Dysthe v. State

• Decision Date: 19 February 2003
• Docket Number: No. 01-125.,01-125.
• Citation: 2003 WY 20,63 P.3d 875
• Parties: Kilen Patrick DYSTHE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

63 P.3d 875

2003 WY 20

Kilen Patrick DYSTHE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-125.

Supreme Court of Wyoming.

February 19, 2003.

Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; T. Alan Elrod, Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Hugh J. Linnehan and Meri Ramsey, Interns, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] Kilen Patrick Dysthe (Dysthe) appeals his conviction for delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2001), a felony. The district court sentenced Dysthe to the custody of the Department of Corrections for a period of eighteen to thirty-six months. We reverse.

ISSUES

[¶ 2] The issues presented on appeal are:

I. Did the trial court err in excluding two of [Dysthe's] named witnesses, thereby denying him his right to a fair trial and his right to compulsory process?

II. Did the trial court err in excluding evidence relating to the State's witness, Eric Stone?

III. Did the prosecutor commit misconduct in closing argument?

FACTS

[¶ 3] Dysthe was charged with selling cocaine to Daniel Luke Jacquot (Jacquot) in June 2000. Eric Stone (Stone), a mutual friend, testified that he processed the cocaine into a smokeable form and Jacquot testified that Dysthe, Jacquot, Stone, and Jacquot's brother, John, smoked the cocaine.¹ Jacquot was a participant in drug court, and Jacquot's urine tested positive for cocaine the day after the group allegedly smoked the cocaine. Jacquot testified that he was booked into jail after telling drug court personnel that he had used cocaine. Jacquot told a Division of Criminal Investigation (DCI) agent that Dysthe had sold him the cocaine. An Information charged Dysthe with one count of delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii).

[¶ 4] The district court entered a scheduling order on September 8, 2000, that required the parties to list witnesses and exhibits by November 13, 2000. On November 9, 2000, Dysthe listed his mother and Stone as witnesses. The State filed a notice of additional witnesses on December 5, 2000, listing a former drug court employee, Bob Green, as a witness. The defense filed its notice of additional witnesses on January 25, 2001, naming Ray Olson and Jodie Bear, drug court employees, as witnesses. These witnesses were to testify about Jacquot's conduct in drug court, specifically that he conspired with other drug court participants to deliver hallucinogenic mushrooms. The next day, the State listed Honorable J. John Sampson as a witness, to counter any defense accusations concerning Jacquot's conduct in drug court. The district court held a hearing on the day of trial regarding the various notices and motions related to the additional witnesses. The district court prohibited either party from calling additional witnesses because it was not notified of these witnesses by the court's November 13th deadline. The matter proceeded to trial and a jury found Dysthe guilty. This appeal followed.

DISCUSSION

WITNESS EXCLUSION

[¶ 5] Dysthe first argues that the district court erred in precluding the testimony of two defense witnesses, Ray Olson and Jodie Bear, Sheridan drug court personnel, thereby denying him his right to present a defense. Dysthe presents the issue as one of constitutional magnitude, implicating the right to present a defense as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution,² and Wyo. Const. art. 1, § 10.³ A violation of the compulsory process clause of the Sixth Amendment occurs when a defendant is arbitrarily deprived of testimony that would have been relevant, material, and vital to his defense. United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In Taylor v. Illinois, 484 U.S. 400, 407-09, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), a case involving the violation of a pre-trial discovery order, the United States Supreme Court held that the compulsory process clause is not merely a guarantee that the accused shall have the power to subpoena witnesses, but confers on the accused the fundamental right to present witnesses in his own defense. Taylor further held, however, that although a trial court may not ignore a defendant's fundamental right to present witness testimony in his favor, the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests. Id. at 410-16, 108 S.Ct. 646. The factors to be weighed in the balance include, but are not limited to the "integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process...." Id. at 414-15, 108 S.Ct. 646.

[¶ 6] In Lawson v. State, 994 P.2d 943, 946-47 (Wyo.2000), we adopted the Taylor factors and held that the exclusion of alibi testimony was an abuse of discretion where the district court failed to consider any factor other than the defendant's failure to comply with the filing date requirement of W.R.Cr.P. 12.1(a)⁴ and failed to consider the factors articulated in Taylor.⁵ We have defined judicial discretion as "`a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.'" Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998) (quoting Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236, 1238 (1985)

).

[¶ 7] In the instant case, the district court required the parties to name their witnesses by November 13, 2000. On January 25, 2001, defense counsel named the two Sheridan drug court personnel as additional witnesses. The State objected to the two witnesses, but also listed Judge Sampson for potential rebuttal. The district court held a hearing on the matter just prior to jury selection, inquired as to the purpose of the proposed testimony, and following counsels' arguments, ruled as follows:

THE COURT: All right. Well, counsel, this is the way the Court is going to handle this. Both of you are precluded from using Bob Green, Ray Olson, Jody [sic] Bear, Judge Sampson in your cases in chief. I'm not going to get into the merits of the arguments. But it will be the ruling of the Court that the late filing precludes their use in the case in chief. If it turns out that, you know, one of you thinks that they are necessary for some sort of proper rebuttal, I'll consider it at that time.

(Emphasis added.)

[¶ 8] This ruling barred Dysthe from calling the drug court witnesses in his case-in-chief, but it left the door open to their use in rebuttal. Despite this ruling, when defense counsel tried to impeach the credibility of Jacquot, a witness for the State, with questions that would have made such rebuttal appropriate, the district court sustained the State's objection:

[DEFENSE COUNSEL:] ... [Jacquot], you just testified that you haven't made any deals with the prosecutor, right?

[JACQUOT:] Correct.

[DEFENSE COUNSEL:] Isn't it true that you've—that just within the last month you were in some fairly serious trouble?

[PROSECUTOR:] Objection, Your Honor.

THE COURT: Trouble?

[DEFENSE COUNSEL:] Trouble in Drug Court.

[PROSECUTOR:] It's improper specific acts. Improper under 404, improper under 401, improper under 403, improper under 608 and 609.

THE COURT: Counsel, if you want to approach the bench.

...

THE COURT: A couple of questions that you've attempted have incited a narrative response. They haven't been specific enough to limit the testimony to those items required by the rule, and they really haven't been specific enough for me to properly rule on an objection, so if you want to give me an offer of proof as to where you're headed outside the hearing of the jury, maybe I can rule on [the prosecutor's] objection.

[DEFENSE COUNSEL:] I want to ask him if he has been, if he has been threatened with prosecution by Drug Court personnel; and isn't it true that when you or your father objected to the prosecutor's office, the problems were taken care of.

And I don't care if [the prosecutor] did anything or not; this kid thinks that that happened. I want to know his perception of that.

THE COURT: As we talked about before we started the trial, I don't think it's improper for you to ask if someone threatened him with—specifically with respect to his testimony in this case. But both of you are talking generally about drug use and Drug Court. It may have to do with other cases involving other people. It may be other times. I don't have any idea where you're at. If you make it very specific to testimony in this case, you may inquire. If not, I'm going to sustain the objections.

[DEFENSE COUNSEL:] I can't even get into—I'm not allowed to even ask a question. I get objections all the time.

THE COURT: Did you hear what I just said, though, about making it—well, see you apparently want to inquire as to whether or not he received any pressure that affects his testimony in this case. That's okay. But—

[PROSECUTOR:] Your Honor, I'm sorry to interrupt the Court. He already testified that he did not from my office. If he's going to talk about the other—about these alleged things with Drug Court, which had nothing to do with this case, there's going to be an objection before [defense counsel] is expecting to get the question out, because I don't think it's proper to be in front of the jury and to have all of the innuendos about Drug C

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