Gabriel v. State, 95-149

• Decision Date: 08 October 1996
• Docket Number: No. 95-149,95-149
• Citation: 925 P.2d 234
• Parties: Martin D. GABRIEL, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 234

925 P.2d 234

Martin D. GABRIEL, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-149.

Supreme Court of Wyoming.

Oct. 8, 1996.

Sylvia Lee Hackl, State Public Defender; Deborah Cornia, Appellate Counsel; Donna D. Domonkos, Assistant Appellate Counsel, for appellant (defendant).

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; Jenifer K. Girgen, Student Intern; Michael P. Adams, Student Intern, for appellee (plaintiff).

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR ^* and LEHMAN, JJ.

GOLDEN, Justice.

Appellant Martin Delanie Gabriel, Jr., was convicted of first degree murder and two counts of attempted second degree murder. He appeals his conviction on grounds that a victim's presence in the courtroom violated his due process rights and insufficient evidence was presented to warrant a conviction for one count of attempted murder.

We affirm.

Gabriel presents these issues:

I. Did the trial court err when it released Michelle Rodriguez, one of the victims, from the sequestration order?

II. Whether there was insufficient evidence to support a conviction of attempted second degree murder of Michelle Connor?

The State rephrases the issues as:

I. Did the district court commit reversible error when it exempted victim Michelle Rodriguez from the witness exclusion order entered pursuant to Rule 615, Wyoming Rules of Evidence?

II. Was sufficient evidence introduced to permit a rational jury to convict appellant of the attempted second degree murder of Michelle Conner?

FACTS

Gabriel was married to Michelle Conner for five years before the couple separated in October of 1994. The separation was followed by an altercation between a jealous Gabriel and another man which left Gabriel with an injured right hand. Conner moved out of their apartment at the Frontier Motel in Cheyenne and into another apartment at the motel which she shared with her friend Gabriel was tried before a jury on one count of first degree murder and two counts of attempted second degree murder and found guilty. Although the defense moved to sequester all witnesses before they testified, at the state's challenge, the district court released victims Conner and Rodriguez from the sequestration order after ruling there was not good cause to exclude them. This appeal followed.

Michelle Rodriguez. On the morning of October 26, 1994, Gabriel entered the apartment and found Conner on her bed with Charles E. Collier III beside her. Both were asleep and both were clothed. After arguing with Conner, Gabriel challenged Collier to fight outside. That invitation was declined and Gabriel left Conner's apartment. He returned to his apartment, loaded a semi-automatic pistol and returned to Conner's apartment, shot Collier in the neck, shot Michelle Rodriguez, and shot at Conner but missed. He aimed at her again, but his gun jammed and Conner was able to escape. Gabriel regained firing capability and shot Collier a second time in the head, killing him instantly. Gabriel was arrested west of Cheyenne at a roadblock set up by law enforcement officers; later that afternoon he gave a detailed statement.

DISCUSSION

Victim's Right to Attend Trial

WYO. R. EVID. 615 grants either party the right to sequester witnesses. Towner v. State, 685 P.2d 45, 47 (Wyo.1984). WYO. STAT. §§ 1-40-201 through 210, entitled "Victim and Witness Bill of Rights" include a section permitting victims to attend all trial proceedings which may be attended by the defendant unless the court rules that good cause requires their exclusion. WYO. STAT. § 1-40-206 (Cum.Supp.1996). Gabriel contends Rodriguez' presence at the trial before she testified violated his due process right to a fair trial when she heard the testimony of another victim. He contends that prejudice must be presumed when his right to sequester any witness was denied or, if an abuse of discretion standard applies, good cause was demonstrated which required Rodriguez' exclusion. The State contends that a right created by statute takes precedence over a right created by a rule of evidence.

The purpose of sequestering witnesses is to prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid. Towner, 685 P.2d at 47. In a criminal trial, these two concerns implement both the fair trial component of constitutional due process and the Sixth Amendment's guarantee to effectively cross examine a witness. Trial courts are obligated to ensure a defendant's constitutional rights are protected during the criminal trial and are required to grant a defendant's motion to sequester witnesses but have the discretion to allow an exemption. Roby v. State, 587 P.2d 641, 645 (Wyo.1978); Lauthern v. State, 769 P.2d 350, 352 (Wyo.1989); Stone v. State, 745 P.2d 1344, 1350-51 (Wyo.1987). When a trial court exercises that discretion, the standard is whether good cause is shown that the exemption should not be granted. See Irvin v. State, 584 P.2d 1068, 1071 (Wyo.1978).

In this case, the trial judge heard defense counsel's assertion that Rodriguez' presence during Conner's testimony could permit her to conform her testimony to Conner's. The State responded that Conner would be called as its first witness and, since Rodriguez had made a lengthy pretrial statement which had been provided to the defense, it did not anticipate any change in her testimony. Based on this information, the trial court made a preliminary finding that Rodriguez' presence during Conner's...