Seivewright v. State

• Decision Date: 31 May 2000
• Docket Number: No. 98-56.,98-56.
• Parties: Stanley SEIVEWRIGHT, III, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

7 P.3d 24

Stanley SEIVEWRIGHT, III, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-56.

Supreme Court of Wyoming.

May 31, 2000.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; and T. Alan Elrod, Assistant Public Defender. Argument by Mr. Elrod.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Assistant Attorney General. Argument by Ms. Baker.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

LEHMAN, Chief Justice.

A Natrona County jury found Stanley Seivewright III guilty of conspiracy, aggravated robbery, and aggravated burglary. On appeal, Seivewright's complaints revolve around the testimony of an orthodontist who concluded Seivewright had taken a bite from a piece of cheese found in the victim's kitchen. His chief complaint is that, despite repeated discovery requests, the State did not disclose the orthodontist's report and curriculum vitae. Because we conclude that the district court erred in failing to take any action to determine whether its discovery order had been violated, we reverse and remand for a new trial.

ISSUES

Seivewright presents the following issues:

Did discovery violations and evidentiary errors deny Appellant a fair trial?

a. Did the State's failure to disclose information about an orthodontist which the State proffered as an expert deprive Appellant of his right to confront the witnesses against him through effective cross-examination?

b. Did the district court's failure to hold an evidentiary hearing on Dr. Huber's testimony deprive Appellant of a fair trial as it invited the jury to convict Appellant based on inadmissible evidence?

c. Can the combined prejudice of the State's refusal to abide by the district court's discovery order and the district court's erroneous rulings be dismissed as harmless error?

The State of Wyoming restates the issue: Whether appellant received a fair trial?

FACTS

The victim testified to the following events. Around 9 a.m. on October 28, 1996, two masked men entered the Casper home of the victim as she and her two-year-old daughter watched television. The shorter of the two men pointed a gun at the victim and did the talking, asking the victim where her "stuff" was. When the victim proved uncooperative, the shorter man taped the victim's hands together with duct tape while the taller man held a gun. After the victim managed to break free from the initial taping, the shorter man then alternated between hitting the victim, taping her, and telling her to shut up. The shorter man also held a gun to the back of the victim's head and pulled the trigger. Although the victim heard a click, no bullet fired. The taping job was finally completed when the men taped the victim's head and hands to the headboard of her bed.

After the intruders left, the victim freed herself and telephoned the police. Her home had been ransacked, though it seemed only her wallet, containing $700, was missing from inside the home. Gone, too, was the victim's van, which was recovered a few days later. The victim also noticed, on a kitchen counter, a block of cheese with a bite taken out of it. The victim reported that no one in her family was responsible for the bite of cheese, and the block of cheese was taken into evidence.

After an investigation, Seivewright was arrested on November 21, 1996, and charged with aggravated burglary, aggravated robbery, and conspiracy. A search warrant issued permitting law enforcement to obtain a dental impression (dentition) from Seivewright, and the State retained Dr. Emerick Huber, a local orthodontist, to take Seivewright's dentition and to make an impression from the cheese.

Identity was the main issue at the trial of Seivewright and his codefendant. Over Seivewright's objection, Dr. Huber testified. On the basis of his comparison of the impressions from the cheese with Seivewright's dentition, Dr. Huber concluded that Seivewright was the person who bit the cheese. Seivewright offered no expert testimony on the subject.

The jury found Seivewright guilty of aggravated robbery, aggravated burglary, and conspiracy. The jury could not reach a unanimous verdict on the same charges against Seivewright's codefendant, and a hung jury resulted on all three charges. The jury further determined that Seivewright is a habitual criminal, and he was sentenced to a term of 20 to 25 years. This appeal followed.

DISCUSSION

Discovery Violations

Seivewright argues the State failed to disclose Dr. Huber's report and curriculum vitae, materials Seivewright contends were discoverable pursuant to a district court order. The district court's discovery order directed "[p]ursuant to Rule 26.2 of the Wyoming Rules of Criminal Procedure, to be produced before trial begins, any written or recorded statement of a witness ... in the possession of the attorney for the State of Wyoming or which the attorney for the State of Wyoming may reasonably obtain and which relate to the subject matter about which the witness... will testify."

Prior to trial, Seivewright filed a "Motion for Daubert[¹] Hearing," which, in addition to requesting a hearing on the admissibility of expert testimony, requested "discovery related to this issue such as any reports, calculations, tests, examinations, and any other information this doctor used in arriving at his conclusions, as well as a copy of this doctor's curriculum vitae." The trial court did not rule on this request for discovery, and the State did not reply to the request. The State correctly points out that Seivewright did not schedule a pretrial hearing with the trial court for consideration of these matters. However, immediately before Dr. Huber testified, Seivewright requested a hearing to clarify what Dr. Huber's testimony would be and demanded the documents he requested in his pretrial motion. Specifically, Seivewright's counsel informed the court that, despite repeated requests to the prosecutor, he had not received a copy of Dr. Huber's curriculum vitae. Without argument from the State, the trial court denied Seivewright's motion and allowed the State to proceed with Dr. Huber's testimony "subject to objections to particular questions." After Dr. Huber completed his trial testimony, Seivewright moved to strike Dr. Huber's testimony, arguing the State failed to provide him with the report or the curriculum vitae in violation of the discovery order. The trial court denied this motion, without explanation.

The district court's failure to do anything to determine if there was a discovery violation is contrary to our case law and that of other jurisdictions which have considered the proper procedure for determining whether a statement or report of a State's witness should be produced upon demand by the accused. We have written:

Although a defendant cannot obtain a review or combing of any or all reports having to do with interviews of witnesses, he is entitled to the production of a specific "statement." If he makes a prima facie showing of a probable existence of a specific document but the State either denies its existence or that it is a "statement" within the definition of the rule, the trial court has the duty to determine such issues by in camera inspection or otherwise.

Hubbard v. State, 618 P.2d 553, 556 (Wyo. 1980) (citing U.S. v. Nickell, 552 F.2d 684, 688 (6th Cir.1977)) (court has "inherent power to require the prosecution to produce [witness statements] so that the defense may get the full benefit of cross-examination and the truth-finding process may be enhanced.") (quoting U.S. v. Nobles, 422 U.S. 225, 231, 95 S.Ct. 2160, 2166, 45 L.Ed.2d 141 (1975)); Harney v. U.S., 306 F.2d 523, 533 (1st Cir. 1962); U.S. v. Robinson, 585 F.2d 274, 280-81 (7th Cir.1978) (once defendant meets burden of specifying with reasonable particularity that a certain document exists, that there is reason to believe it is a "statement," and that the government failed to provide it in violation of the Jencks Act, "a court must then conduct an in camera inspection to determine whether the document is both relevant and a competent `statement.'"); U.S. v. Resnick, 483 F.2d 354, 358 (5th Cir.1973); Jordan v. U.S., 633 A.2d 373, 375 (D.C.App. 1993) (The defendant has the burden of moving for production and is entitled to crossexamine witnesses to probe for the information. "The trial judge has the affirmative duty to determine, out of the presence of the jury, whether statements exist and are in the possession of the government, and if so, whether they qualify as statements under the [Jencks] Act." The trial court must conduct whatever inquiry is necessary to aid the judge in discharging this responsibility to enforce the statute. "The duty to determine whether a statement ... exists `rests with the trial judge; neither party bears a burden of proof or persuasion that may skew the result.'"); Annotation, Proper Procedure for Determining Whether Alleged Statement or Report of Government Witness Should be Produced on Accused's Demand, Under Jencks Act (18 U.S.C. § 3500), 1 A.L.R. Fed. 252 (1969).²

Seivewright made a "prima facie showing" of the probable existence of two statements, the report and the curriculum vitae, in his pretrial motion and again at trial. At the trial court level, the State neither denied their existence nor argued they were not statements within the definition found in W.R.Cr.P. 26.2. The documents were clearly in existence or reasonably obtainable before the discovery deadline. The State attempted to have the doctor's March 4, 1997 signed report admitted into evidence, and the doctor repeatedly referred to the report during his testimony. The doctor also admitted he had a curriculum vitae but failed to send it to the State. In addition, there is strong reason to believe both the curriculum vitae...