Towner v. State, 83-223

• Decision Date: 10 August 1984
• Docket Number: No. 83-223,83-223
• Citation: 685 P.2d 45
• Parties: Charles TOWNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 45

685 P.2d 45

Charles TOWNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-223.

Supreme Court of Wyoming.

Aug. 10, 1984.

Leonard D. Munker, State Public Defender, Wyoming Public Defender Program, and Sylvia Lee Hackl, Appellate Counsel (argued), Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Michael A. Blonigen, Asst. Atty. Gen. (argued), for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

Appellant Charles Towner was convicted of four counts of concealing stolen goods in violation of § 6-7-304, W.S.1977. ¹

We will reverse.

Appellant's trial began on February 7, 1983. A motion to sequester the witnesses was granted. The State presented several witnesses who testified to various burglaries, the items which were taken, and the value of those items. Police officers testified concerning the search of the Towner residence and interview of appellant. There is no dispute that the stolen items were found in appellant's living quarters in the basement of his parents' home.

Appellant based his defense on lack of requisite knowledge that the items were stolen. One element necessary for conviction is that the person charged buy, receive or conceal stolen goods "knowing the same to have been stolen." § 6-7-304, supra. Appellant testified that his wife had brought the property into the residence; that he had believed her explanation that she was purchasing and had acquired the property lawfully. Appellant's wife was not available to be called as a witness at the trial. The defense then planned to call Mr. Towner, appellant's father, and Gloria Towner, appellant's sister, to testify that appellant's wife had made similar statements concerning her acquisition of the property to them.

Appellant's attorney was informed by the court and the prosecuting attorney that Mr. Towner and Gloria Towner had been seen in the courtroom during appellant's testimony, thereby violating the sequestration order. The court excluded their testimony because of the violation. The defense, therefore, rested. Subsequently appellant's attorney learned from Mr. Towner and Gloria Towner that an agent of the district attorney's office had attempted to interview them; that they had been asked by the agent to enter the courtroom, and they did so because of this request. Appellant's attorney informed the court of the Towners' explanation of their being in the courtroom, protested the exclusion of their testimony, and asked that they be permitted to testify. The prosecution read a statement from the agent relating to a conversation he had with Mr. Towner shortly before Mr. Towner entered the courtroom. It is unclear from this statement whether or not the agent induced the witnesses to enter the courtroom. He may have; at the very least, that matter was in dispute.

The court asked for an offer of proof as to what the testimony of these witnesses would be if permitted to testify. Appellant's counsel stated that Mr. Towner would testify that appellant's wife had told him that she was buying the property items found in appellant's living quarters, and that she was going to get the bill of sale and show it to him. He was also going to testify that appellant's wife had told him that she was getting the money to pay for the items from her parents. Gloria Towner was essentially going to testify to similar conversations. The court ruled that this testimony

"is not only of dubious relevance but is also cumulative to what the defendant has already testified to, and which no one has challenged"

and, therefore, affirmed his previous ruling excluding the testimony of the witnesses.

The question presented to us is whether the trial court erred in excluding the defense witnesses' testimony due to their apparent violation of the sequestration order. Rule 615, W.R.E., provides for exclusion of witnesses. ² Under this rule, sequestration of witnesses is a matter of right for either party. The purpose is to prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid. United States v. Ell, 718 F.2d 291 (9th Cir.1983); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); 3 Louisell & Mueller § 370 (1979). Although Rule 615, W.R.E., does not provide for sanctions for violations of the rule, the most often invoked remedies are (1) to hold the witness in contempt; (2) to make the violation a subject for cross-examination and comment; and (3) to disallow the testimony altogether. 3 Louisell & Mueller § 371; 13 Land & Water L.Rev. 909 (1978), "Article VI of the Wyoming Rules of Evidence: Witnesses."

The United States Supreme Court held in Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893):

"If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground, merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court." 14 S.Ct. at 10.

We have previously addressed this question in circumstances where the judge allowed witnesses to testify although they had been in the courtroom in violation of a sequestration order. We affirmed the allowance of that testimony, stating that permitting witnesses to testify was a matter addressed to the discretion of the court and that we would reverse only for gross abuse of that discretion. Whiteley v. State, Wyo., 418 P.2d 164 (1966); Pixley v. State, Wyo., 406 P.2d 662 (1965). We have not, however, addressed the question of the propriety of excluding testimony because of a violation of a sequestration order.

The general rule is that a party who does not know of nor procures the violation should not be deprived of essential testimony. 88 C.J.S. Trial § 70. However, when a party knows that a witness is violating the rule and allows the violation to continue, he may lose the right to present the witness or to object on those grounds. 23 C.J.S. Criminal Law § 1013.

"A party should not be denied his witness because of misconduct which the party has not caused. 'Refusal to permit a witness to testify in a criminal case on the ground that he had violated the order excluding witnesses is reversible error where neither the state nor the defendant was responsible for the violation of the order and did not know he was present.' Excluding testimony is not an appropriate remedy. Rather, the jury should be instructed on the credibility of the witness. If the order is willfully violated, the court may properly hold the witness in contempt of court." (Citations omitted.) State v. Wells, Mont., 658 P.2d 381 (1983).

Exclusion of the witness' testimony is too grave a sanction where the violation was not intentional and was not procured by the connivance of the party or his counsel. A practical and sensitive accommodation between the defendant's right to present a defense and the trial court's need to control the proceedings must be maintained. Exclusion should be allowed only when it is necessary to preserve the integrity of the fact finding process. State v. Burdge, 295 Or. 1, 664 P.2d 1076 (1983).

United States v. Schaefer, 299 F.2d 625, 631, 14 A.L.R.3d 1 (7th Cir.1962), held that exclusion of testimony was too harsh in situations where the witness did not willfully violate the sequestration order and there was no indiction that the witness was in court with

" 'the consent, connivance, procurement or knowledge of the appellant or his counsel.' * * * [D]isqualification of the offending witness absent particular circumstances is too harsh a penalty on the innocent litigant." See also, United States v. Johnston, 578 F.2d 1352 (10th Cir.1978), cert. denied 439 U.S. 931, 99 S.Ct. 321, 58 L.Ed.2d 325.

Braswell v. Wainwright, 463 F.2d 1148 (5th Cir.1972), found error in excluding testimony because of a sequestration violation on grounds of Sixth Amendment rights and due process, stating that the defendant's right to obtain witnesses in his behalf was violated. Since neither the defendant nor his counsel was involved in the violation, there could not have been a waiver of a constitutional right which would render the exclusion proper. Testimony was considered properly excluded when the court found connivance of the government's counsel and prejudice to the defendant, United States v. Blasco, 702 F.2d 1315 (11th Cir.1983), and where a defendant violated the sequestration order by comparing testimony with another witness. United States v. Torbert, 496 F.2d 154 (9th Cir.1974), cert. denied 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91.

United States v. Gibson, 675 F.2d 825 (6th Cir.1982), cert. denied 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285, stated that most authorities agree that the "particular circumstances" of Holder v. United States, supra, sufficient for exclusion are indications that the witness violated the order with the consent, connivance, procurement or knowledge of the party seeking the testimony. This case held there was no abuse of discretion in excluding testimony because the witness stayed in the courtroom with the knowledge of the defendant and another witness gave substantially identical testimony. Excluding two witnesses for a violation was held not to deprive the defendant of his right to obtain witnesses in his behalf where three other witnesses testified to the same facts and the defendant and his counsel knew of their presence in the courtroom. Calloway v. Blackburn, 612 F.2d 201 (5th Cir.1980).

There was no evidence presented nor was it claimed that Mr. Towner and Gloria Towner entered the courtroom with the knowledge or consent of appellant...