State v. Newman, 03-58.
| Decision Date | 19 April 2004 |
| Docket Number | No. 03-58.,03-58. |
| Citation | 88 P.3d 445,2004 WY 41 |
| Parties | The STATE of Wyoming, Petitioner, v. Robert NEWMAN, Respondent. |
| Court | Wyoming Supreme Court |
Representing Petitioner: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.
Representing Respondent: Donald Cole, Cheyenne, Wyoming.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
[¶ 1] After three days of trial before a jury, the district court declared a mistrial on the basis of prosecutorial misconduct and dismissed with prejudice the charges against Robert Newman on the ground that the six-month deadline for speedy trial had passed and a second trial on re-filed charges would further exceed the deadline. The State filed a petition for review challenging the order, which this Court granted conditioned upon the parties briefing the question of the appropriateness of the State's challenge by means of a petition for review. We hold that the petition for review is appropriate under these narrow circumstances and reverse the dismissal with prejudice, holding that the speedy trial time period ceased to run when the court granted a mistrial and, therefore, the district court abused its discretion in dismissing the case with prejudice.
[¶ 2] We address the following issues:
1. Whether under these unusual circumstances the State may utilize a petition for review to challenge the district court's order of dismissal with prejudice.
2. Whether the district court erred in dismissing the case with prejudice.
[¶ 3] Mr. Newman was charged on August 2, 2002, with aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (Michie 1997). After vacating several trial settings, the district court scheduled the trial to begin February 3, 2003.1 On January 30, 2003, at a re-arraignment hearing, the prosecution advised the district court the State was not ready to proceed with trial because it was waiting on a report from the state crime lab. When asked by the court what the defense's position was on another continuance of the trial date, counsel for Mr. Newman responded:
[H]e would like to go to trial as soon as possible.... [M]y client would like to proceed. I guess he would be willing to waive a speedy trial if the Court does continue this. But I will tell you, Your Honor, that he would like to proceed with this as soon as possible.
The district court vacated the February 3, 2003, trial date and the trial was re-set for March 3, 2003. On February 25, 2003, Mr. Newman filed a motion to dismiss on the basis that the speedy trial time had passed. The district court held a hearing on the motion on February 27, 2003. At the close of the hearing, the district court denied the motion and the case proceeded to trial on March 3, 2003.
[¶ 4] On the morning of the third day of trial, March 5, 2003, Mr. Newman appeared in the courtroom wearing his military uniform. In chambers, prior to trial, the prosecution raised the issue of Mr. Newman appearing in uniform, asserting that he represented to the court in his motion to dismiss that he had been demoted to errand boy and thus he should not be allowed to portray himself before the jury as a member of the United States Air Force. The district court pressed on with the trial, stating that Mr. Newman was entitled to wear his uniform. After lunch on the same day, the prosecution again raised the issue of the uniform in chambers and claimed that Mr. Newman was violating military code by appearing in court in his uniform. The district court again declined to become involved in the issue, stating that whether or not Mr. Newman was entitled to wear his uniform was an issue for the military, not the state district court.
[¶ 5] The following day, March 6, 2003, defense counsel and the prosecution again appeared in chambers at which time defense counsel informed the district court that during the morning recess the previous day outside the presence of the jury the prosecution questioned Mr. Newman directly about why he was wearing his uniform. Defense counsel moved for a mistrial on the basis of prosecutorial misconduct. The district court heard the prosecutor's version of the exchange and then took testimony from Mr. Newman as well as his parents and another prosecutor who were in the courtroom during the exchange. The district court found that the prosecution communicated directly with a party represented by counsel in violation of Rule 4.2 of the Wyoming Rules of Professional Conduct, held the violation was sufficient grounds for a mistrial, and dismissed the case with prejudice. The district court entered an order to that effect on March 11, 2003.
[¶ 6] On March 25, 2003, the district attorney filed a petition for writ of review in this Court, seeking reversal of the district court's order dismissing the charges with prejudice. We issued an order to show cause why the writ should not be dismissed, questioning whether under Wyo. Stat. Ann. § 9-1-804 (LexisNexis 2003) the district attorney, as opposed to the attorney general, had the authority to pursue a criminal case in this Court. We gave the district attorney fifteen days to respond and served a copy of the show cause order on the attorney general's office. Within that time frame, the attorney general filed an entry of appearance and response to the order. The district attorney also filed a timely response to the order to show cause. After reviewing the responses, we issued an order allowing the case to proceed.2 In addition to the issues raised in the petition, we asked the parties to brief the question of whether a petition for writ of review is available to the State as a means to obtain review of the district court's order in this case.
[¶ 7] The question of whether the State is permitted to challenge the district courts order of dismissal with prejudice by way of a petition for writ of review is purely one of law, which we consider de novo. Innis v. State, 2003 WY 66, ¶ 8, 69 P.3d 413,
¶ 8 (Wyo.2003). The question of whether to grant a writ of review is committed to the sound discretion of this Court, the exercise of which is limited to rare and unusual cases. Wright v. State, 707 P.2d 153, 156 (Wyo. 1985). Speedy trial issues are reviewed de novo by this Court. Dean v. State, 2003 WY 128, ¶ 50, 77 P.3d 692, ¶ 50 (Wyo.2003).
Availability of petition for writ of review
[¶ 8] The State contends the petition for writ of review was a proper way to seek review of the district court's ruling. The State argues writs of certiorari are a creation of the common law, which this Court is empowered to issue in its discretion by art. 5, § 3 of the Wyoming Constitution. The State contends a petition for writ is appropriate here because a bill of exceptions would have no affect on the district court's ruling in Mr. Newman's case, but would instead apply only to future cases. Mr. Newman contends the law in this state has long been that a bill of exceptions provides the exclusive avenue for the State to challenge an adverse ruling by a district court in a criminal proceeding. We hold that under the particular facts of this case, a writ of review is appropriate. In reaching that result, however, we emphasize that in all but the most extraordinary circumstances a bill of exceptions provides the exclusive means for the State to challenge adverse rulings made during the trial of a criminal case.
[¶ 9] Article 5, § 3 of the Wyoming Constitution provides in relevant part as follows:
Wyo. Stat. Ann. § 7-12-102 to 104 (Lexis-Nexis 2003), the statutes governing bills of exception, provide as follows:
§ 7-12-102. Right of district attorney to take exceptions; certification; rules.
The district attorney may take exceptions to any opinion or decision of the court made during the prosecution of a criminal case. Before being filed in the supreme court, the bill of exceptions shall be presented to the trial court which shall certify whether the contents of the bill are correct. If certified, the trial court shall sign the bill containing the exceptions and affix the seal of the court and the bill shall be made part of the record. The bill of exceptions shall be governed by rules as shall be promulgated by the Wyoming supreme court.4
§ 7-12-103. Filing of bill by attorney general in supreme court.
[¶ 10] The interpretation of these provisions has been an evolving process in Wyoming jurisprudence, with older cases holding a bill of...
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...in any event, the correctness of the district court's decision to grant a mistrial is moot because the jury has been discharged. State v. Newman, 2004 WY 41, ¶ 24, 88 P.3d 445, 453-54 (Wyo.2004). The State claims, however, the district court exceeded its authority when it granted a dismissa......
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...Wyo. Stat. Ann. §§ 7–12–102 and 103 (LexisNexis 2011) or by filing a petition for writ of review pursuant to W.R.A.P. 13. State v. Newman, 2004 WY 41, ¶ 23, 88 P.3d 445, 453 (Wyo.2004); Crozier, 882 P.2d at 1236. [¶ 33] Pursuant to §§ 7–12–102 and –104 respectively, bills of exception are l......
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...taken place, meaning that “any determination made at this juncture by this Court would have no practical effect on that outcome.” State v. Newman, 2004 WY 41, ¶ 24, 88 P.3d 445, 454 (Wyo.2004). In such case, the only surviving issue may be the assessment of costs or sanctions. 6Hartford-Emp......
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...based upon prosecutorial misconduct, the defense must show prosecutorial intent to goad the defense into moving for a mistrial.” State v. Newman, 2004 WY 41, ¶ 21, 88 P.3d 445, 452–53 (Wyo.2004) (citing Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982)). Here......