980). F.Supp. A much more joint operation by private investigators lengthy involving many list of cases other police dealing officers. In with encompassed factual situations is Anno issue that in passing: court stated (1971). ap tation 36 A.L.R.3d 553 It does “ * ** The Fourth Amendment does not jurisdictions exception pear that some however, apply, by private to searches recognized relating private security * * * ” individuals. Cal.Rptr. at Zelinski, e.g., personnel, People v. 576-577, 447 P.2d at 968-969. 357, 155Cal.Rptr. 594 P.2d 1000 Cal.3d (1979); Leone, Commonwealth Furuyama, In 64 Haw. Mass. 435 N.E.2d 1036 (1981), Of Sheppard, P.2d 1095 and State v. private if the course individual is fact an App., Iowa 325 N.W.2d 911 the ex agent of law enforcement officers then the agency istence of an relationship between exclusionary may pertain. rule Since the private individual and the law enforce specifically district court in this instance specifically ment officers was found. company found that the fire insurance in Zelinski, People and Common vestigators agents were not of the law Leone, supra, exclusionary wealth v. enforcement officers we have no need to applied suggested respect rule was with application exception consider the of that in to'private security exception officers. This this instance. majority rule is alluded to above. so, Even the Massachusetts court in Com The sole which we have been Leone, supra, monwealth v. remanded the identify able which a different rule purpose determining case for the prevails is in our sister state of Montana. propriety guard’s light action appears The rule in Montana to be special identified reasons for treatment of protections pertain same constitutional employed special privately police officer pri- whether a search and seizure involves behalf, acting upon employer’s his with vate individuals or law enforcement offi- opinion being if Mont., tenor of the the re Hyem, cers. 630 P.2d 202 quirements articulated were met the evi (1981). The most rationalization charitable People dence would be admissible. v. Gre depends upon of that is that vious, 403, Mich.App. 119 327 N.W.2d 72 peculiar provision of the of the Constitution (1982), interrogation pris an of Montana not in the involved State which is found so, per penal constitution of this state. Even oner in a institution custodial any opinion furnishing warning dissenter to the court’s v. sonnel State without

637 Colton, identified Mi v. rights Mo.App., (1975); 529 919 S.W.2d to his constitutional Arizona, 436, v. Mo., Kelly, v. State State (1969); 384 U.S. 439 randa S.W.2d 487 694, Bolan, 1602, v. 15, 16 L.Ed.2d 10 A.L.R.3d 27 State 86 St.2d S.Ct. Ohio 56 v. Stew 8, (1966), Op.2d reh. denied 271 974 Ohio N.E.2d 839 California art, 11, 890, 17 L.Ed.2d 87 S.Ct. 385 U.S. discussing the matters before (1966). The concluded that state 121 suppression hearing it at the the district the circumstances obvi action under suggested implication court also ous. rights respect Sixth Amendment with to indicated, ap considerations the same As deprivation to counsel. It is any Fifth respect to Amendment ply with clear a Sixth questioning or implications involved to Amendment counsel attaches inventory from Deon Heiner. obtaining proceedings when adversarial criminal have Vlcek, specifically in People v. against been commenced an accused. warnings ar provide volved failure State, Wyo., v. Brown P.2d 661 1024 Arizona, v. Miranda ticulated (1983). It follows that in this instance the proposi make clear supra. cases Other materials, inculpatory whether statements requirement give those tion that or evidence obtained at the scene of the depends upon the existence of warnings fire, prior filing which were obtained interrogation by law enforcement custodial complaint, of the criminal were not ob by questioning invoked officers and tained in Heiner’s violation Deon Sixth citizen. Beckwith v. United private right to Amendment counsel. States, 341, 1612, 48 425 U.S. 96 S.Ct. (1976); United States v. Warin 1 We hold that district court erred in L.Ed.2d ner, (8th Cir.1979), de list suppressing purportedly F.2d 210 cert. of items 607 1313, 927, damaged destroyed 100 63 in the fire nied 445 U.S. S.Ct. States v. Parr- was furnished to (1980); United company 760 insurance L.Ed.2d Pla, 1982, (9th Cir.1977), 10, adjuster cert. de on December 549 F.2d 660 and that 927, 2935, espoused nied 53 L.Ed.2d the district court 431 U.S. 97 S.Ct. erroneous Maddox, v. United (1977); suggesting 492 rule of that it States 1069 law would be (5th Cir.1974), cert. denied 419 the burden of the State to demonstrate the F.2d 104 (1974); 851, 92, U.S. 95 S.Ct. 42 L.Ed.2d 82 reasonableness seizure Casteel, United v. 476 F.2d 152 scene of fire the insurance States Antonel (10th Cir.1973); States v. company investigators. holdings These United li, v. makes it Cir.1970); unnecessary Yates (2nd in this instance for 434 F.2d 335 States, (5th Cir.1967); United F.2d 586 the court consider other bases admis- 384 State, 749, argued, Scoggins v. sibility Ark. S.W.2d which have been such as 258 528 Vlcek, supra; People interrogation; People v. (1975); consent 641 non-custodial seizure; Raitano, 373, justifica- Ill.Dec. other Ill.App.3d search and (1980); if Luckett might significant tions that the evi- 401 N.E.2d 278 State, law officers Ind.App. N.E.2d dence had been obtained State, (1973); private re- Trinkle v. 259 Ind. rather than individuals. We court, (1972); rulings Commonwealth verse the of the district dis- N.E.2d 816 Mahnke, stay proceedings 335 N.E.2d 660 solve the district 368 Mass. court, remand the ease for further cert. denied 425 U.S. 96 S.Ct. Bry (1976); rulings proceedings in accordance with the 48 L.Ed.2d 204 don, (1981); opinion. in this Mo.App., articulated 626 S.W.2d

STATE OP WYOMING IN THE DISTRICT COURT COUNTY OF LINCOLN THIRD JUDICIAL DISTRICT THE STATE OF WYOMING

Plaintiff VS CRIMINAL NO. 1677 HEINER DEON Defendant Instead, private THE 4. four investigators

MEMORANDUM OF COURT by company, were hired the insurance two taken consideration the action re-entry alleged whom secured to the Supreme response the Court in to Plain- crime scene the without burden of a war- Review, appropriate tiffs Petition for it is rant. Supreme Court should be advised 5. Adjustor pri- The asserted that this ruling. Court’s the basis Trial vate investigation being was done for in- 403, Wyoming Pursuant to Rule Rules of However, purposes. adjustor surance the Evidence, Court in the its discretion ruled also being admitted evidence was admissibility inventory pre- on the gathered contemplation the same be- pared by provides: Defendant. Rule 403 ing proceedings. used in criminal relevant, Although be ex- Adjustor 6. The interviewed the De- probative if its cluded value substan- fendant. the He advised Defendant tially outweighed by danger the of un- a. That prepare the Defendant should issues, prejudice, confusion of the fair inventory. detailed misleading jury, the or considera- b. That the inventory prepar- after was delay, tions of undue waste of time or ed, go the two them would over it in presentation needless of cumulative evi- agreement. effort to reach an dence. they c. When had an agree- reached inventory The declared Court the inad- ment, help he pre- would the Defendant missable. Some considered facts pare a claim and submit to the insurance the Court were: company; quicker the inven- tory prepared, quicker Defend- department 1. fire put out the fire paid. ant would be home Heiner and left. The scene of inventory d. That Defendant had an alleged crime was not seized and no 10, 1982, prepared by December approxi- agencies law enforcement started an inves- days mately three after fire. tigation. upon seeing e. That inventory 2. after Shortly independent the fire an Adjustor knew there were items listed adjustor, insurance hired the Defend- not in the were home. company, arrived, ant’s inspected insurance However, f. adjustor nothing said the home and talked with the Defendant. adjust the Defendant. He did not adjustor quickly suspected that inventory. He did not the in- fire was arson and the Defendant was the ventory. reject inventory. He did not perpetrator. help He did not Defendant reduce the However, adjustor while the inter- inventory proper of claim form un- department, viewed a member of fire policy. der the police who nearby was also officer g. private investigators After the con- adjustor municipality, report did not his scene, cluded their examination of the suspicions County to the Lincoln Sheriff fire, and more than a week after the Fire private investigators Marshall. He did not for the first time investigation. demand an contacted State Fire There Marshall. company physical evidence of sexual assault evidence the insurance could be was no by attacked the defendant improper the Sheriff. as ever contacted through a in limine motion made before Defendant had been h. After jeopardy Granting attaches. of the motion arson, compa- the insurance charged with sabotage people’s would case. The a sworn demanded that he submit ny succeed, prosecution could not and the case policy required by proof of loss to would have be dismissed. Under the payment of a a condition for claim. dissent, such would leave the defendant his complied, resulting in two Defendant i. any freedom without determination of his value, the widely differing inventories of guilt or Conversely, innocence. if the or admitted at first of which should not be subject appeal, directly der were by trial. certiorari, and the trial court were found to DAY AND THIS 27th DATED SIGNED erred, have the case could be remanded and MAY, 1983. OF with, proceed the trial perhaps, could Trough D. ton /s/ John dangerous rapist being from a removed D. TROUGHTON JOHN position hurting others. JUDGE DISTRICT way. But it can work the other If the Justice, concurring, ROONEY, Chief limine, trial court denied the motion in Justice, THOMAS, joins. with whom position dissent’s would leave the defend- that said in the I with all of concur ant with no alternative but to face the time appropriate to majority opinion but find it rigors long of a trial in which the Thereafter, of the fallacies contained indicate a few be used. on his would dissenting opinion. the trial court could be found evidence, admitting have erred in allow- 1: JUSTICE FALLACY NO. ing only the defendant his freedom after he begins dissenting opinion with refer- through expensive lengthy an suffered being justice ence to there subversion accompanying anguish trial with mental allowing certiorari a criminal case or pretrial preappeal incarceration. accepting appeal by an the state from a had the to an earlier If defendant terminating proceeding be- final order denying his motion in appeal of the order in a criminal case. jeopardy fore attaches limine, certiorari, he would directly by dissenting opinion contends that a bill spared the difficulties of trial have been §§ exceptions pursuant taken 7-12- lengthy incarceration. 7-12-105, W.S.1977, through is the justice ob way, Either would be better only people means available to the of the by use of the certiorari or interlocu tained by which an error in a criminal case state appeal of tory appeal, or the direct reviewed us. can be in limine as advo ruling on the motion Since bill can be used Raper Falty cated Justice State v. concerning to settle the (1983) (Raper, nowicz, P.2d 368 Wyo., 660 affecting the trial level without error at Justice, concurring), with specially a case against the action taken defendant result of disagrees in his dissent. which Justice Rose , 1 the dissent would hold that specially concurring opinion Fal- In his advantage of defendant is allowed to take Raper I joined, in which Justice tynowicz, any regard error without as to whether or availability of fully exposited the ably and perversion not such error resulted in a prior issued from certain orders justice. example, As an the' introduction His re- judgment in a criminal case. into evidence of a statement a defendant as therein set forth established admitting guilt search and the introduction 7-12-105, W.S.1977, supreme the law court shall determine provides: 1. Section may any govern case which similar judgment case in "The of the court rendered, pending decision is at the time the which the bill was taken shall not be reversed arise in the state.” affected, afterwards or which but the decision nor manner presentation people of the state have people fact state. requires Justice fair bring means to error to this court an ultimate determina- through guilt the tion criminal than statu- of defendant’s innocence of case other the procedure. charge It tory exceptions jus- would arson. Certiorari furthers bill repeat by by providing, prior to that said tice in this be redundant for me case Raper Faltynowicz jeopardy, which would time of the means Justice in to correct the error to the writ of certiora- of the trial court with application also have reference to consideration, admissibility but that said ri here under which the exposes guilt determination of by Raper the fallacies innocence Justice also should be made. dissenting opinion. Use of the constantly writ of certiorari is kept in mind a means It should also be of furthering justice and not two-way contrary. the justice street. A defend- absolutely ant in a criminal case is entitled FALLACY NO. 2: DOUBLE JEOPARDY people are the justice. to So also of the It must emphasized be that once the in justice entitled to connection with state put jeopardy, defendant is in neither the that case. opinion author majority of the and those recognition justice In of the need for in concurring anyone nor with him else con- in such instances and also certain situa people tends that the of the state can se- matters, began tions in civil this court the by cure interlocutory review certiorari or process establishing a rule to in allow A otherwise. defendant cannot twice be in terlocutory appeals pertinent such in put in jeopardy for the same offense. Art. § The rule yet 1, 11, stances or situations. has not Wyoming After jeop- Constitution. progressed through attaches, the rules committee. ardy people the of the may state recognized potential This court request set legal review of a on a issue by in only but, forth Justice Raper Falty through exceptions, bill as § 7-12-105, nowicz, supra, whereby (see the application supra 1), reflected in fn. 1.05, W.R.A.P.,2 review, pro Rules 1.04 and such granted, would if will not affect the rendering justice judgment vide vehicle of the for favor defendant. Of However, some felt note instances. is the fact that section concerns discretionary only the review “judgment.” 7-12-103, should be and not Section W.S.1977, cleavage requires matter of be give so to tween subject judge presid- such review and that reasonable notice to the to “who Thus, qualifying significant. procedure not so not be ed at the would trial.” interlocutory appeal Both certiorari use of a and the bill of as set forth in § W.S.1977, accomplish are discretionary seq., that end. 7-12-101 et available Pending interlocutory ap after the trial. It does purport enactment of not to peal rule, opted power apply to prior judgment this court use the to orders let certiorari, by granted prior jeopardy. the constitution alone law, and as existed at common those dissenting opinion Cases cited in the con- justice instances could best be wherein cern instances which defendant was served settlement of a mate final cases, put jeopardy. most judg- prior rial issue of to trial in a civil the case ment had been rendered. The courts were matter in a prior jeopardy criminal refusing “appeals” there after the defend- matter. put jeopardy. ant was Those cases are us, proper In the the trial precedent case now before be- erred in suppression of evidence vital to the fore us.

2. Rule "A Court for errors district court judgment part, 1.04, W.R.A.P., vacated or modified rendered may appearing provides: or final reversed in whole or on the record.” order made Supreme Rule substantial “A final order is: vents a der 1.05, W.R.A.P., in effect determines judgment * ^[*] provides (1) action, order action and part: when such or- affecting pre- 170, 545, 170 So. Inasmuch as FALLACY NO. 3: CONSTITUTIONAL appellate power, AUTHORITY certiorari is more than an §§5, 18, Art. Wyoming 2 and of the Consti change attempts plain dissent pertinency already tution have no to it. As §5, meaning of the of Art. § stated, 3, supra, Art. to do with has suggesting that it is condi- Constitution original court, jurisdiction of the supreme § 2, grants 2. Art. tioned on Art. §§5, whereas Art. appel concern § 3, powers the court. Art. appellate jurisdiction late provid court. That original defines §5, 3, ined Art. does not depend on “rules court.3 regulations be prescribed §5, 3, unambiguous plain Art. law.” that: providing “ * n * argument dissenting opinion The in the also supreme The shall only this point on is not in this flawed mandamus, power writs of have to issue respect, but the authorities therein do review, cited prohibition, corpus, habeas cer- pertain not in- tiorari, to the here necessary circumstances and other writs and quotation dissenting volved. in complete its The proper exercise of n n ” 183, opinion Stoner, appellate revisory jurisdiction. Wyo. from Mau v. 14 and added.) 218, (1905), (Emphasis begins: 83 P. 219 “ * * * that, It well settled phrase “necessary proper and to the The absence a direct re complete appellate its and revi- constitutional exercise of quirement, right of sory jurisdiction” only modifies “other does not many expressly of the enumerat- exist writs” inasmuch as unless conferred stat * * n ” nothing appellate added.) to do with (Emphasis ed writs have ute. revisory jurisdiction. power grant- The or power There is a “direct constitutional” of certiorari without ed is issue a writ granting supreme right to to the court the strings thereto. any attached issue writ of certiorari. and au- Cases The common-law writ of certiorari is opin- in the dissenting thorities referred to origin. Larson, George ancient v. 125 St. authority for depend statutory ion which on 352, 511, (1965); 215 512 Vt. A.2d McKen pertinent review are not and Jersey Highway Authority, v. New 19 na there is constitu- situation which direct 270, 29, (1955). A.2d 31 It is a N.J. 116 power providing tional for certiorari. requiring the certification of the writ attempt An was once made to abolish proceedings from court of record statute use of the writ of certiorari record or other tribunal or officer exercis §60, 801, Wyo- Laws of civil cases. Ch. revision ing judicial function for and cor § 3-5323, ming 1886, codified as W.C. last Cobo, of law. Lenz v. rection matters S.1945: 587, 383, (1953); Mich. N.W.2d 338 61 592 reverse, and certiorari to “Writs of error Zoning Adjustment, Toulouse v. Board of or- modify judgments or final vacate or 387, 670, (1952). 147 Me. A.2d 673 Cer 87 abolished; cases are but ders in civil in that tiorari differs from writ error power to com- court shall have same the latter is a writ of while the for proceedings con- pel transcripts of Gerhard, discretionary. Levy mer is v. 74 judgment final order taining the 495, 288, 494, 4 60 A.L.R.2d 345 R.I. A.2d furnished, reversed, sought to be (1948); Shine, 62, Hyde 199 U.S. 25 v. S.Ct. completed perfected they hereto- 765, 760, (1905). It is 50 L.Ed. 90 a remedi and certio- fore had under writs error al, revisory, prerogative supervisory rari.” Rhodes, 39, Reagan 264 84 writ. v. Ala. opin- dissenting to failure of 647, Of interest (1956); Wattenbarger So.2d 653 (1) legislature Tullock, 279, 628, ion in case are: 197 Tenn. 271 S.W.2d cases, impli- (1954); Ortman, writs civil 233 Ala. abolished the 631 Wattman (infra) "appeal.” Fallacy being other than an See 4 re certiorari No. 642 § cases, 1886, doing

cation so criminal Laws and last 1890) (2) (adopted 3-5323, W.C.S.1945, re the constitution codified prior legis face tained certiorari in in Wyoming as reflected Constitution. event, abolishing it. lative action annotations two A.L.R. referred to and Dahlem, Wyo. 498, we held State v. quoted majority opinion, i.e., from the 263 P. 794 and 109 A.L.R. 91 A.L.R.2d make notwithstanding attempt certiorari existed the definite appeals distinction between Develop ed statute. See abolition G-W writs of error on the one hand and certiora- Corporation Village ment North ri on the hand. other Zoning Adjust Palm Beach Board of dissenting Most opinion predi- ment, (1975); Fla.App., So.2d 828 cated on as it pertains law appeal. to an Hansen, Wyo., 409 P.2d ex rel. Pearson v. apply attempt it to certiorari fails in (1966); Afton, Wyo. Town Call v. practical view of the historical and distinc- (1954); Batty 278 P.2d 270 Arizona Specific tion between the two. instances Board, 57 Ariz. Dental P.2d this failure are set in Fallacy forth No. infra. consideration, pertinent A more not men- fallacy Mentioned connection with this dissenting opinion, tioned arises from dissenting opinion’s is the failure to distin- 1.06, W.R.A.P. It Rule reads: guish between common-law certiorari and “Proceedings hereby in error are abol- statutory or constitutional certiorari which any judgment and final order ished or modifies common-law certiorari. The con- by reviewable the district court or Su- stitutions some do states not mention preme only Court be by reviewed statutory change certiorari —wherefore in appeal accordance with the rules here- 3, Fallacy controls. See No. supra, and provided, in and the in ‘proceeding words 6, infra, Fallacy supporting No. authori- in error’ where used laws ty- ‘appeal.’ state shall be held to mean Writs of error are abolished.” One the primary for is conditions suance of a writ of certiorari is that will course, vary Of the court can no more not remedy lie when another is available. by legis- the constitution rule than can Hansen, supra; State ex rel. Pearson event, by In any lature statute. there is a Afton, supra; City Call v. Town definite distinction between “certiorari” Cadle, Wyo. 293, 157 24 P. 892 Sheridan v. “proceeding and in error” or “writs of er- (1916). This factor alone reflects the dis quotation ror.” The pur- from the statute “appeal” and tinction between “certiorari.” certiorari, porting supra, recog- abolish by referring nizes the distinction “writs The have people the state no (emphasis added). of error and certiorari” appeal A statutory a criminal case. bill of §§ noted, supra, As Art. 3 and of the remedy exceptions provide does not recognize Constitution the dis- people The state. fact that the discretionary. tinction. Certiorari is A exceptions appeal statutory bill not an right. writ of error is a writ of in Fallacy of a is discussed No. case infra. The constitution makes certiorari avail- court, supreme able for use but the FALLACY 5: BILL NO. OF

n sparingly only use it will APPEAL EXCEPTIONS vs. justice. interest of equates procedure The dissent set 4: FALLACY NO. APPEAL vs. §§ 7-12-105, forth in 7-12-101 su- CERTIORARI pra, appeal. with an Inasmuch such provides procedure judgment dissenting appeal The opinion treats already I “shall certiorari identical. have not- not be reversed nor manner affected,” (§ 7-12-105), comport ed the distinction made between them his- it does not torically, including language accomplished by “ap- Ch. with that be an

643 W.R.A.P., 1.04, (1938); P.2d pro- Weathers, Rule peal.” review, court, can (1917); that this on reverse P. vides Okl.Cr. vacate, modify any part, Arnold, (1896); in whole 144 Ind. N.E. 1095 excep- The bill of judgment or final order. Boulter, Wyo. 263, and In re 39 P. 875 inconsistent with this procedure is tions (1895), upon all relied dissenting and, thus, appeal, of an it is also purpose opinion, are cases which the defendant appeal. something other than an put jeopardy was and trial was had. The language from those cases directing review exceptions, by its statutory The bill to be a bill of under such terms, appeal not At case. condition rather than most, presented after it is an of an issue resulting jeopardy attached cannot properly quot- decided in the case. pertain case It opinion has no effect on the itself. ed to to certiorari. appeal.

is not an case, Heberling pro- the Indiana ceedings pursuant excep- were to a bill FALLACY 6: IRRELEVANT NO. tions. In re Boulter came on to the court CITATIONS petition corpus. for habeas None of quoted cited Cases and authorities these They cases concern certiorari. con- dissenting opinion in the are not in attempted appeal. cern an References to position support do taken point and dissenting opinion these cases are opinion. in such misleading. Stoner, supra, heavily relied In Mau v. Benales, Wyo., State v. 365 P.2d 811 dissent, in his upon Justice Rose dissenting opin- relied court entered decree a water case ion, supreme not before court on “the providing a statute decision under court, certiorari. The issue involved a dismissal judge or commissioner shall Not this a prosecute, be final.” P. at 219. of an for failure to information case, availability i.e., wherein the of certio- grant speedy supreme civil trial. in than historically rari is different criminal “the state an court noted that undertook (discussed infra), court, but the after cases court, proceeding in a to this quoting pro from and con on the cases Wyoming civil case under the Rules of Civil commonly done, as was con- issues then added). (emphasis Id. at 812. Procedure” page cluded at 220 of 83 P.: Cornwell, v. 14 * * n State ex rel. Gibson for necessary “It is not us to ex (1906), Wyo. P. 977 also relied 85 opinion press an as to whether there is a dissenting opinion, us on a in the came to appeal or constitutional review petition on a for a exceptions bill of according which proceed cases to the error, The court writ of not on certiorari. course of the common law. The statute rather than held that the bill provides spe under for consideration procedure. the proper the writ of error proceeding summary cial or unknown to Rosenwasser, F.2d law, 145 by the United States Legisla the common created (9th Cir.1944), purpose tempo concerned an action affording ture for 1015 rary only, by stranger relief and to meet immediate to criminal suppress evidence emergencies ^{[*] [*] [*]} jy arise under it. action. dissenting The opinion has to do with quotation this case in the “ap- certiorari; and court’s dis- peals,” one, only is a civil it Not the case but propriety with the cussion had to do specific providing concerns statute § 227, and not 28 U.S.C.A. under directing temporary that the de- relief and constitutionally under a with certiorari regards tempo- final cision be with Moreover, footnote, in a granted power. appeal, rary relief. It not cer- involves page 1018: the court said'at tiorari. “8 appeals Appellee suggested has Heberling, Wyo., 553 P.2d 1043 are Ginther, iri-criminal cases (1976); Wyo. government 53 77 State v. proceeding; strictly problem confined to a few instances listed criminal and the § therefore of 18 U.S.C.A. and sharper comes into focus when the de- if the district court’s order contends, effect, that even pros- fendant decision, final be considered a herein attempting ecution is to accomplish by lie. We have appeal would not within by appeal, writ what it could not do point opin- indicate no considered the but and that rights his constitutional are be- ion thereon.” ing upon.” thus encroached court, thus, out even an The did not rule “§ summarizing cases listed 3. Under “appeal” proper circumstances. under statutes,” modern constitutions the an- quotes from a dissenting opinion The explains: notation B’Gos, holding in summary of a “Among the cases discussed this sec- (1932), as such 175 Ga. 165 S.E. many tion are instances which the Right summary contained Annotation: prosecution’s standing to maintain the of state to writ of certiorari criminal upheld many writ was in which it cases, dissenting opin- 109 A.L.R. 793. depend was denied. The results reached not mention the other numerous ion does particular statutory on the or constitu- in the annotation which re- case citations court, language tional before the and the page sulted in the annotation conclusion at specific facts of the cases. individual 793: * * * ” (Footnote omitted.) remedy by “That a writ of certiorari lies Fallacy As under reflected No. proper circumstances on behalf of under empowers Constitution support the state a criminal case finds supreme court to part issue certiorari as in various decisions.” original jurisdiction. its dissenting opinion refers to C.J.S. A holding few of the more recent cases § Criminal Law 1659 and to 4 Am.Jur.2d the state to be entitled to a writ of certiora- Appeal support and Error 268 to ri in criminal are: cases State v. McCor proposition that there is “no to a writ mick, (1979) error, Tenn.Cr.App., 584 S.W.2d 821 appeal, exception to an or to an (cited expressly majority opinion), a criminal case unless con under com * * n * * n .” course, ferred statute suppressing Of mon law to review order evi dence; the references do not concern certiorari. Ward, N.C.App. required S.E.2d 737 state held to be Finally, dissenting opinion says: “ * * * petition prerogative writ of certiorari Annot., reported The rule is to secure review of dismissal for failure to 1095, 1096, ‘Right prosecu- A.L.R.2d supply speedy trial since it had no case,’ tion to writ of certiorari in criminal Gonter, appeal; People Cal.App.3d where it is said: “ 333, 178 (1981), Cal.Rptr. juris review of general ‘As rule the impose diction to deferred incarceration appeal bring proceed- cannot error defendant; Dee, program People on ings judgment from a in favor of Colo., (1981), 638 P.2d 749 review of hold case, defendant in a criminal ing rights defendant’s in that were violated absence clearly a statute confer- driving in un administration of breath test ring added.)” right.' (Emphasis Di der the influence of intoxicants case. dissenting opinion The fails to continue the case, rectly point in with this the court held quotation in context. The reads annotation Cullison, Iowa, in State v. 215 N.W.2d 309 page further at 1096: original in that its review this certio- against background “It this ruling by rari action of a the trial court prosecution’s appeal limited sustaining suppress a motion to criminal cases that courts deal with the proper. was problem of the state’s status to obtain certiorari mention should be made of the review of a lower court deci- Some sion, defendant, dissenting opinion favorable to the criticism Mengel, danger prejudice, excluding of unfair City Laramie decision myriad this evidence for of a criticism of other P.2d 340 Such Wyo., 671 reasons. fallacies herein set founded on the same people to understand out—failure complaint in this case was filed De- just justice entitled to as is the state are prelimi- 1982. There cember followed defendant; constitutional that there is motions, nary hearing, Order for Pretrial certiorari; writ of authority for the Conference, Suppressing and Order Evi- concept entirely separate certiorari dence. The case was set for trial June statutory bill of “appeal”; granting 1983. The of writ of certiorari case; of the and exceptions is not Suppressing and from the Order recognized that certiorari is a well and prevented Evidence the trial. The result is in the situation proper proceeding to use delay, inefficiency disposition of the case Mengel, presented City Laramie crowding further court’s docket. just case. as it is future, courts, In the trial for the sake of efficiency, may simply take these motions 7: FALLACY NO. NUMBER OF under advisement and rule them after WRITS OF PETITIONS FOR the commencement of trial. For these rea- CERTIORARI sons, avoid, I we should believe whenever that “we find the The dissent recites possible, evidentiary rulings involvement petitions for writs of certiorari from State’s preliminary matters at the trial level. prose- pretrial and final orders in criminal respect opinion With to Justice Thomas’ raining our heads cutions to be down about case, agree analysis in this I with his We have had but a handful torrents.” However, were I con- law and result. And, course, if petitions. such most instance, sidering this in the first I writ certiorari, to us on of them had not come being granted. favored it would have along appeals they finally come on would exceptions. or on bills of ROSE, Justice, dissenting. opportunity, I given

CONCLUSION Had I been deny petition would have voted to majority opinion properly serves granting certiorari. Since I was an order on sound justice and is founded cause of day the court on the the issue away from legal reasoning precedent. justices the other was considered opportunity given therefore not to ex- CARDINE, Justice, concurring part my thoughts, I take this occasion to press dissenting part. my judgment that the writ say that it is of the court when I was not a member granted. improvidently issued in the of certiorari was this writ been, I have Had I would first instance. The Writ-of-Certiorari Crisis being granted. We are asked opposed it Introduction ruling by a preliminary overturn a here to “ * f * being weary in search of Not evidentiary question. trial court on sues out a writ of futility. justice, It is a substantial he exercise in waste That is an court, error, brings his case to this limited resources. this court’s time and to be justice is known where substantial ruling and we reverse the court’s Should 1 (Em purity.” in all its administered trial, go I do not know what this case Beckwith, added.) phasis v. Garbanati court, hearing ad- prevent the after would (1880). Wyo. 2 213 evidence, receiving testimony and ditional discretion, addressing Rooney’s from, Chief Justice of its ex- First in the exercise he criticizes concurring opinion, which probative its cluding this evidence because in this matter as he my dissenting position substantially outweighed by the value is Ah_for good, days! old 646 majority opinion exceptions As the author that a bill

undertakes to show writes, ques the threshold means the case at bar the exclusive is not authority in this court to review may seek to review tion here is court’s State during the trial ruling suppressing made court’s order evi adverse district pur- appropriate for this pretrial proceeding. that certiorari in a criminal dence having to do a by not pose, find, I am blessed majority by authority City he responsive research since great deal of Wyo., 671 P.2d 340 Mengel, Laramie v. (now retired) have Raper Justice and Chief could and should be that certiorari Wyo., 635 Selig, v. it for me State done my judgment, In purpose. used for this (1981) Heberling, v. P.2d 786 State disregard for this utter law (1976). In v. Wyo., P.2d 1043 State 553 City to hold that v. Men Laramie at where supra, 635 P.2d Selig, grant gel authority furnishes for us to cer- ruling sought review of an adverse State at or that we are tiorari case bar trial, Chief Justice during a criminal made any jurisdiction possessed of whatever court, holds as Rooney, writing for the permit which would our utilization of cer- follows: I ex purposes. tiorari for these Before exceptions is the exclusive “A bill of opinion plain my objection majority prosecution to seek review means for the respects, pause in this and other relevant I during the ruling made of an adverse prophetic observations of for to notice Wyo., 553 P.2d Heberling, trial. v. State retired), (now Raper mer Chief Justice Benales, (1976); Wyo., v. State v. he his concurrence State authored Ginther, (1961); P.2d 811 v. State (1983). Wyo., Faltynowicz, 660 P.2d 368 (1938); Wyo. 77 P.2d 803 State ex rel. Faltynowicz properly here on bill of Cornwell, Wyo. P. v. Gibson exceptions taken the State from a Coun statutory pro- It is now a ty ruling dismissing a Criminal com Court statutory requirements ceeding, and exceptions, plaint. We sustained the bill Ginther, supra, must be met. v. State Raper Justice saw the case as but Chief Cornwell, rel. “ * * * State ex Gibson catalyst point up some mis supra.” leading poor Wyoming jurispru supra, 553 P.2d at Heberling, State dence.” 660 P.2d at 372. (now retired), Raper Justice Chief He said: court, writing for the said: my “It is concern that this ease an exceptions only way by “A is the bill of court, through the district rather challenge and have may which the State exceptions proce- than the bill of any ruling adverse of the dis- reviewed dure, by would prosecutions. trict court criminal proper bringing have been the means of Benales, Wyo. 365 P.2d (Em- supreme the issue to the court.” 811; Ginther, 1938, Wyo. added.) phasis 660 P.2d at 372. then, provided in 77 P.2d 803. Even § 7-291, W.S.1957: Raper thought Justice it bad law—the “ judgment ‘The of the court rule historic of this court which holds that in which the bill was taken shall case way by bill is the any nor in manner not be reversed bring which the State can an adverse affected, of the su- but the decision in a criminal case to this attention court’s the law to preme court shall determine for decision.2 He then concluded that his may govern case which similar concern extended to the decision is pending at the time “ * * * judge instances where a trial rendered, may afterwards or which have, pretrial proceeding, sup- in a ” arise in the state.’ 17, Benales, (1938); Wyo. Heberling, supra; 77 P.2d State ex rel. Gibson State v. 803 2. State v. 526, Cornwell, Ginther, (1961); Wyo. 14 P. 977 Wyo., v. v. 85 365 P.2d 811 State necessary “Supreme generally; appellate jur- to the State pressed evidence * in proceeding with the isdiction. supreme general “The court shall have Raper’s be- disagree with Chief Justice I appellate jurisdiction, co-extensive with has, Wyoming under of lief that the State state, in both civil and criminal caus- Constitution, statutes, case law or court its es, general superintend- and shall have a rules, a interlocutory-appeal courts, ing control over all inferior under adverse decision a criminal trial court’s regulations may such rules and as be right which would even authorize case—a added), (emphasis prescribed by law” ruling— pretrial evidentiary regulations adopted nor have been under concurring opinion say I must that his but §5, 18, provides: Art. something. Falty- certainly Since started “Appeals supreme from district courts to nowicz, petitions find the State’s we court. pretrial final certiorari from and writs of appeals may “Writs of error and be al- rain- prosecutions in criminal to be orders from the lowed decisions the district our heads in torrents. ing down about supreme courts to the court under such petitions entertaining these —where regulations prescribed by proceed- in criminal petitioner is the State added.) (Emphasis law." exemplified in the case at bar—we ing as are, inviting myri- jurisdiction,3 without applicable This leaves the constitutional problems. appellate ad of and trial-court provisions position this state where- supreme “power” court has opinion appeal repre- in this majority The of certiorari “in the exercise of issue writs history Wyo- time in the sents the first * * * appellate jurisdiction” its but jurisprudence that this court has ming “power” present circumstances appellate granted Wyoming State require- constitutional which there is no ruling in the review of an adverse criminal- ment for the issuance of such writs and no process. trial “regulations” implementing “rules” and/or consideration of It is fundamental to the adopted. have been ramifications that the the issues and their Supreme histori The Court has granting certiorari has raised this cally good with reason —refused to —and applicable Wyoming consti- appeal, that the ap merits of the even consider the State’s provisions tutional be identified and con- oft-repeated on the peals in a criminal case sidered. that, being no common-law ground there Wyo- Constitution State (State Benales, Wyo., 365 v. §5, 8, respect ming, provides Art. —with Ginther, (1961); Wyo. v. P.2d 811 State writs of certiorari —as follows: Stoner, 17, (1938); P.2d 803 Mau v. original supreme “The court shall have (1905)), since the Wyo. 83 P. 218 and quo manda- jurisdiction warranto and bill-of-exceptions procedure statutory officers, W.S.1977) mus as to all state habeas 7-12-105, (§§ 7-12-101 supreme court shall also corpus. law, exception the common the bill is an mandamus, power to issue writs of have exceptions provides the source review, corpus, prohibition, habeas cer- the State court’s review tiorari, necessary other writs trial-court Wyoming’s adverse criminal complete of its proper to the exercise (State Heberling, supra; v. rulings jurisdiction.” appellate revisory Ginther, supra; Benales, supra; added.) (Emphasis Cornwell, Wyo. ex rel. Gibson (1906)). P. 977 per- regulations” There are no “rules this court said Mau early As taining certiorari under Art. 219, that, Stoner, P. at unless supra, 83 provides: which section Cornwell, supra infra. n. discussed 3. State ex rel. Gibson v.

648 supreme court then held that the appeal as a and the guarantees the Constitution jurisdiction by is court’s limited the follow- legislature that right,”4 it is the matter “of §5, language: 2 ing Art. authority as contem- implementing has the “ * * * §§ regulations under such rules and 5, Wyo- 2 and 18 plated by Art. prescribed may by be law.” We said: ming Constitution. * * “ * that, The court said: It settled well * “ * * require- constitutional expression a direct absence of We think the ‘under regulations not exist ment, right of.appeal does such rules and be prescribed by law’ by refers to and limits all conferred statute. expressly unless section, powers conferred of an infe- judgment have a right words, prescribes other how the exercise by writ of error or reviewed rior tribunal powers may regulated of these be right. a natural or inherent appeal is not limited.” 83 P. at 219. judicial merely to the mode of pertains It remedy. Unless it is procedure or the It was one of the court’s conclusions in right matter of as a that it guaranteed Mau was intention of the fram- Constitution, Legislature power subject has ers of our Constitution that the appeals to this court would left to the be only regulating the pass laws not legislature, saying: the court limiting but proceeding, mode “ ‘ * * * right may quite provi- exer- It is clear from the in which the be cases sions of Sections 18 and 20 that the fram- remedy, by appeal un- cised. of the fundamental law intended to law, ers English common hence known to the power subject ap- over leave the England may be said that both it Legislature, peals to the to be exercised the whole matter of the United States public policy in such manner as and the regulated en- appellate review is almost people might re- best interests of tirely law.” by statute ” quire.’ Quoting from McClain Wil- It was the court’s task Mau Stoner liams, 332, 72, L.R.A. 10 S.D. 73 N.W. appeal right to decide whether Supreme was denied Court emphasizing right appeal that the provided which trial court’s statute though even authorized must nevertheless “final.” It was contend- decision would be (i.e., legisla- law” “prescribed be ed, success, that the Constitution without ture), court referred to this Mau appellant access to guaranteed of the state Boulter, court’s earlier decision In re this court. We said: 263, Wyo. 39 P. 875 where we said: Legislature has declared that “Since * * “ * have no direct constitutional [W]e judgment of the district court shall allowing appeals provision as a matter of * * *, important be final becomes cases, right except in criminal that this whether, determine under the Constitu- appellate jurisdic- court is clothed with state, of this tion causes, tion in criminal as well as in civil guaranteed in all cases.” 83 P. at 218. general superinten- vested with a and is opinion courts, The author of the Mau wrote dence and control over all inferior Constitution, regulations our as are that Art. under such rules and (Const. prescribed by Wyo., law art. appellate of this defines ** § 2) P. at 878. “ * * * attempting without to define the in Mau It was the court’s conclusion that, regu- the class of cases in manner of there had been no rules or since §§ taken,” appeals may promulgated 83 P. at under Art. lations respondent appeal. no had Mengel,supra, discretionary City with this court. Laramie v. 671 P.2d at grant or denial of certiorari holds express procedures, there both requirement instance, that be in the first The the the statutory authority particular where State seeks defendant whose prose criminal through the ruling review utiliza- gives adverse cution rise the to opin controverted Annot., in of certiorari was discussed tion ion or decision of the district af court is 794-795, “Right of state to A.L.R. by fected and decision, bound our in while in case”: of certiorari criminal writ the second this is not so. In the latter against contention that case, “But the State’s opinion this court’s is binding upon petition by the authority to entertain the courts Wyoming of in future “similar” case, in in a criminal for certiorari State cases but will not affect judgment of by been which a had reversed conviction the court “in in the case which the bill was (an intermediate Appeals Court of taken.” I therefore concede here that the court), by a constitutional was conferred bill-of-exceptions proceeding which is au that it providing should be amendment by Wyoming statutes, thorized pro will not Supreme competent for the Court ‘to re- vide the relief that the State it seeks as any otherwise quire by certiorari or case petitions in certiorari since the defendant review and be certified ... deter- to Heiner in pretrial whose proceeding the power and au- mination with the same suppression issue is raised will not af be thority by as if the case had been carried so, fected. though Even this is the overrid error,’ Supreme Court held writ ing response objection to this is that the authority it did not such in that have State has no inherent or right common-law (1932) 175 Ga. v. B’Gos appeal rulings adverse trial-court in a relied, part, upon in and S.E. (State prosecution Benales, criminal su general p. statement in 8 R.C.L. Ginther, pra, supra), State v. right ‘the state has no to sue out a writ only authority has exercise its constitu judgment error on a favor of the appellate prerogatives tional “under such case, except in a criminal un- defendant regulations prescribed by rules and as are express with der and accordance stat- law,” Stoner, supra. being Mau v. There utes, judgment whether that was ren- regulations no rules or the exercise of acquittal on a dered verdict of on the through interlocutory appellate authority determination the court on a certiorari, being legis and it noted that the law,’ in connection with decisions to pro lature has in fact furnished a review effect that was not the State entitled statutes, bill-of-exceptions cess cases; criminal and observed right pro claimed these that the amendment relied had ref- therefore, cannot, ex ceedings be found to only to the nature erence cases to ist. reviewed, of any litigant particular party appeal.” procedure is the bill-of-exceptions The may method which court take Exceptions Bill of or Writ of Certiorari purpose deciding for the Is Difference? What questions rulings trial-court raised alleged by criminal which are granting our The difference between cer- to its the State adverse interests. purpose deciding for the to be ques- tiorari Ginther, case, hand, supra; ex State v. rel. Gib a criminal on one tion Cornwell, supra. Since the son v. bill agreeing to decide an issue framed a bill hand, exception exceptions, other to and on the is far- is itself law, reaching derogation it must be though and fundamental. Even of the common applied.6 strictly substantive are issues addressed construed and 7-12-105, W.S.1977, provides: govern may be any case which Section similar rendered, pending at the decision is the time judgment "The of the case in arise in the or which afterwards state.” which the bill was taken shall not be reversed affected, any Stovall, nor Wyo., manner but decision 6. See 648 P.2d 547- State v. supreme general court shall determine the law rules. for a reiteration Statutory clearly conferring right.” and the statute Law Common added.) (Emphasis Exception Am.Jur.2d, Appeal To the same effect see made, however, argument § 268, pp. 762-763. Error bill-of-exceptions statute furnishes case, specific statutory without appellate review as with no permission, the de- neither State nor defendant whose respects particular appeal fendant an adverse in can issue arises prosecution the controversial pending in criminal it court a action since and, autho- since certiorari is the trial court §5, interlocutory will be held to be in nature (Art. 3), and by the rized Constitution In appealable. and thus not States United to of certiorari is since one the offices Rosenwasser, 1015, (9th 145 F.2d 1017 v. relief no litigants appellate where furnish Cir.1944),the court said: (City appeal avenue is available other * *“ * However, supra), party pending it must that if a a Mengel, v. be to Laramie suppression a vehi- seeks the intended to serve as criminal action certiorari was together criminal with the return of the appeal to adverse evidence cle for State which, purpose if the appeal papers principal if the is seized rulings trial-court suppress at successful, motion is to binding upon the defend- will be trial, proceeding the criminal is inci- is prosecution in ant whose action, dental the criminal and the to to predicate which this raised. silent interlocutory is held to resulting order that is is the State contention anchored appealable. Cogen and not v. United a have its adverse rul- possesses right to 118, States, 1929, 221, 278 U.S. 49 S.Ct. ings prosecutions in criminal reviewed 275; States, 73 v. L.Ed. Jacobs United just not so. v. appeal. on This is State 1926, 981; Cir., F.2d v. 9 8 United States Ginther, Benales, supra; supra. v. State 1921, Cir., Marquette, 9 F. 214. 270 Rule Common-Law States, Compare v. Cobbledick United long ago noted that the This has 1940, 323, 540, 60 S.Ct. 84 L.Ed. 309 U.S. no common-law rule is State has 783; 1906, States, v. Alexander United appeal rulings adverse criminal right to 201 L.Ed. 686.” 26 S.Ct. U.S. expressly given. right unless the upon commenting In the common law Law 1659 C.J.S. Criminal submits interlocutory pertaining orders in a crim rule to be: the commón-law in prosecution, inal the court said the Ro law as generally “Under the common senwasser case: “ * * * understood administered the Unit- interlocutory [Ajppeals from or- States, govern- the state or federal ed are exceptional ders character and are * * error, writ right ment has no to a wholly upon *.” dependent statute appeal, exceptions in or to a crimi- at 1018. F.2d expressly case it is nal unless conferred * * * ” * * * (emphasis statute add- Exceptions Exception Bill of Is ed), Rule Common-Law citing Wyoming’s State Benales and Ginther, supra, In the defendant State v. proposition for the that Ginther the theft charged with of a cow—with was Wyoming is of the states that holds to one have knowing animal it to receiving the law. this rule of the common The rule is property no value of the been stolen—but Annot., reported A.L.R.2d Trial was had and the defend- alleged. was prosecution to writ of “Right of certiorari whereupon guilty, a motion ant found case,” it is in criminal where said: and sus- judgment arrest of made appealed we held general prosecution can- tained. The State “As rule had no since proceedings that this court appeal bring not error statutory provision for the judgment in favor of the defend- there was no said: dismissing appeal, we appeal. In ant a criminal case in the absence aof right com- had generally appeal held under the no from a “It seems country in this granting administered person mon law as trial-court order convict- bring a writ the State ed of a crime a new trial. The court said: “ * * * excep- take an or have error or many jurisdictions the state case, unless the in a criminal tions all, right has no right at and its expressly grant- has been thereto appeal, granted, where the ” * * * added), (emphasis ed statute statutes, specific based which stat- P.2d at enlarged by utes are not to be construc- noting the courts of some while tion.” 162 P. at 240. permit such review limited circum- states Arnold, See also 144 Ind. rule or statute —we by case stances—either Ginther, where, N.E. 1095 cited in to the common held that we would adhere referring to a statute similar to that Wyoming. law Weathers, considered Wyoming has We noted Ginther was said: exception to this common-law statutory statutes, urged, deny “These it is bill-of-exceptions appears as our rule which right appeal State other at- according to which the State’s statutes enumerated, than instances those opinion or decision of torney may “any take correct, this we have no doubt is We to this court for review. the court” proposi shown the cases cited to that approval to hold and cite with then went on 569; Bartlett, tion. v. 9 Ind. State State that, appellate an hold where cases which 409; Hamilton, v. 62 Ind. v. Hallo State upon specific granted and is based well, 376; Evansville, statutes, strictly 91 Ind. State v. statutes are to be such etc., Co., enlarged by con- N.E. construed and not to be R.R. 107 Ind. 581 [8 619].” in 24 Criminal struction. It is said C.J.S. This court then held in v. State Ginther: § 1659, Law, the states’ wherein accordingly view the law “Our cases is dis- appeal criminal in a criminal case cussed, rule as this that the common-law given by statute no in this state is Ginther, supra. it in court identified rulings review ex- method adverse say encyclopedia goes then on to cept through the medium indicated in “ * * * that, generally being' held it is above cited sections [the four bill-of- law, derogation they of the common exception proceeding], with the limita- granting appellate rights] [statutes imposed.” (Emphasis add- tions there construed, strictly and that the should be ed.) 77 P.2d at 807. thereby not authority conferred should enlarged by be construction. Benales, supra, In the court [Cita- State tions.]” the defendant’s motion for dismiss- granted guarantee constitutional al based Weathers, In State v. 13 Okl.Cr. Wyoming Con- speedy trial under prop- P. 239 cited in Ginther § stitution, 7-11-208, Art. appellate appeals osition criminal stat- appeal The State undertook W.S.1977. in derogation utes which are of the com- court, proceeding as in a civil case to this construed, strictly mon law must be Proce- Wyoming Rules of Civil under expressly Oklahoma statute allowed and, dure, per-curiam opinion, we dis- in a in a criminal case from an State as we observed missed arresting judgment, quashing in- order complied with the bill-of-ex- indictment, had not questions re- State formation or holding statute, anchoring our ceptions served the State. It was held that the Inc., Wyo., Enterprises, 426 P.2d recently expressed derogation-of-com- ney v. Hunter 7. We speak and un in clear rule for when we said in It must mon-Iaw Stovall, terms, supra presumption equivocal P.2d at is that State v. n. 547-548: " * * * change unless the statute is is intended no designed change A statute the com explicit.” strictly mon law must be construed. Maha quoted perceived court. It is not that we rule v. Ginther upon the State authority any have to decide would above. exceptions question arising upon P.2d at supra, 553 Heberling, prosecuting attorney in a criminal 3, 1976, we revisited September on case, con- without bill of prior holdings and these and reaffirmed same, taining the taken and historically com- filed has been thus this court prescribed by (Emphasis the statute.” rule which holds mitted to the common-law added.) P. at 979. statutory exception, that, is a unless there appeal an adverse the State this, Having said the court struck the bill case. in a criminal of the district court provided by since it was not sealed as what exception this statutory Where there is § 7-12-102, W.S.1977, 1983 is now our rule, provide excep- statutes which Cum.Supp. statutes, tions, bill-of-exception as with our §§ 7-12-105, through supra, be- 7-12-101 Majority Opinion Reference law, derogation the common must ing in City Mengel, Supra, of Laramie v. Ginther, strictly adhered to. and Certiorari Cornwall, supra; ex rel. Gibson giving bill-of-excep Without even supra. (§§ 7-12-101 7-12- tions statutes Exceptions Bill of 105) or the case law which holds that court has no to “review Exclusive of This Source ruling of the district court adverse to the Court’s Jurisdiction prosecutions” except by in criminal state possessed of a common-law it is not Since (State way exceptions of bill of ex rel. no appeal, of the State has Cornwell, supra) sideways a Gibson ruling district court’s adverse a glance say, is to men without even —that judgment in criminal without tioning statutory these and historical strictly adhering the of bill identify and define case authorities which (§§ 7-12-101 provisions of the statute very jurisdiction the of this court to act 7-12-105, so, supra). being This majority in case at premises, the the the court, exceptions, except by this bills of has say: bar any rulings jurisdiction no to review such Wyoming sought of review of “The State judgments. ex rel. Gibson pretrial rulings pursuant peti- to a these Cornwell, Gibson, supra. In Chief Justice It our con- tion for writ of certiorari. court, Potter, writing the said: “ * * * clusion that this court does have au- only upon compliance It responsibility such thority and to review provisions with the the statute in of pretrial rulings by judges trial exceptions] question that this [bill of its exercise of discretion.” 683 P.2d at jurisdiction court obtains to review any ruling the district court adverse of prosecutions." to the state in criminal I the “discretion” to cannot fathom added.) (Emphasis P. at 979. do majority have reference. We which ap- jurisdiction to hear this not even have Gibson, Attorney argued In General of peal. repeat, emphasis, I the words exception that an to the of the court Potter as he wrote for this Justice Chief preserve sufficient to should be issue Cornwell, ex rel. Gibson v. for this court’s consideration. This court supra: contention, rejected saying: “ * * * “ * * * upon compliance only It is obvious, think, But it we provisions the statute with the in a case like this not serves the bill of question exceptions] that this preserve the record matters which [bill of record, jurisdiction to review court obtains otherwise would not be but adverse any ruling the district court jurisdiction it is the basis this of of of prosecutions,” question state in criminal “The threshold of the authority of this added), court to review these (emphasis evidentiary 85 P. at rulings by pursuant the trial court to a Justice also said: and where Chief ofwrit certiorari is settled in principle by “ * * * But n obvious, think, we the decision of in City this court Lara of * * * the bill a case like this is the Mengel, Wyo., mie v. 671 P.2d 340 basis this court. of is not of (1983).” 683 P.2d at 632. perceived It It that we would thing majority’s makes the re- authority have to decide upon liance City Mengel Laramie v. so arising upon exceptions prose- unbelievable is the City fact that case, cuting attorney in a criminal Laramie case did not petition evolve from a exceptions containing without a bill by here, the State as is the case and the same, prescribed taken and filed petitioner City was not—for this reason at added.) (Emphasis by the statute.” jurisdictionally limited the bill-of- least— P. at 979. exceptions provisions of our statutes from seeking certiorari. agree slavishly I that we need not be opinions, bound old but if we are to In City Mengel, supra, Laramie v. say them we so and at the overrule should substantive issue was the constitutionality possessed adequate same time be 6—105(f),W.S.1977, adopted 31— Code, authority upon substantial which to base the Laramie Municipal which statute ease, provision and code overruling In hold that evidence of a our decision. how driver’s refusal to submit to a ever, blood-alcohol majority do not have or even test against could be used him in court authority mention case which would autho where the operat- citizen stands accused of overruling rize the ex rel. Gibson ing highways motor vehicle fact, v. Cornwell. State ex rel. Gibson the state while under the influence of in- v. Cornwell is not even noticed toxicating liquor. majority. majority The reason the cite no authority position municipal judges for their here has to be in City Laramie held, legislative Mengel response had because there are no rules and to motions limine, suppress and in that the refusal regulations permit im this court to to submit to the blood-alcoholtest was tes- plement powers our of certiorari for inter nature, in timonial and that the ordinance locutory appellate purposes in a criminal protection was therefore violative of the case.8 This is because the State does not against self-incrimination found in the Unit- possess appeal, common-law to an ed and State constitutions. The or- States and, exception where there is an granting respondents der motions of the. Wyoming common-law rule as has in its Mengel prohibited further the Johnson statutes, bill-of-exceptions exception, the City permitting any Laramie from of of its being law, in derogation of the common upon witnesses to comment the refusal of strictly must be followed and not be respondent either to take a blood-alcohol enlarged by construction. Gin test, directly chemical or to comment or ther, supra. indirectly any concerning manner such shocking The most feature of this court’s refusal. majority opinion in the case at bar is its deci- In an effort to obtain definitive upon reliance our recent decision in City of issue, (not City sion on the the Laramie of authority Mengel, Laramie v. for State) a document in this court the filed holding evidentiary that the trial court’s Permission to File Bill entitled “Petition for ruling may brought to our attention Exceptions.” granting of Instead of through petition for a writ of certiorari. denying granted a of petition, this we writ certiorari, majority say, respect: noting in this interpretation 8. As mandated the Constitution. § Mau Stoner’s of Art. of § 7-12-105, legislature through the promulgation 7-12-102 W.S.1977, excep- statutory regulations of rules pertaining to bills of —and given implement- in an of instance the absence such applicable were not tions certiorari, ing legislation in the I charged not area of is with in which accused propriety of now of that lan- the laws the State against an offense Cadle, statutory guage proceed- City Sheridan v. Wyoming and this of of City not relied in Laramie v. exceptions] of was available we ing [bill of Mengel. According respect a munici- Mau v. Stoner with to a overwhelming weight general of ordinance. of pal court for violation law, Cadle, jurisdiction is without Wyo. this court City Sheridan v. of employ grant (1916).” appellate P.2d its constitutional of P. 892 at authority any ques- certiorari to review defense, ruling City In its further tions—civil or criminal—unless and until prospective ef Mengel had Laramie of requisite legislation promulgated. respect only consist fect and it was However, exceptions. only give tangential I theory of refer ent with of bills was importantly, pro way City ence of dicta to the Lara Most of says Mengel where an mie v. utilization be scribed rule of certiorari cause, legislatively place regardless of this court was appellate proceeding is whether followed, Ginther, granting correct in in City must be su certiorari it of City Mengel, provides We treated the of Lar Laramie v. that case no pra. therefore petition authority a bill of for the issuance the writ in the amie’s of though petition legisla for a of case at This is so were a writ bar. because settling ques expressly juris of ture limited purpose certiorari has this court’s magnitude questions by the tions of constitutional for which diction to review raised is, excep case. review was otherwise unavailable. This a criminal The bill of course, circumstances, review, of proper one tions mode and this court, therefore, hear, City jurisdiction of the offices certiorari. Lara has no Mengel, “certiorari,” supra. mie v. under interlocuto the label ry appeals appeals final orders City Mengel Laramie v. we as- brought by the State. sumed, upon language in reliance contained Cadle, City Wyo. Sheridan v. assumption jurisdiction It is with the possessed P. 892 that this majority opinion that I take with the issue questions review the raised whether, in the appeal at bar—not assum City City of Laramie. We said in ing jurisdiction, the writ otherwise v. Cadle: Sheridan lawfully employed, jurisdic and it case, I being “This not a civil there seems tional context of our difference that provision giving city right charge majority taking no with unwarrant to be think, holding liberty City this court. We there- ed with our Lara fore, opinion might Mengel majority that the writ be issued to mie v. when the jurisdiction says: of the question determine the ap- of the district court to entertain the authority “The threshold of the complained

peal in which order of the evidentiary of to review these this court made.” 895-896 157 P. at a by pursuant the trial court to rulings * * * City is in writ of certiorari settled Parenthetically, I am now forced to the * * Mengel v. *.” 683 P.2d Laramie that, having subject of admission studied this at 632. depth, greater especially since revi- In we siting opinion just City this v. This is not so. of Laramie court’s earlier Mau Stoner, employ cer- supra unequivocally jurisdiction we had to holds assumed —which Cadle, that, v. appellate City even constitutional tiorari under Sheridan where of exists, and, event, not authority rights of were the exercise of we by a of criminal appeal must nevertheless be authorized involved with State consequential proscriptions quittal appeal the and we simply will therefore dis- bill-of-exceptions regard In bill-of-exceptions of the statutes. jurisdictional bar, simply jurisdic requirement at we do not have as previously case by announced having right and, no inherent of this court tion—the without statutory imple- exceptions having menting sanction, and the of not appeal employ bill certiorari its utilized, v. stead. State ex rel. Gibson Corn been well, supra. When the majority observe: majority appeal at bar call The respect rulings “With to suppress which to the that this court attention observations important evidence to be by offered City Mengel having v. made Laramie State in criminal prosecution, of the inad- to with what said about the utiliza- do we equacy exceptions the bill of of after tion of the writ of certiorari Call v. acquittal patent” (emphasis added), is Afton, Wyo. 278 P.2d 270 Town 683 P.2d at of majority say: The constructing is its own fantacized “inade- * * “ * in City We did note Laramie of quacy” out of an assumption that law pursuant Mengel, supra, that review to provides the State right appeal with the to providing excep- statutes of for a bill rulings adverse criminal addition city. was not In tions available provided remedy by exceptions. bill opinion quoted language that we just fact, This is not the case. In .it Afton, Wyo. Call Town judicial sophistry. amounts to The State (1954), in P.2d 270 which the court ob- appeal has no except that which is writ of served substance cer- given and, provided statute if so as it is good purpose in in- tiorari subserves code, in Wyoming’s criminal the statute (or stances in which bill must be followed with particularity, State exceptions) plain, speedy is not and ade- Ginther, Thus, supra. majority quate. respect rulings With which make fatally unwarranted suppress important be of- assumption unauthorized in order to reach prosecu- in a fered the State criminal faulty respect its fatally conclusion with inadequacy excep- tion bill utilization writ certiorari acquittal tions after an patent.” 683 the case at hand. P.2d at 632. CONCLUSION By this the majority say- statement are summary, I call attention to these ing in effect in City Laramie v. following propositions: we

Mengel relied on Call v. Town of Afton (where the petitioner State was not a Wyo of the State Constitution certiorari) proposition for the that certiora- ming gives power to issue good ri purpose serves a in instances in of its writs of certiorari exercise appeal (or “an exceptions) a bill of (Art. 3), appellate this au power but plain, speedy adequate.” From regu thority restricted such rules and this observation about a circumstance in (Art. “may prescribed be law” lations as utilized, which certiorari majori- §§ 18). legislature 2 and It is ty reason: limit and define the authority has the (Mau Stoner, supra). though appellate

Even process the State has no common- being in of this though law certiorari aid even writ of § 3), (Art. bill appellate is available and is court’s only statutory statutory authority exist to invoke remedy the State must (109 A.L.R. though authority has —and even court certiorari this has court’s that at State has no com exceptions supra) held the bill is the since the of trial jurisdiction-furnishing vehicle in these mon-law of from adverse prosecution find that a bill of court decisions a criminal circumstances —we (State Ginther, exceptions Benales, inadequate supra; v. v. would ac- after ordinance,” citing of Annot., supra; City Sheridan 91 A.L.R.2d supra; of § 268, Cadle, supra, v. pp. Appeal and Error Am.Jur.2d § 1659, Law 762-763; 24 C.J.S. Criminal carelessly on—no matter how and went —to statute, the State supra). In absence appellate authority. exercise our certiorari interlocuto right to an has no common-law proce- But least it be said that our at can ruling in a crimi ry from an adverse by Wyoming Supreme dure was authorized (United v. Rosen prosecution States nal precedent pursued the same un- Court wasser, supra). derlying philosophy as that contained bill-of-exceptions statutes. has made an legislature Wyoming, nonap- rule of exception common-law I hold given, For the reasons would criminal adverse pealability of the State’s majority grievous error commit bill-of-exceptions stat- through rulings in this granting ap- the writ of certiorari Ginther, supra). (State Since utes v. has, method, peal this this because court derogation of bill-of-exceptions is in statute a suppression no to review rul- strictly law, con- it must be the common ing the district court to the adverse authority enlarged its cannot be strued and Wyoming. State of by construction.9 petition I would hold that the for writ that, upon based court has held This improvidently granted. certiorari propositions, above these review of has method of “no bill-of- rulings except adverse [the (State Ginther, v. procedure]” and, finally, we have said it is

supra), compliance bill-of-excep with the

only upon “juris has provisions

tions the district

diction to review prosecutions” to the state criminal court adverse (St CONSTRUC KLOEFKORN-BALLARD Cornwell, v. ex rel. Gibson ate DEVELOPMENT, INC., AND TION supra). (Petitioner), Appellant utiliza- majority’s I take issue with Mengel, supra, City tion of Laramie BIG NORTH HORN HOSPITAL DIS ignore circumvent as an excuse to TRICT, Appellee (Respondent). against the jurisdictional prohibitions these in the case at issuing of a writ of certiorari No. 83-234. this, say City bar. Lara- I because Supreme Wyoming. Court writ Mengel granted mie we Cadle, authority of City Sheridan June that, not the the State was noting since petitioner, bill-of-exceptions statutes bring the issues here.

were not available to statutes bill-of-exceptions

We said that the “ * ** in an in- applicable were not is not the accused

stance against laws

charged with offense that this Wyoming

of the State of exceptions]

statutory proceeding [bill prose- to a respect

was not available with municipal in a court for violation

cution Arnold, Ginther, pertaining supra; of the rule supra; for reaffirmation State v. 9. State v. derogation Weathers, statutes in supra; strict construction of 24 C.J.S.Criminal Law State v. Stovall, concept. supra supra; the common-law State v. n. and see

Case Details

Case Name: State v. Heiner

Court Name: Wyoming Supreme Court

Date Published: May 15, 1984

Citation: 683 P.2d 629

Docket Number: 83-83

Court Abbreviation: Wyo.