Farbotnik v. State, 90-277

Citation850 P.2d 594
Decision Date02 April 1993
Docket NumberNo. 90-277,90-277
PartiesJames Alan FARBOTNIK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, David Gosar, Appellate Counsel, for appellant.

James Farbotnik, pro se.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Jennifer L. Gimbel, Sr. Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, and GOLDEN, JJ., and URBIGKIT, J., Retired.

THOMAS, Justice.

The primary issue to be resolved in this case is whether the rule articulated in Bearpaw v. State, 803 P.2d 70 (Wyo.1990), should be applied retrospectively to a case in which the defendant was a fugitive for almost seven years after his conviction. Application of the Bearpaw rule to this case would require reversal. If the Bearpaw rule is not applied, collateral issues relating to the sufficiency of the evidence and unlawful aspects of the sentence must be addressed. In addition, James Alan Farbotnik (Farbotnik) raises, through a pro se brief, issues of ineffective assistance of counsel; disparate, and therefore, unlawful sentencing; inadmissible evidence; and jury bias. We conclude that the rule announced in Bearpaw constitutes a supervisory decision by this court, which will not be applied retrospectively. None of the other claims of error have any viability, except for the claims of error in the requirement for restitution and payment into the crime victims' compensation account, which require modification of the judgment and sentence. The judgment and sentence, as modified, is affirmed.

Farbotnik, through counsel, frames the following issues in the Brief of Appellant:

I. Did the district court properly order restitution in this case?

II. If the district court did properly order restitution, must that provision be remanded for a proper determination of the amount?

III. Did the district court properly order the Appellant to pay into the Victim's Crime Compensation Fund?

IV. Must Appellant's conviction be reversed because voir dire, opening statements, and closing arguments were not recorded by any means?

V. Was there sufficient evidence to convict the Appellant of grand larceny?

The pro se brief presented by Farbotnik, together with a handwritten affidavit by which he endeavors to supplement the record, attempt to bolster the claims of insufficient evidence, an incomplete record, and the improper imposition of restitution. Farbotnik, in addition, asserts essentially these further claims:

I. Whether Appellant's retained trial counsel committed errors so serious that sufficient prejudice was created depriving Appellant of a fair trial?

II. Whether the sentence of the trial court properly reflected parity between Appellant's period of confinement and that of the codefendant?

III. Whether the trial court erred in permitting an improper courtroom identification?

IV. Whether members of the jury were biased preventing a fair trial?

In its Brief of the Appellee, the State of Wyoming rephrases and reorders the issues as follows:

I. Was there sufficient evidence to convict Appellant of grand larceny?

II. Were the restitution and surcharge provisions of Appellant's sentence improper?

III. Does absence from the appellate record of the voir dire, opening statements and closing arguments deprive Appellant of the effective assistance of appellate counsel or does it, without a showing that something prejudicial occurred in the unreported portions of the trial, necessitate reversal of Appellant's conviction?

IV. Should the Court consider the issues presented in Appellant's pro se brief, because they are not supported by proper citation or cogent authority?

The underlying facts can be related concisely, although they will be set forth in greater detail in connection with the discussion of the sufficiency of the evidence. In December of 1982, the victim, BF, met a dancer, SS, who at that time was performing in a nightclub in the Cheyenne area. BF had been a mechanic but, at that time, he was on active military duty. After Christmas of 1982, SS and another female dancer lived with BF in the victim's home. BF proposed marriage to SS, and he even gave her an engagement ring.

SS introduced Farbotnik, identified as "Jessie James," to BF in January, 1983. She persuaded BF to loan her $300 to be given to Farbotnik to help pay for his defense of a criminal charge pending in Colorado. Not long after that, SS joined Farbotnik and another male friend, BR, on a trip to Los Angeles, California to raise additional money for Farbotnik's Colorado defense. In late February, 1983, those three returned to Cheyenne, and they stayed in BF's home. While they were staying there, they had unlimited access to BF's home and its contents. Subsequently, Farbotnik, SS, and BR left BF's home and went to Denver, Colorado. SS claimed that she left because BF had assaulted her.

Because of his concern about his relationship with SS, BF finally contacted her in late March at a Denver area nightclub where she was performing. BF arranged to visit with her, and she agreed to meet him at his motel. SS did not arrive at the motel, however, and BF then attempted suicide for which he was treated at Fitzsimmons Army Medical Center. When the police advised SS of these developments, she telephoned BF at the hospital to arrange a reconciliation. BF asked her to collect his personal effects from his car at the motel where he had been staying. There was a key to his home on his car key ring.

At the end of March, Farbotnik and SS traveled to Cheyenne. SS said she made the trip because BF had asked her to pick up his guitar and some of his clothes and bring them to the hospital. BF said SS telephoned him and asked if he needed anything from his home. When Farbotnik testified at his trial, Farbotnik stated he drove SS to Cheyenne in his van because BF's car, which SS was driving, was not safe. In his supplementation to the record, Farbotnik now recalls that SS drove BF's car to Cheyenne, and Farbotnik followed in his van.

Farbotnik and SS spent that night at BF's home, which was a basement apartment. SS used BF's telephone to call him at the hospital and also to call the nightclub where she worked. An upstairs neighbor spoke to SS during the evening while the neighbor was getting clothes from a common laundry, and the neighbors observed Farbotnik loading boxes from the residence into his van the following morning. Later that day, those neighbors, who had access to BF's apartment to get to the laundry, noticed several missing items, and they called the police. The neighbors also called BF at the hospital, and BF then reached SS by telephone and accused her and Farbotnik of taking his property. At that time, SS told BF to not get too excited about the missing items, stating that the things might show up in a few days.

SS agreed to pick up BF at the hospital and return his car the next day. BF then left SS in Denver and returned to Cheyenne to meet with police and inventory those missing items, which included tools, a television, and a video recorder. BF then called SS and told her that the police had found fingerprints. According to BF, SS responded by stating she did not want "Jessie" (apparently alluding to Farbotnik) to go to jail, and she would take the "rap." Subsequently, Farbotnik and SS were arrested in Los Angeles, California. They were tried in a joint trial in September of 1983, and the jury found them both guilty of grand larceny.

Farbotnik and SS were released on bail pending sentencing following the conviction. Before the presentence investigation was completed, however, Farbotnik and SS fled to Canada. Farbotnik remained a fugitive until he was deported from Canada in 1990. He then was arrested by Minnesota authorities and was extradited to Wyoming for sentencing. SS had returned to Wyoming previously and already had served a sentence of eighteen to thirty-six months. When sentencing Farbotnik, the district court noted the fact of SS's sentence and the court then sentenced Farbotnik to a minimum of thirty months and a maximum of sixty-five months in the state penitentiary. Farbotnik also was ordered to pay $16,945.50 in restitution for the stolen property and $50 into the crime victims' compensation account. Farbotnik has appealed from that judgment and sentence.

We consider first the retrospective application of this court's decision in Bearpaw, since a conclusion that Bearpaw applies to Farbotnik's case would lead to a reversal. We note preliminarily that Farbotnik was sentenced some three months prior to the decision of this court in Bearpaw and nearly seven years intervened between his trial and his sentence. The effective debate is whether Bearpaw articulates a constitutional right with respect to a complete record in a criminal case or whether, on the other hand, Bearpaw represents the exercise of this court's supervisory power. Retrospective application normally would be associated with a constitutional proposition, but a prospective application is generally indicated for rules arising out of the court's supervisory power except for those rules that are intended to substantially improve the fact finding at trial.

In Bearpaw, we reversed and remanded a conviction for second degree murder, holding that an inadequate record prevented the determination of whether Bearpaw had received effective assistance of trial counsel and a fair trial. That record did not include a verbatim transcript of selection of the jury, opening statements, reading of a transcript of an in-custody interview, instruction conferences, reading of jury instructions, or closing arguments. After extensive supplementation orders, it was impossible to obtain transcripts of impaneling, voir dire, opening statements, and closing arguments because the electronic tapes containing the reporter's notes had been destroyed.

In this case, the...

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