Smith v. State, 94-245

Decision Date31 August 1995
Docket NumberNo. 94-245,94-245
Citation902 P.2d 1271
PartiesDustin Eugene SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; Deborah Cornia, Appellate Counsel, for appellant.

Joseph B. Meyer, Attorney General; Larry Donovan, Senior Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Assistant Attorney General; Prosecution Assistance Program, Theodore E. Lauer, Director, and Jessica Loeper and Bryan D. Sidwell, Student Interns, for appellee.


THOMAS, Justice.

In this case, we must decide whether the provisions of WYO.STAT. § 6-5-305(a) (1988) apply to a situation in which an assault and battery was committed upon a witness after the trial had concluded, and he had been released from his subpoena. Dustin Eugene Smith (Smith) was convicted after a jury trial of conspiracy to intimidate a witness in violation of WYO.STAT. § 6-1-303(a) (1988) and WYO.STAT. § 6-5-305(a). Collateral issues are presented relating to the admissibility of testimony reporting the statements of a co-conspirator and the requirement by the trial court that Smith deposit periodic payments to defray the costs and expenses of this appeal. We hold the statute does apply in an instance in which the proceedings have not become final after appeal, and the trial judge did not abuse his discretion when he overruled Smith's hearsay objection and properly admitted the testimony concerning statements by a co-conspirator under WYO.R.EVID. 801(d)(2)(E). The Judgment and Sentence is affirmed. The trial court did err, however, when it required the defendant, proceeding on appeal in forma pauperis, to pay for prospective costs and expenses of the appeal in advance. We reverse and remand the trial court's Conditional Order Permitting Leave to Proceed in Forma Pauperis and Order Continuing Appointment of Counsel and Requiring Periodic Payments.

Smith sets forth these issues in the Brief of the Appellant:

I. Was the evidence presented in this case legally and factually insufficient to establish that the Appellant committed the crime of conspiracy to intimidate a witness in the discharge of his duty?

II. Did the trial court commit reversible error when it improperly instructed the jury regarding the law applicable to the case in violation of Appellant's constitutional right to due process?

III. Did the trial court err when it admitted hearsay statements of the co-conspirator in violation of W.R.E. 801(d)(2)(E)?

IV. Did the trial court err when it required the Appellant to make monthly payments to proceed on appeal?

The issues set forth by the State of Wyoming in the Brief of the Appellee are:

I. Was there sufficient evidence to permit the jury to find that Appellant conspired with one or more persons to commit the crime of intimidation of a witness?

II. Did the District Court properly instruct the jury on the applicable law in Instructions No. 4 and No. 11?

III. Did the District Court err in admitting the statements of the co-conspirator?

IV. Did the District Court erroneously require Appellant to make monthly payments to proceed on appeal?

Smith was charged with conspiracy to intimidate a witness, in violation of WYO.STAT. § 6-5-305(a) and WYO.STAT. § 6-1-303(a), for his role in an assault and battery on Paul Minick (Minick), who testified at the trial of Smith's sister, Rachel Smith. In December of 1992, Minick and his friend, Mike Webb, were driving north on I-90 about 20 miles south of Sheridan when they apparently suffered a tire blowout. In fact, Rachel Smith shot the right rear tire with a rifle, and she and Tammy Higgins then robbed the two teenage boys at gunpoint. See Higgins v. State, 889 P.2d 964 (Wyo.1995), and Smith v. State, 880 P.2d 573 (Wyo.1994). Pursuant to a subpoena issued by the district court, Minick returned to Sheridan on July 29, 1993 and testified against Rachel Smith on July 30, 1993. He was released from the subpoena on that day, but he stayed until the jury returned a verdict of guilty at about 4:45 p.m. After the verdict was returned, Minick spent some time at the home of a deputy sheriff and, later, two deputies from the sheriff's office took Minick to dinner and then, about 8:15 p.m., to the bus depot in Sheridan to return to his home in Montana.

While Minick was at the bus depot, he was approached by David Rhoden (Rhoden), who requested assistance in jump starting his van. Minick declined at first, but then agreed to assist Rhoden. The two went into the parking lot at the bus depot and were approaching a van when Rhoden stopped to tie his shoe. When Minick turned around, Rhoden hit him in the face inflicting a bloody nose and a lip laceration that left a scar.

The conspiracy statute, WYO.STAT. § 6-1-303, provides, in pertinent part:

(a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.

The crime Smith was charged with conspiring to commit, is defined in WYO.STAT. § 6-5-305(a), which provides:

A person commits a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both, if, by force or threats, he attempts to influence, intimidate or impede a juror, witness or officer in the discharge of his duty.

Smith was tried on May 3, 1994, and Minick testified about his role as a witness in the Rachel Smith trial and about the assault and battery at the bus depot. MAG, a witness to the conspiracy, testified to the occurrence of the events on the night of July 30, 1993, including statements made by Rhoden. Following the return of the verdict in Rachel Smith's trial, MAG and Rhoden went to a bar near Rhoden's apartment to drink. Smith, Smith's mother, and another woman arrived in a car about a half hour to an hour later. Smith got out of a car where he had been sitting with the two women and approached MAG and Rhoden. The three of them had been working together for approximately two months at Carl Weissman & Sons (a supply firm for contractors), and they were friends at that time.

In an inexplicable excursion into fantasy, Smith told the other two, specifically addressing MAG, "that there was a guy that had lied in court and got the sister into trouble and convicted her, whatever, and that he wanted me to beat her up." MAG quickly corrected the reference to "her" by stating "him" in his testimony. Smith offered MAG fifteen dollars and all the beer he could drink if he would beat Minick. MAG declined the offer stating that he did not want to go to jail. Smith then asked Rhoden if he would beat Minick. Rhoden did not respond, and the five people then went to a different bar to drink and to discuss beating Minick. MAG stated, at some point, Smith's mother said, "the person that testified against the defendant's sister would be at the bus depot that night."

Around 8:00 or 8:30 p.m., Smith announced "they [Smith and Rhoden] were going to go up [to the bus station] and look things over and see if the guy was there, and he was going to point the guy out for Dave [Rhoden] and just kind of case it out and see if there was any cops there." The two left the bar and returned approximately forty-five minutes later. During that period, Rhoden lured Minick outside the bus depot and struck him in the face. When they returned to the bar, Smith and Rhoden "were all revved up and pumped up that they just did the job." When asked what that connoted, MAG explained, "They were happy. Before they parked the car then, they came down Main and were going to turn left into the bar, and they were yelling out the window and stuff, kind of yahoo and all that."

At the trial, the prosecutor and MAG then engaged in the following dialogue, punctuated by an objection:

Q: Okay. When they came back, did the defendant and Mr. Rhoden tell you what had happened?

A: Yes, Dave--Dave did.

Q: Okay.

[Defense Counsel]: I have to object to hearsay on Mr. Rhoden's statement.

The Court: Overruled.

Q: (By [Prosecutor] ) What--okay. What was explained to you when they got back? Who was doing the talking?

A: Dave was.

Q: And what happened?

A: Dave said that he kicked the guys [sic] butt. I mean, they were just revved up when they first got back. And I said, you know, what happened? We all asked what happened.

And Dave said that Dusty had pointed him out for him and whatnot, and then he parked the car a block away or so he wouldn't be seen. And then Dave went in and told the guy--the witness that he had car problems and asked him if he would come out and hold the battery cable so he could get his car started. And I guess he said it took him awhile to get the kid convinced he needed help with it, and then the kid finally went outside, and then that's when Dave hit him and then took off from there and then they came back.

A: Okay. So--so the defendant--you said he pointed out Mr. Minick in the bus station?

A: Right.

Q: And he went back to the car and Mr. Rhoden carried out the plan?

A: Right.

Q: What was the defendant doing during the time that Mr. Rhoden was--

A: I guess just waiting for Dave to show back up.

Q: Okay. Now, once--when you got back to the bar and David Rhoden explained what was happening, what was the defendant doing then? Did he ever--

A: He was happy and revved up about it and just kind of, you know, going along with David's story.

Q: Did he ever interject anything into the story or--

A: Not really. He just was--he seemed real happy.

Q: Okay. Now, once you were told this happened, did you witness the payoff?

A: Yes, I did.

Q: Who paid?

A: Dusty paid, and his mom and this girl that was there with them, they all whipped it out of their pockets, or purses, or...

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