Story v. State, 89-75

CourtUnited States State Supreme Court of Wyoming
Citation788 P.2d 617
Docket NumberNo. 89-75,89-75
PartiesJohn H. STORY, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
Decision Date16 March 1990

Dick L. Kahl, Powell, Irvin B. Nodland (argued), and Thomas A. Dickson of Lundberg, Nodland, Shulz, Lervick & Tharaldson, P.C., Bismark, N.D., for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Sylvia Lee Hackl, Sr. Asst. Atty. Gen. (argued), and

Terrill Tharp, Big Horn County Prosecutor, for appellee.


CARDINE, Chief Justice.

This is an appeal from denial of a motion for new trial based on newly discovered evidence. Appellant John Story states the issues as:

1. "Has Dr. Story been deprived of his constitutional right to due process by the district court's refusal to permit disqualification?"

2. "Must it be held that Dr. Story was deprived of his constitutional right to due process when the district court refused hearing on the motion for new trial?"

3. "If the appellant was deprived of his right to due process and equal protection of the law when the district court denied the motion for new trial, was reversible error committed, for two independent reasons?"

4. "When given that Dr. Story was deprived of his fundamental right to a fair hearing on his motion for new trial, his right to due process and equal protection of the law, and to meaningful review of his constitutional claims, is the doctrine of cumulative-error properly invoked?"

We affirm.


The history of this case is chronicled in prior decisions of this court. In 1985, John Story, a physician, was convicted on six separate charges of sexually assaulting his patients. This court affirmed five of the six convictions in June 1986, in Story v. State, 721 P.2d 1020, 65 A.L.R.4th 1011 (Wyo.1986) (Story I ). Appellant subsequently filed a motion for new trial based on newly discovered evidence pursuant to Rule 34, W.R.Cr.P. The basis for the motion was an affidavit which stated that WH, a prosecution witness at appellant's trial, lied in her trial testimony.

The district court denied the motion on procedural grounds and Story appealed. We reversed after determining that the district court had erroneously construed Rule 34 and remanded for a disposition of the new trial motion on the merits. See Story v. State, 755 P.2d 228 (Wyo.1988) (Story II ). The events following our decision in Story II led to this appeal.

The decision in Story II was issued by this court on May 23, 1988. On June 1, 1988, Story filed a motion for a "pre-hearing conference." The district court denied the motion, stating that such a conference was not required and indicating that the new trial motion would be determined without a hearing, as authorized by the majority of this court in Story II, 755 P.2d at 231. The district court also established a schedule which allowed Story until August 1, 1988, to submit any material that he wished to add to his motion for new trial, allowed the State until September 1 to respond, and then allowed Story until September 16 to file any rebuttal material.

On August 1, 1988, Story filed a motion to disqualify the district judge for cause, alleging that the district judge had engaged in improper ex parte communications with the prosecuting attorney and that the judge had become prejudiced and biased against Story after the trial had been concluded. He also filed various supporting affidavits and a brief in support of his motion for new trial. The State responded on August 25 to both motions, also filing supporting affidavits. On September 13, three days before the deadline to file rebuttal evidence, Story filed a "Notice of Taking Depositions" which identified two persons to be deposed on September 16 and requested production of all of WH's medical records. The medical records concerned treatment of WH by a Dr. Christensen, now deceased. Appellant alleged that the records would support his contention that she gave perjured testimony at trial.

The State responded by urging that the records were privileged and that there was no compliance with Rule 17, W.R.Cr.P. The district court suspended the depositions pending a hearing. On September 16, 1988, the district court held a hearing on the State's motion and concluded that Story had failed to comply with Rule 17, W.R.Cr.P.

because he had not filed with the court a timely motion to take depositions and had made no showing that the proposed deponents would be unable to attend or would be prevented from attending a trial or hearing.

On October 5, 1988, the court held a hearing on the motion to disqualify the presiding judge for cause. The motion to disqualify was denied. On the same day, Story filed a motion seeking an order to allow depositions of the same two people, plus three more people, including appellant's wife, Marilyn Story, and seeking an order to permit review of WH's medical records. The State objected. At a November 14 hearing on the motion, the records were produced and designated as State's Exhibit No. 1. The court allowed the defense 15 days to file any other material contradicting or supplementing State's Exhibit No. 1. Appellant then filed several affidavits concerning the custody, content, and interpretation of the handwriting contained in the records.

Finally, on February 1, 1989, the district court issued an opinion letter which denied the motion to take depositions and the motion for new trial. Orders reflecting these decisions were entered and Story appealed.


In order to evaluate appellant's claim that he was deprived of due process when the judge refused to disqualify himself, we begin with his motion to disqualify for cause and its supporting materials to determine what the judge had before him at the time the motion was decided. We do not consider the various assertions of fact in appellant's brief which are unsupported by citation to the record.

The motion was made pursuant to Rule 23(e), W.R.Cr.P.:

"Disqualification for cause.--Whenever the grounds for such motion become known, the state or the defendant may move for a change of district judge on the ground that the presiding judge is biased or prejudiced against the state, the prosecuting attorney, the defendant or his attorney. The motion shall be supported by an affidavit or affidavits of any person or persons stating sufficient facts to show the existence of such ground."

The motion for disqualification contained two separate allegations of bias. In pertinent part, the motion states:

"It is apparent from the record that Judge Hartman has engaged in ex-parte communications with the prosecuting attorney in this case. Such communications indicate a personal bias against Dr. Story. To avoid further appearance of impropriety, Judge Hartman should be disqualified.

"Judge Hartman should also be disqualified because extrajudicial communications between the Judge, jurors and friends of Dr. Story after the conclusion of the trial have caused him to be prejudiced and biased against Dr. Story."

Appellant first contends that the record demonstrates that there were ex parte communications between the judge and the prosecutor that indicate bias against appellant. Appellant's affidavit, filed in support of the disqualification motion, attached newspaper articles which, according to appellant, show that the prosecuting attorney had engaged in improper ex parte communications with the judge because he knew of the court's ruling on the new trial motion before the judge had decided the motion. The news articles stated in part as follows:

"BASIN, Wyo.--A motion seeking a new trial for convicted rapist Dr. John Story has been denied, according to Big Horn County Attorney Terry Tharp.

* * * * * *

"Tharp said the motion was automatically denied because the defense attorney didn't ask for a determination within 10 days after it was filed. According to Wyoming law, an attorney filing a motion for a new trial must notify the court and ask for a determination. Since no determination was sought within that time, the motion should therefore be denied, Tharp wrote in a response to the motion." (emphasis added)

Howard, Story won't get retrial, Billings Gazette, Aug. 19, 1987.

"A motion seeking a new trial for Dr. John Story of Lovell has apparently failed because documents requesting a hearing in the matter were never filed.

* * * * * *

"Tharp said no formal order denying the motion was ever signed by Judge Gary Hartman or any other District Court judge, but as the statute reads, the motion was 'deemed denied.'

* * * * * *

"Reached in Worland Wednesday, Judge Hartman confirmed that he has taken no action granting or denying a motion for a new trial. He also confirmed that the statutes state that the party filing a motion must notify the court about the pending motion and 'call up the motion' or file a 'request for setting.' "

Peck, Story new trial motion fails, Lovell Chronicle, Aug. 20, 1987.

The news articles can be read to infer that the prosecutor knew what the judge would rule, was predicting what the judge would rule, or was articulating his position. The articles do not establish that the prosecutor conferred with the judge ex parte and appellant made no attempt to establish this contention by statement of the judge, the prosecutor, or the news reporters. While appellant infers that these articles demonstrate that the prosecutor and the judge had been secretly conferring, a fair reading of the articles reveals that the prosecutor was merely articulating the State's position on appellant's motion. The State's position was hardly secret, as it had already been laid out in the "Response and Motion to Strike" filed by the prosecutor over a month earlier. The court later adopted that position in denying appellant's motion on procedural grounds. While this court later reversed that decision in Story II, a showing that the district court denied one of appellant...

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