Kaess v. State
| Decision Date | 07 December 1987 |
| Docket Number | 86-196,Nos. 86-113,s. 86-113 |
| Citation | 748 P.2d 698 |
| Parties | Robert Lee C. KAESS, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff) (Two Cases). |
| Court | Wyoming Supreme Court |
Daniel G. Blythe, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen. and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for appellee.
Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.
Appellant Robert Kaess, was charged by misdemeanor information with killing three moose while possessing a license to hunt only one--an offense of wanton destruction of a big game animal. After a comprehensive preliminary hearing and a three-day jury trial, he was convicted of the high misdemeanor and sentenced to a one-year county jail term, fined $1,000.00, $15.00 for the victim's compensation fund, and, by a supplemental order, assessed costs of prosecution of $6,926.28 and $1,346.00 restitution to the Wyoming Game and Fish Department for the two "illegal" moose.
Issues presented on appeal include: (1) prosecution violation of the sequestration order; (2) inappropriate preparation of witnesses by prosecution; (3) comment of the court to a witness involving an issue of perjury; (4) trial identification of defendant; and (5) bill of costs. We will affirm on all issues except the bill of costs for which the case will be remanded.
As the jury did, we are entitled to find from the record that while possessing a license to kill only one moose, Kaess killed three in the period of September and October, 1984. An extensive investigation by the Wyoming Game and Fish Department led to the filed criminal charges consolidated into the wanton-destruction high-misdemeanor information complaint.
Barkley Bonine, an attorney present only as a friend of Kaess, was at the trial. Appellant had requested witness sequestration pursuant to Rule 615, W.R.E. On the third day Kaess moved for mistrial, contending that the sequestration order had been generally violated by the prosecution witnesses' discussion of prior testimony. To address the motion, with the jury excused, Bonine, as a spectator, was called to testify about the sequestration violation contention. After listening, the trial court reflected on the limited space available in the courthouse to sequester witnesses, and concluded "Mr. Bonine has told the Court absolutely nothing that would indicate that any witness hasn't told the truth, that any witness was in any way told about what to say, what not to say."
Noting that the defendant did not inform the court of the contended sequestration problem until the trial was almost completed, the trial judge denied the mistrial motion, and the trial continued.
A motion for mistrial is addressed to the sound discretion of the trial court. The only evidence supporting the motion was the Bonine testimony, and after record review we concur with the trial court and find no abuse of discretion. Martin v. State, Wyo., 720 P.2d 894 (1986). Defendant has neither made a showing of prejudice which is necessary to constitute reversible error, nor has he demonstrated a violation of the court's order of sequestration. Generally speaking, a request for sequestration of witnesses is a request that they be excluded from the courtroom until called to testify, and the order alone does not automatically put the witnesses on notice that they are not to discuss their testimony with other witnesses. To effectuate an extension of the sequestration order to prohibit discussion and exchange between witnesses, a specific request should be made and the witnesses appropriately advised. State v. Hodge, 225 Neb. 94, 402 N.W.2d 867 (1987).
A somewhat more unusual complaint is made about prosecution conduct with witnesses. Appellant contends in his brief that the prosecutor prepared a "script" from which witness testimony was arranged:
This issue was not raised at trial by motion or objection. Defense counsel did, however, attempt to use the existence and content of the "script" to impeach the prosecution witnesses through cross-examination. That opportunity for cross-examination was not restricted, and we see nothing more than careful trial preparation by the prosecution and a responsive effort by the defense to diminish the effect of the testimony by credibility attacks. Apparently no witness went to the witness stand with the "script," which apparently consisted of direct-examination questions. None of the "outlines" was introduced into evidence or otherwise presented for appellate review. We perceive no reversible error. LeFaivre v. Environmental Quality Council, Wyo., 735 P.2d 428 (1987); Fiedler v. Steger, Wyo., 713 P.2d 773 (1986). Obviously the cross-examination trial effort of defendant to attack credibility did not succeed with the jury. Appellant has not supported this claimed error with adequate record, cogent argument or case authority, and we need not consider it. Jones Land and Livestock Co. v. Federal Land Bank of Omaha, Wyo., 733 P.2d 258 (1987).
It is next argued that the in-court identification was tainted by advance suggestive information provided by the prosecuting attorney. No objection was made at trial to the identification, which certainly was not in question, and any objection which might have been made is consequently waived. This case does not present plain error sufficient to obviate the responsibility of defense counsel to make his record at trial. Rule 49(b), W.R.Cr.P.; MacLaird v. State, Wyo., 718 P.2d 41 (1986).
An event then occurred at trial which presents the next appellate claim of error. One witness' testimony tended to change during trial, raising a question of perjury and the possibility that the witness had been threatened by appellant. After a brief inquiry, the jury was excused and threats to the witness explored, including a tape-recorded telephone conversation. Appellant's bond was revoked, a deputy sheriff was called into the court, and the examination of the witness continued. The trial court necessarily has discretion to take such proper precautions in a hotly contested criminal trial, and we find no reversible error. See Weddle v. State, Wyo., 621 P.2d 231 (1980); Phillips v. State, Wyo., 597 P.2d 456 (1979); Deeter v. State, Wyo., 500 P.2d 68 (1972). Unquestionably, the court acted rather strongly after the jury was excused, in response to the apparently frightened and obviously threatened witness. All of this undoubtedly did not help the defendant as far as the ultimate sentence was concerned, 1 but as far as appearance to the jury, the court's comment when the jury was called back to the session was of a nature that cannot be considered repressive:
Additionally, objection to the course of events is not found in the record by either a motion for mistrial, a motion to strike, or a request for a cautionary instruction. MacLaird v. State, supra.
The more difficult issues of this appeal are the result of assessed costs. In the final order, dated June 30, 1986, after first appeal had been instituted as here presented by a second appeal in this combined case, the trial court ordered the defendant to pay prosecution costs of $6,926.88 and restitution for two moose of $1,346.00. In the judgment and sentence entered April 2, 1986, the court provided:
As an amended bill of costs, the prosecuting attorney had requested:
"PRELIMINARY HEARING
-------------------
"Carol Wanker (witness fee and
meal expenses) $ 60.02
"Nelsons (mileage, witness fees
and meals) 337.04
"Ray Umber (mileage, witness fee
and meals) 312.42
"Mark McIntire (mileage, lodging
witness fee) 125.92
"Preliminary hearing transcript 231.25
"JURY TRIAL
----------
"Westlaw research (39 minutes 58
seconds of research time @
$140.00 per hour) 93.13
"Airlines tickets--
"Dave Thomas 440.00
"Kim and Colin Fritzler 731.00
"Ray Umber 440.00
"Laurie Vandersluis 325.00
"Carol Wanker 410.00
"Ed Barruth 310.00
"Motel rooms for witnesses 824.00
"Food charged at Wort Hotel by
witnesses 1150.49
"Witness fees--
"Laurie Vandersluis 30.00
"Deon Robinson 20.00
"Fritzlers 60.00
"Ray Umber (and taxi to airport) 50.00
"Dave Thomas (and mileage to
Phoenix) 92.00
"Carol Wanker 30.00
"Bill Robertson 30.00
"Kip McIntire (and mileage) 141.00
"Will Martin (and mileage) 180.00
"Mark McIntire 30.00
"Nelsons (and mileage and food) 370.40
"Ed Baruth 59.12
"Photographic enlargements
(Quality Photo) 50.12
"Photographic enlargements
(Custom Color Lab) 86.50
"GENERAL
-------
"Moose ($673.00 x 2) 1346.00
--------
"TOTAL
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