Haworth v. State

Citation840 P.2d 912
Decision Date22 October 1992
Docket NumberNo. 90-276,90-276
PartiesSteven HAWORTH, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming
Dissenting Opinion of Justice Urbigkit

Nov. 19, 1992.

Rehearing Denied Dec. 8, 1992.

Leonard Munker, State Public Defender, Cheyenne, Wyoming, Defender Aid Program, Gerald M. Gallivan, Director, Timothy F. Marion, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Mary B. Guthrie and Jennifer L. Gimbel, Sr. Asst. Attys. Gen., Cheyenne, for appellee.


GOLDEN, Justice.

A jury found appellant Steven Haworth guilty of aggravated assault and battery 1 On appeal, Haworth raises one issue:

for his use of a pocketknife during a fight with Rod Risk on May 23, 1990, outside a bar near Casper, Wyoming. Haworth had claimed he used the knife in self-defense.

Whether the prosecution's deliberate and covert intrusion into appellant's trial preparations, alerting the prosecution of appellant's defense strategy, violated appellant's fifth and sixth amendment rights to a fair trial and effective assistance of counsel, respectively.

We affirm.


The fight in which Haworth used the knife occurred on May 23, 1990. A few days later, law enforcement authorities arrested and charged Haworth. Unable to make bail, he remained incarcerated in the county jail through July 23, 1990, when his trial began.

For the weekend period immediately preceding the first day of trial on Monday, Haworth's defense counsel made arrangements with the county sheriff's office that enabled defense counsel to spend several hours each weekend day with Haworth in the same courtroom in which the trial was to be held. Haworth and his defense counsel used these weekend sessions to prepare for trial.

Since Haworth was unable to make bail and was in the sheriff's custody, the sheriff required that one of his deputies remain with Haworth during these trial preparation sessions. According to Haworth's defense counsel, and this fact is not challenged by the state, defense counsel paid the deputy sheriff's overtime wage necessitated by this custodial security arrangement. According to defense counsel, he expressly told the deputy sheriff who remained with Haworth during these trial preparation sessions that the deputy sheriff was working for defense counsel and "none of this goes out of this room." 2

During the first day of trial, when the prosecutor was on the last part of his direct examination of the state's first witness, Rod Risk, the victim, it became apparent to Haworth's defense counsel that the prosecutor had learned not only about Haworth's weekend trial preparation sessions with defense counsel but also about the substance of some of the conversations between Haworth and defense counsel during those sessions. During the examination of Rod Risk, the prosecutor, contendably setting the stage for his later cross-examination of Haworth and his still later closing argument to the jury, pointedly asked Risk whether he had practiced his testimony in the courtroom before testifying that day. The victim-witness answered he had not.

As a result of that questioning, at the start of the second day of trial the defense counsel and the prosecutor met with the trial judge in chambers to discuss defense counsel's concern that the prosecutor intended to cross-examine Haworth about the weekend trial preparation sessions. During this discussion, the trial judge learned about defense counsel's weekend trial preparation sessions with Haworth and the prosecutor's discovery of them. It was clear that the prosecutor had learned about the sessions, including the substance of some of the conversations between defense counsel and Haworth, from the deputy sheriff who had provided custodial security of Haworth during those sessions.

As a result of the in-chambers discussion, the trial judge ruled that the prosecutor On the third day of trial, after the state had rested and all defense witnesses had testified except Haworth, defense counsel and the prosecutor again met with the trial judge in chambers. They again discussed defense counsel's concern that his work product had been compromised by the deputy sheriff's having divulged to the prosecutor the substance of some of the conversations between defense counsel and Haworth he had overheard during the weekend trial preparation sessions. Specifically, it was evident the prosecutor had learned from the deputy sheriff that defense counsel and the accused had discussed that the accused should, in his trial testimony, describe his use of the knife in the fight with the word "cut" instead of the word "stab." The prosecutor's main concern was that Haworth had been impermissibly coached; he wanted to expose this on cross-examination. 3

                could not talk about the defense's "rehearsals in this courtroom."   The trial then resumed.  The issue in question did not surface again until the third day of trial

During this in-chambers discussion, the prosecutor disputed the defense counsel's representation to the trial judge that he had expressly instructed the deputy sheriff at the weekend sessions that confidentiality attached to all that was said during the sessions. The prosecutor, however, failed to present the deputy sheriff, place him under oath, and offer his testimony about what defense counsel had told him.

As a result of this in-chambers discussion, the trial judge ruled that the conversations between the defense counsel and Haworth during the weekend sessions were work product. The trial judge instructed the prosecutor, "You can't inquire into that area as being quoted from a lawyer to a client." After further discussion, the trial court said:

I think there are ways that the State is protected in their cross examination to get at what you are getting at. I think in view of the fact that the information of someone telling him, you know, the play on words, whether it is stabbed or cut, resulted from a conveyance of information by the deputy that had to be there. In other words, the defendant has to prepare his case and I suppose that had you called me, I would have said That just strikes me as being unfair. Not only that, but it strikes me as being a potential reversible error.

shackle him and have the deputy step outside. But nobody called me. * * * And what we are after here is a fair trial * * *.

I think you can get at it in cross-examination without referring to the conversations between counsel and the Defendant. That would be my ruling.

The prosecutor then proposed that he would ask Haworth this question on cross-examination: "You have been specifically instructed to use the word 'cut' versus 'stabbed' "? The trial judge declared that that question was objectionable. On that point, the in-chambers discussion ended and the trial resumed.

Defense counsel called Haworth to testify on his own behalf. After answering a few preliminary questions about his background and employment disability, Haworth answered his own counsel's questions concerning their previous discussions about the case:

Q. Now, Steve, you and I have discussed this case a great deal?

A. Yes.

Q. Could you give an idea to the Jury what I have told you to tell them ?

A. Just to tell the truth, just state facts as they are, and tell the truth. (Emphasis added).

Following this exchange, defense counsel then conducted direct examination about the facts and circumstances of the fight. In several of his answers to questions about the fight, Haworth used the word "cut" in describing what happened. Thus, after describing how he had been knocked down, how the victim Rod Risk had straddled him and had been swinging his fists and hitting him as he lay on his back on the ground, Haworth testified, in relevant part:

A. Well, Rod was swinging and I just moved up to either block his blow. I wasn't going to cut him. He was coming down to hit me again and the next thing I know, blood is going everywhere * * *.

Q. Did you know at that time whether you had cut Rod?

A. No, no, and I don't think that he knew that he had been cut either because he didn't stop.

* * * * * *

Q. Then what happened?

A. Well, like I said, he didn't stop swinging. He didn't know that he had been hurt. I didn't know that I cut him except for I did after that initial cut because blood came all over me, but that didn't stop him. He kept swinging and kept hitting me. I was just striking out. (Emphasis added).

Following Haworth's direct examination, the prosecutor conducted his cross-examination. He asked several questions covering how Haworth, during the second day of trial while seated in the courtroom and in response to defense counsel's request, had practiced opening the pocketknife with one hand in order to be able to demonstrate the maneuver when he testified on direct examination. Next, the prosecutor asked, without drawing defense counsel's objection, "You have specifically used the word 'cut' versus 'stabbed' in your testimony today, correct?" Haworth answered, "True." The prosecutor then moved on and covered other aspects of Haworth's direct examination testimony concerning the facts and circumstances of the fight.

After Haworth's testimony, the defense rested, the prosecution had no rebuttal, and the evidence was closed.

On the fourth and final day of trial, in the prosecutor's closing argument, he reviewed the testimony of the various witnesses. In his review of Haworth's testimony, the prosecutor said, in relevant part, again without drawing defense counsel's objection:

He is the only witness that you heard from who had to practice his presentation to you. He told you, his testimony was that [defense counsel] wanted me to practice opening the knife before I actually testified.

You know, he told you that he deliberately in his testimony used the word "cut" versus "stabbed."

Following the prosecutor's...

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13 cases
  • Morrison v. State
    • United States
    • Court of Appeals of Texas
    • March 27, 2019
    ...the substance of some of the conversations between Haworth and defense counsel during those sessions." Id. (quoting Haworth v. State , 840 P.2d 912, 913 (Wyo. 1992) ). The Court of Appeals then noted that "[t]he prosecutor admitted at this [in-chambers] conference that his knowledge of the ......
  • Asch v. State
    • United States
    • United States State Supreme Court of Wyoming
    • February 6, 2003
    ...right to cross-examine defense witnesses about matters raised during direct examination and to test their credibility. Haworth v. State, 840 P.2d 912, 918 (Wyo.1992), cert. denied, 508 U.S. 930, 113 S.Ct. 2395, 124 L.Ed.2d 296 (1993). The scope of such cross-examination is a matter within t......
  • Saldana v. State, 90-24
    • United States
    • United States State Supreme Court of Wyoming
    • January 28, 1993
    ...v. Hammons, 235 Cal.App.3d 1710, 5 Cal.Rptr.2d 317 (1991), involving right to promised privacy at police station. Cf. Haworth v. State, 840 P.2d 912 (Wyo.1992). For a comprehensive review involving state constitutional rights of privacy from personal autonomy to sobriety check points, see K......
  • Calene v. State
    • United States
    • United States State Supreme Court of Wyoming
    • February 5, 1993
    ...97 S.Ct. 837, 51 L.Ed.2d 30 (1977); and Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). See also Haworth v. State, 840 P.2d 912 (Wyo.1992), Urbigkit, J., dissenting, and cases therein The contentions of ineffectiveness presented for review in this appeal involve t......
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