Lafond v. State

• Decision Date: 05 May 2004
• Docket Number: No. 03-25.,03-25.
• Citation: 89 P.3d 324,2004 WY 51
• Parties: Anita LAFOND, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

89 P.3d 324

2004 WY 51

Anita LAFOND, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-25.

Supreme Court of Wyoming.

May 5, 2004.

Rehearing Denied May 25, 2004.

Representing Appellant: Mike Cornia, Evanston, WY. Argument by Mr. Cornia.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Clinic; and Julie K. Jenkins, Student Intern. Argument by Ms. Jenkins.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Anita Lafond (Lafond) appeals her conviction of one count of obtaining a controlled substance by fraud in violation of Wyo. Stat. Ann. § 35-7-1033(a)(iii) (Lexis-Nexis 2003).¹ Lafond argues she was denied her right to due process and a fair trial. Her argument focuses on various comments made by the prosecutor during the course of the trial that she claims were improper. Lafond additionally asserts the court erred in not admitting the written statement of an alibi witness who was out of the country on active military duty and that the Wyoming constitution provides more protection for bank records than the federal constitution. We affirm.

ISSUES

[¶ 2] Lafond presents the following issues on appeal:

I. Was the appellant denied her right to due process and a fair trial due to the prosecutors repeatedly telling the jury to do their duty and convict, expressing his opinion of appellant's guilt, by repeatedly telling the jury "she did it," telling the jury that appellant and her counsel were deserving of shame and forcing the appellant to call the credibility of the State's witnesses into question?

II. Was it reversible error for the court to refuse the admission of the affidavit of the Appellant's alibi witness given that the witness was unavailable due to being called up to active military service and that the State chose to focus on the lack of an alibi witness?

III. Will this court sanction and condone the unfettered access of the government into the bank records of the citizens of this state?

The State rephrases the issues as:

I. Was Appellant denied due process and a fair trial by the prosecutor's remarks in opening statement or closing argument, or did the prosecutor personally attack defense counsel or improperly force appellant to assert that the State's witnesses were part of a "vast conspiracy"?

II. Did the district court err in excluding from evidence the written statement of Appellant's witness who had been called into active military service?

III. Did Appellant's right to privacy in her bank records preclude the State from obtaining those records by subpoena duces tecum?

FACTS

[¶ 3] In August 2001, Lafond worked as a supervising registered nurse at Cheyenne OB/GYN and was a captain in the Air National Guard. At Cheyenne OB/GYN, Lafond worked with a medical assistant named Erin Meyen. Ms. Meyen's son suffered from cerebral palsy and had recently undergone surgery. On August 7, 2001, Lafond allowed Ms. Meyen to borrow her car to take Ms. Meyen's son to the hospital in Denver due to a medical emergency. Because of her son's condition, when Ms. Meyen arrived at the hospital she parked in a handicapped zone even though she had no handicap permit. Ms. Meyen decided to write a note to explain the situation, asking that she not be towed. Looking for a piece of paper on which to write her note, Ms. Meyen checked the console of the car and found a folded piece of paper.

[¶ 4] When Ms. Meyen unfolded the paper, she found that it was a prescription for Percocet made out to Lafond. The prescription looked to have Dr. Storey's signature, but the handwriting on the prescription was Lafond's. After viewing the prescription, Ms. Meyen continued her search for paper and found another piece of paper on which were several doctors' stamped signatures. Ms. Meyen did not take these papers from the car, and they were never introduced at trial.

[¶ 5] Upon Ms. Meyen's return to Cheyenne, she said nothing to Lafond about what she had found. However, Ms. Meyen's curiosity was kindled, and she sought to find out whether or not Lafond had passed a prescription for Percocet at any of the pharmacies in Cheyenne by calling area pharmacies to ask about such prescriptions. She began with Walgreen's. The pharmacist at Walgreen's told Ms. Meyen that just a few days prior a prescription for Percocet had been filled for Lafond.

[¶ 6] At that point, Ms. Meyen asked the pharmacist to fax her a copy of the prescription, and the doctors at Cheyenne OB/GYN were made aware of the situation. The prescription was dated August 5, 2001, and appeared to have the signature of Dr. Eskam. However, Dr. Eskam had never prescribed Percocet for Lafond, the signature on the prescription was not hers, and she was not even working on the day that the prescription was supposedly prepared. After seeing the forged prescription, Dr. Eskam went to Walgreen's to view the store's videotape of the person passing the prescription. While Dr. Eskam could not absolutely identify Lafond from the video, she noted that if someone were impersonating Lafond they did a good job of imitating her. The matter was then referred to the state nursing board.

[¶ 7] At trial, the pharmacist who filled the prescription, Leah Scadden, testified. Ms. Scadden stated that on the morning of August 5, 2001, she was presented with and filled a prescription for Percocet made out to Lafond. Ms. Scadden recalled that the customer was dressed in a camouflage military uniform and paid for the $5 prescription by check, which Ms. Scadden saw the customer write out and take from a checkbook. This check bore the name and address of Lafond and was run through the register at 7:44 a.m. Ms. Scadden identified Lafond as the customer who presented the prescription and further related that, when she was presented with the prescription, the person said she was "Anita from OB/GYN" and that she talked to Ms. Scadden "all the time on the phone." Ms. Scadden testified that she talked to the woman for two or three minutes and that the woman had said that she was in the National Guard and was working that weekend. The woman's voice sounded the same as that of the woman from Cheyenne OB/GYN to whom Ms. Scadden had talked numerous times. In addition to her testimony about the events, Ms. Scadden authenticated the videotape of the purchase. The tape shows the person purchasing the Percocet entered the store at 7:39 a.m. and departed at 7:47 a.m.

[¶ 8] Detective Puente of the Cheyenne Police Department also testified. Detective Puente conducted the investigation of this matter after receiving a report from the state nursing board. During his investigation Detective Puente interviewed Lafond. He testified that Lafond stated she was missing some checks and that she had reported these missing checks to the bank. The check written to Walgreen's on August 5 was not one of those Lafond reported missing. However, Lafond maintained that the $5 check to Walgreen's must have been forged. Detective Puente also testified that he had timed how long it took to get from the National Guard to Walgreen's and that it varied depending on the traffic lights; but the two times he had done it he timed it at 7 minutes and 34 seconds and 8 minutes and 14 seconds. The defense presented James Rasnake, a private investigator who had also timed the trip, to refute this testimony; and he testified that it would take 30 to 32 minutes round trip, though his estimate included walking into and out of Walgreen's and Lafond's Air Guard third-floor office.

[¶ 9] Robin Kreir from Lafond's bank also testified. She stated that the actual check written for the forged prescription, as well as the checks numerically close to that check, was destroyed. Microfilm copies of the checks were available, however, and these were admitted into evidence. Ms. Krier also testified that the bank had no record of a stop payment order on any of Lafond's checks, including the ones Lafond had told Detective Puente were stolen.

[¶ 10] Lafond denied being the person who purchased the Percocet. She claimed that she could not have made the purchase because she was at Guard training that day. Lafond called several witnesses to testify to her whereabouts between 7:00 and 8:00 a.m. on August 5. Lyle Orr testified that Lafond was at roll call at 7:00 a.m. and that roll call takes 5 to 20 minutes. He then saw her again at 7:30, and then again at an 8:00 a.m. "intel" meeting. Debra Mutter also testified that, while she could not specifically recall seeing Lafond on August 5, she would have remembered her not being at the commander's call at 7:30, which usually lasts 15 to 20 minutes. Renee Mulberry also testified that she recalled seeing Lafond at the base that Sunday morning. Linda Sergeant testified that, based on Guard records, Lafond was there that day. However, it appeared no one at trial could specifically account for Lafond's whereabouts between 7:30 and 8:00 a.m.

[¶ 11] Lafond testified on her own behalf. She testified that she felt she was set up and essentially implicated Ms. Meyen. In explaining her theory, Lafond testified that the two had originally gotten along very well, however, problems developed between Ms. Meyen and Lafond. In detailing the reasons for the change in their relationship, Lafond testified Ms. Meyen claimed to be leaving for a medical appointment, but got her nails done. Lafond also testified that Ms. Meyen would leave work early on Fridays so she could drop her son off with his father in Glendo and be back in time for happy hour. Additionally, Lafond related that she had to discipline Ms. Meyen on several occasions for making inappropriate comments to patients and for holding herself out as a nurse.

[¶ 12] Lafond further testified that she was at the Guard on August 5 wearing her flight suit and boots, not her...