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| Wyoming Supreme Court Cases |
DAVID LABON BUSH v. THE STATE OF WYOMING
2008 WY 108
193 P.3d 203
Case Number: No. S-07-0247
Decided: 09/17/2008
APRIL
TERM, A.D. 2008
DAVID
LABON BUSH,
Appellant
(Defendant),
v.
THE STATE OF
Appellee
(Plaintiff).
Appeal
from the
The
Honorable David B. Park, Judge
Representing
Appellant:
Diane
Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; Kirk A.
Morgan, Assistant Appellate Counsel.
Argument by Mr. Morgan.
Representing
Appellee:
Bruce
A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney
General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig,
Assistant Attorney General.
Argument by Ms. Craig.
Before
VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
KITE,
Justice.
[¶1] In 1990, Lynn Bush, the 26-year-old wife
of David Labon Bush, disappeared. Fifteen and one-half years later, in
2006, the State charged Mr. Bush with first degree murder in connection with his
wife’s disappearance, although her body was never found. In 2007, after a 12 day trial, a jury
convicted him of second degree murder.
[¶2]
Mr. Bush appeals his conviction, claiming the district court violated his
constitutional right to confront the witnesses against him and abused its
discretion when it permitted two witnesses to testify about statements his
daughter made to them during counseling and two other witnesses to testify by
video teleconference. He also
claims the district court violated his constitutional right to present a defense
when it prohibited him from introducing evidence of an alternative suspect. Finally, he claims the State violated
his right to due process when it waited fifteen and one-half years to file
charges against him. Finding no
reversible error, we affirm.
ISSUES
[¶3] Stated succinctly, the issues Mr. Bush
asks this Court to consider are:
1.
Whether
the district court violated his Sixth Amendment right to confront the witnesses
against him or abused its discretion when it allowed a counselor and a
psychiatrist to testify concerning statements his daughter made to
them.
2.
Whether
the district court violated his Sixth Amendment right to confront the witnesses
against him when it allowed two witnesses to testify by video
teleconference.
3.
Whether
the district court committed reversible error when it excluded evidence of an
alternative suspect.
4.
Whether
the delay in filing charges against him prejudiced his defense, thereby
violating his right to due process.
FACTS
[¶4] On December 9, 1990, Officer Mike
Thompson responded to a call at a grocery store parking lot in
[¶5] On December 13, 1990, police officers
served Mr. Bush with a search warrant and seized the pickup truck. They searched the pickup and found what
appeared to be blood stains in numerous locations throughout the cab. According to one officer, as he was
watching the search, Mr. Bush commented, “[W]hy are you doing this? I’m the murderer.”
[¶6] Officers also sprayed the inside of the
pickup with luminol1 which indicated that a large amount
of blood may have been in the passenger area. Police officers searched the Bush home
and found a vodka bottle with what appeared to be blood on it. Police interviews of friends and family
indicated that it was unlikely Mrs. Bush would have left home voluntarily
without her daughter. Some of those
interviewed also expressed their belief that Mr. Bush was somehow involved in
her disappearance, in part because of comments he allegedly made about
committing the perfect murder and disposing of a human body where it would never
be found.
[¶7] Subsequent DNA testing identified the
blood found in the pickup truck and on the vodka bottle as most probably that of
Mrs. Bush. On July 31, 2006,
fifteen and one-half years after Mr. Bush reported his wife missing, the State
charged him with first degree murder in connection with his wife’s
disappearance. Mr. Bush entered a
plea of not guilty and filed a motion to dismiss for violation of his due
process rights, claiming the lengthy delay in charging him was prejudicial to
his defense. The district court
denied the motion after a hearing.
[¶8] Subsequently, the State filed a motion
to exclude evidence of an alternative suspect. The district court heard argument on the
motion and ruled that Mr. Bush must first demonstrate to the court that
sufficient evidence supported his theory that someone else murdered his wife
before he would be allowed to present the evidence to the jury. Mr. Bush filed an offer of proof and
request for admission of alternative suspect evidence. The district court convened another
hearing and concluded the evidence Mr. Bush presented was not sufficient to
allow him to present the matter to the jury. The district court indicated, however,
that Mr. Bush could ask for reconsideration of its ruling as the trial
proceeded.
[¶9] A jury trial began on March 5,
2007. On March 20, 2007, the jury
found Mr. Bush not guilty of first degree murder but guilty of second degree
murder. Mr. Bush filed a motion for
a new trial claiming that, given the ruling prohibiting him from presenting
evidence of an alternative suspect, it was improper for the State to tell the
jury in closing argument that he was the only person who had the opportunity to
kill Mrs. Bush. After a hearing,
the district court denied the motion.
The district court sentenced Mr. Bush to a term of 45 years to life in
the state penitentiary with credit for 325 days served prior to sentencing.
DISCUSSION
1.
Admission
of Evidence of Mr. Bush’s Daughter’s Out-of-Court Statements – Abuse of
Discretion or Violation of Confrontation Right
[¶10] During the trial, the district court
allowed Lynn Gordon, a licensed professional counselor, and Dr. Robin Eicher, a
board certified licensed psychiatrist, to testify concerning statements Mr.
Bush’s daughter made to them during their treatment of the child in 1991, 1992
and 1993, when the child was not yet five years old. Mr. Bush claims the district court
abused its discretion in allowing the hearsay testimony and that its admission
violated his Sixth Amendment right to confront the witnesses against him. The State responds that the district
court properly admitted the statements under W.R.E. 803(4) and that Mr. Bush’s
Sixth Amendment right was not violated because the child’s out-of-court
statements were not testimonial and did not implicate the confrontation
clause.
[¶11] The facts underlying the statements at
issue are these: After Mrs. Bush
disappeared, her daughter was removed from Mr. Bush’s custody and placed in the
legal custody of the Wyoming Department of Family Services (DFS) and the
physical custody of her maternal grandparents.2 The grandparents observed some unusual
behaviors by the child and sought treatment for her at Northwestern Mental
Health Society in
[¶12] In the course of the custody
proceedings, DFS referred the child to Dr. Eicher for an evaluation. Dr. Eicher saw the child twice in 1992
and once in 1993. During these
sessions, the child made statements to her implicating Mr. Bush in her mother’s
disappearance.
[¶13] At the trial in 2007, the State called
Mr. Bush’s daughter, who was then 18 years old, to testify. She testified on direct examination that
she could not remember any of the events in 1990. She testified that the counseling she
had as a child pretty much made her unable to remember what had happened. Defense counsel did not cross-examine
her.
[¶14]
The State then called Ms. Gordon and Dr. Eicher to testify about the statements
Mr. Bush’s daughter had made as a child during therapy. Defense counsel objected to the
testimony on hearsay grounds but did not object on the basis of the
confrontation clause. Responding to
the objection posed, the district court ruled that the statements were
admissible under W.R.E. 803(4), as statements made for purposes of medical
diagnosis or treatment.
[¶15] Ms. Gordon proceeded to testify that the
child “talked about seeing mommy cut in two and put in two holes, and seeing
mommy with blood wiped off of her.” Ms. Gordon testified that the child told
her that “daddy had hurt mommy and gave her an owie” and “would talk about mommy
being cut and daddy cutting mommy.”
She testified that the child told her “Mommy is where the Christmas trees
are,” “Mommy got her head split open,” “Daddy shot Mommy,” and “Mommy is in
Kaycee.” Ms. Gordon testified that
on one occasion the child took a toy knife, acted out cutting her belly and
said, “This is how my mommy got cut.”
Ms. Gordon testified that the child consistently indicated that it was
“daddy” that had hurt “mommy.” The
child also said that “daddy said don’t say anything to [Ms. Gordon]” and “daddy
said he would kill [me].” During
one counseling session, she told Ms. Gordon her “mommy is dead,” she is “in the
mountain,” and “Daddy is bad.”
[¶16] Dr. Eicher testified that during her
first meeting with the child, who was then four years old, she drew a picture of
her mommy, put tape on the picture and said, “We have to put [tape] on our
mommies’ owies” and “let’s just pretend she doesn’t have an owie.” She testified that the child said she
did not “want to live with daddy; he might cut me, too.” Dr. Eicher testified the child also told
her that she “had a dream about my daddy killing my mommy.” Dr. Eicher asked her what the dream was
like, if it was like her memories or if it was different from her memories. She responded, “It was like what really
happened.” At the last session, the
child told Dr. Eicher, “I don’t like [my daddy] because he killed my
mommy.” We address first Mr. Bush’s
claim that the district court abused its discretion by admitting the hearsay
testimony without limiting the purpose for which it could be considered.
a.
Admissibility of Hearsay Statements Under W.R.E.
803(4)
[¶17]
The record discloses that defense
counsel objected to the testimony on the ground that the child’s statements were
not admissible for the truth of the matter asserted, i.e., that Mr. Bush killed
Mrs. Bush, but only for the purpose of showing what information Ms. Gordon and
Dr. Eicher relied upon in arriving at a diagnosis. Initially, therefore, the defense did
not object to admission of the statements but only to the purpose for which they
were admitted. The district court
withheld ruling until the State established foundation for the statements during
direct examination of Ms. Gordon.
At that point, counsel approached the bench and the State argued that the
foundation had been laid for admitting the statements under W.R.E. 803(4). Defense counsel asserted the testimony
was not admissible because the purpose of Ms. Gordon’s counseling was to assist
the police with the criminal investigation; therefore, it did not fall within
the medical treatment exception to the hearsay rule. Defense counsel asked to voir dire Ms. Gordon and the district
court granted the request.
[¶18] During the voir dire, Ms. Gordon testified that she
was in contact with the police department and the district attorney’s office
while she was treating the child.
She testified that her purpose for those contacts was to find out what
had happened to the child before she went to live with her grandparents. Ms. Gordon denied that she was assisting
the police department or the district attorney’s office with their investigation
into Mrs. Bush’s disappearance and testified that her only reason for seeing the
child was to help her.
[¶19] After the voir dire, counsel again approached the
bench and defense counsel argued that Ms. Gordon had served a dual purpose—she
treated the child and assisted the police with the criminal investigation. Defense counsel asked for a limiting
instruction telling the jury that the statements were admitted for the purpose
of showing what information Ms. Gordon relied upon in treating the child but not
for the truth of the child’s statements that Mr. Bush killed Mrs. Bush. The district court ruled as
follows:
I
think the statements can come in as an exception to the hearsay rule under 803,
sub (4). I can envision
circumstances where a witness is sent to medical treatment to get around the
rule; and in that case, I think that kind of subterfuge would not allow the
statements to be used substantively.
There is no indication here.
Ms. Gordon has indicated her primary purpose was diagnosis and treatment
of [the child]. If those statements
were used secondarily for law enforcement purposes, that does not render them
not available under the exception.
So I’m not going to give the limiting instruction. I’m ruling they may come in and be
considered by the jury for substantive purposes.
[¶20] We review a district court ruling on the
admissibility of evidence for abuse of discretion and will not disturb its
ruling absent a clear abuse. Negrette v. State, 2007 WY 88, ¶ 11, 158
P.3d 679, 682 (Wyo. 2007). An abuse
of discretion occurs when it is shown the trial court reasonably could not have
concluded as it did.
[¶21] W.R.E. 801(c) defines hearsay as “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.”3 Pursuant to W.R.E. 802, hearsay
generally is not admissible unless it falls within an exception. Rule 803 provides in pertinent part:
The
following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
.
. . .
(4) Statements for purposes of medical diagnosis
or treatment. – Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or treatment[.]
[¶22] Pursuant to this provision, we have held
that a child’s statements to a medical professional or professional counselor
may be admitted into evidence provided the proper foundation is laid—that the
child’s statements were consistent with the purposes for which the witness
became involved with the child, and the witness relied on the statements in
connection with diagnosis and treatment of the child. Simmers v. State, 943 P.2d 1189,
1197-1198 (
[¶23] Ms. Gordon testified that she began
seeing the child at the request of her maternal grandparents, who were concerned
about her behavior after her mother’s disappearance. Her grandmother testified that the child
was having nightmares, was angry and scared and was losing weight. She said she sought treatment for the
child because she believed the child needed help.
[¶24] Ms. Gordon testified that her sole
purpose for seeing the child was treatment. She testified that she relied on the
child’s statements to arrive at a diagnosis of post-traumatic stress
disorder. Ms. Gordon testified that
it is particularly important in her field to collect a history of the patient
from family members and the patient herself. She testified it is also important when
dealing with post-traumatic stress disorder to identify the source of the
disorder.
[¶25]
Dr. Eicher testified that DFS referred the child to her for evaluation during
the custody matter. She testified
that she did not conduct a forensic interview for purposes of criminal or
custodial proceedings. She saw the
child three times and diagnosed her as having severe post-traumatic stress
disorder as a result of having seen her mother hurt by her father. In arriving at her diagnosis, Dr. Eicher
relied primarily on the child’s statements and play during the sessions.
[¶26] The witnesses’ testimony showed that the
child’s statements were consistent with their purpose for seeing the
child—treatment and diagnosis.
Their testimony also showed that they relied on the child’s statements in
connection with diagnosing and treating her. Therefore, the district court properly
admitted the statements under W.R.E. 803(4) and did not abuse its discretion in
doing so. We turn to Mr. Bush’s
contention that admission of the statements violated his Sixth Amendment right
to confront the witnesses against him.
b.
Admissibility of the Statements in Light of the Confrontation
Clause
[¶27] Mr. Bush claims that his constitutional
right to confront the witnesses against him was violated when his daughter
testified that she could not remember what happened in 1990, effectively making
her unavailable, and the district court allowed her testimonial hearsay
statements to be presented through Ms. Gordon and Dr. Eicher. The State likewise treats the daughter
as having been unavailable to testify at trial but responds that Mr. Bush’s
confrontation rights were not violated because his daughter’s out-of-court
statements were non-testimonial and did not implicate the confrontation
clause. The State also contends
that we must review this issue for plain error because, although Mr. Bush
objected to the testimony on the basis of the hearsay rules, he did not
specifically object on the grounds that it violated his confrontation
right. We begin our discussion by
considering whether the plain error standard applies.
[¶28] The State cites Vigil v. State, 2004 WY 110, ¶ 15, 98
P.3d 172, 177 (Wyo. 2004), in which we said:
While
the Confrontation Clause and hearsay may overlap, they are distinct concepts and
objections grounded upon these principles incorporate separate analyses. Hence, separate objections should be
made for hearsay violations and confrontation clause violations in order to
fairly alert the trial court so it can make an informed decision based upon the
specific legal issues involved.
(Citations omitted).
In
Vigil, we reviewed the alleged error
for abuse of discretion because the attorney referred to the declarant’s
unavailability during the objection.
We found that reference sufficient to place the trial court on notice
that the objection implicated the confrontation clause. Quoting a
When
a hearsay objection is lodged, as here, on the grounds that the declarant has
not been made available at trial and, as a result, cannot be subjected to
cross-examination, the policy of the confrontation clause is invoked equally
with that of the hearsay rule. We
therefore hold that the hearsay objection lodged in the instant case adequately
preserved the confrontation clause issue for review.
[¶29] In Mr. Bush’s case, defense counsel’s
objection was based exclusively on the hearsay rule. In the ten pages of trial transcript in
which the district court and counsel discussed the objection, there is no
reference to the confrontation clause or the declarant’s unavailability. Rather, the focus of defense counsel’s
objection was that the testimony should not be admitted for the truth of the
matter asserted, but instead for the limited purpose of showing what information
the witnesses relied on in reaching their opinions. Defense counsel attempted to show that
the primary purpose of the counseling was not treatment but to help with law
enforcement’s investigation. Given that the confrontation clause was never
mentioned, we review Mr. Bush’s claim that admission of the testimony violated
his right of confrontation for plain error. Plain error exists when: 1) the record is clear about the
incident alleged as error; 2) there was a transgression of a clear and
unequivocal rule of law; and 3) the party claiming the error was denied a
substantial right which materially prejudiced him. Szymanski v. State, 2007 WY 139, ¶ 28,
166 P.3d 879, 886 (Wyo. 2007).
[¶30] Applying these factors, we hold that the
admission of the daughter’s out-of-court statements did not violate the
confrontation clause and there was no plain error. We reach this result, however, on
different grounds than those argued by the parties. We conclude the daughter was not
unavailable for purposes of the confrontation clause. Rather, she appeared at trial, was
placed under oath and testified.
Thus, Mr. Bush was confronted with the witness and had the opportunity to
cross-examine her and the Sixth Amendment was satisfied.
[¶31] The confrontation clause of the Sixth
Amendment gives the accused the right to be confronted with the witnesses
against him. This has long been
read as securing an adequate opportunity to cross-examine adverse
witnesses.
The
main and essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination.
Generally speaking, the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the defense might wish.
This conclusion is confirmed by the fact that the assurances of reliability our
cases have found in the right of cross-examination are fully satisfied in cases
such as this one, notwithstanding the witness’ inability to recall the basis for
his opinion: the factfinder can observe the witness’ demeanor under
cross-examination, and the witness is testifying under oath and in the presence
of the accused.
[¶32] Neither Green nor Fensterer considered the admissibility
of a witness’s unsworn, out-of-court statement concerning events he was unable
to remember by the time of trial.
In Owens, 484
[¶33] The defendant appealed claiming the
admission of the out-of-court statement violated his confrontation right because
the witness’s profound memory loss deprived him of the opportunity to effective
cross-examination. The circuit
court of appeals agreed and reversed the conviction. On certiorari, the United States Supreme
Court reversed, holding the admission of the out-of-court statement did not
violate the confrontation clause because the witness appeared at trial, was
sworn and was subject to cross-examination. The defendant had the opportunity to
confront the witness; confrontation is what the Sixth Amendment is intended to
protect; consequently, the defendant’s right was not violated.
[¶34] More recently, in Crawford v. Washington, 541
Finally,
we reiterate that, when the declarant appears for cross-examination at trial,
the Confrontation Clause places no constraints at all on the use of his prior
statements . . . . The Clause does
not bar admission of a statement so long as the declarant is present at trial to
defend or explain it.
[¶35] Following the lead of the United States
Supreme Court, a number of state courts have held that the admission of
out-of-court statements of a witness who appears at trial and testifies that he
or she cannot remember the relevant events or his or her statements does not
violate the confrontation clause.
In State v. Price, 146 P.3d
1183 (
[¶36] On appeal, the defendant argued that the
child’s inability to remember rendered her unavailable for purposes of the
confrontation clause and that he had no prior opportunity to cross-examine her
concerning her statements to her mother and the police. The Washington Supreme Court concluded
the confrontation clause was not violated because the child was physically
present in the courtroom and confronted the defendant face to face; she was
competent to testify and did so under oath; the defense had a full opportunity
to cross-examine her; and the judge, jury and defendant were able to view her
demeanor and evaluate for themselves whether she was being truthful about her
lack of memory. Thus, the court
concluded, all of the purposes of the confrontation clause were satisfied even
though the witness indicated she was unable to recall. As in Owens, the court held that an inability
to remember does not render a witness unavailable for confrontation clause
purposes.
[¶37] Other courts have also addressed the
issue and concluded that admission of an out-of-court statement when a witness
testifies he or she does not remember the statement or the events described in
the statement does not violate the confrontation clause. See Tucker v. State, 564 A.2d 1110 (Del.
1989) (holding that the confrontation clause was not violated when a child’s
out-of-court statements were admitted after she testified and was unable or
unwilling to respond to questioning); State v. Desantiago, 850 N.E.2d 866
(Ill. App. Ct. 2006) (holding that one witness’s trial testimony concerning a
second witness’s grand jury testimony did not violate the confrontation clause
when the second witness testified at trial that he had no memory of the grand
jury proceeding); Fowler v. State,
829 N.E.2d 459 (Ind. 2005) (holding that an officer’s trial testimony concerning
a domestic violence victim’s statements did not violate the confrontation clause
when the victim appeared at trial and refused to answer questions and the
defense allowed her to leave the stand without challenging her refusal).
[¶38] As these cases reflect, what is
important for purposes of the Sixth Amendment is that the defendant is
confronted by the witnesses against him at trial and has the opportunity to
cross-examine them. Mr. Bush was
confronted by his daughter at trial, she testified under oath and he had the
opportunity to cross-examine her.
Her testimony on direct examination that she did not remember the 1990
events does not affect our conclusion that the admission of her statements did
not violate the confrontation clause.4
[¶39] As previously mentioned, the
starting point for both Mr. Bush’s argument and the State’s response was that
the daughter’s lack of memory made her unavailable to testify and be
cross-examined. Based upon the
authorities cited, we have concluded otherwise. However, our ultimate holding that Mr.
Bush’s confrontation right was not violated by the admission of his daughter’s
out-of-court statements would be the same under the parties’ approach. Even if the daughter had been
unavailable for purposes of the confrontation clause, the admission of her
out-of-court statements did not violate the Sixth Amendment because they were
not testimonial, i.e., their
primary purpose was not to establish or prove past events potentially related to
later criminal prosecution. Davis v.
[¶40] Mr. Bush also argues that the admission
of his daughter’s statements violated his confrontation right because there was
no way to show at trial in 2007 that she was competent at three, four or five
years old to make the statements she made.
In support of this argument, he cites King v. Brasier, 1 Leach 199, 168 Eng.
Rep. 202 (1779), a case decided before the existence of either the confrontation
clause or the exceptions to the hearsay rule, in which the court held that a
mother could not testify concerning statements her child made to her because the
child had been found incompetent to take the oath and testify. Mr. Bush also cites Morganflash v. State, 2003 WY 120, ¶ 6,
76 P.3d 830, 833 (Wyo. 2003), in which we reiterated the rule requiring trial
courts to conduct an independent competency examination when a child is called
to testify and his or her competency is called into question. Both King and Morganflash addressed the competency of
a child, who has been called to testify as a witness, to understand the oath and
the importance of telling the truth.
Neither case addressed the situation Mr. Bush raises where the
three-year-old child who made the statements was 18 years old when she was
called as a witness, her competency at the time of trial was not questioned, and
her competency as a three-year-old could not be directly examined. The parties cite no case involving
similar circumstances and we have found none.
[¶41] However, in State v. Muttart, 875 N.E.2d 944,
954 (Ohio 2007), cert. denied, 128
S. Ct. 2473, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4278, 76 U.S.L.W. 3619 (U.S.
2008), the Ohio Supreme Court held
that regardless of whether a child was determined to be competent to testify,
the child’s out-of-court statements were admissible as an exception to the
hearsay rule if they were made for purposes of medical diagnosis or
treatment. The court held further
that because the statements were made for purposes of medical diagnosis and
treatment, they were not testimonial and their admission did not violate the
confrontation clause.
[¶42] We have already concluded the child’s
statements in the present case were made for purposes of medical treatment and
diagnosis. Thus, they were
admissible under W.R.E. 803(4) whether or not the child was competent at the age
of three when she made them. Muttart, 875 N.E.2d at 954. See also Christopher B. Mueller and
Laird Kirkpatrick, Federal Evidence §
8.5, 48 (3rd ed. 2008) (stating, “Competency restrictions do not
affect the admissibility of statements offered under hearsay exceptions.”) Because the statements were made for
purposes of medical diagnosis and treatment, they also were not testimonial and
their admission would not have violated the confrontation clause even if the
declarant had not appeared at trial, testified and been subject to
cross-examination.
2.
Violation
of Confrontation Clause – Witness Testimony by Video
Teleconference
[¶43] The State intended to call Paul and
Caroline Martin to testify at trial that they were traveling on I-25 from
[¶44]
On the eighth day of trial, the State asked the district court to allow it to
present the Martins’ testimony by telephone. The State informed the court that Mr.
Martin had suffered congestive heart failure one week before and was unable to
travel from his home in La Junta,
[¶45] Defense counsel objected to the
presentation of the Martins’ testimony by telephone or video teleconference as
violating Mr. Bush’s right to confront the witnesses against him. After a lengthy discussion of the law,
the district court denied the request but advised the State it would reconsider
the issue if new information came to light.
[¶46] The following day, the State brought the
matter of the Martins’ testimony to the court’s attention again. The State informed the district court
that new information from Mr. Martin’s physician indicated that he suffered from
congestive heart failure with severe left ventricular dysfunction,
cardiomyopathy, chronic renal failure, and anemia of chronic disease, and his
condition was profoundly poor. The
State further informed the district court that arrangements had been made for
the Martins to appear and testify by video teleconference, rather than by
telephone, at the La Junta district attorney’s office.
[¶47] Defense counsel maintained her objection
on the basis of the confrontation clause as to both of the Martins’ testimony
and, with respect to Mrs. Martin, argued that she was able to travel and ought
to be required to appear if the State intended her to testify. The State responded that Mrs. Martin’s
testimony would be merely corroborative of Mr. Martin’s testimony and so, under
Ryan v. State, 988 P.2d 46, 59 (Wyo.
1999), its admission by video teleconference did not violate Mr. Bush’s
confrontation right. The district
court ruled that it would allow the testimony of both Mr. and Mrs. Martin by
video teleconference, finding that Mr. Martin’s condition was serious and severe
and he should not travel; under the circumstances, it would be greatly stressful
for Mrs. Martin to leave her husband of 60 years to travel to Wyoming to
testify; and the State’s arrangements for video teleconferencing resolved many
of the confrontation concerns.
[¶48] Mr. Bush’s claim that he was denied the
right of confrontation arises under the Sixth Amendment. Issues arising under the constitution
are questions of law which we review de
novo. Hannon v. State, 2004 WY 8, ¶ 11, 84
P.3d 320, 328 (Wyo. 2004).
Evidentiary rulings are within the sound discretion of the trial court
and will not be disturbed absent a showing of a clear abuse of discretion. Vigil, ¶ 17, 98 P.3d at 177. Because the matter at hand involves a
mixed question of fact and constitutional law, we independently review the
record.
[¶49] The Sixth Amendment protects the right
of an accused to confront the witnesses against him. Generally, this means witnesses who
testify against a defendant in a criminal proceeding must appear at trial. The right, however, is not absolute and
may be compromised under limited circumstances.
A
defendant’s right to confront accusatory witnesses may be satisfied absent a
physical, face-to-face confrontation at trial only where the denial of such
confrontation is necessary to further an important public policy and only where
the reliability of the testimony is otherwise assured.
[¶50] This Court has not previously addressed
the issue of whether a defendant’s confrontation right was violated by
presentation of witness testimony via video teleconference.5 Other jurisdictions that have applied
the Craig test have reached varying
results depending upon the particular circumstances of the case. In Horn v. Quarterman, 508 F.3d 306, 320
(5th Cir. 2007), the court upheld a district court ruling allowing a
terminally ill witness to testify via two-way closed-circuit television. The appellate court based its ruling
primarily on two factors. First,
the district court had confirmed that the treating physician advised that it
would be medically unsafe for the witness to travel and strongly recommended
against it. Second, the district
court had expressly found that the two-way closed-circuit television preserved
the constitutional safeguards of administering the oath and having the witness
testify on direct and cross examination in full view of the jury, defendant,
defense counsel and court.
Similarly, in Marx v. State,
987 S.W.2d 577, 580-81 (Tex. Crim. App. 1999), the court upheld the admission of
testimony via two-way-closed circuit television, finding that it was necessary
to protect the witnesses from emotional trauma, and the reliability of their
testimony was assured because they testified after promising to do so
truthfully, they were subject to cross-examination, and the jury was able to
observe their demeanor.
[¶51] In contrast, in U.S. v. Yates, 438 F.3d 1307
(11th Cir. 2006), the court reversed a district court ruling allowing
two witnesses to testify from Australia by two-way video conference. The State had asserted the
witnesses were unwilling to appear at trial, their testimony was important, and
allowing them to appear by video conference was convenient and would
expeditiously resolve the case. The district court allowed the testimony without
applying the two-part Craig
test. The court of appeals
concluded the State had failed to make the requisite showing that denial of the
confrontation right was necessary to further an important public policy
(convenience, the importance of testimony and expeditious resolution are factors
in every criminal case) and the district court had failed to apply the Craig test.
[¶52] Pursuant to Craig, presentation of the Martins’
testimony by video teleconference was appropriate only upon a showing that it
was necessary to further an important public policy and its reliability was
otherwise assured. As in Horn, the district court in Mr. Bush’s
case confirmed through medical records that Mr. Martin’s condition was “serious
and severe and not temporary” and that his physician advised against him
traveling from La Junta,
[¶53] We conclude the district court properly
applied the Craig test. Mr. Martin’s testimony via video
conference was necessary to further the important public policy of preventing
further harm to his already serious medical condition. The reliability of his testimony was
otherwise assured by the facts that he appeared in the La Junta district
attorney’s office and was sworn by the district court, gave testimony and was
subjected to cross-examination before the jury, Mr. Bush, defense counsel and
the court via live broadcast. The district court further assured the reliability
of his testimony by ordering Mrs. Martin to be out of the room during her
husband’s testimony. We hold that the district court properly admitted Mr.
Martin’s testimony by video conference and did not violate Mr. Bush’s
confrontation right.
[¶54] Our conclusion concerning Mr. Martin’s
testimony does not resolve the issue with respect to Mrs. Martin’s
testimony. Although the reliability
of her testimony was otherwise assured for the same reasons as Mr. Martin’s,
Mrs. Martin was not ill and there was no medical recommendation against her
traveling. The district court
acknowledged these different circumstances but allowed her testimony by video
conference because she and Mr. Martin had been married for 60 years, she was
justifiably concerned about her husband, it “would be greatly stressful for her
to have to come here” and “her time away would be very difficult for her given
her husband’s circumstances.” We
have found no cases in which any court has considered whether circumstances such
as these were sufficient to show testimony by video conference was necessary to
further an important public policy.
We hold that the district court erred in allowing Mrs. Martin to testify
by video teleconference. However,
the error was harmless because her testimony was cumulative of her husband’s
testimony. Ryan, 988 P.2d at 59.
3.
Denial
of Alternative Suspect Evidence
[¶55] Prior to trial, the State filed a motion
to exclude evidence of alternative suspects until Mr. Bush produced an adequate
evidentiary basis for its admission.
The State asserted that Mr. Bush had attempted to blame his half brother,
Glendol Bush, who was an escapee from the Wyoming State Conservation Camp at the
time Mrs. Bush disappeared. The
State alleged that a law enforcement investigation showed Glendol Bush was not
in
[¶56] Following the court’s order, Mr. Bush
submitted an offer of proof and request for admission of alternative suspect
evidence. He listed the following
evidence in support of his request:
Theresa
Bush’s recorded statement to the police on August 1, 2005 in which she said that
when she called on December 9, 1990 to report her daughter-in-law’s
disappearance, she told the police that she was very concerned about David’s
step brother who had escaped from the conservation camp. She also stated that she told the police
they needed to take this seriously.
In her August 2005 statement, she said her concern at the time “was not
about David. It was more about
Glenn.”
Julia
Hayfield’s statement that she was in the Buttrey parking lot late in the
afternoon on December 8, 1990 and saw a dark colored truck with the license
plate 1-BUSH driven by a dark haired woman pull into the lot. She saw the woman get out of the truck.
She was big across the shoulders and wearing stone washed jeans and a waist
length jacket.
Doris
Lore’s statement that she was in the Buttrey parking lot at approximately 5:30
p.m. on December 8, 1990 and saw a tall male and a short female arguing in the
parking lot. They got into a Datsun
and drove away.
On
Monday, December 10, 1990, Deputy Rodstad of the Natrona County Sheriff’s Office
observed a small pickup by Red Draw in
Sue
Moore’s statement to the sheriff’s office on December 13, 1990 that on Sunday,
December 9, 1990, around 4:00 p.m., she saw a man walking around
Lucille
Mark’s statement to the sheriff’s office on July 16, 1991 that her nephew
Glendol Bush had been calling her that evening and told her that Mrs. Bush’s
body could be found at Hell’s Half Acre.
She stated that he told her he did not kill Mrs. Bush, his brother David
committed the murder.
Trudy
Dooling’s statement to police in 1992 that she believed Glendol Bush was in
Michelle
Longwedl’s statement to police in June of 2005 that she thought Glendol Bush was
important to the case involving her sister’s disappearance. She also said that about two weeks
before she disappeared her sister had told her she did not want Glendol Bush in
her house.
David
Christopher Dryden’s statement to police in May of 2006 that sometime between
1992 and 1994 Glendol Bush confessed to him in prison that he had killed Mrs.
Bush. In his statement, Mr. Dryden
indicated Glendol said he shot Mrs. Bush on
The
defense also asserted in its offer of proof that law enforcement’s investigation
into the whereabouts of Glendol Bush on December 8 and 9, 1990 showed only that
someone used David Bush’s name in Texas and New Mexico that weekend. It did not provide a description of the
individual and did not definitively show that Glendol Bush was the individual
using David Bush’s name.
[¶57] Following a hearing, the district court
concluded that the evidence the defense presented in its offer of proof was not
sufficient to allow its presentation to the jury. In support of its ruling, the district
court referenced Holmes v. South
Carolina, 547 U.S. 319, 327, 126 S. Ct. 1727, 1733, 164 L. Ed. 2d 503
(2006) in which the Court quoted with approval the following rule:
[T]he
accused may introduce any legal evidence . . . tending to prove that another
person may have committed the crime with which the defendant is charged. Such evidence may be excluded where it
does not sufficiently connect the other person to the crime, . . . is
speculative or remote, or does not tend to prove or disprove a material fact in
issue.
Emphasizing
that Holmes allows the introduction
of “legal” evidence, the district court stated:
[T]he
suspicions of some of the other proposed witnesses that Glendol Bush may have
been here and committed the crime [are] not sufficient. I am inclined to think that the
descriptions are so general as to not be helpful, and confusing. I have reservations about the testimony
of Mr. Dryden.
The
district court continued its previous ruling granting the State’s motion in
limine but indicated the defense could raise the issue again at any point during
the trial.
[¶58] Mr. Bush contends the district court
denied his constitutional right to present a complete defense when it prohibited
him from presenting evidence implicating his brother in his wife’s
disappearance. To the extent his
claim involves a constitutional issue, we review it de novo. Hannon, ¶ 13, 84 P.3d at 328. We review the evidentiary issue for
abuse of discretion. Vigil, ¶ 17, 98 P.3d at
177.
[¶59] The United States Constitution
guarantees criminal defendants a meaningful opportunity to present a complete
defense. Crane v.
[¶60] This Court has not had occasion to
address for many years the propriety of excluding defense evidence that someone
other than the defendant committed the offense charged. In Horn v. State, 12 Wyo. 80, 133, 73 P.
705, 715 (1903), the defendant claimed the trial court erred in excluding
evidence that there had been trouble between the murder victim’s family members
and their neighbors, including an altercation in which the victim ran a
neighbor’s son down with his horse and the neighbor pulled a gun and threatened
to shoot the horse. In ruling that
the evidence was properly excluded, the Court said:
The
offer in the case at bar was not to show an ill feeling on the part of one
individual, but of several, and it was not connected with any other offer to
show overt acts on the part of such individuals toward the commission of the
crime charged against the prisoner, nor even an opportunity on their part to
have perpetrated the crime. *
* * The offer was limited to the
showing of a possible motive on the part of some one to do some injury to some
member of the Nickell family, and perhaps to take the life of some member of
that family. * * * We do not perceive that the offered
testimony would have had any reasonable tendency to establish the innocence of
the defendant. Its effect, if any,
could have been no greater than to generate a mere suspicion that some other
person might have committed the crime solely because he entertained a feeling of
ill will or hatred against the Nickell family at some time and may have uttered
threats of taking life. The
evidence offered does not come within the rule relied on by counsel for
plaintiff in error, and the court did not err in excluding
it.
[¶61] Only slightly more recently, this Court
addressed the issue again in Lampitt v.
State, 34
No
offer was made to connect up such facts with other facts tending to show in any
way that the occupants of these cars had anything whatever to do with the
explosion. The offered testimony
could, accordingly, have no other effect than to raise a possible suspicion that
the person or persons in these cars might have had something to do with the
crime for which defendant was tried, and comes accordingly clearly within the
rule laid down in Horn v. State, 12
Wyo. 80, 73 P. 705, where it was held that testimony offered by a defendant on
trial for murder, which would merely have generated a suspicion that some other
person might have committed the crime, is properly
excluded.
[¶62] We have not had occasion to address the
issue since. However, other courts
that have addressed the issue more recently have applied similar standards to
those this Court applied long ago in Horn and Lampitt. These standards require that the
proffered evidence demonstrate a direct nexus between the third party and the
crime charged.
[¶63] In U.S. v. McVeigh, 153 F.3d 1166
(10th Cir. 1998), for example, the court considered evidence
suggesting that persons connected with a white-supremacist, anti-government
group known as Elohim City were involved in the conspiracy to bomb the Murrah
Building. Specifically, the defendant proffered testimony from an undercover
government informant who would have testified that the group’s leaders violently
opposed the federal government, had instructed her in preparing napalm, had
shown her bomb components, discussed their experience in building and exploding
a 500-pound ammonium nitrate bomb and discussed targeting a federal building in
[¶64] The Tenth Circuit Court of Appeals
upheld the exclusion of this evidence, finding that even if the proffered
testimony had some marginal relevance, its probative value was slight because of
its generalized and speculative nature.
The Court said:
The
fact that another group held similar anti-government views as did McVeigh
and that some of its members expressed vague threats to bomb a variety of
potential targets in Oklahoma, possibly including a federal building in Oklahoma
City, says very little about whether this group actually bombed the Murrah
Building. That others shared McVeigh’s political views is a slender reed upon
which to vault the dangers of unfair prejudice and jury confusion. Howe’s
alleged identification of “John Doe 1” and “John Doe 2” arguably increases the
probative value of her other testimony. However, the composite sketches included
no particular identifying features that would strengthen the significance of
Howe's allegation of two matches. In fact, there are undoubtedly thousands of
men across
[¶65] Similarly, in State v. Brown, 173 P.3d 612 (Kan.
2007), the Kansas Supreme Court considered the following alternate suspect
evidence: (1) an individual with an
allegedly similar physical description to Brown and allegedly similar motive,
was involved in a fight at the scene of the killing; (2) another individual was
also involved in a fight at the scene and had a similar physical description to
Brown; (3) a police officer stopped two individuals leaving the scene of the
shooting with the lights of their vehicle turned off; (4) another officer
received a telephone call from an individual who said the police had the
wrong person in custody for the shooting; and (5) hearsay evidence a woman
contacted law enforcement and told them another man called her around the time
of the shooting and told her he had just shot someone in the head in “Old
Town.”
[¶66] In State v. Cotto, 865 A.2d 660 (N.J.
2005), the Court applied a similar standard. There, a fellow inmate of the defendant
made statements implicating a relative in committing the crime. The court said that to be admissible the
evidence must demonstrate a link between the relative and the victim or the
crime.
[¶67] Taking this same approach, in United States v. Hall, 165 F.3d 1095
(7th Cir. 1999), the court upheld the
exclusion of alternate suspect evidence in a case involving kidnapping and
transportation of the victim across state lines where the victim’s body was
found several weeks later in an Indiana cornfield. Prior to trial, the defendant filed a
motion seeking the admission of statements indicating a third party committed
the crime. Some of the statements
implicated an individual who, according to witnesses, stated that he needed to
get out of town because of the abduction and the victim would “be found in
harvest time.”
[¶68] With these cases in mind, we consider
the evidence Mr. Bush sought to have admitted to show that his step brother,
Glendol, committed the offense charged.
The statements of Theresa Bush, Ms. Longwedl and Ms. Dooling that they
were concerned about Glendol Bush or thought he was important to the case or
believed he may have been in Casper around the time Mrs. Bush disappeared did
not connect Glendol to the crime charged.
This evidence did nothing more than raise a suspicion that Glendol may
possibly have been in the area and may possibly have had something to do with
the disappearance. We conclude the
district court properly excluded this evidence.
[¶69] The statements of Ms. Hayfield, Ms.
Lore, Deputy Rodstad and Ms. Moore, considered together, were apparently
intended to show that Mrs. Bush was in the grocery store parking lot in the
Bushes’ pickup truck in the late afternoon on December 8, 1990; she argued with
and left with a man in a Datsun pickup truck; and the man and the Datsun pickup
were seen outside of Casper the following day. The difficulty with this proffered
evidence is that there was no direct evidence that Glendol Bush was in
[¶70] Mr. Bush asserts most strenuously that
the district court violated his right to present his defense when it excluded
the statements of Ms. Marks and Mr. Dryden that Glendol told them he was
involved in the crime. The alleged
statement to Ms. Marks implicated Mr. Bush, not Glendol; therefore, it is not
clear how its exclusion violated Mr. Bush’s right to present a defense. As for Mr. Dryden’s proffered testimony,
there was no showing that it was trustworthy or reliable. There was no independent evidence
corroborating the hearsay statement that Glendol shot Mrs. Bush on
[¶71] As the district court emphasized,
pursuant to Holmes, 547
4.
Delay
in Filing Charges
[¶72] Mr. Bush’s final argument is that his
Fifth Amendment due process rights were violated as a result of the fifteen and
one-half year delay between his wife’s disappearance and the filing of the
murder charges. Given the delay, he
asserts, evidence was lost, memories changed and he was prejudiced in preparing
his defense. On this basis, Mr.
Bush claims the district court erred in denying his pretrial motion to dismiss
for violation of his due process rights.
The State responds that Mr. Bush’s Fifth Amendment due process rights
were not violated by the delay because Mr. Bush cannot show that the delay
caused substantial prejudice or that the prosecution intentionally delayed to
gain tactical advantage. Whether
Mr. Bush’s constitutional right to due process was violated is a question of law
that we review de novo. Humphrey v. State, 2008 WY 67, ¶ 32, 185
P.3d 1236, 1246 (Wyo. 2008).
[¶73] In states like
[¶74] Addressing the first prong of the test,
Mr. Bush alleges that the only new evidence obtained during the fifteen and
one-half year delay was the fact that Mrs. Bush was never found and this gave
the State a tactical advantage. Mr.
Bush makes no showing that this was in fact the reason for the delay. Under the circumstances of this case,
where the victim’s body had not been found, we are not willing to second guess
the exercise of prosecutorial discretion.
The prosecutor at the time may have exercised his discretion to withhold
prosecution until the body was found.
Later, with new evidence in hand, most importantly the results of more
advanced DNA technology, a different prosecutor exercised his discretion to
proceed with prosecution. From
these facts, we cannot conclude that the delay was intentional to gain a
tactical advantage. Mr. Bush has
not met his burden of proving the first prong of the test required to show his
due process rights were violated by the delay.
[¶75] Turning to the second prong, Mr. Bush
alleges that actual prejudice resulted in his case because evidence was
destroyed or lost. He points to the
pickup truck that his wife was driving when she disappeared, which the police
searched and took blood samples from and then released to Mrs. Bush’s parents
who later sold it. He asserts that
he had no opportunity to test, examine or perform an independent forensic
examination of the truck and its contents to determine whether anyone else’s DNA
or fingerprints were present.
He also points to a lost roll of film containing photographs taken by
police during the search of his home.
He claims the photographs would have answered questions concerning items
the State claims were present or not present in the house at the time of the
search. Finally, without
referencing any particular witness, he asserts that witnesses’ memories changed
over the fifteen and one-half years and those who testified for him remembered
less while witnesses for the State seemed to remember more.
[¶76] Actual prejudice, not possible
prejudice, is the standard invoked with respect to the second prong of the
test. Vernier v. State, 909 P.2d 1344, 1350
(
[¶77] Similarly, Mr. Bush fails to specify
what the lost photographs would have shown or how they would have helped his
case more than the photographs that were available and used at trial. Numerous photographs of the pickup truck
and the interior of the Bush home were presented at trial and the defense had
the opportunity to cross-examine the State’s witness concerning the photographs.
As previously noted, Mr. Bush does not identify any witness or testimony that
changed over time or how it prejudiced his defense. Mr. Bush has failed to meet his burden
of showing actual prejudice from the delay.
CONCLUSION
[¶78] The district court did not abuse its
discretion or violate Mr. Bush’s Sixth Amendment confrontation right when it
allowed a counselor and a psychiatrist to testify concerning statements made to
them by the Bushes’ daughter. The
statements were properly admitted under W.R.E. 803(4) as statements made for
purposes of medical diagnosis and treatment. Additionally, the daughter appeared
at trial, took the oath, testified and was subject to cross-examination, thus
satisfying the confrontation clause.
The district court likewise did not abuse its discretion or violate Mr.
Bush’s confrontation right when it allowed Mr. Martin to testify by video
teleconference. Under the
circumstances, presentation of his testimony in that manner was necessary to
further an important public policy and the reliability of the testimony was
otherwise assured. The error in
allowing Mrs. Martin to testify by video teleconference was harmless.
[¶79] The district court properly excluded
evidence of an alternate suspect.
Much of the proffered evidence was speculative and did not provide a
nexus between the suspect and the crime charged. As for the proffered testimony
concerning the alternate suspect’s hearsay statements, the defense failed to
show that the statements were trustworthy and reliable. The district court also did not err in
denying Mr. Bush’s motion to dismiss on the basis of due process violations
caused by the delay in charging him.
Mr. Bush did not show actual prejudice or intentional prosecutorial delay
to gain a tactical advantage.
[¶80] Affirmed.
FOOTNOTES
1Officer
James Keeran, a crime scene investigator with the Casper Police Department,
testified that luminol is used to detect blood patterns that cannot be detected
with the human eye. When sprayed on
surfaces where blood is suspected to have been, including surfaces that have
been wiped clean, it glows if blood is indicated.
2The record
is not clear but it appears that law enforcement removed the child from Mr.
Bush’s home in late December 1990 because of concerns expressed by family
members that she was not safe in his custody. She was placed in the temporary custody
of her maternal grandparents where she remained, with scheduled supervised
visits with Mr. Bush, until a custody hearing. After the hearing, the child remained in
the custody of the grandparents.
3Pursuant to
W.R.E. 801(d)(1)(C), a statement is not hearsay if the declarant testifies at
the trial or hearing, is subject to cross-examination concerning the statement,
and the statement is one of identification of a person made after perceiving
him. Arguably, the child’s
statements were not hearsay because she testified at the trial, was subject to
cross-examination concerning her statements to Ms. Gordon and Dr. Eicher and her
statements identified Mr. Bush as having killed her mother. The State did not make this argument and
the district court treated the statements as hearsay. Consequently, we accept,
without deciding, that the statements were hearsay.
4In reaching
this result, we are cognizant of the following paradox: the same person can be both “subject to
cross-examination” under W.R.E. 801(d)(1) and “unavailable as a witness” under
W.R.E. 804(a), which provides in relevant part:
(a)
Definition of
unavailability – “Unavailability as a
witness” includes situations in which the
declarant:
. . . .
(3) Testifies to a lack of
memory of the subject matter of his statement[.]
In Owens, 484
5In Ryan, 988 P.2d at 59, we considered
whether the defendant’s confrontation right was violated when a witness
testified by video teleconference and the quality of the technology was
poor. The defendant did not object
to the quality of the sound or complain that he could not hear the
testimony. Additionally, the
witness testimony was cumulative of other testimony. Under those circumstances,
we held that the district court properly denied the motion to strike the
testimony. We did not address the question of whether his confrontation right
would have been violated if the technology had worked properly.
6W.R.E.
804(b)(3) provides in pertinent part:
Rule
804. Hearsay exceptions; declarant
unavailable.
(b) Hearsay exceptions. – The following are
not excluded by the hearsay rule if the declarant is unavailable as a
witness:
. . .
.
(3) Statement Against Interest. – A
statement which was at the time of its making so far contrary to the declarant’s
pecuniary or proprietary interest, or so far tended to subject him to civil or
criminal liability, . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true. A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement[.]
7W.R.E.
803(24) provides:
Other
exceptions. – A statement not specifically covered by any of the foregoing
exceptions but having equivalent circumstantial guarantees of trustworthiness,
if the court determines that (A) the statement is offered as evidence of a
material fact; (B) the statement is more probative on the point for which it is
offered than any other evidence on which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and the
interests of justice will best be served by admission of the statement into
evidence.
8In
ruling that the defense offer of proof was not sufficient to admit the alternate
suspect evidence, the district court specifically advised
counsel:
At this
point, I am going to continue with my ruling granting the liminal motion without
prejudice to the defense to raise that at any such time as they think it might
be appropriate during the trial.
. . .
.
It is
not to be referred to in opening unless something comes up and you bring it to
my attention first.
* *
* I can’t imagine it being
appropriate in voir dire; but it is
not to be used in opening without my specific permission.
But I’m
not precluding you from reapproaching the Court and asking for permission to
probe into these things and specifically to be able to argue it in your closing
statement if you think that is appropriate based on the evidence that has been
established.
As this excerpt reflects, the district court’s ruling on the matter was not final and left the defense the opportunity to show why Mr. Dryden’s testimony was relevant and admissible. Apparently misunderstanding the ruling, the defense did not pursue efforts to present Mr. Dryden’s testimony.
Citationizer© Summary of Documents Citing This Document
Citationizer: Table of AuthorityCite
Name
Level
Wyoming Supreme Court Cases Cite Name Level 2008 WY 144, 197 P.3d 722, FLOYD DEWAYNE GRADY v. THE STATE OF WYOMING Discussed 2009 WY 2, 199 P.3d 1052, JEFFERY LYNN SMITH V. THE STATE OF WYOMING Discussed 2009 WY 54, 205 P.3d 1018, STEVEN R. BOWSER V. THE STATE OF WYOMING Cited 2009 WY 105, 214 P.3d 990, FELIX NAJERA v. THE STATE OF WYOMING Cited 2009 WY 111, RIPP CAUSEY V. THE STATE OF WYOMING Cited
Cite
Name
Level
Wyoming Supreme Court Cases Cite Name Level 1903 WY 25, 73 P. 705, 12 Wyo. 80, Horn v. State Discussed 1926 WY 6, 242 P. 812, 34 Wyo. 247, Lampitt v. State Cited 1997 WY 105, 943 P.2d 1189, Simmers v. State Cited 1996 WY 8, 909 P.2d 1344, Vernier v. State Cited 1999 WY 132, 988 P.2d 46, Ryan v. State Cited 2003 WY 120, 76 P.3d 830, MORGANFLASH v. STATE Discussed 2004 WY 8, 84 P.3d 320, HANNON v. STATE Cited 2004 WY 110, 98 P.3d 172, VIGIL v. STATE Cited 2007 WY 88, 158 P.3d 679, SOTERO LEPE NEGRETTE V. THE STATE OF WYOMING Cited 2007 WY 139, 166 P.3d 879, DOUGLAS PETER SZYMANSKI V. THE STATE OF WYOMING Discussed 2008 WY 67, 185 P.3d 1236, RITA ANN HUMPHREY V. THE STATE OF WYOMING Cited