Barker v. State

Decision Date24 August 2006
Docket NumberNo. 03-85.,03-85.
Citation2006 WY 104,141 P.3d 106
PartiesJames BARKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Diane Courselle, Director, DAP.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Before VOIGT, C.J., and GOLDEN, HILL*, KITE, and BURKE, JJ.

KITE, Justice.

[¶ 1] James Barker was convicted after a bench trial of one count of larceny by bailee for converting items belonging to his employer, Computer Professionals Unlimited (CPU), to his own use. He appealed his conviction, and we issued a limited remand for an evidentiary hearing on his ineffective assistance of counsel claim. Back in this Court after the remand, we concluded the district court "unduly limited the evidence Barker was allowed to present at the remand hearing." Barker v. State, 2005 WY 20, ¶ 1, 106 P.3d 297, 298 (Wyo.2005). Consequently, we reversed the district court's determination defense counsel was effective and again remanded the case "for the limited purpose of allowing Barker to fully develop the record on the issues of pretrial investigation and the circumstances surrounding Barker's waiver of his right to testify at his criminal trial." Id. Following the second remand hearing, we requested supplemental briefing from the parties. We now consider the case on the merits and affirm Mr. Barker's conviction concluding he was not denied his right to testify, had adequate notice of the charges for which he was convicted, was not prejudiced by the admission of evidence of a burglary at CPU's warehouse, and received effective assistance of counsel.


[¶ 2] Mr. Barker presents the following issues on appeal:


Was Mr. Barker denied his right to testify when the judge declined to allow a continuance and refused defense counsels' request to re-open the bench trial, so that Mr. Barker could testify unimpaired by illness?


Was Mr. Barker denied his constitutional right to proper notice which prevented him from effectively defending against the charges?


Was Mr. Barker prejudiced when the prosecution presented evidence of uncharged misconduct that was irrelevant to the charged offenses and should not have been admissible under W.R.E. 404(b)?


Was Mr. Barker denied his constitutional right to effective assistance of trial counsel; in the alternative, was Mr. Barker deprived of the opportunity to fully develop the record for review of his ineffectiveness claim?

The State rephrases the issues as:

I. Was appellant denied a continuance or his right to testify, and did the district court abuse its discretion by denying his request for a new trial to permit him to testify?

II. Did appellant receive adequate notice of the charges against him?

III. Did the State present evidence of appellant's uncharged misconduct?

IV. Did appellant receive effective assistance of counsel?


[¶ 3] In January 2001, Mr. Barker began working as a network engineer for CPU in Casper.1 CPU sold computer equipment and provided computer services to customers located throughout the state. Russell Wood was CPU's managing partner. CPU stored equipment in a warehouse, and Mark Adams was the warehouse manager.

[¶ 4] A large part of Mr. Barker's job involved traveling to customers' places of business and setting up and installing computer systems and equipment. In order to accomplish this, equipment had to be ordered for the job or taken from CPU's equipment stock in the warehouse. There were apparently different ways for CPU employees to account for equipment taken from the warehouse for a job. Using CPU's computerized accounting program, they could invoice the equipment to the customer as they took it out of the warehouse or they could keep track of the equipment on a work order and invoice it after the job was complete. If an employee simply wanted to use equipment for a period of time, he could enter it into the company's computerized accounting program or sign out the equipment using the company's "loan book" for larger items or "cabinet sheet" for smaller items which were kept in a locked cabinet. Occasionally, the company ordered equipment and had it "drop-shipped" directly to the customer. During Mr. Barker's tenure with CPU, various items of equipment disappeared. CPU reported some of the missing items to the police and filed a claim with its insurance company.

[¶ 5] Mr. Barker resigned from his employment with CPU in December 2001. At the time of his resignation, CPU's records indicated he possessed some of its property, either because he intended to purchase the items but had not yet paid for them or he had borrowed them from CPU. CPU obtained a writ of replevin to retrieve items belonging to the company located at Mr. Barker's residence. Mr. Wood and Mr. Adams accompanied the sheriff's deputies to Mr. Barker's residence to execute the writ, and they recognized items belonging to CPU but not included in CPU's sales or loan records. They also recognized some items they had previously reported to the police as stolen. The police obtained a warrant to search Mr. Barker's residence and recovered a number of items CPU claimed were stolen.

[¶ 6] Mr. Barker was charged with one count of larceny by bailee, in violation of Wyo. Stat. Ann. § 6-3-402(b) (LexisNexis 2001),2 and one count of concealing stolen property, in violation of Wyo. Stat. Ann. § 6-3-403(a)(i) (LexisNexis 2001).3 Mr. Barker's defense was he lawfully possessed the property. According to Mr. Barker, he planned to refute the charges by testifying in his own defense and presenting documentary evidence, including e-mails between himself and Mr. Wood, to show he lawfully had possession of the equipment. In an effort to obtain documentary evidence to support his defense, trial counsel served the State with a demand for discovery and CPU with a subpoena duces tecum. The State filed a motion to quash the subpoena, but the district court denied the motion because the State did not have standing to contest a subpoena served on CPU. Defense counsel subsequently filed a motion to compel the production of the requested information, but the motion was never heard nor ruled upon by the district court.

[¶ 7] Mr. Barker waived his right to a jury trial, and the district court conducted a bench trial beginning on November 12, 2002. The State presented evidence concerning numerous items it alleged Mr. Barker had converted to his own use, including some items CPU had provided to the Arapahoe school in Fremont County. Mr. Barker had traveled to the Arapahoe school to work on its computer system and was supposed to return the items to CPU because the school district did not need or want them. The items were not returned to CPU and were later found at Mr. Barker's residence. The items were received into evidence as Exhibit Nos. 1 through 4 at trial.

[¶ 8] After the State rested, the district court granted Mr. Barker's motion for a judgment of acquittal on Count II, concealment of stolen property. The trial continued on Count I, larceny by bailee. The district court advised Mr. Barker of his right to testify at the trial, which he waived. At the conclusion of the trial, the district court ruled Mr. Barker was guilty of larceny by bailee for the Arapahoe school items. As to the remainder of the items the State claimed Mr. Barker had converted while acting as a bailee, the district court ruled the State failed to prove they were entrusted to him.

[¶ 9] Mr. Barker filed a motion for a new trial and renewed his motion for judgment of acquittal on Count I. Although the motion for a new trial set out a different basis, Mr. Barker asked the district court at the hearing to reopen the evidence to allow him to testify. He claimed he was suffering from a "diabetic episode" on the last day of the trial when he would have testified and the court should reopen the evidence to allow him to testify. The State was surprised by Mr. Barker's argument and the district court continued the hearing to allow the State an opportunity to respond. After the rescheduled hearing, the district court denied Mr. Barker's motions, specifically finding he knowingly, voluntarily and intelligently waived his right to testify at the trial. Mr. Barker then filed a notice of appeal.

[¶ 10] While the appeal was pending, Mr. Barker filed a motion in this Court requesting a limited remand to the district court for an evidentiary hearing concerning the effectiveness of his trial counsel. We granted a limited remand, and the district court held a hearing on February 6, 2004. The district court limited the scope of the remand hearing and, at the conclusion of the hearing determined Mr. Barker had not proven his trial counsel was ineffective. Barker, ¶ 8, 106 P.3d at 299.

[¶ 11] After the remand hearing, the case was returned to this Court and the parties filed their initial briefs. Mr. Barker argued the district court improperly refused to allow him to inquire at the remand hearing about his trial attorneys' actions with regard to his waiver of the right to testify. In addition, he claimed the district court erred by constraining him from conducting full discovery to support his claims of ineffective assistance of counsel. We concluded the district court improperly limited the scope of the remand hearing. Barker, ¶ 20, 106 P.3d at 302. Thus, we remanded the case to allow Mr. Barker to fully develop the record on his ineffective assistance of counsel claim. Barker, ¶ 1, 106 P.3d at 298. After the second evidentiary hearing, the district court ruled Mr. Barker's counsel's performance was not deficient and Mr. Barker had not shown he was prejudiced. The case returned to this Court, and we ordered the parties...

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