Jones v. State, 90-151

Citation813 P.2d 629
Decision Date13 June 1991
Docket NumberNo. 90-151,90-151
PartiesDale Burton JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Michael J. Krampner, Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., and Mary B. Guthrie, Senior Asst. Atty. Gen., for appellee.

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

OPINION

MACY, Justice.

In Jones v. State, 777 P.2d 54 (Wyo.1989), this Court reversed Appellant Dale Burton Jones' conviction for conspiracy to commit murder in the first degree and remanded the case for a retrial. A new trial was held, and Appellant was again found guilty and sentenced to life imprisonment. Appellant appeals from that conviction and sentence.

We reverse and remand for a new trial.

The issues presented by Appellant are:

I. Did the trial court err in refusing to dismiss the Information because the Appellant's trial did not commence "within one hundred and twenty (120) days of the arrival" of the Appellant in Wyoming, as required by Article IV(c) of the Interstate Agreement On Detainers (IAD) as adopted by W.S. § 7-15-101 et seq.?

II. Did the trial court err in denying Appellant's Motion For A Mistrial And/Or New Trial when it was conclusively shown that the witness who testified that he had heard Appellant "confess" to the offense had given false testimony?

III. Did the prosecutor engage in conduct requiring reversal when he repeatedly asserted to the jury his personal knowledge and belief in the credibility of the State's witnesses, and his personal knowledge of the facts of the case in closing argument?

This case involves a conspiracy in which Appellant and an acquaintance allegedly hired Roy Alma Young, Jr. in June 1987 to travel from Salt Lake City, Utah, to Sheridan, Wyoming, to murder Ray Vigil. Following the incident, in December 1987 Appellant pleaded guilty in the United States District Court for the District of Wyoming to conspiracy to commit murder. In a separate state court proceeding, Appellant was tried on a charge of conspiracy to commit first-degree murder. Appellant was convicted and sentenced to life imprisonment. On July 3, 1989, this Court reversed Appellant's state court conviction because, in the presence of the jury, the prosecution called two witnesses who the court and the prosecution knew would invoke their fifth amendment privileges not to testify. Jones, 777 P.2d at 61.

Following reversal of the state conviction in Jones, Appellant was transported from the Wyoming State Penitentiary to a federal prison in Oklahoma to begin serving his federal sentence. On July 26, 1989, this Court issued its mandate remanding the case for retrial. Appellant was transported to the Sheridan County jail from the federal correctional institute in El Reno, Oklahoma, for trial. Appellant arrived in Sheridan on September 16, 1989, and his trial began on May 8, 1990.

120-Day Trial Requirement Under the Agreement on Detainers

Wyo.Stat. § 7-15-101 (1987) states in pertinent part:

Article IV

* * * * * *

(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause

shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance

* * * * * *

Article VI

(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

(Emphasis added.)

Appellant asserts that the State violated the time limitation because his trial was not commenced within 120 days of his arrival in Wyoming. Appellant contends that the remedy for a time limit violation is reversal of the conviction and dismissal of the information with prejudice. Section 7-15-101 (Article V(c)); 1 State v. Knauff, 115 Idaho 74, 764 P.2d 441 (Ct.App.1988); People v. Sevigny, 679 P.2d 1070 (Colo.1984).

The events relevant to this first issue are set out in the following chronological order:

July 26, 1989--This Court issued its mandate reversing Appellant's first conviction in this case and remanding for a retrial. See Jones, 777 P.2d 54.

August 2, 1989--Appellant filed his challenge for cause to Judge Wolfe.

September 6, 1989--Appellant filed eleven pretrial motions consisting of a motion for a change of venue; three motions to suppress; a motion for severance; a motion in limine regarding statements of a potential witness; a motion for discovery pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); a motion for discovery pursuant to W.R.Cr.P. 18; a motion to dismiss and/or suppress for prosecutorial misconduct; a motion in limine regarding financial books and records and related testimony; and a motion to require Appellant's custodian to present Appellant for court in civilian clothes and without restraining devices.

September 16, 1989--Appellant arrived in Sheridan, Wyoming, for retrial on the charge of conspiracy to commit first-degree murder.

November 6, 1989--The trial date was set for December 11, 1989.

November 16, 1989--Judge Wolfe granted Appellant's challenge for cause and assigned the case to Judge Hamm; the December 11, 1989, trial date was vacated without objection from either side.

February 7, 1990--Judge Hamm decided all remaining pretrial motions raised by Appellant.

February 20, 1990--Appellant filed a motion to dismiss because the State failed to bring Appellant to trial within 120 days as required by the agreement on detainers.

March 20, 1990--The trial date was set for May 8, 1990.

April 4, 1990--Judge Hamm denied Appellant's motion to dismiss.

May 8, 1990--Appellant renewed his motion to dismiss, and the court again denied the same. Appellant's retrial commenced.

May 10, 1990--Appellant was found guilty of conspiracy to commit first-degree murder.

May 14, 1990--Appellant's sentencing hearing was conducted. Appellant moved for a mistrial or, in the alternative, a new trial on the basis of newly discovered evidence of false testimony. His motion was denied.

May 21, 1990--Judgment was entered, and Appellant was again sentenced to life imprisonment.

While the total number of days between Appellant's arrival in Wyoming and his trial

exceeded the 120 days provided for in the agreement on detainers, the State contends that the delay occasioned by Appellant filing multiple motions tolled the running of the statute. In United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir.1988), cert. denied 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989), the court stated

"[Article VI(a) provides] that the running of the 120-day time period shall be tolled whenever and for as long as the prisoner is unable to stand trial." The Second Circuit has interpreted the language "unable to stand trial" as excluding "all those periods of delay occasioned by the defendant." In the case at hand, we hold that both the district court's grant of a continuance on September 30, 1986, as well as the periods of delay occasioned by the multiple motions filed on behalf of the defendant, operate to toll the running of Articles III and IV * * *.

(Citations omitted.) See also United States v. Dawn, 900 F.2d 1132 (7th Cir.), cert. denied 498 U.S. 949, 111 S.Ct. 368, 112 L.Ed.2d 330 (1990); United States v. Scheer, 729 F.2d 164 (2d Cir.1984); Bush v. Muncy, 659 F.2d 402 (4th Cir.1981), cert. denied 455 U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 449 (1982); and United States v. Black, 609 F.2d 1330 (9th Cir.1979), cert. denied 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980).

As we did in Green v. State, 784 P.2d 1360 (Wyo.1989), we compute the number of days on which Appellant was unable to stand trial to determine whether he was brought to trial within the statutory period. Appellant arrived in Wyoming on September 16, 1989. At that time, the trial court had before it a challenge for cause to Judge Wolfe and eleven pretrial motions raised by Appellant. Judge Wolfe recused himself on November 16, 1989, and assigned the case to Judge Hamm.

Judge Hamm ruled on Appellant's pending motions on February 7, 1990. Since it is the duty of the trial judge who will preside over the trial to rule on pretrial motions, such decisions could not have been made until Judge Hamm was assigned to hear the case. A delay of almost three months for the new judge to assume charge of a proceeding and to decide motions of the type involved here is neither unexpected nor unreasonably lengthy. United States v. Taylor, 861 F.2d 316 (1st Cir.1988); State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982).

We hold that the trial court did not err in refusing to dismiss the information against Appellant. The 120-day time limit was tolled until February 7, 1990, for the reasons explained above. Only ninety-one days elapsed from that date to the date of the trial.

Denial of Appellant's Motion for a New Trial

Appellant's second issue asserts that the trial court erred in denying Appellant's motion for a new trial on the basis of newly discovered evidence. In its case-in-chief, the prosecution called a court reporter to read from the December 1987 transcript she made during a United States District Court proceeding involving Appellant. The federal proceeding, a factual basis determination for Appellant's plea of guilty to the federal offense of conspiracy to commit murder, dealt with the same criminal conduct as is at issue here. Since the court reporter was unable to identify Appellant as the person whose testimony she had recorded, the State called Ronald Orton, a detective sergeant for the Sheridan County sheriff's office, to testify as to the identity of...

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