*1 in thе of the trial attributable to the defen- lies broad discretion finement was court, indigence; and whether the sum and we will its decision dant’s not disturb custody prior to sen- spent of the time a clear abuse of that discretion. absent sentence, tencing, McFarlane; plus the exceeded Mower.
maximum allowable sentence. We Affirmed. applied in said factors shоuld be that these different concerns disjunctive because prong the test.
are the of each focus
Indigence the constitutional re- invokes protection; imprison-
quirements equal the term set statute
ment in excess v. Lightly concerns. jurisdictional
raises
State, (Wyo.1987). While respect equivocal
the record is THOMAS, Appellant Delores M. we will for our indigence,2 fact of assume (Defendant), indigent. Asch was The purposes that v. that the sum of record demonstrates Wyoming, The STATE of Asch’s confinement added pre-sentencе (Plaintiff). Appellee actually imposed ex- did not sentence imprisonment term of ceed the maximum THOMAS, Appellant Delores M. provided by Consequently, the statute. (Defendant), in this that would not be concern factor Wyoming, The STATE of though Even assume that Asch was we (Plaintiff). Appellee indigent, justifies the record a conclusion given pre-sen- that credit for his Asch was 88-202, Nos. 88-203. plea guilty His was tence incarceration. Supreme Wyoming. Court of plea bargain made pursuant entered to a Wyoming. bargain with the State Dec. that, exchange guilty, plea was for his crimes with he was one three
charged prosecuted, and the not be would
prosecution agreed and the defense were imposed
sentences which “without agree-
credit time served.” The clear that
ment Asch and the State was between receive the sentences that were would being any credit
imposed afforded without or, expressed in another
for time served ac-
way, served was taken into the time identified
count in the sentences were bargain. imposed sentences
Because to, this case not invoke agreed
were does expressed in cases
the concerns we have is unclear.
where the record Jones (Wyo.1989). deci sentence, to a pursuant
sion reduce W.R.Cr.P.
motion filed in accordance with ly counsel at his trial. indigency filed in retained were 2. Numerous affidavits record, represented by private- but Asch *2 examining room where she had access prescription
to Dr. pads. Whalen’s blank her, When pre- Dr. Whalen did examine Tagament Bentyl scribed for the ab- Munker, Defender, State Public Leonard although pain, dominal he noted that the Gallivan, Director, Wyoming De- Gerald M. pain contrived. appellant could be When Program, and Gregory Aid S. Thom- fender office, left Dr. Rick Whalen’s Svoboda Intern, (argued), appellant. as Student for waiting her. He asked her if for she had Meyer, Atty. Gen., Joseph B. John W. any pain pills, obtained she said no. Renneisen, Gen., Deputy Atty. A. Karen liar, He called her a and she him showed Gen., Atty. Byrne, Maryrobin Asst. Sr. They the she had рrescriptions received. (argued), Extern, Burney ap- Student argued, appellant up prescriptions, tore the pellee. and Svoboda left. day, Later that same woman walked CARDINE, C.J., Before presented into a Casper pharmacy and URBIGKIT, THOMAS, MACY Percodan, prescription drug, a narcotic GOLDEN, JJ. made out a Dawn prescrip- Gilbert. The CARDINE, a form from Chief Justice. was written on Dr. Whal- purported en’s signa- office and bore the Appellant Delores Thomas was convicted pharmacist, ture of Dr. Whalen. The Os- jury transferring forged trial of after a Ray, However, prescription. car filled the Percodan, II prescription a Schedule day the next he examined the prescription appeal- controlled substаnce. Thomas has closely grew suspicious more that it conviction, presenting following ed the the might Whalen, forged. He called Dr. issue: who pre- said he had not written such err refusing below “Did the court scription patient and that he did not have a upon jury request as to the instruct Ray named Dawn Mr. Gilbert. then con- eyewitness testimony dangers of tacted police. Subsequently, police (1) possibility of error the sole where photo lineup Ray’s assembled a from Mr. for the under the defendant’s issue description, picture and he identified a accuracy the case was appellant presented who as the woman identification; (2) where the testimo- prescription. Dr. Whalen also identified ny the sole witness to the criminal photo lineup her from the as the “Delores suggested irregularities transaction Burgess” Both he examined. also identi- process; and where appellant fied at trial. testimony explaining there was Appellant testified at trial that she did process pos- of identification and the pass forged prescription. said She sibility of mistaken recall?” arrested, that after she was Rick Svoboda We affirm. told her that a woman named Carol Bur- forged prescription. PACTS nett passed had She Burnett as described someone who 18, 1986, Rick came to Svoboda On June body hair probably has the same color and seeking pain appellant’s pills. house She frame herself. She that the as contends any, sug- said she did not have so Svoboda similarity appearance between herself gested get some from her doctor. that she question and Carol Burnett raises a as to appellant, using That the alias afternoon accuracy Ray’s of Oscar Dr. Burgess, Richard Whal- Delores visited perpetrator. of her as the pain. complaining en’s office abdominal Appellant get She testified that she intended to some also offered Blau, pain planned psychologist, George who as pills and that she to share testified Svoboda, process- them Rick described an witness on information with who she drug ing, perception As and recall. testimo- addict. she did not have Blau’s ny problems appointment, primarily waited for dealt with associated she the dоctor “2. Are satisfied that the memory re- identifica- eyewitness perception subsequent tion made the witness call. product of his the offense was own *3 DISCUSSION may recollection? You take into account identification, strength of the both the evidence, appellant At the close of the and the circumstances under which the instruction, following offered the made. identification was was refused: in this important by may of the most issues “If the identification the witness “One of the defendant case is the identification have been influenced circumstanc- perpetrator of the crime. as es under which the defendant was providing has the burden of Government identification, presented you to him for identity, beyond a reasonable doubt. [sic] should scrutinize the identification with the witness him- It is not essential that great may care. You also consider the to the correct- self be free from doubt as length lapsed of time between the occur- you, However ness of the statement. opportu- and the next rence of the crime beyond rea- jury, must satisfied defendant, nity of the witness to see as a аccuracy doubt of the of sonable bearing reliability factor on the identification of the defendant before identification. not may you him. If are you convict “(You may an also take into account that of beyond a reasonable doubt convinced by picking identification made the defen- accuracy of the identification group dant out of a of similar individuals com- person who defendant was [sic] than one which more reliable crime, you must find the de- mitted the presentation of the de- results from the guilty. fendant not witness.) fendant alone to expres- an “Identification may any account oc- “3. You take into impression of the wit- sion of belief the witness failed to casions depends opportu- nеss. Its value on defendant, make an identification nity had to observe the of- the witness an identification that was incon- or made and to at the time of the offense fender with his identification at trial. sistent later. make a reliable identification Finally you consider the credi- “4. must testimo- appraising “In in the bility of each identification witness witness, you should consider the ny of а witness, consider way other same following: truthful, and consider he is whether the witness Are convinced that “1. capacity opportu- he has the whether oppor- adequate capacity had the on the nity to make a reliable observation tunity to the offender? observe testimony. in this matter covered [sic] adequate had an “Whether the witness of emphasize that the burden again “I the offender at opportunity to observe every prosecutor extends proof on affected of the offense will be the time charged, and this of the crime element long as how or short by such matters prov- the burden of specifically includes available, far or close the how time was the identi- ing beyond a reasonable doubt was, lighting good were how witness perpetrator as the ty of the defendant conditions, had had whether the witness charged. he stands the crime with which person to see or know occasion testimony, you examining the If after past. to the accura- doubt as have a reasonable “(In any identifi- general a witness bases identification, you must find cy perception makes on his cation [sic] guilty.” defendant of his senses. through the uses [sic] essentially the proposed This Usually identifies offend- the witness Special Instructions “Model same as the sight this is not by the sense of er —but adopted by the United Identification” so, other may necessarily of Colum- Appeals, District States Court senses.) Circuit, evidence. Best v. United States bia (Wyo.1987), cited and cases therein. F.2d contains Here, two supported by is not Telfaire proof components: separate burden requested competent evidence. The in- credibility eyewitness identi- identity and jury to struction directs the consider a list testimony. The trial court this fication might accuracy of factors which affect the separate gave instruc- eyewitness testimony. case proof, purposes burden rea- if argu- tions Even we assume for doubt, credibility. Ap- and witness a causal sonable ment there is connection be- *4 contends, nevertheless, that the physical Tel- tween certain factors and effect pellant identification, giv- reliability there instruction should also have been of is little faire present theory рhysical to of or no evidence the them- in order her the factors en example, For selves record. the case. jury instruction states that the should con- give court’s refusal to the in- The trial time long sider “how or short a was avail- either of can be affirmed on two struction able,” “how the far or close witness was” First, even if defendant asserts theories. good lighting “hоw and were conditions” at case, theory the represents her a that it time the the the witness observed offender. may refuse an instruction court However, the no record contains direct evi- unduly emphasizes one argumentative points, leaving only dence these State, aspect of the Prime 767 juror speculation inference and for a at- 149, (Wyo.1989); P.2d 154 Evаns tempting to follow the instruction. 1214, (Wyo.1982). 1218 In P.2d Prime 655 sup- The case cited to the trial court as language we considered instruction instruction, port giving for the State v. virtually part to which was identical (Utah 1986), 721 Long, and the requested here and concluded instruction itself, the source of instruction effort to represented that it “a skillful in- 555-57, proposi- 469 F.2d at stand for the argue court the case duce the trial to for eyewitness that identification testimo- through its instructions.” the defense 767 in ny suspect all cases. We inherently P.2d at adopt prefer to We decline this view. deal- questions you “Are The rhetorical con- questions actually presented ing by * * * ?” “Are satisfied vinced and the evidence. defendant’s trial coun- While * * * argument may ?” be did, to, argue was freе in fact sel and to charge part not as the court’s the but possibili- jury that the evidence raised Further, emphasizes jury. ty identity, we find of mistaken no basis “the most im- one of instructing jury possible to consider repeatedly portant issues” the case not in the evidence. factors found is an element to stresses that identification Affirmed. doubt. proven beyond reasonablе We hold those that agree with courts
general URBIGKIT, instructions on reasonable doubt Justice, specially credibility of are sufficient. witnesses concurring. Martinez, 174, See, People v. e.g., affirming I concur conviction of Hefner, (Colo.App.1981);People v. 70 179 appellant concur with the 99, 96, Ill.App.3d Ill.Dec. court, of this but write further to decision N.E.2d developments in exprеss concern about Second, theory validity eye-witness seeking Wyoming law on the a defendant evidence, satisfy to bad acts case instruction must two re- identification. Next expert must offer an witness instruc- quirements. The defendant apprise subject that become some of which is tions on have sufficient case, appellate argu- prolific most theory court of his sources prosecution. criminal by competent ment in this nation’s theory supported must be clearly itself good case exhaustive the defense less than de This is previously was minimis. appellant since pursuit previously was by pharmacist,
known
I find no error here within the current
prescription
where the
seen
the doctor
Wyoming
state of
law since use of the
used,
the identifications
were
blanks
expert
permitted
witness
was
rational
place compo-
founded on time
were
special
justifying
doubt further
instruc
certainty. Addition-
which connoted
nents
persuasively
tion on identification was not
permitted
ally,
eye-witness
presented.
In a
appro
case like this with
testify
questionable
about the
character-
priately
argument,
active final
use or non-
sup-
eye-witness identifications for
istics of
hardly
use of the instruction could
to establish reasonable
port of
defense
jury.
In
mattered
concurrence with
doubt.
properly
the result
this case as
exercised
discretion,
although
I
appeal, appellant,
permitted
remain dissatisfied with the
On
witness,
challenges
prinсiples
now
of clear
absence
cases of
eye-witness
in-
contest
either
ex
denial of the
severe
where
issues of
*5
pert
special
questioning
gen-
use of
has
witness or
instruction
struction
what
become
ingredients
as the
serious
in the determination of
erally come
be described
Telfaire
guilt
Wyoming
of all
or innocence. Concern also exists
instruction.1 Consideration
any approach
deny
would
eye-witness
provides
identification
about
which
cases on
stability.
any legit
is
on
direction or
Unresolved
instruction
defendant
little
B-T
in
identi-
imate
of defense.
Ltd. v.
the defendant
defense of
whether
witness,
Blakeman,
expert
705
307 (Wyo.1985);
to an
P.2d
fication
entitled
nature,
(Wyo.
v.
not find undone if the instruction even concur consequently Bean, Wyo- K. Russell Member of defense could addressing the thesis Bar, Lee F. ming Sachnoff State People v. given. properly also been Colo., Hostetler, Denver, ap- Bakеr & 600, Cal.Rptr. 45 Cal.3d Wright, pellees. (1988). Su See P.2d California 1988-July Survey May preme Court — CARDINE, C.J., and Before L.Rev. 431 Pepperdine THOMAS, URBIGKIT, MACY and
GOLDEN, JJ.
MACY, Justice. summary judg- appeal This is an from Appellees Peter Hummel ment in favor of Wells, denying Frank the claim G. Corporation Appellant Woods Petroleum CORPORATION, drilling, com- expenses for underbilled PETROLEUM WOODS (Plaintiff), well. Appellant pleting, operating an oil We affirm. Wells, issues, Petrole- as framed Woods Frank G. HUMMEL Peter (Defendants). adopted by Hummel Corporation and Appellees um *6 Wells, are as follows: 89-38. No. District Court erred 1. Whether the Wyoming. Supreme Court issuing Summary Judgment inter- Accounting Proce- preting the COPAS Dec. industry usage relying on dure without accounting in- specific practice terpretation. the District Court erred
2. Whether Summary Judgment wherе ex- issuing interpret necessary to pert specific provisions. contractual erred the District Court 3. Whether issuing Summary Judgment where provi- language contractual clear Defendants/Appel- provided that sions share pay proportionate must their lees subject of the costs attributable well. Corporation
In Woods Petroleum agreement for intо an and Hummel entered Campbell well in development an oil one- received a County, in which Hummel nonoperating working interest. third a model form subject to agreement was by Woods agreement executed operating operator, and Corporation, as Petroleum Moncrief, as Company and W.A. Oil Davis Evaluating, Annotation, of, to be Considered in or Factors ny, 46 A.L.R.4th Testimony Omitting, Eyewitness Prejudicial of, Necessity —State Identification Effect of Cases, Reliability A.L.R.4A 1089 Jury Cautionary as to Instruction