Towner v. State

gated’ pay to lia concept any exclude the suit” is one “seeking damages on ac- bility which the insured have volun count of bodily injury ** n .” 1 tarily Long, assumed damage.” Law Accordingly, duty even the to § Insurance, 1.10, Liability p. 1-25. defend is limited tort actions. See 7A Appleman, also Insurance Law and (Berdal ed.), 4493, pp.

Practice 55-56

Appellants assert that such narrow liability-coverage reading clause can- TOWNER, Appellant Charles expansive protec- be reconciled with (Defendant), contemplated policy titles “Busi- Policy” “Comprehensive ness Protector Liability General Insurance.” The cover- Wyoming, Appellee STATE of clause, titles, controls, age policy not the (Plaintiff). however, admittedly broad these labels No. 83-223. provisions express cannot override the coverage protect paragraph so as Supreme Court of Wyoming. possible risks. insured all Fresno Aug. Cars, Economy Import Used Inc. v. Unit- Guaranty Company, Fidelity ed States &

Inc., Cal.App.3d Cal.Rptr. coverage at

We conclude that the clause encompasses lia-

issue in case

bility imposes all insureds law on conduct and not on the their tortious

liability particular which a insured pursuant

choose assume contract. potential liability in this

Action Ads’ case negligent

stemmed from its own behav-

ior, obligation. but from a contractual

Therefore, duty Great American had no comprehensive general-liability

under the policy

insurance to defend Action Ads. summary judgment is affirmed.

ROONEY, Justice, Chief specially con-

curring.

I concur with that the majority said in

opinion, but I appellants’ understand one of

arguments to notwithstanding be that contract does not cover con- liability,

tract duty does include a sup-

defend a breach of contract claim. In thereof,

port appellants point policy to the

language which recites: “ * * * * * eompany ^he have * * * duty any any defend suit even if allegations ground- the suit are ** * ”

less, false or fraudulent.

However, quoted provision the rest of

provides in part “duty that the to defend Munker, Public Defend-

Leonard D. er, Program, Wyoming Public Defender Hackl, Appellate Sylvia Lee Counsel (argued), Cheyenne, appellant. Gen., McClintock, Atty. A. Gerald A. 6. Stack, Gen., Deputy Atty. Ren- John W. Gen., neisen, Atty. Senior Asst. and Mi- (ar- Blonigen, Atty. chael A. Asst. Gen. gued), appellee. ROONEY, C.J., THOMAS,

Before ROSE, CARDINE, BROWN and JJ. CARDINE, Justice.

Appellant Towner was convicted Charles concealing goods four counts of § 6-7-304, violation W.S.1977.1 We will reverse. began February

Appellant’s trial on sequester 1983. A motion to the witnesses granted. presented The State several burgla- witnesses who testified various ries, taken, the items which were value of those items. Police officers testi- concerning fied the search of the Towner appellant. interview residence and dispute There is no that the stolen items quarters appellant’s living were found parents’ the basement of his home. on lack of Appellant based defense requisite were knowledge that the items One element for convic- stolen. person charged buy, receive tion is that the "knowing goods the same or conceal stolen § 6-7-304, supra. to have been stolen.” Appellant that his wife residence; brought property into the explanation her that he had believed acquired purchasing and had she was lawfully. Appellant’s wife was as a not available to called witness at planned to call the trial. The defense then W.S.1977, at 6-7-304, appeared as stolen, Section has been embezzled or obtained offense, part: provided pretense, knowing time of false stolen, the same to have been receives, aids pre buys, conceals embezzled or obtained false “Whoever n value, (Now 6-3-403, W.S.1977) which anything of tense the concealment Towner, appellant’s father, Mr. “is not Gloria dubious relevance but is Towner, sister, testify also cumulative to what the defendant appellant’s wife had made similar to, state- has already testified no ments concerning acquisition her challenged” has property to them. therefore, and, ruling previous affirmed his

Appellant’s testimony attorney excluding was the of the witnesses. informed the court and the prosecuting attorney that question presented to us Mr. Towner and Gloria Towner had been trial erred in whether the court seen the during appellant’s courtroom testimony to the defense witnesses’ due testimony, thereby violating sequestra-' the apparent sequestra violation of the tion order. The court excluded their testi- 615, W.R.E., provides order. Rule for mony because of the violation. The de- rule, witnesses.2 Under this exclusion of fense, therefore, Subsequently ap- rested. sequestration of witnesses is a matter pellant’s attorney learned from Mr. Towner party. for either purpose tois and Gloria Towner that an agent of the prevent tailoring of the evidence to con attorney’s district office attempted had to prior testimony form to and to assist the them; interview they that had been asked parties in detecting falsehoods and testimo agent courtroom, to enter the and ny which less than candid. United they did so because request. Appel- of this Ell, Cir.1983); v. 718 States attorney lant’s informed the court of the States, Geders v. 425 U.S. 96 United explanation Towners’ being of their in the (1976); S.Ct. 47 L.Ed.2d 592 3 Loui courtroom, protested the exclusion of their sell Although & Mueller 370 testimony, they permit- and asked that be 615, W.R.E., Rule provide does not for prosecution ted to testify. The a read rule, sanctions for violations agent statement relating from the to a (1) most often invoked remedies are to hold conversation he had with Mr. Towner contempt; (2) the witness in to make the shortly before Mr. Towner entered the subject violation a for cross-examination courtroom. It is unclear from this state- comment; (3) to disallow the testi ment or agent whether not the induced the mony altogether. 3 Louisell & Mueller witnesses may to enter the courtroom. He § 371; (1978), 13 Land*& Water 909 L.Rev. have; least, very at the that matter was Wyoming “Article VI of Rules of Evi dispute. dence: Witnesses.” proof The court asked for an offer of as Supreme The United States Court held testimony of to what the these witnesses States, 91, 14 Holder v. 150 U.S. United permitted testify. Appel- be if to would (1893): L.Ed. S.Ct. 37 1010 that lant’s counsel stated Mr. Towner “If a disobeys witness the order of with- testify appellant’s would wife had told drawal, may proceeded while he buying him that items be she was living quarters, contempt, for found open going get jury by she bill of to comment to the reason to sale conduct, thereby to going disquali- it to him. He was also he is not and show fied, testify weight authority wife told him is that getting money pay to ground, she was he cannot be on that excluded parents. merely, although items from her Gloria Towner exclude essentially going testify similar particular under circumstances The court ruled that this supported conversations. within the as sound discretion of the trial court.” 14 at 10. 615, W.R.E., (2) person, provides: who is a natural or officer employee party of a which is not a natural request party shall "At order designated person representative by as its its excluded cannot witnesses so hear (3) attorney, person presence whose and it other party presen- to be shown essential to make the order of its own This rule motion. (1) tation of party his cause.” does not authorize exclusion of 48 process. v. 295 finding Burdge, addressed previously

haveWe Or. judge allowed in circumstances although they had been testify witnesses Schaefer, F.2d United States seques- aof in violation in the courtroom (7th Cir.1962), held that 14 A.L.R.3d allowance We affirmed tration harsh in exclusion of was too permitting testimony,«stating that of that did not willful- situations where witness matter ad- testify was a there ly order and violate of the court the discretion dressed no indiction that the witness was gross abuse reverse we would “ State, Whiteley v. discretion. of that consent, connivance, procurement ‘the Pixley (1966); Wyo., P.2d or his ** not, (1965). We have P.2d 662 [Disqualification counsel.’ pro- of the however, the addressed particular cir offending witness absent a because excluding priety penalty cumstances is too harsh a on the sequestration aof violation also, litigant.” See innocent United (10th Johnston, 1352 578 F.2d

States v. 931, Cir.1978), denied 439 U.S. 99 cert. party is general rule that a 321, 58 L.Ed.2d 325. S.Ct. procures of nor the who does know Wainwright, deprived of v. 463 not be essen Braswell violation should § Cir.1972), (5th excluding tes testimony. Trial found error tial 88 70. How C.J.S. sequestration of a violation ever, timony is because party when a knows that witness rights and grounds of Sixth Amendment violating allows the violation on the rule and stating continue, that the defendant’s right process, to due he lose the right to witnesses in behalf was present object on those obtain the witness or nor neither the defendant grounds. 23 Law 1013. violated. Since C.J.S. Criminal violation, involved in the his counsel was party “A should not be denied wit could not have been waiver there of misconduct the ness because the right which would render constitutional permit party ‘Refusal to has not caused. Testimony con proper. exclusion testify in a criminal case on a witness to properly excluded when the court sidered ground the the that he had violated order government’s the found connivance of error excluding is reversible witnesses defendant, prejudice the counsel and nor the defend neither the state Blasco, 702 1315 v. F.2d United States responsible for the violation of ant was Cir.1983), (11th defendant vio and where a he the not know order and did by comparing sequestration order lated present.’- Excluding an testimony with another witness. United Rather, appropriate remedy. Cir.1974), (9th Torbert, v. 496 F.2d 154 States credibility on the should be instructed 857, rt. denied 419 U.S. willfully If the order witness. ce 105, 42 L.Ed.2d violated, properly hold the (Cita contempt witness of court.” Gibson, v. 675 F.2d 825 United States Wells, Mont., omitted.) tions v. Cir.1982), (6th cert. denied 459 U.S. (1983). P.2d 381 74 L.Ed.2d stated 103 S.Ct. “particular agree that the testimony is too most authorities Exclusion of the witness’ States, v. circumstances” of Holder United grave a sanction where violation supra, for exclusion are indica procured sufficient not intentional and was not A violated the order counsel. tions that the witness party connivance of the or his connivance, consent, procurement practical accommodation be- with and sensitive seeking party the tes right knowledge tween the defendant’s there was no abuse timony. This case held defense the trial court’s need to control testimony be Ex- proceedings be maintained. of discretion must courtroom stayed clusion when it the witness should be allowed cause integrity knowledge defendant preserve the gave substantially pie Linder, another witness identi- Cal.3d Cal.Rptr. testimony. Excluding two witnesses cal 486 P.2d 1226 If there were no to'deprive for a violation was held not independent corroborative evidence on the defendant obtain points that the defendant testified to other in his where three other witnesses behalf than the excluded testimony, it improper- testified to the same facts and the defend- ly excluded. Conklin, State v. 79 Wash.2d presence of their ant counsel knew Blackburn, Calloway in the courtroom. Davis, (5th United States v. 639 F.2d 239 Cir.1980). 612 F.2d 201 Cir.1981), deny held that it was error to presented

There was no evidence defendant his to call witnesses was it claimed that Mr. Towner and nor circumstances where the exclusion resulted Gloria Towner entered the courtroom with noncompliance discovery from with a order or consent of even though judge also ruled that the only allegations con his counsel. The evidence was cumulative. Another court of their cerned the inducement refused to allow defendant to call witness- agent county an attor presence es who would corroborate his Therefore, we find that exclu ney’s office. intent, that he lacked the necessary stating as a sanction for sion of that the hearsay. evidence was appeal On violating order was reversal, there was a holding court that of discretion. abuse testimony cumulative, even if the were it should not be excluded if introduced to contends, however, The State that corroborate the defendant’s own statement if even the exclusion of the witnesses for because, sequestration violation of the order was deny defendant the present “[t]o improper, ruling upheld should still be any independent corroborative grounds on the on a material issue must be considered cumulative irrelevant. prejudicial error. Such testimony is W.R.E., states: ‘cumulative’ to the extent that the de- relevant, “Although may evidence be ex- fendant testifies to the same facts or probative cluded if its value is substan- However, events. know of no rule ‘[w]e tially outweighed by danger of unfair prohibits person on trial issues, prejudice, confusion of the or mis- criminal introducing offense from leading jury, or considerations of testimony upon any cumulative fact ma- time, delay, or undue waste of needless ease, terial to the within reasonable lim- presentation cumulative evidence.” its, and it is manifest that testimo- [such added.) (Emphasis ny prohibited should not be when it] We have stated that the trial court’s discre- sought to be introduced to corroborate ruling on evidence will not be over- statement, which, his own reason of except turned for clear abuse. Buhrle trial, may interest the result of the State, Wyo., 627 P.2d 1374 How- be, is, upon by often looked ever, extraordinary remedy Rule 403 is an degree suspicion.’ with some [Cita- sparingly which should be used since (Emphasis omitted.) People v. tions.]” evidence which allows the to exclude Green, Colo.App. probative. concededly relevant and Its major exclude scant or function is to Mueller, 2 Louisell & Federal Evidence may unfairly cumulative evidence which § 128 states that: prejudicial, confusing, needlessly or Thevis, cumulative. United States entirely dupli- “Not all evidence which is (5th Cir.1982). It has been held cative is and ex- therefore cumulative error to exclude evidence which is corrobo- degree vary cludable. Evidence testimony. rative of the defendant’s Peo- persuasiveness, and when an item of very point charged. appellant’s case went on a When which is offered proof im- persuasive jury, testimony denying knowl- in character different proof previously from an item were was uncor- pact edge goods stolen con- received, cannot be former It stood alone roborated. the lat- merely ‘cumulative’ of

sidered total and all of its witnesses. State’s case jury may ter.” have be- It is irre- lieved Mr. Towner Gloria Towner from Appellant’s case different relationship ap- spective of their close testify to many could evidence, when pellant. This corroborative trial limits the the same facts appellant’s may or testimony, added to Appellant witnesses to a few. not have weight tip been of sufficient of the behalf. With exclusion his own the scales in his favor. We do not know sister, there father jury might what the have decided. We do testimony to the no other know that defendant had brought the allegedly wife and these witnesses explained house into the items that would tend to his testimo- corroborate Appellant’s presence. ny and would refute a material element of convic for a property was charged. Therefore, the crime we reverse relevant testimony was The excluded tion. and remand this case for a new trial or and corroborative element material to a proceedings further as are not incon- testimony. opinion. sistent with this prosecution that “the The State contends veracity existence challenged the never Justice, ROONEY, dissenting, with Chief made to of these statements” Justice, BROWN, joins. whom attorney, how- prosecuting his wife. The majority opinion concludes fact; stipulate to this ever, admit or did not sanction violation of the he stated that and, arguments, closing (disallowing order in this case the testimo- stories several different appellant had told witnesses) ny of the two was too severe. he said: items when concerning so, opinion implies saying not While n “ * * However, there is a we think the trial should allowed the have knowledge that showing on actual clear by jury with comment It is an element stolen. those items were the witnesses had violated the De find You cannot the crime. knew those unless he guilty fendant analysis go beyond I believe the should stolen, you just have will items were point, this analysis by and I believe the the sim credibility and his to determine trial court did so. The trial court held the stories told two different he ple testimony to be “ * * * story and a different law enforcement only relevance but of dubious long goes way you today, which Defendant to what the is also cumulative evidence to, towards circumstantial no to which already has testified * * * ” he would knowledge, guilty challenged. there was has story. We have consistent have told one Thus, the court allowing considered two dif that he tells question, a harder testimony accompanied by cautionary different you a and tells ferent stories court, comment of and then it consid- all fact of that to the story, you add ered such light 403, of Rule circumstances, how suspicious provides: of these W.R.E. That rule on, going dealing wheeling and “Although relevant, evidence be ex- she this you and he obvious told if probative cluded its is substan- value money.” tially outweighed by danger of unfair issues, appel- prejudice, mis- confusion jury believed It is leading by jury, considerations testimony after he lant had fabricated time, Triangle Service, Inc.; delay, waste of or needless Sales and undue and an auger taken of cumulative evidence.” from Michaels presentation Appel- Fence. lant testified that these items found I believe the court acted in this matter bedroom by were obtained his wife who within the discretion afforded to it purchased said she them from her cousin’s scope W.R.E. Within the of this rule friend. probative value of testimony we have said that admission of evidence is by appellant’s father and sister to the ef- within the sound discretion of the trial fect that wife had told them she court, which discretion will not be dis purchased this random per- assortment of turbed absent a clear abuse of it. Sanville sonal from her cousin’s friend State, Wyo., (1979); 593 P.2d would be weakened the rela- Hopkinson State, 79,101 Wyo., 632 P.2d tionship appellant between and the two wit- (1981), cert. denied 455 U.S. 102 nesses but also the court’s comment 71 L.Ed.2d 463 appellant And relative to their sequestra- violation of the has the demonstrating burden of an abuse tion order. State, discretion. Nimmo v. Against “probative value” of the (1979); P.2d Buhrle v. of the two the trial Wyo., 627 P.2d court had weigh desirability for not Applying case, the rule to this we must presenting doing cumulative evidence.1 In (1) ascertain probative value of the so, outweigh the court found latter to evidence, (2) the consideration of need- the former. presentation less of cumulative evidence. on appeal is not whether Then, weigh we must the first determina- the decision of the trial court was that the second to conclude wheth- which we would have made. We are not to er not there was a clear abuse of the weigh the factors ourselves. Our determi- trial court’s discretion. nation is whether or not the trial court’s If the trial court had admitted the evi- decision was a clear abuse of discretion. dence under the conditions set forth in the “A court does not abuse its discretion majority opinion, would have had unless it in a acts manner which exceeds credibility be advised that the bounds of reason under the circum father and of his determining stances. In whether there sister should be considered in view of the discretion, has been an abuse of the ulti fact that were in the courtroom at the mate issue is whether or not the court time violation of the reasonably could conclude as it did. An direct order of the court that be then abuse of discretion has been said to mean excluded, potential and that the existed for error of law committed the court them to have tailored * n * ” under the circumstances. Mar conform with the appellant. tinez v. 611 P.2d jury would then have heard them testi- fy wife told them that she I do not believe the trial court acted purchased property in question, manner exceeded the clearly which bounds appellant having already told the circumstances; reason under the thing. his wife had told him the same clearly was other than in a reasonable consisted commercial manner; clearly or which was an error of Casper microwave oven taken from the law committed under the circumstances. Inn; stereo, Hilton television and micro- wave oven taken from the Lundine resi- finding Not a clear abuse of discretion in dence; toolbox, calculator, seques- resin tak- of the two Moltec; en from drill bits taken from I tered would affirm. "additional or corrobo- evidence is

1. Cumulative point.” Black’s Law to the same rative evidence Dictionary 1979), p. ed.

Case Details

Case Name: Towner v. State

Court Name: Wyoming Supreme Court

Date Published: Aug 10, 1984

Citation: 685 P.2d 45

Docket Number: 83-223

Court Abbreviation: Wyo.