*1 pur Error Brady 9. Cumulative exculpatory evidence effectively, it and used poses "if disclosed Phillips’ final issue amounts claim of convic may make the difference between A claim of cumulative error. cumulative Bag acquittal.” United States v. tion and depends being recognized. upon error error 667, 676, 105 S.Ct. ley, 473 U.S. State, 196 (Wyo. Thom v. 792 P.2d (1985). However, failure to L.Ed.2d 481 1990). case. No error exists provide useful to defense but evidence Finding brought by error in the issues no change the result does not likely not appellant, this case is Giglio v. require reversal. United Affirmed. 92 S.Ct. (1972). In order L.Ed.2d 104 to warrant URBIGKIT, C.J., (dissent dissents to be im failing potential to disclose reversal date, at a filed later see evidence, peachment the evidence must be (1992)). P.2d “material,” simply The not favorable. Supreme Court has articu United States following if test determine
lated the is “material”:
evidence material if there is a
The evidence is that, probability had the evi-
reasonable defense, been disclosed
dence proceeding have been
result of would probability” A “reasonable different. Jetty HARVEY, Appellant Lee probability sufficient to undermine con- (Defendant), in the outcome. fidence The at 3383. Wyoming, STATE not withheld here is material un- evidence (Plaintiff). Appellee der this test. No. 90-113. witnessing Lacey testified the abduc truck, tion, Wyoming. following notifying Court of police. Evidence of these events was also 11, 1992. June presented through testimony of the vic July Rehearing Denied tim, co-conspirator Harvey, and Phillips’ police officers. other evidence various overwhelmingly
so established that the vic truck, put in the grabbed,
tim was place appellant
truck travelled to the where by police real apprehended
was that it was
ly Lacey dispute is all without —and clearly these testified to. With facts so
established, credibility Lacey’s no dif made testimony His could have been
ference. It, therefore,
totally discounted. not probability in that there was
material
sufficient to undermine confidence The prosecution’s the case.
outcome of Lacey’s background infor give
failure Phillips Brady. does not violate
mation Buchanan, 891 F.2d
See States Cir.1989), (10th cert. denied L.Ed.2d 958 *2 Healy Healy (argued),
Stuart S. & Kinnaird, Sheridan, appellant. Gen., Joseph Meyer, Sylvia Atty. B. Hackl, Gen., Deputy Atty. Byrne, Karen A. Gen., (ar- Hugh Atty. Kenny Sr. Asst. Gen., gued), Atty. appellee. Sr. Asst. THOMAS, URBIGKIT, C.J., and Before CARDINE, GOLDEN, MACY JJ. CARDINE, Justice.
Jetty
Harvey challenges
Lee
his convic-
conspiracy
kidnapping.
tion for
to commit
walking along
Phillips
Elk Street.
prior
kidnapping,
His
convictions for
which woman
he
objective
conspiracy,
grab
said
woman. Har
was the
wanted
Phillips
vey
to a
considered this a dare.
turned
sexual assault were reversed due
around,
Harvey
truck
asked the
violation.
I). The
if
wanted a ride. The woman
(Wyo.1989) (Harvey
tive offense and a
to commit
separate and distinct offenses ...
it are
DISCUSSION
plea
jeopardy
is no
double
[a]nd
Jeopardy
Double
of-
a conviction for both
defense to
fenses”).
jeopardy
Harvey’s double
claim
Felix,
Conspiracy
at 1384.
appellant in the com
S.Ct.
mirrors that of the
ease,
sepa-
offense are
completed
substantive
panion
Phillips
case of
II.
we
States,
Corbin,
v. United
rate offenses.
Iannelli
Grady
noted that in
U.S.
1284, 1289,
95 S.Ct.
L.Ed.2d 548
110 S.Ct.
proof
of different
L.Ed.2d 616
Supreme Court held that:
the United States
person
convict
for the substantive crimes does
violate
necessary
is
conduct
protected against
each offense.
to be
double
II,
1068;
Phillips
P.2d
jeopardy.
conspiracy
agreement
A
is
between
an
Felix, supra, 112
also
States v.
persons
more
to do an unlawful
see
United
two or
conspiracy
complete
(holding
“long antedating
act. The crime of
Corbin,
made and
agreement
when an
has been
any
[Grady
of these cases
performed to
act or acts are
overt
110 S.Ct.
ranted. 806 P.2d Osborne 3. Publicity Pretrial I, Change (Wyo.1991); Phillips 774 P.2d at Venue 121. II, Phillips explained P.2d 1068. As After Harvey moved to dismiss the below, span charges the time in this change ease between or for of venue due to filing complaint pretrial the date of the publicity, the court reserved the question date of the start of the trial is neither until trial in an order filed Novem “presumptively prejudicial” significant- 27, 1989, nor 1989. ber On December Thus, ly long. calculating after pretrial the time court issued a stating: order span, analyze we need not The Court also indicated that if a jury issue further. could not be obtained Sweetwater County during the week January complaint
Between the time the was first filed to the time of the trial spans days. [1990] the Court would be inclined to move case to either Uinta or Lincoln conspiracy The information on the to com- during counties for trial week charge mit sexual assault was filed on No- January vember 1989. The information on the conspiracy kidnapping charge to commit Jury began January selection was filed on November 1989. Both *6 January and concluded on 1990. Voir in sides indicate their briefs that the inter- occupies pages transcript dire over 900 27, 1989, September val of time from when persons in the record. Some 74 were ex- conspiracy kidnapping to commit jury amined for the in this case. Each 7, 1989, charge dropped, was to November juror individually concerning was examined refiled, charges occupied when were knowledge her about the earlier trial by plea bargain negotiations. Harvey does subsequent per- and reversal. Of the 74 argue span that this him time caused examined, only persons sons ten stated prejudice. filing The time from the of the they knowledge previous had no of the conspiracy first information for to commit However, persons convictions. 43 stated spans sexual to the time of trial assault 66 they opinion Harvey’s had formed no as to days. guilt seating jury, or innocence. After Harvey renewed his motion. The court delays Harvey Two to attributable jury found that the as seated would be fair computation. are subtracted from this Dis impartial and and denied the motion. 204(c) (d); II, Phillips trict Court Rule procedure We have summarized our for Harvey petition 835 P.2d 1068. filed a determining the trial court correct- whether prohibition for a on writ with ly change ruled on a motion for of venue 25, 1989, July Septem which we denied on pretrial publicity due to follows: 18, 1989. 779 Harvey, ber State ex rel. span days. P.2d This is a of 55 It is the of the defendant to On burden 18, 1989, great certifying prejudice an order so that a fair trial December show obtained, State, questions Harvey’s to this court on motion cannot be Collins v. [589 (Wyo.1979)], was entered. We remanded the P.2d 1283 and the defen- case in questions prejudice unan dant must show actual district court with the State, Wyo., January span jurors. on 1990. This is a minds of v. swered Wilcox (1983). Because of days. filing of 15 The time from the of the 670 P.2d 1119 trial, this, change the motion for a of venue complaint to the date of with time logically passed until the delays Harvey, for attributable to cannot be on deducted 1080 appeal. side record on Collins v. any, if is determined prejudice,
extent of
State,
(Wyo.1979).
dire
Moss v.
P.2d
upon voir
examination.
State,
(Wyo.1972)]. However,
judicial
P.2d
notice
we take
of these
[492
“ * * *
propriety
of the
The ultimate test
publicity
amount of
on
reversal
is
change
of a
of venue is what
revealed
filing
Harvey’s
earlier conviction and the
* * * ”
panel.
jury
of the
voir dire
generated
conspiracy charges
in or
State, Wyo.,
P.2d
v.
Harvey
der to
effective assistance
ensure
Shaffer
(1982).
judge’s
31 A.L.R.4th
appellate
Gambling
counsel.
Devices
ruling
subject
review
on venue
State,
(Wyo.1985);
P.2d
v.
Murray
of discretion.
an abuse
State,
(Wyo.
Stice v.
P.2d
(1983);
State,
671 P.2d
Wyo.,
1990).
State,
P.2d
Wyo., 522
Jackson v.
case, from announcement of the re-
This
cert. denied
coverage
versal
the earlier conviction
State,
Mares
culminating in the commencement of trial
Wyo., 500 P.2d
proceedings,
publicity
received more
than
two-pronged
adopted a
test
We have
newspa-
most
cases receive. The
determining
change
whether
per
were
accounts
events
fair
granted
pre-
venue
because
should
balanced. Some letters to
editors and
First,
publicity.
the nature and ex-
editorial columns indicate that these events
considered;
publicity
tent of the
must be
sparked
people.
certain
do
emotions
We
difficulty
selecting
second,
or ease
appendix
note the material submitted
jury
along
must be considered
Harvey’s
brief
not one-sided. Some
ap-
prejudice
actually
amount of
rights
considers the
involved
material
pears during voir dire examination.
our
I and makes for a
Harvey
decision
Each of
supra.
these
Murray
lively
informed debate on these issues.
must
elements
be considered
order
publicity
and nature of the
amount
the court abused its
determine whether
requires
effect
us to examine the
it had
change of
denying
ven-
discretion
jury.
ue.
expected
most
It
is to
fair
apparent
It is
received a
jury
will have heard about a sen-
panel
long,
jury through a
impartial
involved
case,
require-
no
but there is
sational
jury
selection. Well over half
careful
*7
juror
ignorant
ment
that a
jury duty stated
persons
of the
called for
a
issues involved in
case.
facts
they had
no
during
dire that
formed
voir
State, supra.
totality
v.
Wilcox
opinion
Harvey’s guilt
innocence
as
pres-
indicate the
the circumstances must
despite
they knew about the case.
whatever
improper prejudice.
ence
Weddle
Murry,
tential j. Testimony Use Allocution the record knowledge of the case. Outside trial, in the first After conviction court, newspaper reprints from the trial kidnapping Harvey’s sentencing for the concerning provided the case were articles assault, made an Harvey allocu and sexual to his Harvey appendix in an brief. At to the court. his subse- out tion statement do not consider matters Normally we quent conspiracy trial on the charges, the “And then Everett Phillips don’t —I portions State read of his allocution state- know where going. we were pulls He ment' into evidence as follows: into park this trailer hollering, starts Ready, your
MR. FLYNN: ‘I want Honor? some. I want some.’ I says, ‘No, Everett. Let’s time, take the “MR. KINNAIRD: woman your At this Honor, goes, ‘Well, home.’ And he I would like the bitch for Mr. can grabbed suck it.’ And I make a statement that he would like to arm then said, ‘No, make and I Everett. taking We’re [to Court].” her go.’ home. Let’s And that is when I DETECTIVE MAXWELL: “MR. cop go by through saw car HARVEY: I meant window. this woman no harm. said, fact, And I ‘Now stopped cop. I even there is a being her from Let’s just take her harmed at the I home.’ resisting long end. tried before she was even abducted. Everett “And stopped, when we cops, I just was past insistent from two blocks didn’t even know it cops. I could her, her to telling two blocks to me to lights see in the mirror. got Everett out grab her. saying, Grab her. And I was and went back gone to them. He was I ‘No. don’t want this.’ And even when for, anyway, two minutes and there was pulled up I beside her I and rolled down struggle no in the back. There was no window, my by. just she walked I asked hollering, one screaming. just I looked her if she wanted a ride because it was in the mirror. And then I’m looking cold. She never looked at me. She nev- in the mirror back couple minutes or er just kept answered. She her head so, this victim], woman got she be- [the down, her pocket hands in her coat tween the seats and started headed for by. she walked IAnd turned to Everett just driver’s door. And I stepped out said, ‘See, and I she doesn’t even want a of the truck. police And the officer told ride.’ says, you got And he ‘No. All stop me to put my hands on the grab do is her.’ He throws it into re- camper. just That’s what I done until woman, up past verse and backs slap- fight after the They with David Swazo. me, ping grab grab ‘Just her. Just But, cuffed us jail. and took us to at the ” her.’ this, time of all of there was a real— THE COURT: You read that incorrect- factor, there big was a very too of ly Officer. drunk.” THE sorry. WITNESS: I’m “‘Just Officer, MR. you, FLYNN: Thank grab her. Grab her.’ And that’s when I reading. finishes the finally broke got down on it there. out Harvey claims that the use of his allocution stepped out in front her. She statements violated his not to incrimi- me, up head, walked lifted her looked nate himself under the Fifth Amendment said, ‘Hey, at me and I get look. Just of the United States Constitution and Art. give you *8 we’ll ride home.’ And she 1, 11 of the Wyoming Constitution. § turned and walked around me. And origin The right that’s when I of a defendant’s to say, heard Everett allo- ‘Grab her, chicken-shit.’ And that cution—to address having was the fi- the court before nal sentence’pronounced English straw the dare. in com- —lies early mon English law. Under coat, “I grabbed turned and her the practice, shoulder, an accused was not coun- allowed pulled the her off her feet to- competent sel nor was he a witness for pickup. ward the up put Picked her provided himself. Allocution her in the a convicted laying vehicle. She be- only opportunity speak defendant the to up tween the seats with her hands like himself, saying, generally this. She was and its omission would ‘Don’thurt me.’ I said, Annotation, going required ‘No one is have reversal. you.’ to hurt She Neces- * * * Question grabbed legs by sity Sufficiency relaxed. I her the to Defen- boots, said, worry. Anything ‘Don’t No one dant as to Whether He Has to going you.’ to hurt Say Why Not Be Pro- Sentence Should 1082 Him, 1292, Thus, Against criminate him at trial. the Court 96 A.L.R.2d
nounced allowing peti- in (1964). early days Wyoming noted that use trial of In 1295 suppres- it ownership did not consider claim of at a jurisprudence, this court tioner’s to hearing require petitioner if the court failed to reversible error sion would to allocute. properly allow the defendant choose the exercise of two consti- between Territory Wyoming, v. Wyo. 1 Kinsler rights. tutional The Court reversed the (Convicted murderer resentenced 112 “in- petitioner’s conviction because it found in statu using procedures right accordance with one tolerable constitutional The sentencing provisions). omission tory to be in order to should have surrendered did the defendant of the court to address 394, at another.” 88 S.Ct. assert trial, require it require but did However, not a new exercising right a at 976. to al judgment in order to setting aside the require surrendering allocution does compliance requirement. low right preserve one to another. convict- Kef State, 556, 49, Wyo. 73 P. 560 party ed needs to decide whether fer (1903). right to remain silent will be asserted or waived. proce- practice of criminal Under current dure, right to address a defendant’s right of allocution is similar to in sentencing at his is embodied right testify in one’s to own behalf. 33, part: in which states
W.R.Cr.P.
recog
The United States
(a) Sentence.
in
right
testify
nizes the
one’s own be
right
a
(1) Imposition of
half as
constitutional
embodied
Sentence. —Sentence
imposed
the Sixth Amendment of
United States
shall be
without unreasonable
right to
delay. Pending sentence the court
Constitution
call witnesses
one’s
defendant, continue or alter the
behalf and the Fourteenth Amend
commit
own
Rock v. Ar
Right
imposing
process.
the court ment
of due
Before
sentence
bail.
kansas,
44, 51-52,
opportunity to
U.S.
107 S.Ct.
afford counsel an
shall
2708-09,
speak and shall address
defendant
97 L.Ed.2d
These
rights apply
him if he
as well to actions
state
personally and ask
wishes
at
at
a
his own behalf and
courts. 483 U.S.
S.Ct.
2708.
make
statement
recognize
mitigation
right
this
in our own consti
present any
information
We
tution,
Const.,
Wyo.
punishment.
Art.
we
§
recognize
can
accused
waive
33(a)(1).
recognized
We have
W.R.Cr.P.
stand,
right,
testify
take the
as wit
“constitutionally
right to allocution as
Only incriminating
ness
his own behalf.
protected.” Christy
731 P.2d
“genuine compul
obtained
statements
(Wyo.1987).
testimony” spark
concerns about
sion
subsequent
at a
argues
use
privilege against self-in
violation
impermissi-
his allocution statement
trial of
Washing
crimination. United States v.
allocution,
bly compromises
right of
his
his
ton,
181, 186-87,
self-incrimination,
right against
Powers v.
1818,
COURT: Do have compel probation me to believe anything say your behalf or wish to denied. not warranted and should be mitigation present pun- information proceeded pronounce sen- any Iwhy ishment or reason know nothing tence. There stated was you shouldn’t now? sentence suggest court that would even that allocu- Yes, MR. Your Honor. KINNAIRD: required, tion there was no evi- was some present We’d like to evidence on his Harvey dence nor inference why behalf. We do not have reason forced to relate the details of abduction imposed sentence should not sentencing. Harvey and assault at his time. voluntarily. made these statements you Who do right. COURT: All want us as one of first This issue comes to speak? to have impression. considered whether We have Well, Harvey might analogous MR. Mr. Harvey’s KINNAIRD: statements poisonous to make subject himself would like a statement to the fruit doctrine, and then after Mr. tree v. United Wong Sun statement, completed has I have a 371 U.S. they were ob-
young lady by Cory name of Miss L.Ed.2d because *10 for a (Phonetic tained in a case later dismissed Wagonsen spelling) from Sheri- URBIGKIT, C.J., dissenting at 98. Had filed a speedy trial violation. 774 P.2d opinion. granted Harvey’s motion to the trial court trial, speedy no occa- dismiss for lack of a GOLDEN, J., dissenting opinion filed a for to allo- sion would have existed URBIGKIT, C.J., joined. any for cute. But the same be said URBIGKIT, Justice, dissenting. Chief right his to remain defendant who waives join in the dissent with Justice Golden testifies, silent, re- and the case is later preclusive on the mistake introduction of v. United Harrison appeal. versed on evidence, allocution and further dissent States, from the conviction this case and the (1968),. defendant singular rights and denial of constitutional previously testified to refute a statement procedural justice appellant for this ap- on made. The conviction was reversed high face of the emotion exhibited in the testimony re- peal. The defendant’s was community and the distasteful criminal of- subsequent resulted ceived in a trial which charged.1 fenses held appeal, in conviction. On abject justice This total failure in the testimony inadmissible it was because delivery system precludes any reasoned and, prior necessary to refute a statement jeopar- justification: constitutional double therefore, poisonous fruit of the tree. Har- disavowal, trial, dy speedy twice-violated was not vey’s allocution this case right impartial the denied to a fair and and prior a prompted by a desire to refute jury atmosphere of extreme within statement, suppress illegally obtained evi- Last, certainly community reaction. but dence, anything of a similar nature. or least, prosecutorial was allocution mis-
Harrison is of no
stated,
help. Simply
he
which,
prior
use of defendant’s
statement
right
to remain silent and made
waived
although
principal Wyo-
a fundamental
admissible,
voluntary statement which is
a
law,
ming
relegated
was
to be a
if
trial for
the same as
he had testified at
trap
the defendant when exercised.
for
testimony
purpose
giving
the sole
favor-
Any right
appeal
Wyoming
as a
statu-
to himself.
able
opinion,
tory
my
constitutional—
—and
mortgaged by
procedural booby
a
Affirmed.
events,
(Evanston,
Wyoming
County, Wyoming
principal participant
in these
to Uinta
1. The
Swazo,
guilty plea
after four- Wyoming)
David
entered
after which he was convicted of the
incarceration,
teen
at which time he
months
conspiracy
given
He was
a sen-
two
offenses.
charged
occurrence
denied the events
thirty years
twenty
tence of
with credit for
first-degree
kidnapping
the crimes of
and
sexual
original charges before the
time served on the
a sentence of fifteen to
assault. He received
speedy trial reversal of conviction.
petition
twenty-five years incarceration. His
Harvey,
appellant,
similarly
Jetty
was
Lee
judgment
post-conviction
vacate the
relief to
guilty
alternately
aiding
either
found
grant
a new trial based on the
and sentence
principal
abetting
rape
kidnapping
or as the
comply
failure to
with W.RXr.P. 15
trial court’s
(now
acquittal
to follow this
in first trial with the
11)
charges were oral-
W.R.Cr.P. when the
speedy
court’s reversal for
constitutional
change hearing
ly
plea
at the
and based
denied
State,
Harvey v.
Boardman counsel, retention the Boardman court part to answer in the court in allocution recognized: further made di- third-party victim communications argues California first that a defen- rectly right to the court. All of the ac- represented by dant who elects to be the court sentenc- cused to address before right speak counsel has no in his own denied, ing impact while victim com- The California courts behalf. have accepted. The munications were California view, adopted finding no appellate rejected appel- intermediate represented allocution for a defendant. *14 argument unpublished in an lant’s decision represented by “The [defendant] Supreme and the California Court affirmed and it was the function of that counsel opinion apparent accept- in without written counsel, rather than of the defendant process had not himself, ance that a due violation address to the court on the de- Cross, occurred as a result of the denial of allocu- People fendant’s behalf.” 678, 682, sentencing Cal.App.2d Cal.Rptr. tion under California law. (1963). Following rejection corpus in of habeas reject argument. We A defendant Court, the District the United States Court represented by to who chooses be coun- Appeals found constitutional error and right sel does not waive his to allocution. the reversed and remanded to represen- “That a defendant is entitled to District to determine if the States stages tation of counsel at all and, not, if then denial was not harmless to proceedings, including sentencing, does have the defendant returned to the state necessarily speak he ‘in not mean cannot re-sentencing. noteworthy court for It is mitigation pun- his own behalf’ ... that had no allocution statute or California States, Taylor ishment.” v. United significantly rule. This is different from (9th Cir.1960) (permitting F.2d Wyoming legal history the of statute and speak satisfy not counsel to does Rule rule, 32(c). now W.R.Cr.P. 32(a)’s requirement the defendant personally opportunity be offered the to tribunal, perceiving The federal a fed- speak). rep- A defendant’s choice to be eral constitutional interest involved the by complete counsel is not a resented allocution, state court denial of related in right surrender of his to direct his de- introduction: fense, permit does not a court forci- persuasive “The most counsel not bly interpose to that counsel between the speak be able to for a defendant as the person- defendant and the exercise of his might, halting eloquence, defendant rights. al speak for himself.” the administration of the crimi- “When Green v. United hedged by it is nal law ... about as 653, 655, 81 S.Ct. safeguards the Constitutional for the (Frankfurter, J., writing for the accused, deny protection of an to him plurality). exercise of his free choice the the Gary Boardman asserts he was denied right dispense to with some these process safeguards imprison due law because state ... is to a man speak privileges him to his and call it the Constitu- court refused allow sentencing hearing he tion.” his after affirma- requested agree
tively
McCann,
to do so. We
States ex rel.
Adams United
requires
process
269, 279-80,
due
criminal defendants
241-
permitted
quoted
to allocute before sentenc-
The Sixth Amendment “does
shall
to a
public trial, by
an impartial jury; to
merely that a defense shall be made for
accused;
informed of
nature and cause of
it
grants
accused
accusation,
to be
confronted with
personally
right
to make his de
him,
compulso-
witnesses
to have
Faretta,
422 U.S. at
fense.”
process
ry
obtaining
them in his fa-
added)
(emphasis
(holding
at 2533
vor, to have the
counsel
assistance of
right
defendant has
of self-
defense,
his
liberty
and shall
be at
representation guaranteed
the Sixth
himself;
speak for
nor shall he be de-
Amendment).
right
Because we
find
life,
prived
liberty,
property,
or
unless
sentencing
to allocute at
to have the
judgment
peers,
of his
law
personal quality
right
same
as the
of the land.”
defense,
reject
make a
we
California’s
Brown,
argument
that Boardman abandoned
the Rhode Island constitutional
compulsory process
obtaining
for
served
trial,
right
that court said:
witnesses,
by
and to a
trial
right
of allocution in this state is a
impartial jury
county
or district in
right of constitutional dimension. See
is alleged
which the offense
to have been
Const,
I,
art.
A
R.I.
10.
defendant in a
§
committed.
prosecution
has the constitution-
Const,
1,
Wyo.
practical
10.
art.
I see no
§
right
al
to address the court before the
“to
difference
Rhode Island’s
between
pronounces
justice
sentence. State
speak
provision
Wyo-
for himself”
Nicoletti,
613,
(R.I.1984);
v.
471 A.2d
ming’s
lan-
“right
person”
to defend in
v.
444 A.2d
Leonardo
guage.
case,
(R.I.1982). Brown, in this
was
speak
opportunity
afforded the
before
that since allocution had
also conclude
pronouncement of sentence. The vio-
in
statutorily
specific
existed
detail for
requires
that
this
right
adop-
lation of
twenty years
more
than
before
resentencing.
Constitution,
for
remand
case
it is real-
Wyoming
tion of the
ly rationally undeniable that allocution was
For the
reasons the de-
above-stated
in
constitutionally
design
embedded
is affirmed
fendant’s conviction
but
provided by
text
Constitu-
vacated,
imposed is
and the
sentence
provision.
person” right
tion’s “in
to defend
Superior
is remanded to the
Court
case
resentencing
permit
direction to
with
Boardman,
As
we are
perceived
was
right of
the defendant his constitutional
and indi-
by a look at the direct
informed
allocution.
States
rect determinations
the United
(footnote
necessity
of fur-
Brown,
Supreme
A.2d
at 1105
omit-
Court
nishing
to be uni-
ted).
pro-
right to allocution is
The Rhode Island constitutional
Const,
I,
eonstituen-
vision,
formly recognized, although its
R.I.
art.
stated:
§
Coffey,
required
United
v.
circuit courts.
States
Whether allocution is also
at re-sen-
Cf.
Cir.1989)
(6th
Turn-
following
probation,
States v.
tencing
F.2d
United
revocation of
in-
er,
(5th Cir.1984).
also United
only being
practice,
See
the better
is unre-
S.Ct. at 655: inconsistently L.Ed.2d 417 which is erroneously majority but cited 32(a) design begin of Rule did not this case to establish a non-constitutional promulgation; legal prove-
with its
its
Hill,
confirmation for allocution.
nance was the common-law
of allo-
examination was not
involved since the
early
recog-
cution. As
it was
appellate concept
case centered on the
nized that the court’s failure to ask the
speak.
the accused had not asked to
Left
anything
say
defendant if he had
be-
open was the constitutional
issue
imposed required
fore sentence was
re-
case of a
request
denied affirmative
under
Anonymous,
versal. See
3 Mod.
concepts:
law
Eng.Rep.
(K.B.).
Taken in federal
It is to be noted that we are not deal-
history,
the context of its
there can be
*16
ing here with a case where the defendant
little
that
doubt
the drafters of Rule
affirmatively
was
32(a)
opportunity
denied an
per-
intended that the defendant be
speak during
hearing
to
at which his
sonally
the opportunity
speak
afforded
to
imposed.
sug-
sentence was
it
Nor is
imposition
before
of sentence. We are
gested
in imposing
that
the sentence the
not unmindful of the
major
relevant
Judge
District
was either misinformed or
changes that have evolved in criminal
uninformed as to
relevant circum-
procedure since the seventeenth centu-
Indeed,
stances.
there
claim
is no
ry
sharp decrease in the number of
—the
the defendant
anything
would have had
punishable by death,
crimes which were
say if
formally
at all to
he had been
right
of the
testify
defendant to
on
speak.
invited to
Whether
2255 relief
§
behalf,
his
right
own
and the
to counsel.
would be available if a violation of Rule
why
procedural
But we see no reason
32(a) occurred in the context of other
rule should be limited to the circum-
aggravating
question
circumstances is
stances under which it arose if reasons
we therefore do not consider.
right
protects
for the
it
remain. None of
429,
at
Id.
Rule
1093
ming Supreme
followed
resen-
was recall
allocution
Court decisions with which I
predated
tencing.
remedy
That
what
completely disagree
1903
and to which I have
general
remedy
today
law on
angrily dissented.13 Here we have an exer-
Camp
allocution.
Arthur W.
denied
See
cise of
a constitutional
to then be
250,
bell, supra,
9:5 at
which states:
§
claimed
to constitute waiver and forfei-
judicial remedy
neglect
The
for serious allocu-
ture rather than a
or failure of
provides
point of
tion defects
one
nation-
counsel
act as the generally
established
uniformity.
there is a
wide
Where
sub- hitching post which
case
controls
decisions
right,
violation
the allocution
stantial
in the usual waiver/forfeiture of constitu-
appellate
remand for resentenc-
tribunals
right concepts
tional
vogue.
now in current
—
ing
proper procedures.
under
Where re-
Nunnemaker,
-,
Ylst v.
111
ordered,
usually
mand is not
it is
because
2590,
(1991).
regarded
the error is
as insubstantial or
non-prejudicial.
II.
OF
WAIVER
EFFECTIVE RIGHT TO
Consequently,
appellate
there was no
is-
APPEAL AND VIOLATION OF
already
court had
sue because
PRIVILEGE AGAINST SELF-IN-
provided
remedy.
appropriate
See also
BY
CRIMINATION
EXERCISED AL-
Siciliano,
939,
v.
953
States
F.2d
LOCUTION
Cir.1992);
(5th
v.
953
Miler United
comprehensive
At
as far as
re-
least
(D.C.App.1969); Wright
A.2d
498
255
revealed,
presently
search has
this court is
State, 24
A.2d
Md.App.
v.
486
presented
impression
case of
total first
State,
11 Md.App.
and Brown v.
regarding prosecutorial reuse of allocution
272 A.2d
principal
guilt
statements for
evidence of
Whether allocution is constitutional as
upon
following
retrial
of an initial
reversal
otherwise,
believe
basic foundational
conviction.
anomalous nature
Wyoming sentencing
nature of allocution in
first,
highlighted
case is
status of
its
under both state and federal constitutional
second,
reversal for denied
trial and
present
concepts
hardly
can
doubt.
being charged with the inchoate associative
pervasive question then to
decide
pulled
file
belatedly
offense
out of the
cabi-
pollutes subsequent
whether its exercise
using ex-
subsequent
net and
conviction
proceedings to
denial
authenticate
of other
actly
except
facts
the same
the additive
rights by applying concepts
constitutional
information.
this eviden-
allocution
With
Engberg Mey-
of waiver
forfeiture.
v.
tiary
for sub-
of allocution statements
use
er,
(Wyo.1991), Urbigkit,
P.2d
conviction, the
sequent
in-
prosecution
C.J., dissenting
concurring in
part
vidious and insidious caustic of constitu-
State,
part;
P.2d
Campbell v.
is intro-
rights
tional
waiver
forfeiture
J.,
Urbigkit,
specially
(Wyo.1989),
concur-
popu-
law achieve a
Wyoming
duced into
State,
ring
dissenting;
v.
Cutbirth
result, although avoiding consecra-
lar local
J.,
(Wyo.1988), Urbigkit,
P.2d
*
tion
the basics
dissenting.
federal constitutions.
ranges
beyond the modern
This case
far
appeal present?
Factually, what does this
personified by some
appellate statements
First,
to two defen-
speedy trial was denied
criminal decisions of the United States Su-
eighteen months
approximately
preme
Wyo-
of recent
dants for
Court12 and a course
—
-,
opinion;
774 P.2d
Thompson,
Amin
12. Coleman
J.,
Cutbirth,
(1991); McCleskey
dissenting;
(Wyo.1989), Urbigkit,
L.Ed.2d
—
Zant,
U.S.-,
Urbigkit,
dissenting.
L.Ed.2d
To
J.
751 P.2d at
*19
(1991); Wainwright Sykes,
C.J.,
Swazo,
517
S.Ct.
Urbigkit,
added
800 P.2d
is
(1977).
proper
Wong
of his confession.
two
371
introduction
See
U.S.
States,
Harrison,
U.S.
S.Ct. 407 and
Harrison
United
2008, although
88 S.Ct.
20 L.Ed.2d
S.Ct.
third case which
countervailing
testimony
provides
authority
in
is distin-
where re-introduction
constitutionally
guished.
States,
permit-
first trial was not
Simmons
ted in the retrial.
State’s will Brennan, by opinion. Actually, developed recitation this court’s tice the fruits of the poisonous application neither the State in its brief nor now the tree exclusion as an majority single invalidity original in cite one case started decision with evi- dentiary assessing rights against acquisition waiver of self-in- which then is extended by right consequently acquired crimination exercised allocu- to evidence or cre- single theoretically one case! ated. It illogical tion—not is to define understanding illegal this about what is precisely nothing This case has to do polluting product its to then conclude that poisonous justi- with fruits of the tree as a (ex- is justly provided protection what as a majority Wong fication for the decision. ercising right make an allocution 371 U.S. Sun v. United statement) any succeeding denies constitu- Nor it S.Ct. L.Ed.2d does Obviously, rights. tional has Wong Sun anything testimony have to do with in a absolutely nothing to do waiver or with right trial and remain upon first silent right against forfeiture self-incrimi- trial, Harrison, second nation derived from the of allocu- exercise clearly rejects the present tion. instead, and, majority decision is consistent principle constitutional which real- falls no closer line of Harrison to a base istically should applied precedential to reverse the claimed relevance. that presented case, majority opinion. Wong Sun, reuse thesis in which followed fruits of rationale, tree, Applying majority’s poisonous it is feas- it was that determined say way in a generic ible to that when the when confessions coerced were admitted defend, causing accused elects to the court could as into evidence accused to then easily say that he later rights rights against waives to waive self-incrimination guilt trial. testifying repetition, have determined at this in such testi- Waiver coerced broadly portrayed only mony given would mean that at the first trial inad- was then right the exercise one fundamental se- missible in a second trial. If Harrison requires although all other quentially equally anything, ap- that means cited in rights pellate that, thereafter it briefing, fundamental are lost and is like the re- Fortunately, pressed testimony, illegal forfeited. even 1992 in the first trial con- presented, produce constitutional environment now viction cannot evidence admissible support which, broad-reaching upon actuality, no case to this at- retrial concepts pro- present provided appeal. tack on basic constitutional status in this majority opinion. strange precedent vided State or the is indeed a Harrison principal decision. authenticate this The status allocution fabric elements in decision its should constitution- already law adequately has been ally require appeal. reversal discussed this dissent re- validate unquestionable recognition law quired and Since this is the substantive case system opinion, right majority is fundamental in our and cited look fur- we years. something fashion for ther to analo- has continued find even gy justify affirming possibly We need to look at each case cited in the could allocu- upon majority opinion admissibility what tion status reversal and to assess structure writer unusual is con- of constitutional law the of that retrial. A most statement opinion Actually majority opinion including seeks create. directed tained in the subject by opinion Washington, majority are citation to United States v. future self-incrimination *22 (1977)which bears examination. It is said: is, actuality, the uninformed and
A
essentially
defendant’s statements
involuntary
be admis-
advance abandon-
against
sible
him in
proceedings,
further
ment of
right
his future
to defend.15
provided they
voluntary. However,
are
What this court now tells defense coun-
if
require
the trial court were to
a defen-
general
sel in
particular
defendants in
dant to confess to criminal activities in within the Wyoming state courts is that:
his allocution in return for a more lenient
In exercising
right,
this fundamental
please
sentence,
those
statements would recognize the
your right
diminution of
to
“genuine compulsion
amount to
of testi-
appeal
you
and that
probably
will
be fore-
mony” in
right against
violation of the
closed a fair trial and an opportunity to
self-incrimination. Washington,
if
defend
a reversal should actually be
1818;
U.S. at
97 S.Ct. at
achieved; consequently,
only way
to
Rodriguez,
States v.
498 F.2d
protect your right
to defend on retrial
(5th Cir.1974).
would be to
right
surrender the
to allocu-
Maj. op. at 1083.
tion in the first proceeding.
practical
Overtly,
only possible
purposes for
effect,
any
this court tells
convicted individ-
deny
(which
allocution are either
guilt
to
ual that he should not exercise the funda-
will seldom serve to
severity
diminish the
right
mental
of allocution if the actual va-
sentence)
(nor-
or to seek leniency
lidity
original
questionable.
conviction is
mally by
responsibility
seeking
assessed
Legal malpractice and ineffectiveness of
,retributional assessment).
moderation in
counsel considerations
appropriately
are
Reuse of allocution at a later trial would magnified
multiplied.
only
pursued
prosecution
if some
Here,
six-year
within this
course of liti-
inculpatory
extrapolated
content can be
gation, this result means
acci-
re-prosecutorial
serve
purposes.
dentally and
any opportunity
without
Another two
majority
sentences
anticipate
followed,
the result which
sur-
opinion deserve similar
questions
content
right
protest
rendered his actual
denial
“However,
logic.
exercising
right
about
and,
of a
failure of trial
to allocution does
require surrendering
not
anticipate
counsel to
what this court has
right
one
preserve
another. The convict-
result, accepted
now done in
the conse-
party
ed
only needs to decide whether the
quence of his first
price
conviction as the
right to remain silent will be asserted or
for exercising
constitutionally
con-
Maj. op.
waived.”
at 1082. What
statutorily provided right
cerned and
says simply
practical
court
does not make
Today,
allocution.
in Wyoming, allocution
sense. How these two sentences can be
trap
attorney
is a
for the uninformed
approve applied
asserted to
waiver of
the unwise
if
accused. Minimal
not non-
against
retrial,
self-incrimination for
includ-
gam-
existent benefit remains
because
ing pollution
appeal opportunity by
of an
irritating
judge
by contending
ble
evidentiary
exercising
commitment when
explaining
innocence or the commitment in
allocution,
any
defies
rational under-
regret
price
is a much heavier
than
stated,
standing. As earlier
we understand
potential benefit to be achieved.
this court’s thesis to establish that if the
law,
justify
accused elects to exercise allocution as a
To
status in
case
right,
opinion
fundamental
he will
majority
surrender a
added to the fruits of the
15. The most
pernicious
sentencing guidelines.
mutation of a similar
tion
See United
ideology
Acosta-Cazares,
(6th Cir.),
sentencing guide
is found in federal
States v.
poisonous tree cases of
Simmons,
appeal,
com-
Harrison,
disregard
that with the
presented
self-incrimination,
warning against
dis plete
which will be
hereafter,
testimony
subsequent voluntary
and then
could
cussed
detail
application:
cases
further
to use
the defendant at
four other
available
Arkansas,
Rock v.
actual trial.
(1987); Washington,
L.Ed.2d 37
authority
unpersuasive array
This
1814;
Powers
justify
waiver from exercise of
does
*23
32 S.Ct.
by
right of
honored
fundamental
allocution
States v.
L.Ed. 448
and United
convention,
constitutional
legislation,
(5th Cir.1974).
Rodriguez,
F.2d 302
adoption
by this
in rule
acceptance
implausible
is
con
The latter case
the most
against
privilege
self-incrimination
that
contemporary sen
sidering the existence of
retrial
conviction
upon
lost
after first
system.
tencing guidelines in the federal
for fundamental mistakes
reversal
Jopson,
L.
G. Shein
Jana
Marcia
&
Cf.
Although
colloquy has
this
prosecution.
2A,
Manual, App.
Pt.
Sentencing Defense
happened
never
in a suf-
apparently
before
E,
Rodriguez,
In
abusive
at 227
appellate
way to create an issue for
ficient
by
judge
the trial
to force admis
conduct
review,
beyond rea-
something
there is still
sentencing
guilt as a function of
sion of
controlling prin-
logic to be found in
soned
sufficiently
appellate
deci
criticized
Although I
ciples of constitutional
law.
did
require resentencing.
The case
sion
Golden,
analysis
agree with the
of Justice
question
allocu
of reuse of
not involve
significance
further because of the
venture
rather,
tion;
it was
abusive violation
comparably
the issue and the
involved
sen
rights
Fifth Amendment
as a
initial
validity
Rules of
realistic
tencing price
bargained justice.
recently adopted
Procedure
Criminal
Powers,
estab-
223 U.S.
jury session by the rule laid the courts Under down privilege of his Fifth Amendment waiver below, give testimony only could he not warrant against self-incrimination did testimony assuming the risk that the The ac- subsequent indictment. quashing a him at against later be admitted would in the session cused had been warned kind, links Testimony of which trial. might he said used anything to evidence which a defendant held that Washington, In the court him. enough important considers Government grand jury applied to the Fifth Amendment at admitted and to seek to have to seize sessions, preclude that it volun- but did trial, highly prejudicial often be must properly tary self-incrimination when a defendant. neither “[Tjarget status witness warned. Id. the constitutional enlarges nor diminishes then Supreme Court The United States against compelled self-incrimina- protection analysis and by extended at 1820. established tion.” Id. identically accepts fits with exercise of court now in this fashion that decision are the if forego rights allocution to a successive same ideas advanced in dissent Justice retrial occurs: Black within that opinion. 1968 Simmons Only justice joined one other adopted by rule the courts Black’s below single dissent and I merely impose upon
does not
a defendant
have not found a
case
may
him
reported
adopted
a condition which
deter
from which has since been
asserting
objec-
a Fourth Amendment
position.
that doctrinal
imposes
tion—it
a condition of a kind to
suppression hearing
addition to the
always
pecu-
which this Court has
been
preclusion
firmly
now
fixed
Simmons
liarly sensitive. For a defendant who
unqualified principle
as an
in American
standing
wishes to establish
must do so law,
compara-
there are a
number
other
at the risk that the words which he ut-
concepts,
ble
none of
are
which
addressed
ters
later be used to incriminate
decision,
majority
support
denial
him. Those courts which have allowed
admissibility
of the allocution state-
testimony given
the admission of
to es-
following
ments
reversal and a follow-on
*24
standing have reasoned that
tablish
there
(whether
proceeding
a retrial in the normal
is no violation of
Fifth Amendment’s
case,
here,
or,
conspiracy interject-
where
is
Self-Incrimination Clause because the
jeopardy).
ed to avoid double
testimony
voluntary.
As an ab-
Smith,
451 U.S.
1866 au-
matter,
may
stract
this
well
true. A
thors the well-defined rule that no eviden-
“compelled”
testify in
defendant
tiary waiver
by
results from what is said
support
suppress only
of a motion to
during
competency
the defendant
a
exami-
testify-
the sense that if he refrains from
Fortin,
nation.
also
HOI
(1950).
impeachment.
This was not
from the federal
justice
obstruction
Compare
Mintle,
statute,
Mintle v.
As
result of a series of
not incumbent on respondent to
misconduct,
demon-
involving judicial
the Vermont
prosecuted
strate that she will
Hill,
in In re
Court
149 Vt.
question
the answer
Constitutional
event,
parole
except
cooperate
waived
there is
cline to
with the
officer in
consequences
investigative
sentencing
of the
of the
the
for
report
awareness
States,
Brady
waiver.
v. United
of
See
extent
adverse information since
742, 748,
[1468],
90
1463
25
agent
397
has now
by
U.S.
been recreated
this
(1970);
v.
747
private investigator
L.Ed.2d
Smith
United
court
into
for
150,
States,
137,
U.S.
H05
penitentiary employees,
absolutely
defend;
no
right
had
art.
of accused to
§
realizing
impartial jury
chance of
a fair and
and art.
press.
freedom of the
§
for his life sentence criminal trial. Amin
Probably
Hopkinson
not even the
State,
(Wyo.1991),
811 P.2d
Ur State,
(Wyo.1990),
the basis of a denied 600, 1507, 1522, upon Harvey, hapless the defendant. 16 ed L.Ed.2d Texas, problem of v. recognition Estes that the com- 532, 85 S.Ct. munity preclusive decision ex- arousal and den., 14 L.Ed.2d reh. only in is not voir dire isted demonstrable L.Ed.2d case, but, by comparison, in this conducted long recognized It has been granted venue change the of thereafter the constitution that under federal Phillips. Valley, This was not Simi Califor- jury to a defendant entitled nia, jury overtly police where officers had a free of outside influences and will de- acquittal; favorable to this was Sweetwa- according to cide the case the evidence angrily County, community ter aroused arguments in in presented and speedy the to a constitutional of itself. the course the dictatorially applied the trial should be Colorado, Patterson community. legal processes of the No one 556, 558, L.Ed. publicity from the contribu- was excluded (Holmes, J.).” (1907) victim, prosecutor, judge, and local tion — legislators.19 Marshall, 123 N.J. State v. 586 A.2d State (quoting Amin My was written with dissent Williams, 60-61, A.2d N.J. knowledge present case would (1983)). said follow. there remains even What Amin, P.2d at 272. more true: presents saturation of This case level securing preservation “The and of exposure overwhelming and in- media both jury goes very es- impartial Sheppard flammatory equally and directed to attack- of a fair trial. See sence County community newspapers, Casper Cheyenne and the Star- is an insular 19. Sweetwater According City Tribune. to exhibits this record or miles Lake and located about 200 from Salt briefs, Utah, appellate the this latter news- Ogden, Chey- attached to and somewhat further from enne, paper, only general the state’s circulation news- Although county capitol. the the state obviously paper, more moderate 10,583 carried stories square population and has a totals miles however, tone; general of sub- as a source 38,823, sixty-eight percent of of as County, scription in Sweetwater carried at least ownership eighty-one and the land is in federal twenty-nine other of the cases in vari- accounts adja- percent population the the live in two editorials, the and news ous letters to editor apart Springs cent cities fourteen miles —Rock stories. River, Wyoming. and Within the num- Green angered regarding publicity attacks and dire, only persons called for voir a few ber the first conviction reversal and need for outlying away far who areas as resided justice application the defendants sixty countryside and into the a small miles interruption for entire without continued town, arrivals, generally recent number in the dire, eight period of about months. The voir Wyoming Supreme Court’s had heard minority general exception of a with the persons Harvey Phillips and cases of reversal of generally were either recent arriv- who prior rape kidnapping convictions. Gener- outlying persons living als areas of the ally, persons who were the same did not those county who subscribe to the local did not newspaper. county a local subscribe to newspaper, status demonstrated the saturation May when the Between community anger publication and and hostil- of ity against Harvey Phillips reversed the and the out-of- both defendants trial, January for denied convictions appellate had reversed the local town court that Harvey the second trial for com- when measure, ego equal local court’s conviction. menced, carried in at there were related stories rights rape about the and sincere concern Springs thirty-nine the Rock least Rocket-Miner, editions of punishment perpetrators victims and daily county’s newspaper. stories, editorialized were reflected news editor, Eight generally letters to from were writing. and letter comments of the local sexual assault task force members extremely Phillips well- became Wyoming Supreme Court fairly frequent objects attacked known names named de- during period for conviction reversal and also published photographs from twenty-five front-page were speedy trial/rape fendants. At least until re- reversal conviction conspiracy prosecution the two defendants news stories which named commencement previous normally prior referenced the conviction for which the to commit guilty offenses county way. attacks had rendered reversal some Editorial includ- verdicts been years newspaper, jury publications two earlier. about ed local
H07 clear, ing operation judicial system therefore, of the It is upon that the trial of the punish by challenge issue of fact raised the coincident societal “need” to for such cause the court practically will particular rape perpetrators. these The upon be called to determine whether reversal, speedy in “fluke” based denied strength nature and opinion of the trial, especially community. inflamed the formed are such as in necessarily law by Published statements the victim added presumption raise the of partiality. The prior example fuel to the fire. No of a question presented thus is one of mixed change denied in of venue the face of the fact, tried, law and and to be as far as community emotional level of indoctrina- concerned, the facts are any like other tion has ever occurred in this state and the character, upon issue of that the evi- majority any fails to cite cases with the dence. any jurisdiction. same character from other Id. 98 U.S. 156. concept impartial jury The doctrinal of an Eighty-three years later, the Reynolds directly path- can be traced in its historical perception of proper jury as fair and way for American law: impartial was considered the United Marshall, Mr. Chief Justice Burr’s Supreme Dowd, States Irvin v. (1 Trial, 416), Trial Burr’s states the rule “light impressions, may to be that which (1961). The publici- crescendo of “adverse fairly presumed yield to the testi- ty” analysis reflected in in that case was offered, mony may may that which more than overmatched what occurred open leave the mind to a fair considera- isolated, geographically insular com- testimony, tion constitute no suffi- munity County of Sweetwater objection juror; cient to a but those reaction to the 1989 trial reversal— strong deep impressions which close particularly person so since the third in- against testimony the mind (Swazo) pled guilty, had volved received a them, opposition be offered in which very extended sentence which was also testimony will combat that and resist its publicized serving well time force, objection do constitute a sufficient penitentiary. transcript state to him.” barrage second trial identifies the Reynolds v. Otto of accusations the first reversal 25 L.Ed. 1,429 page transcript, within the with Waite, following quota- 1,016 Chief Justice encompassing nearly the voir dire Marshall, tion of Justice then went on to pages seventy-one percent of tran- script.20 relate: pleasant reading, very couple It is far from but the It’s been the last of three [JUROR]: juror opening provided first representative called in voir dire days, whenever was in there. it stage setting recognition Okay. you Did what read [PROSECUTOR]: attitude for what was to follow. any paper recently you in the cause to decide * * * right. THE COURT: All Mr. [Prose- of the issues in the case? cutor], you may juror]. talk to [the case, itself, As far as the no. I [JUROR]: you, your Thank Honor. [PROSECUTOR]: than, know, guess, you other it's the second [Juror], you anything Mr. heard about have or whatever. time around prior coming today? this case here Okay. you say When sec- [PROSECUTOR]: Yeah. I read about it in the [JUROR]: around, you time what do mean that? ond day. guys paper the other Talked to a few pretty I’m sure this is the one the [JUROR]: about it. back or Court sent whatever. right. All Aside from [PROSECUTOR]: or whatever it is. State that, you knowledge other about do have Okay. With that knowl- [PROSECUTOR]: the case? sir, you any opinions guilt edge, do have No. [JUROR]: or innocence of the Defendant? Okay. you say that When [PROSECUTOR]: Well, nothing I don’t know about [JUROR]: you paper day, read in the the other about it that, know, nothing. you Just the case or paper was that? changed guilty time and a law Rocket, it was the first Sunday. It was [JUROR]: act, guess I Okay. but not the so I don’t know. Would that have [PROSECUTOR]: —So guess got open Friday's mind. last issue? I’ve been Okay. you And [DEFENSE COUNSEL]: time, agree Okay. you probably way Do feel that at one did did [PROSECUTOR]: law, person presumed innocent you that a not? *32 guilty beyond Ah, know, proven a reasonable really. until not You it’s [JUROR]: Oh, doubt? just the I hate to see it done idea of— * * * Yes. [JUROR]: twice. That's kind of a waste. youDo think that’s a fair [PROSECUTOR]: What done twice? [DEFENSE COUNSEL]: country? way justice to administer this The trial? Only way. [JUROR]: trial, right. It’s the same [JUROR]: Okay. present And at the [PROSECUTOR]: one, isn’t it? time, willing you that the De- are to assume Okay. [DEFENSE COUNSEL]: you fendant is innocent until see whether the See, that’s how little I know [JUROR]: guilty? proves in this trial him evidence paper the case. I read the one time. about Yeah. [JUROR]: all about it. That’s I know Honor, Your I don’t think [PROSECUTOR]: you feel what Do [DEFENSE COUNSEL]: anything I have further. happened probably right? in the first trial Honor, understanding may, your my it’s If I Well, they I feel like selected a [JUROR]: point, that at this the Court wanted us to limit through jury they went it. Time was a questioning our to those areas? problem. THE COURT: Yes. Um-hum. [DEFENSE COUNSEL]: you. Thank [PROSECUTOR]: they bringing are So unless [JUROR]: [Juror], my Mr. COUNSEL]: [DEFENSE know, something * * * * this time—I don’t different *, actually, name is *. is what I’m myself. I in the courtroom and I don't wasn’t called. * * * * * brought up what would even be know *, you quiet COURT: have a voice. THE about it. podium you push the bench Will closer to youDo recall hav- [DEFENSE COUNSEL]: going juror] and to me. I'm and to [the read, ing you just what this last hearing you. have trouble —outside brought apparently am, week which memories, back some I too. [JUROR]: you anything did read about it last It THE COURT: Is it turned on? is. summer— It’s the first time COUNSEL]: [DEFENSE having quiet I’ve accused of voice. No. [JUROR]: been thing THE COURT: It's a terrible to be Su- —when that [DEFENSE COUNSEL]: loss,
judge hearing Mr. [Juror]. and have a preme Court decision came out about it? going Is that to af- COUNSEL]: anything [DEFENSE it. I don’t recall about [JUROR]: your ability fect to sit in this case? you have But do [DEFENSE COUNSEL]: [Juror], you Mr. can hear me now? understanding some of what the case about Yeah. [JUROR]: you as come into this Court? Sir, I’m from Sher- [DEFENSE COUNSEL]: Yes. [JUROR]: idan, Wyoming Judge pointed as the out so I you And have an [DEFENSE COUNSEL]: jurors probably down don’t know my understanding happened what about a little bit about human here but I do know trial as the result of what the client in first telling you're sitting nature. And while there jury did? you things me and the Court that know about Yes. [JUROR]: case, something you I take it read Honor, Your based [DEFENSE COUNSEL]: triggered memory you had about some- your prior ruling, going I’m to ask that this thing you have heard about or read last sum- juror be excused bias. you quite know a lot about this case mer Well, I can’t excuse him on THE COURT: then? now, you’ve Mr. the basis of what established Oh, really really don’t know I [JUROR]: —I concerns, got I’ve some [Defense Counsel]. anything it. about obviously, you but I don’t think that have you I think men- COUNSEL]: [DEFENSE juror] is unable to be fair and shown [the Supreme something Court tioned about the impartial stage. at this I still don't know having reversed this case. publicity has on him. I don’t what effect this Yeah. [JUROR]: his attitudes are about Mr. Har- know what And turned back a COUNSEL]: [DEFENSE you vey’s guilt going I’m to let or innocence. that, sir, you guilty you And as said decision. inquiring in those have a lot of latitude areas, prosecutor] quite a lot when [the hesitated Counsel]. Mr. [Defense you you be fair in this trial. asked if could * * * right. All out, [Juror], [DEFENSE COUNSEL]: Now, Judge pointed Mr. as you him COURT: If want to ask THE trying your criticize character or I’m not guilty Harvey that Mr. whether he thinks anything hard to know but it is sometimes there, permit you it, to do sits I’ll Mr. something, judgments about to form some that. get angry, Harvey, perhaps if at Mr. Okay. here, [DEFENSE COUNSEL]: at the Court and over then Okay? you COURT: THE the courtroom when leave that out of right, your All you COUNSEL]: [DEFENSE admit that? come in. Wouldn't Honor. Yeah. [JUROR]:
H09 you [DEFENSE COUNSEL]: —to where [Juror], you you my Mr. do recall what saw in story would listen to side of the as well as Springs that article in the Rock Miner last prosecutor’s]? [the weekend or— Sure, I would. [JUROR]: Parts of it. [JUROR]: Sir, Okay. [DEFENSE COUNSEL]: would me, you Would tell COUNSEL]: [DEFENSE you agree perhaps jurors two different please, you what can recall? sitting on the same case in different locations Well, I him and believe there was [JUROR]: could, fact, up at different times come with name, thought, paper. one other And verdicts, evidence, different based on the if that it would have been tried and this—the they open talking had the mind we are about? State it back because it was—took too sent probably, yes. I think [JUROR]: long for the trial and stuff. Okay. you’re [DEFENSE COUNSEL]: And Okay. The first [DEFENSE COUNSEL]: *33 saying you're willing to do that? long trial took too before— [JUROR]: Yeah. Right, got before it started. Uh- [JUROR]: you’ll give And [DEFENSE COUNSEL]: me huh. you’ll keep your the commitment that mind Okay. What were COUNSEL]: [DEFENSE open you’re beyond and if not convinced your thoughts you read that article? Harvey's guilt reasonable doubt of Mr. in this Oh, law, my thoughts was the [JUROR]: case, you acquit will him and find him not itself, know, you if—if it was innocent or guilty? whatever, guilty change it didn't within Yes, if I’m [JUROR]: not convinced eighteen months. whatever comes out. Okay. you So are [DEFENSE COUNSEL]: [DEFENSE Yes. telling COUNSEL]: me that whatever the outcome of that Well, Honor, was, your just I would eighteen still—Let me first case going months later it is not you couple things. ask of other to be different? [Juror], Right. you any- [JUROR]: Mr. have heard or read you And thing know [DEFENSE COUNSEL]: else about the case? was, you? what the outcome of the case don’t my knowledge. Not to I [JUROR]: don’t Well, according paper, it [JUROR]: read that much on this. guilty. you When read the [DEFENSE COUNSEL]: Okay. you’re So [DEFENSE COUNSEL]: paper you jury panel and knew were on this * * * telling Judge probably me and that it’s morning, you anyone for this did talk to eighteen guilty still months later? it? about being If it’s tried on the same [JUROR]: Oh, just guys at work and [JUROR]: thing. jury just you’re going A like the one stuff. pick already give opinion. has their honest you And where do [DEFENSE COUNSEL]: And that’s little [DEFENSE COUNSEL]: work, sir? I can’t recall. mind, it, your put hard to out of isn’t Mr. Bridger Out at Coal. [JUROR]: [Juror]? And what were [DEFENSE COUNSEL]: Well, [y]eah. Yes and no. I [JUROR]: things some of the that were said in that —in mean, doing maybe it’s—it’s it twice but some- those conversations? thing changed. has I don’t know. Basically, what there is here. I [JUROR]: Um-hum. [DEFENSE COUNSEL]: mean, probably swayed my opin- me in it’s got nothing against Because I’ve [JUROR]: swayed it me. It has let me ion—or hasn’t dpn’t him or I even know him or whatever. what little bit I know about the case. know No, I understand [DEFENSE COUNSEL]: Okay. It have COUNSEL]: [DEFENSE mean, that, sir, and I know that. I I know you? some influence on had you’re coming saying in here and “I don’t know, my you I still Some. But [JUROR]: — necessarily” you like this man but what are people my biggest problem feel is some coming hearing you is the in here with as I'm Cheyenne people what here did. overturned "Well, idea, I know that he’s been convicted know,— You paper. that was in the And as before because Okay. COUNSEL]: [DEFENSE that, my neighbors own the result of some of me, just—it —to [JUROR]: finding, community have made that you? That bothers COUNSEL]: [DEFENSE presented the evidence that was based on economy. Bad on the [JUROR]: July the case back in then. And if that was you probably have THE COURT: I think 1987, certainly it should be the case now.” Is that, you? stronger feelings than don’t basically you’re saying? that what Well, yeah, but— [JUROR]: way, proven If it was I [JUROR]: tactful, trying to be THE COURT: You're guess. you, Mr. [Juror]? aren’t Okay. then So [DEFENSE COUNSEL]: halfway guess have to be I [JUROR]: me, telling you you’re what coming have that idea honest about it. put in here but now if we were to totally you to be hon- THE COURT: I want you heard different evidence evidence est. thing, time even if it went to the same I want to be more COUNSEL]: keep your open [DEFENSE you would mind sufficient- honest, that, Judge halfway said as the than ly— stranger Judge early is a on. I know the Yes. [JUROR]: grateful you, THE COURT: And I’m as is you the Defendant and as is State. Because am I and he has on his robe but so know, you express yourself you we want it to be a fair trial. You if this is the time should there, sitting you were over would want Mr. both of us. Well, my problem judge to level with the and level with that's whole [JUROR]: you. really happens in here. I don’t know what happened Right. just for me [JUROR]: the case. I know what Okay. get THE COURT: here. you, your Okay. Honor. [PROSECUTOR]: Thank [DEFENSE COUNSEL]: know, [Juror], through things you Mr. one of the men- You the— [JUROR]: Counsel], ago caught my can I tioned a few minutes interest THE COURT: Mr. [Defense you being question? ask him a were asked about the outcome Yes, you something sir. I wish said that to the effect that [DEFENSE COUNSEL]: guilty they you would. the outcome would be still being if were you thing. THE You told the Prosecutor tried on the same COURT: willing Harvey is Um-hum. [JUROR]: are to assume that Mr. inno- you. cent because that’s what he asked Are And that made me won- [PROSECUTOR]: you you you able to assume that he’s innocent? And der was it clear to based on what you you’re willing morning here I’m sure that to do that. heard earlier this that Mr. Har- — being vey today being willing But able are two is not here to be tried on the same * * * things. charge different he was before? *34 Well, something I could be able if told to me I assumed [JUROR]: it’s [JUROR]: change. I don’t know. so I could understand. would deep Okay. you COURT: You believe down in Let me tell [PROSECUTOR]: THE you’re charge changed. charge your soul that able to look at Mr. that the has That the Harvey charges Harvey today he's as he or that Mr. faces are and conclude that innocent charges conspiracy sits there? and that he was not him, charged conspiracy previously. Yeah. know so I with let I—I don’t And [JUROR]: really you conspiracy charge know the cases that went into it. me also tell conspiracy that or a don’t— My problem prove whole isn’t him or the acts that means that the State has to got things origi- some that are him there. different from the concern, [Juror], My charges. THE COURT: Mr. nal Now, that, you say changed knowing you that law but the act it to that does cause any stop hasn’t. or reflect or does of that make a Right. you? difference to [JUROR]: Well, Well, you say exactly THE COURT: And then that if what it [JUROR]: is— charge, same make it’s a dif- another's —if it’s still the old don’t no difference—if whole you thing, conspire, you say, think that the result will be ferent as I think—I then any don’t Now, put open-minded different. when I all of those would have to be about it. I—I go by things together, begin I to have doubts about would what I hear here. you you whether or not could turn Mr. THE COURT: What did think the required charges around loose if the evidence that he be were the first time words, you Harvey? can Mr. turned loose. In other afford Oh, thought they rape. you say him a reasonable doubt and can that I were [JUROR]: is, fact, Anything he’s innocent if he innocent? Do THE COURT: else? Oh, trying say you? you know of. understand what I’m to to not that I [JUROR]: charges THE COURT: One of the now is Yeah. [JUROR]: your conspiracy rape. response? THE COURT: What’s to ([The juror] laughed.) they prove I think would have to [JUROR]: laugh you THE COURT: You at that. Do to me that he is innocent. difference, Okay. a THE COURT: think that’s a distinction without sorry. I’m Mr. [JUROR]: [Juror]? (Pause) That he is inno- I don’t know. [DEFENSE COUNSEL]: [JUROR]: prove you actually conspiracy? They What—what would cent. would have to to THE COURT: Pardon? he’s innocent. ([Juror] nodded.) actually conspir- That’s— What would [JUROR]: [JUROR]: Honor, acy? I much Your I What is it? don't know too COUNSEL]: [DEFENSE taking Sorry your stuff. I’m all of would renew— about this time. THE COURT: That’s not the law. moment, THE COURT: Just one Mr. [Ju- I know that isn’t. [JUROR]: ror], [Prosecutor], Okay. Mr. are THE COURT: bench, any questions you Mr. have for Mr. Where’s the statute book on this [Juror]? there couple, your Just a Hon- Brown? [PROSECUTOR]: beg you pardon? MR. BROWN: I or. answer, says Okay. good crimes here. That’s a THE COURT: It THE COURT: [Juror], glad you and I’m said that to me. That must be it. Mr. copy you I of a all. have [DEFENSE COUNSEL]: I’m not mad at got Okay. proposed instruction. I’ve an instruction [JUROR]:
HH Okay. you. [PROSECUTOR]: Thank going propose. that I was We haven’t de- That’s all. [Juror], just got Okay. bated it. It’s a definition that’s THE COURT: Mr. Mr. Har- with, background. vey previously charged different tried and Here, Court, rape. THE COURT: I found it now. Sec- convicted of as know, you tion 6-1-303 of the Statutes reads reversed that conviction. He’s follows, guilty charged person conspiracy rape. as Mr. A now with to commit [Juror]: agrees conspiracy charged having unlawfully agreed to commit a crime if he He’s with they persons rape get with one or more or one or to commit with someone. I the feel- again. ing begin person you really more of them—Let me A see that —the differences guilty conspiracy agreeing rape raping being to commit a crime if he between is agrees persons they more the distinction one or without a difference. Am I wrong your feelings, of them will commit a crime and about one or more Mr. [Juror]? pretty right. them an overt act to [JUROR]: one or more of does That’s close to object agreement. That’s THE COURT: effect conspiracy. Pardon? short, agreement say you’re right. to com- I would [JUROR]: Agreeing [Juror], going mit a crime. to commit a crime is a THE COURT: Mr. I’m to ex- enough, you you’re juror crime. Fair Mr. cuse because [Defense Counsel]? first and I Yes, you sir. have some concerns but I want to talk [DEFENSE COUNSEL]: you’re up. Mr. THE COURT: because you going the first one I don’t want [Prosecutor]? Yes, talking jurors sir. back to the other [PROSECUTOR]: conspiracy anyone COURT: That's what is. about what went on here THE or to else you. very Thank until the is over. I’m [JUROR]: concerned Now, you Harvey might get THE COURT: do want to answer that Mr. not be able to a fair posed you? you question County. that was Do trial in Sweetwater He doesn’t have County. remember it? to be tried in Sweetwater given He can be conspiracy, you it If was asked a trial else and if can’t [JUROR]: somewhere he get in, jury give going me? that can him a clean slate ought had asked if that think I then we to take this case somewhere [PROSECUTOR]: you just would make a difference? else. I want talk with about how Well, know, might, you publicity County. *35 it or it wide the is in Sweetwater [JUROR]: agreed trying get would. I don’t know if he to it or not. I’m a feel for it because I don’t argued just might He have have been a live here. [Juror], part you way? of it. Mr. where do woA the Okay. Something Bridger that I work for Coal. It’s out [PROSECUTOR]: [JUROR]: might people’s be on minds and I’m—I don’t here. Bridger you really just know if said this or not but I’m THE COURT: I know what Coal is. assuming things. your position a few Tell me if I’m or What is out there? disagree supervisor. wrong. you stripping But do with what the I’m a [JUROR]: Supreme Court did? THE COURT: Pardon? Stripping supervisor. Yes. [JUROR]: [JUROR]: you’re Okay. Would that dis- THE COURT: So out in the mine? [PROSECUTOR]: agreement Supreme Yes. with the Court be such [JUROR]: way you COURT: You’re on shift work? that it would affect the listen to the THE Yes. evidence in case? [this] [JUROR]: dog you No. COURT: Do folks have a THE [JUROR]: change your disagreement Would house or room out there? [PROSECUTOR]: Supreme you Court cause it Yes. [JUROR]: with the —would you part change your verdict? THE COURT: Are affect No. No. room? [JUROR]: Okay. that Yes. [JUROR]: Understand [PROSECUTOR]: you’re nobody trying you you when the have THE COURT: So in there to tell other, change go way right? hands come in and out on shift feel one or the all you’re they Right. when come back off there [JUROR]: your Your beliefs are own shift? [PROSECUTOR]: trying change any them in Yes. [JUROR]: and no one is quite way. just trying Was a bit of dis- sure those THE COURT: there We’re make change way you room out there on the affect the reach and cussion in the beliefs won’t job job anywhere your else on the about this verdict in this case. render case, right. All Mr. [Juror]? [JUROR]: Now, light Right in the Okay. when it come out [JUROR]: [PROSECUTOR]: Springs questions you've Rocket is the time I heard been hit with in the Rock here, is it still fair for us to it out there. last few minutes you you willing And how would describe and able to set THE COURT: assume that are general people you might to this case any have and de- reaction aside concerns just you it? what see that talked about cide the case on the basis of Most of them— [JUROR]: and hear in evidence? Pissed off? THE COURT: Yes. [JUROR]: say, yes, people I I would [JUROR]: They They are talked with. Yeah. were. [JUROR]: concerned, anyway. they talking were about pretty THE COURT: So well stupid judges, At whom? huh? THE COURT: those overturning Well, Judges, it. Supreme At the State Court [JUROR]: [JUROR]: Supreme Court? THE COURT: At the yeah. Yes. (Laughter) [JUROR]: Harvey? know, about Mr. THE COURT: How Okay. just we’re THE COURT: You Oh, brought up even it wasn’t too, [JUROR]: beings, you know. human say, even know what it much. Like I I didn’t I know that. [JUROR]: it and then I read was about until then since Okay. you detect THE COURT: Did stuff, rape paper, and all that in the community hap- anger over what’s in the rape— assumed pened? you when it was COURT: Do recall THE No. [JUROR]: out? that it first came they anybody? THE COURT: Are mad at paper first come out? When [JUROR]: No. [JUROR]: Yeah, when it first came out THE COURT: Supreme THE COURT: How about Supreme had overturned it? that the they Court? Are mad at the Court? remember No. I don’t even [JUROR]: good. I It won’t do them no [JUROR]: they when did that. don’t believe so. Okay. It was about this time THE COURT: Harvey? they Are mad at Mr. THE COURT: later, along year, maybe about a little last February, know, they As far as I don’t [JUROR]: your rec- March. Does that refresh know him. ollection? Well, know, Okay. you peo- THE COURT: No, sorry. recall. I’m I don’t [JUROR]: Noriega ple at Manuel we can be mad you Okay. recall the— COURT: Can THE gun. know him. I don’t like the son of a don’t by reading you about it heard about the case you? How about just newspaper this last weekend? Yeah. True. [JUROR]: Yes. [JUROR]: sense, THE COURT: And it’s in that same that, Prior to when was the THE COURT: Mr. [Juror]. you anything about the last time that heard Right. [JUROR]: case? you anger COURT: Did detect THE Oh, something probably heard [JUROR]: Harvey? sense Mr. same going on but I—I don’t about it when it was No. [JUROR]: it that much. follow Okay. THE COURT: So is it fair sum- you Did hear talk out at the THE COURT: newspaper mary that if hadn’t been for the it job last week about this case? weeks, you arguments couple in the last Yes. [JUROR]: thought anything have more about wouldn’t general Okay. What was the THE COURT: case, huh? general *36 was the consensus of nature of—what opinion thing, My personal I own [JUROR]: job the about this case? out there on nothing it. wouldn’t have known about Oh, everybody just there was [JUROR]: no— Anything you say to THE COURT: want to figured time. it was the first me, Mr. [Juror]? everybody think that THE COURT: Does No. [JUROR]: Harvey guilty? Mr. is Okay. anything that THE COURT: Is there anybody could have been. [JUROR]: We'd — you general, to ask in Mr. [Defense want know, they was. You Whoever the name Counsel], Mr. [Prosecutor]? just telling about the—I believe it was were No. [DEFENSE COUNSEL]: guy evidence on people and one turned three trying get feeling a for THE COURT: I’m something. it or coming by talking may the first what general But the consensus is THE COURT: excusing, juror Coun- that I’m Mr. defendant, is, [Defense is whatever his name that guilty? sel]. just hope so, No. [DEFENSE COUNSEL]: yes. I would think [JUROR]: understand, [Juror], you Mr. that I have noth- general Was it the consensus THE COURT: you ing personal against of these guilty rape, then he must be that if he isn’t things. something guilty of else? Okay. [JUROR]: No. [JUROR]: you, general Thank sir. COUNSEL]: [DEFENSE Was it the consensus THE COURT: proof previ- I think the final of it THE COURT: he was turned loose on that because sat,— Harvey ought you sitting charges, again, where Mr. tried he if were ous if he was something? I would be scared to death. [JUROR]: be convicted of —you would be scared to THE COURT: No. [JUROR]: So, talk, then, juror you, you? really, am I death of a like wouldn’t THE COURT: Probably, pretty way. but I think I’m put Can I draw the [JUROR]: fair—Let me conclusion, therefore, it this lucky. (Laugh- you really I think would be that the talk was honest. ter) Supreme Court rather than Mr. about Okay. Harvey Defendant? THE COURT: or someone—or the
H13
subsequent appendix
attachments and the
Although
juror,
the first
whose recitation
footnote,
prior
publish-
have
provided in the
to the brief were three new stories
recognition
outspoken,
most
been the
ed at the time of the commencement of the
community
predisposition
in the Harvey
January
bias and
parts
some
questioning continued as demonstrated
seen and read
which were
an indeter-
conciliatory attitude. The
the trial court’s
prospective jurors
minate
and
number
seventy-
panel
entire
examined numbered
apparently
jurors
some even
while the
a
of that number
five. Less than
dozen
waiting to be examined for
dire
were
voir
prior
were not aware of
originally
proceedings.
in the actual trial
These news
Wyoming Supreme Court
conviction and
stories are not found in the earlier filed
sixty-four were
Approximately
reversal.
in support
change
documents
of a
of venue
case,
of the
of whom
specifically aware
motion, but were marked and are found as
bias,
thirty were removed for obvious
basi-
“A”
“B” in
exhibits
and
Volume VI of
Supreme
cally
Wyoming
because
transcript
present
in the
record.
prior jury
verdict.
Court reversal of
stories,
newspaper
published
These three
regarding
this case
news-
The record in
during
Harvey
immediately before or
coverage
Harvey
Phillips
paper
trial,
clear that a
had earli-
made
conviction
complex
rape
kidnapping cases is
er occurred and that
the conviction had
filed
incomplete. A trial court motion was
been reversed
action of the
on the
Phillips
in the
retrial
dismiss
story
The first
dated
Court.
was
publicity
prejudicial pretrial
basis of excess
Saturday, January
regarding the conven-
change of venue.
and for an alternative
following
ing of
for the trial the
Phillips,
filed in behalf of
The motion
second,
Monday. The
after the trial had
comparable motion filed
behalf Har-
commenced,
preliminary
discussed
voir dire
vey,
consolidated and then determined
were
events,
related to
examination
third
pretrial
recognizing
by an order of
decision
just
had
filed
a lawsuit that
victim
joined
adopted
had
that each defendant
claiming damages for as-
proceeding
civil
in the motion of the other.
sault,
including
punitive
million
dam-
$1
See,
dire
ages.
example,
the voir
dis-
motion,
Phillips
to the
Attached
juror
having
cussion of the thirtieth
about
separately
not filed
was
newspaper story.
Saturday
read the
record, although consolidated for decision
court,
newspa-
by the trial
were extensive
re-
interesting jurors who
One the most
publici-
per clippings detailing the course of
ultimately
panel,
did not
mained on the
but
Wyoming Supreme
decision
ty from
forty-
serve,
juror
sequential
number
Those
to mid-October 1989.
of reversal
four,
college
paper
had done a
who
are similar to but not identical
enclosures
Har-
coverage of the
regarding media
class
appendix
attached
brief
*37
assign-
Phillips cases. The class
vey and
originally
by Harvey. Although
filed here
coverage
compare
analyze
ment was
Harvey’s motion
the same time
denied at
Su-
following Wyoming
the
the events
denied,
subsequently giv-
Phillips was
was
provid-
reversal between
preme Court
change
sequentially
for a
a
of venue
en
Casper
and the
Star-
by
paper
the local
ed
Harvey proceeding
following the
later trial
circu-
newspaper of statewide
Tribune as a
Janu-
held in Green River from
was
member, as author
jury panel
lation. The
through
ary 8
she found that
study, stated
in the class
essentially
coverage was different
dire examina-
the
thousand-page voir
In the
local
approach
the
finding more
by coun-
a
biased
tion,
reference was made
specific
Casper
comparison to the
newspapers in
previously
trial court to the
sel and the
text
coverage, e.g., focused
Star-Tribune
newspaper stories. One of
copies of
filed
antagonistic to the defendants.
motion which was
major
differences between
have,
have wanted
I
that I would
selected
going to see a lot
I
we are
Mr.
think
[Juror].
we would
I think
COUNSEL]:
[DEFENSE
day
been,
is over.
jurors that
worse before
one of the
too. You’re
have
provide
jury
fair
change of
tion and effort to
the most
a denied
review of
Judicial
analysis
the entire cir
be selected under the circum-
requires
that could
venue
Consequently,
stances,
through
examination of
to counsel to
both
leave
cumstance.
1,000 pages
generally
of voir dire
broadly
the more than
in voir dire and a
explore
required.
transcript and its content
The effort consci-
selective elimination.
under
with the basic
start
that review
entiously
to minimize
was addressed
bias
Harvey
Phillips cases
standing
Harvey
among prospective jurors
give
community reac
had caused monumental
receptivity by seating
some measure of
touching
very
by simultaneously
two
tion
panel.
non-determinate members of the
community perception and
tender nerves
interesting
The trial court then made
multiple-
first was a
responsiveness. The
presented
observation and
with, by “com
perpetrator sexual assault
mid-pointin the
most unusual dilemma. At
(Swa-
standards,” only
person
one
munity
examination, and then later
initial voir dire
second, per
zo)
punished, and the
properly
after the first course of selection had been
pre
well-recognized to be even more
haps
completed,
judge
the trial
directed defense
dominate,
implied crit
reactivity
was
to consider whether the few “un-
counsel
adequacy of the function of
about the
icism
persons
might serve should
informed”
who
system
speedy
“denied
judicial
the local
everybody
already
else
advised of what
anger, unrequited
Ego
trial.”
knew in advance of the commencement of
Wyoming Supreme Court dis
very abusive
stage
It
not determined at this
trial.
was
exposure, and defen
written for media
sent
prior conviction would
that the evidence of
prosecutor and the
by the local
siveness
judge's
in trial. The trial
be admissible
eigh
judge
the fact that it took
trial
about
likely
to those
concern involved the
shock
straight
try
relatively
teen months to
not attuned to the facts when
who were
charge, fueled the
sexual assault
forward
jurors
they found out from other
about
reactivity.
scapegoat
A
deep-seated
prior history of the case. As a result
provided by
required and was
assertion
field,”
“leveling
playing
action was con-
judge and others in the com
the next trial
sequently taken in voir dire
advise
munity
majority
that the
of the
re-
prior
conviction and
uninformed
the first con
Supreme Court had reversed
permit inquiry
versal to at least
judge for
punish
original
trial
viction to
—nominal
then have been—whether that
as it would
Christopher
reasons. See also
unasserted
knowledge
their fairness and
would affect
Walsh, Note, CRIMINAL PROCE
J.
impartiality.
Speedy
to a
Trial—
Right
DURE—The
Wyoming Supreme Court Cor
Has the
might
a faint
All of this
have achieved
Balancing Test? Har
rectly Applied if
and more
prospect of fairness
a second
(Wyo.1989),XXV
1H5
fairness, it
standpoint
Eng-
of trial
is
American as it was once the most
From
Although
allocution statement
lish.
this Court has said that
indisputable that the
embroidery under
by judicial
Fourteenth Amendment does not de-
authenticated
made,
permit-
jury
in
when
while
mand the use
trials
a State’s
the circumstance
York,
jury
procedure, Fay
information to the
ting the voir dire
New
exactly
the same
introduction of admission of
via allo-
721-22,
Dowd,
Can this
convincing. An examination of the
process
and due
context?
pattern of
community
then current
States constitutional
The basic United
popular news
thought
as indicated
impartial jury as
for a fair and
stature
revealing.
singularly
media is
originally
Reynolds,
enunciated
U.S.
724-25,
Dowd,
at 1643-
81 S.Ct.
and defined for an ex-
145 was structured
Dowd,
publicity circumstance
cessive
Dowd,
a mur-
der conviction has since been sulting in reversal Dowd corpus habeas by the federal comprehensively reversed by five other followed stated: process. Justice Clark carefully considered United composed and Not one Supreme Court decisions. States England, from whom Western countenanced cases would have largely concepts its of of these has taken World County under dignity venued trial Sweetwater liberty and of the individual Louisi man, Rideau v. bequeathed to these circumstances. every has worth of 1417, 10L.Ed.2d ana, preservation, the safeguards for their us based on required reversal priceless of which is that of most specifics of the jury to the exposure of the as much jury. This has become *39 guilty finding kidnapping of not pro- and a compromise to commit The made was submission. offense. conspiracy commit a sexual guilt conspiracy to only finding-of one vide requirement jury's the the confession in detail to verdict be personal defendant’s court, charged. open he was In in the crimes for which based on evidence received facts, present appeal Thus, in operational this not from outside sources. in Mar the allocution evi- with the admission v. 360 U.S. shall [79 juror that each knew dence and assurance 1171, S.Ct. 3 L.Ed.2d we set 1250] conviction, identically prior this case the ju aside a where federal conviction in guaranteed status achieves a Rideau “through exposed rors ac were news this jury of conviction within verdict counts” information that was ad not present convic- proceedings. Rideau mitted held that the preju at trial. We reversed, course, was, Lee tion and F. “may dice from such material indeed be the same reversal Bailey achieved result greater” part than when it is Sheppard’s Sheppard conviction v. Sam prosecution’s “for it is not evidence then 333, 1507, Maxwell, 384 U.S. S.Ct. tempered by protective procedures.” At * * * (1966). Although publicity L.Ed.2d 600 S.Ct. [79 1173]. certainly greater in that achieved was during Shep- the extended cause celebre undeviating which, rule of Court was trial,
pard
parallel features exist
expressed
Mr.
Justice Holmes over
particular,
prior
here from
rever-
result
ago
a
century
half
Patterson v.
sal
trial which authored
Colo-
for denied
rado,
barrages
S.Ct.
and news
205 U.S.
editorial
[27
(1907):
51 L.Ed.
appellate court. The non-achievable ex-
879]
stated,
repeated,
pectancy there
here
system
“The
theory of our
that the
jury,”
“I have confidence
seeks
in a
to be reached
case will
conclusions
implausible,
impossi-
not
but the
only by
argu-
evidence and
be induced
ble.
court,
ment
open
by any
pointed
has also
out that
But the Court
influence,
private
whether of
outside
elections,
not like
to be
“[Ijegal trials are
print.”
talk
public
meeting-hall,
through the use
won
350-51, 86
Sheppard, 384 U.S. at
S.Ct. at
radio,
newspaper.” Bridges
and the
252],
California,
v.
at 271
[314
[62
Wisconsin,
Groppi
400 U.S.
[(1941)].
L.Ed.
S.Ct.
(1971), the
L.Ed.2d 571
court
S.Ct.
insisted
the Court has
that no one be
And
change
of venue
involved itself with
stat-
punished
charge
for a crime without “a
utory prohibition for
misdemean-
Wisconsin
fairly
public
fairly made and
tried
constitutionally
ors and
a similar
applied
prejudice, passion,
free of
excite
tribunal
protective persuasion. The court discerned
ment,
tyrannical power.”
Chambers
a change
that the
entitled to
accused was
Florida,
309 U.S.
236-237 [60
required
provide
of venue if
a fair trial.
472, 477,
(1940).
84 L.Ed.
S.Ct.
716]
Here we
concerned with the methods
are
given
“Freedom of discussion should be
impartial jury in a
available to assure an
compatible
range
with the es
the widest
where,
prejudicial
situation
because
requirement of
fair and order
sential
publicity
reason,
other
or for some
justice.”
ly
Pennek
administration
jury is
community from which the
to be
Florida,
328 U.S.
amp v.
[66
already
permeated
drawn
90 L.Ed.
S.Ct.
1295]
hostility
the defendant. The
allowed
toward
it must not be
to divert
But
one. Mr. Justice
“very purpose
problem
is an ancient
trial from the
of a
controversies,
Holmes
no more than
common-
system
adjudicate
stated
...
civil,
when,
ago,
place
generations
he not-
the calmness
two
both criminal
judge
has sat with
“[a]ny
ed that
who
solemnity of
courtroom accord
spite
they
juries
forms
ing
legal procedures.” Cox v. Louisi
knows
likely
impregnated
extremely
to be
ana,
are
[85
atmosphere.”
(Black, J.,
environing
Frank
dissent
1H7
582, 595,
313,
1173,
(dissenting
L.Ed. 969
79 S.Ct.
Groppi,
1H9
* * *
trial,
change.”
guilt,
venue
After
there
nothing
left
jury
for the
presumption
change
favor of a venue
regarding
consider
reasonable doubt. The
unnecessary,
for the matter
then
jury
transposed
into the handmaiden of
analyzed
light
the voir dire of
avenger
with sword in hand. There is
actual,
jury pool
available
and the
here far- more than a reasonable likeli-
*42
jury panel
question
actual
selected. The
nearly
hood—it
sociological
reaches a
cer-
whether,
light
then is
in
of the failure to
tainty
defendant,
when retried in
—that
venue,
change
reasonably likely
it is
County
Sweetwater
speedy
after the denied
in
the defendant
fact
a fair trial.
received
reversal,
not,
could not and did
receive
either a fair trial or access to consideration
facts,
analyzed
The court then
wheth-
by
impartial jury.
A guilty verdict was
petition
er raised on
for writ of mandamus
certainty.
near
appeal
judgment
or on
from the
and convic-
tion, and found the standard of review to
Similarly
State,
in Hughes 490 A.2d
showing
be the same. “A
of actual preju-
(Del.Super.1985),
ju-
the fact that the
* * * ”
required.’
dice ‘shall not be
Id. 259
acquired knowledge
rors
pri-
defendant’s
Cal.Rptr. at
“The witnesses, organic speedy by an guaranteed law to a trial is state, county jury when it is doubtful that district impartial or alleged can in the jury such a be obtained is to have offense homicide, the venue of county of been committed. When location person his is but on trial with the offense cannot be established life for rights requests when he asking placed certainty, venue venue, imagin- no there is change a county corpus delec- or district where refuse, except, possibly, able reason found, any county or ti or [delicti] county, cost to slight a additional victim trans- district which the added).” (emphasis ported. adjudi- added). its Mississippi (emphasis court assumed Wyo.Const, art. 10§ catory presented constitu- responsibility We then consider the continued wisdom three-stage developing pro- tional law a which further the 1975 Judicial Conference (1) right analysis: “The accused’s directed, cedural part: clearly venue not self- change to a (a) responsibility It is the of court and [sup- file executing; the defendant must person charged to insure to each counsel Johnson, 476 So.2d ported motion].” crime a trial. (2) has “[T]hen, the accused (b) brought charge A criminal shall be it is change of venue when doubtful days following the within 120 obtained; impartial jury can be filing of information indictment. present implicit there is such doubt is when (c) ex- following periods shall be public strong sentiment defen- time trial: computing cluded dant; application, upon proper there arises proceedings All related *45 exists; presumption that such sentiment deficiency illness de- mental or and, the state then bears burden fendant. rebutting presumption.” Id. 1210- charge. (2) Proceedings on another (3) changed Venue will unless (3) Delay granted by pur- the court during voir presumption is rebutted dire. (d). to subdivision suant record which demonstrates a The factual (4) the dismissal and The time between presump- failure of the state rebut charge. refiling of the same against strong public sentiment tion of (5) by Delay occasioned defendant’s Mississippi in the 1985 trial defendant application therefor. change of counsel or persuasively more demon- is even Johnson (d) granted as may be Continuances Harvey strated in the trial follows: County. rea- For this second Sweetwater (1) supported motion defendant On son, concepts well-de- constitutional and defendant’s affidavit defendant procedural require fined standards reversal counsel. provided to fair trial in order that a will prosecuting attor- On motion of granted. Harvey change after a of venue ney the court if: (i) expressly con- The defendant TRIAL SPEEDY IV. sents; or Wyoming Constitution We start with (ii) The evidence is unavail- state’s promptly September 1889 and written in prosecution has exercised able electorate of the approved by a vote diligence; or due to provide: state (iii) due Required in the administra- prosecutions ac- In all will justice the defendant tion right to defend cused shall have the prejudiced. substantially not be counsel, to demand person and accusation, Rules for the District Rule Uniform nature and cause (U.R.D.C.) Wyoming the State of thereof, confronted Courts of copy have a to be judges him, (approved by the district to have with the witnesses
H23
Wyoming
State,
state as the
constitutional courts
court in Harvey v.
(Wyo.
P.2d 87
general jurisdiction
September 20,
on
1989)
State,
Phillips
1124 during prose- County period district In cution of for his 1986 crime. March raignment be directed to court to must Center, under the au- the Rural Justice appeals be the trial would taken which from thorship Kathryn and Maurice D. Fahnestock by may granted that court accor- grant Geiger and a from the State funded (b)(4), above. dance with Section Institute, study published a entitled Time Justice (6) Any or case not tried contin- in Rural Jurisdiction Courts. Justice: Caseflow provided shall be dismissed ued as in this rule study in the on-site were nineteen Included arraignment. days after 120 unpleas- four were courts in antly states. Statistics (7) is for If the unavailable defendant revealing County, regarding Sweetwater presence proceeding which the defendant’s and the with the introduction statement statis- required, case be continued for tics that followed: but no time the trial court reasonable Many dispose rural do not of cases in a courts days than after the defendant more 120 fashion, timely especially criminal matters. or case continued as available further counties, disposition times Fieldwork in 19 provided in this rule. counties, self-reporting and the 12 exam- from A for lack of dismissal preceded site ination statistics selec- the state this rule shall bar from under significant degree delay show that a tion again prosecuting for the the defendant same jurisdictions. majority of rural exists made a sites, offense unless the defendant written Among the Sheridan fieldwork speedy trial can demonstrate County, sin, County, demand for a or Wyoming, and Iowa Wiscon- delay. prejudice dispose from the of the criminal cases in of 90% counties, eight change governing speedy those six months less. This in the rules disposition is the median criminal days. over 180 compared with the statistics avail-
trials can compiled study able to a committee * including various state courts the Sweetwater AND CIVIL CASES CRIMINAL Disposition Days to CIVIL CASES
CRIMINAL CASES 50% 90% 50% 90% WYOMING 72 74 Sheridan ro 0\ Johnson " n - H SWEETWATER n tN Lincoln \0 Uinta vo If) pretrial felony Geiger, & Time The statistics for detention Fahnestock to Justice: Caseflow (March three in the Third Jurisdiction Courts 29 defendants courts in Rural General added, 1990) similarly (emphasis part). Judicial District are informative:
PRETRIAL DETENTION PRETRIAL PRETRIAL FELONY PERIOD (MONTHS) DETENTION DETENTION DEFENDANTS range days days median JURISDICTION LODGED *47 WYOMING 0-450 SWEETWATER 0-90 Lincoln 0-90 Uinta excep supra, delay. In all most Geiger, (emphasis but the & at 43 uncontrolled Fahnestock circumstances, disposition added). within six tional required. forty-five days arraignment will This of hundred two months Seven —about Wyoming judiciary's to
years
ninety percent disposition of
is
effort
return
crimi-
—for
pledge
Wyoming the
compliance
state of
with the
the citizens
nal cases does not show
Mag
nearly
originated
years old
guarantee
speedy
trial.
Fortu-
now
constitutional
98, Urbigkit,
judge
Harvey,
change
See
774 P.2d
nately
in
and redirection of
na Charta.
J.,
concurring. Congress
specially
reached the
Barker,
equivalent
operations,
statistics would
Furthermore,
statutorily reversing
present
same end
in
he found
1992.
rule,
permit
H25 today reject yielding I am no more convinced that the to that character of constitu- Magna England, Charta of the Constitution right adjudication by newspaper tional and nation, of this and the Constitution of the community criticism, I reject and also bail- Wyoming validity pro- state of have lost ing these issues into a neat delineation of speedy I I vide a trial than was when wrote packaged time into the majority decision special prose- first concurrence for the identifying period July between May Harvey, cution 1989. 114 P.2d at January and trial date of 1990: J., Urbigkit, concurring. I specially am span time in this case between the [T]he persuaded also not that this court’s double filing complaint date and jeopardy by-pass morally logically and date of the start of the trial is neither justified reversing its well-considered “presumptively prejudicial” signifi- nor disposition in those cases which were di- Thus, cantly long. calculating after speedy rights rected to enforce trial span time analyze we need not provide speedy privileges trial within each speedy trial issue further. justification by subjec- court. If Maj. op. at 1079. I find it to be nonsensical. provided tive non-enforcement is to be play counting game with the time conduct, judicial failure and default little between mid-1989 and the actual second expectancy society valid retained that and, consequently, ignore trial date pre- general regularly enthusiastically will years encompassed vious two and one-half accept apply responsi- rules of mutual prosecutorial involving within efforts bility. Harvey. regard, reject also Essentially totally I am unconvinced analysis compliance to find that with the years that —after two and one-half of fail- intendment of Rule U.R.D.C. was properly prosecute ure to in one effort— achieved, apparently this court tradi- the State can start over with a now new tionally agreed ignore had anyway.24 extrapolate try clock to another of- Harvey, recognition speedy in first of a fense from the events to secure a second violation, delay was forced into a period to accommodate the constitutional days in Harvey I and can now wonder speedy trial. Harvey, interest as we present speedy about the trial violation of Harvey, stated in 774 P.2d was arrested 1,460 days original since arrest. He co- January subsequently 1986 and convict- gently persuasively argued appellate charged (conspir- for one of the ed events brief: acy kidnapping) to commit in this second prosecution years speedy four effort of later com- The State defended [the trial] * * * mencing January un- by arguing 1990. He was not that the issue facts only period der arrest for the brief between presented question “pre- this case mandate in the delays” issuance reversal indictment because of the succes- prosecution in June of 1989 until rear- prosecutions They first sive of Defendant. July rested on or about 1989 on an begin argued that the clock did not probable affidavit of cause which was iden- run on the trial issue until no pro- tical to the initial affidavit which had Harvey’s arrest on the later than Mr. early January duced his first arrest charges July on or about 1989. new regard, again urge the In this we difference I can find is the “fire attacks, Court to consider that the difference be- anger published re- storm” prosecution of tween the first and second of this *48 action to the first reversal because is a “difference without judicial willingness to enforce the the Defendant court’s * * * “actual Wyoming. distinction” and that the of the state of Constitution rence; State, (Wyo.1981); P.2d Cook v. 631 5 State, Speedy (Wyo.1981); U.S.C.A. 3161- § Trial Act of 1974. 18 P.2d 168 Robinson v. 627 State, (Wyo.1979). P.2d 464 Chemiwchan v. 594 104, J., Urbigkit, special- Harvey, 774 P.2d at State, 77, Cf. (Wyo. Despain P.2d 24. See v. 774 86 ly concurring. 1989), judge majority special concur- three 1126 “accused” of con- Appellant freedom has been upon Appellant’s
restraints”
liberties,
by
kidnap
conspiracy
his incarcera-
and
to com-
spiracy
measured
and
bail,
tion,
of his
and the
way”
the conditions
“in
mit sexual assault
some
since
public
under which
5,1986,
accusation
constant
January
upon
his initial arrest on
supra, standard was
463],
Supreme Court
al
prets,
ing what
Marion,
S.Ct.
application
arrested
date on which
North
Lovasco,
v.
12-2.2(a) of
States
Loud
tion Standards of
MacDonald,
414 U.S.
L.Ed.2d 205
U.S.
(1971);
poignant United States
H27 transparent ties, hand, and unconscionable effort to on the other upon are based Speedy equal protection, circumvent the Trial Clause process was due and stan- previously precluded by and unthinkable dards involved within established order for jeopardy process due society provided double consid- our in the state and feder- erations. al constitutions. my opinion, In proper justification for V. DOUBLE JEOPARDY prosecution Harvey by second this es- I will subject greater address this de cape speedy from trial criteria does not in subsequently published tail dissent for Barker, precedent
find
Phillips v.
(Wyo.
P.2d 1062
2182, Harvey,
Phillips,
state. After a
charge
addressed
can be
jeopardy, properly
be another criminal
torical double
my persua-
sequential prosecution, it is
the
adduced from
same transactional situa
efforts,
majority
fails
both
sion
the
the
of one
tion. This is
nexus
continued
Wyoming
certainly regarding the
Con-
Johnson,
but
People v.
5 Cal.
transaction. Cf.
Fred Blume must be
stitution.
Justice
552,
(1992),
App.
Cal.Rptr.2d
7
4th
23
grave
this cavalier
turning
in his
from
over
jeopardy
implicated,
where double
is
Wyoming
from the
Con-
reduction of
but, instead,
felony murder con-
considered
which,
meant
philosophy,
as a
so
stitution
nexity.26
development
much to him and his sense
case,
In
the initial
used
this
affidavit
protection of an identified
and
prosecution
the second
was identical with
jurisprudence.
investigating
the
the sworn statements of
First,
as a
Blockburger
terms
fiction
prosecution
officer used to commence
num-
multiple prosecutions, will ac
justify
one, Harvey I.
presented
ber
The evidence
conspiracy
continuing
cept that
CCE—
Harvey
essentially
at the
II
iden-
trial was
enterprise
federal forums con
—in
the
except
singular
tical
for the
inclusion
offense from
cate
stitute
different
evi-
second time around of the allocution
offenses, (in
case,
degree
first
gorical
this
dence from
Identical conduct of
I.
ancillary
rape
kidnapping,
and
or the
and
participants
was addressed
the same
aiding
equally punishable satellites of
and
witnesses. This was conduct that consti-
fact,
abetting, accessory
before
tutes an offense for which
defendant
fact).
accessory
Blockburger
v.
after
Corbin,
prosecuted. Grady
had been
180,
States,
299,
508,
2084,
110
495
S.Ct.
109 L.Ed.2d
U.S.
(1932). Clearly, the circum
H29
persuasion
in the du-
subsequent prosecution
identical
as stated
any
of
addi-
of,
prosecution
plicative
Duffy
cases
upon
tional offense based
the same con-
State,
(Wyo.1990)
Duffy
joinder any right constitutes a waiver of * * * against subsequent prosecutions joinder as to “same conduct” or “sin- by failing joinder. move gle episode” offenses which the charged. defendant knew had been at Id. 13.27. (c) A defendant who has been tried for specifi- The direction I would take is also may one offense thereafter move to dis- cally charted the American Law Insti- upon miss additional offense based adopted tute and has in- also been the same conduct or the same criminal creasing regularity by systems state court episode, joinder unless a motion for judicial some distinction to the federal denied, previously these offenses were system proclivity multiple prosecutions. joinder unless the was waived (1985) origi- The A.L.I. Model Penal Code (b), pursuant paragraph or unless the nally adopted meeting in the 1962annual jurisdic- offenses are not within the two the American Institute and now cur- Law tion of the same court. The motion to text, rently presented provides: in the 1985 prior dismiss must made be same Section 1.07. Method of Prosecution court. The motion dismiss must be More Than When Conduct Constitutes trial, prior made to the second and should One Offense. granted unless court determines Multiple Prosecution for Offenses: that, prosecuting attorney because the When the Limitation Convictions. did not have sufficient evidence to war- may same conduct of a defendant estab- trying rant the additional offense at the one lish the commission more than trial, or time of the first for some other offense, may prose- the defendant reason, justice ends would be de- He cuted for each such offense. granted feated if the motion were however, not, than be convicted of more part.
whole or in
one offense if:
(d)
plea
Entry
guilty
of a
or nolo
contendere to one offense does not bar
[*]
[*]
[*]
[*]
[*]
[*]
(b)
ming
pre-
deletion of the
offense consists
of a
Constitution for
one
protection against
jeopardy.
double
clusive
prepara-
other form of
conspiracy or
tion
commit the
other[.]
any multi-participant course of con
Since
1.07,
conceptually
possible prose-
duct
Id. at art.
involves
§
conspiracy, Wyo.Stat.
contention
cutorial
crimes,
its
section
inchoate
*52
6-1-303;
solicitation, Wyo.Stat.
6-1-
§
§
recognizes
American Law Institute then
302;
6-1-301;
attempt, Wyo.Stat.
acces
§
involved,
separate
single
if a
crime is
a
that
fact,
sory
Wyo.Stat.
the
6-1-201
before
§
for
additional crime
sentencing process
fact,
(1988); accessory
Wyo.Stat.
after the
i.e.,
unjustified,
when the
conspiracy
of
is
(1988); and,
addition,
in
6-5-202
commis
§
go
agreement
beyond
does not
preliminary
sion
an actual
as in
of
offense
offenses
consummation,
conviction and
double
case,
attempt, Wyo.
this
sexual assault or
1
Model
A.L.I.
Penal
sentence are barred.
(1988),
conceptually
6-2-203
we
Stat. §
1,
Commentaries,
1.07,
and
Pt.
at
Code
§
segment any one
course of conduct into
(1985). This is
unchartered or
110
not an
potentiality
sequential prosecutions.
of six
Goldstein,
recognition.
novel
Abraham S.
system
partici
our court
nor the
Neither
Conspiracy to
the United
Defraud
officials,
pants
political
lawyers,
therein —
(1959).
68 Yale
405
The direction tak-
L.J.
judicial
so
officials or victims —should be
by the
is
if
en
American Law Institute
that
exposed.
jeopar
broadly
Historical double
conspiracy
completed
into a
matures
dy
applied
past
generally
was not
times
co-conspirator is convicted of
crime and the
unprotective
with
an
shield
with
such
and
crime,
duplicate
there will be no
crimes
Eather
See
many
so
indiscriminate leaks.
single punishment for the com-
ton,
Duffy,
730
P.2d 91 and
P.2d 754.
761
mission of one actual criminal offense.
of the Fifth Amendment of
application
In
concept
further
find the
to be
would
Constitution,
of
United States
same
arrange
the differentiated
consistent with
jeopardy preclusion,
fense
it is rec
double
provided
Wyo.Stat.
ment
6-1-301
§
ognized
regard
for
Corbin —without
(1988)
through
accord
6-1-304
§
Nowack v.
(Wyo.1989)
P.2d 561
774
increasing
an
of states with
number
adaptation
have been decisive
—should
“barring
specific statutes
conviction for
Now,
jeopardy
how
double
resolution.
an included offense.” This
offense and
—
Felix,
ever,
U.S.-,
United States v.
conspiracy
completed
includes
unless the
1377,
118
112
L.Ed.2d 25
overt
S.Ct.
pursuant
conspir
offense committed
ly
extrapolating conspir
has relevance in
objective
acy
conspir
that the
shows
protective in
acy
jeopardy
double
from a
acy
in addi
was a commission of offenses
sequential prosecution.
In
tervention for
tion of
for which the defendant was
of
life
dis
some distillation
real
events —as
1
Penal
convicted. See
A.L.I. Model
Code
tinguished
adjudicatory
from fictionalized
supra,
Commentaries,
A
perti
at 109.
Wyo
conceptions
refuse to redefine the
—I
Illinois,
provided by
example
nent
where ming
equivalently closed
Constitution to be
of
the defendant cannot be convicted
both
Felix,
course, brought
included
down.
People
principal
offense.
inchoate
Corbin
conspiracy out of the
course
459,
Ill.App.3d
Whaley,
184
132 Ill.Dec.
II,
find the same
conduct.
we
(1989); People
v. At
681,
540
421
N.E.2d
be,
sequential prosecution,
conduct
kins,
600,
463,
Ill.App.3d
113 Ill.Dec.
161
de
for
same
twice used
conviction
Walker,
People v.
(1987);
straight
515 N.E.2d
line
I would follow a
fendant.
Ill.2d
50 Ill.Dec.
419 N.E.2d
adopt
cur
pathway and not
this
historical
Felix,
cert. denied (1981),
rent
detour.
S.Ct.
pigeonhole
(1984).
Stevens, J.,
concurring
part
L.Ed.2d 697
Con
S.Ct.
Corbin,
rule,
versely,
applied by
“conspiracy”
concurring
judgment;
this
Vitale,
conviction,
Illinois v.
2084;
majority to assure
reaches U.S.
410, 100
panorama
encompass
S.Ct.
L.Ed.2d
further to
the whole
Oklahoma,
(1980);
Harris
Additionally,
offenses.
the de
of inchoate
H31
Ohio,
Eatherton,
Brown
See however
761 P.2d
(1977).28
91.29
principle
frailty
double
I would continue to believe what Justice
portends
jeopardy prohibition
today,
if still
Powell
in writing
said
for the majority in
part
see Brown,
very
society,
fabric
our
availing himself autrefois conspiracy from perpet- To acquit and convict. Keefe autrefois later use” rule, charge was “laid back for wise so favorable nec- uate this
H33
opposed
in Against
charging
simultaneous
Successive Criminal Prosecu-
tions, 19
(1972).
UCLA L.Rev. 804
See
Keefe.
also The
Term,
1989
transactional
test
104
Wyo
structure of
ming law was
well established since
Harv.L.Rev.
149
before
statehood until
State v. Car
redirected
I would also follow the
precepts
broad
ter,
However,
714 P.2d
(Wyo.1986).
1217
Corbin,
current it exists the level a constitu- vated allocution to of See, 24, day. example, the 1992 March right, although allocution has tional trial, 48(b), speedy rule on W.R.Cr.P. regarded system, in the or so federal been which, future, permit could only majority the of states. Arthur W. See responsibility delay if the character 246, Sentencing, Campbell, Law 9.5 at § by the assessed and taken Chief Justice (2d 1991), accompanying nn. 52-53 ed. Wyoming Supreme Court. the text. upon general The issue which members stage research, I more genuinely my differ At this am of this court is whether agree to past problems prospectively should inclined said State 344, Saari, like 152 568 351 persons without to Vt. A.2d resolved benefit exist, Legitimate arguments (1989): Harvey. but application presents Blockburger acquittal of collateral II neither function as
31. the Ashe, estoppel 90 exception for or established after-discovered later-occurred events, Tolbert, Bolinger, 796 United States v. see State v. Ohio St.3d S.Ct. Cf. — U.S.-, Cir.1986), (11th cert. denied cert. denied F.2d N.E.2d 100 L.Ed.2d nor whether L.Ed.2d (1988). will now the same reversal for serve
H35 allocution, principle gives rity The which justice system. of the criminal When opportunity defendants in our courts suppression hearing process has served prior sentencing, purposes, parties address the bench those return to the field, playing tradition of the common law which having level neither side developed penalty gained when death was the advantage an unfair as a result of felony process. convictions and the accused the testify. often was not allowed to 3 W. Further, I would note that the context Israel, LaPave & J. Criminal Procedure plea agreement of the process, plea if the 25.1(f) (1984). § agreement fails, evidence of the accused’s also, Barrett, Allocution, See Paul W. relating statement plea to the failed is inad (1944). Mo.L.Rev. 115-24 guilt missible on the crucial issue of or Wyo.R.Crim.P. 15(e)(6). innocence. Wyoming’s statutory recognition of allo- primary purposes plea agreement Wyo.Sess.Laws cution can be traced from process promote XIII, 158-60, are to title ch. conservation of pp. 495- §§ justice Wyo.Stat. resources and to through 7-268 ensure §§ (1957). rights that the accused’s preserved protect This court allocution in have been Wyo.R.Crim.P. 33(a)(i), ed. Ill ABA superseded Standards For Criminal Jus tice, 14-3.1, (2d statutory provisions. p. 1986); the 1957 14.68 ed. Santo York, 257, 260-61, bello v. New Having my stated reservations about the 495, 497-98, 30 L.Ed.2d allocution, constitutional derivation of plea agreement fails, If the turn to the specific heart of the issue at parties field, return to the playing level purpose right hand. The sole of the having gained neither side an unfair advan today allocution is to afford convicted tage process. as a result of the opportunity defendant the to effect the tri- sentencing al foregoing court’s decision. As con- These instances in which the law, developed ceived in the testimony, common under accused’s justice as a criminal statutory recognition, practiced matter, today policy is declared inadmissible on rules, plays innocence, under court question guilt allocution no role the crucial or guilt-determination stage legitimate, of the trial. in order that a more immediate guilt stage served, Unlike the purpose may appear determination of the useful in trial, in presentation resolving question. which the focus is the pri- the issue relating guilt mary purpose sentencing process of evidence to the accused’s innocence, phase punishment upon the allocution to determine based sentencing stage presenta- principles pre- focuses on the humane of reformation and relating imposition pur- tion of information Wyo.Const. of vention. art. 15. The § punishment person pose process on a convicted who no of allocution in that is to defendant, longer enjoying presump- provide is an accused he the convicted before tion of innocence. or she is advised the court of the appeal, opportunity to effect *57 considering hand, the issue at I note allocution, sentencing decision. After suppression hearing that in the context of a court decides and declares the sentence. guilt stage, any determination testi- that, After the court informs sentenced mony during of the accused the course of right appeal. If con- convict of the process on the crucial inadmissible appeal and sentence are reversed on viction guilt issue of or innocence. Simmons v. again put jeopar- once in the defendant dy, why parties not the return to should generally, and see field, having neither side playing the level LaFave, Wayne R. Search and Seizure gained advantage unfair as a result of 11.2(d), (2d 1987). at 240-42 ed. § process? purposes suppression primary hear- justice system is built on ing prosecution are to deter Our criminal misconduct pride our- gathering promote concept of fairness. We of evidence and to participants integ- having informed all public preserve selves on confidenc^in sys- our ground rules in advance what surprise system abhors operates;
tem find no fairness I can
and ambush. Harvey as result of Mr. happened to
what only I see sur-
his allocution statement. sentencing court
prise and ambush. he anything said him that
did not warn against him be used
allocution would fact, it was prosecution; Harvey made his statement
after Mr. him his sentencing judge informed which, on appeal the conviction I before, he had been sentenced.
moments Mr. made to find that
am unable intelligent, and informed waiver
knowing, right to remain silent.
of his any allocution testimo- hold would defendant is inadmissi-
ny of the convicted guilt or innocence question on the
ble and sentence are the conviction
the event defendant is appeal and that
reversed in- conduct
again put jeopardy gave rise in the transaction
volved prosecution.
the first Harvey’s Mr. conviction
I would reverse remand for retrial. ground
on this (Petitioner), PISANO, Appellant
George SHILLINGER, Appellee
Duane
(Respondent).
No. 91-138. Wyoming.
July