Vernier v. State, 95-53

• Decision Date: 12 January 1996
• Docket Number: No. 95-53,95-53
• Citation: 909 P.2d 1344
• Parties: Gilbert Paul VERNIER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1344

909 P.2d 1344

Gilbert Paul VERNIER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-53.

Supreme Court of Wyoming.

Jan. 12, 1996.

John P. LaBuda of Goddard, Perry & Vogel, Buffalo, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Assistant Attorney General, Cheyenne, for Appellee.

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

THOMAS, Justice.

This case manifests an effort by Gilbert Paul Vernier (Vernier) to persuade this court to adopt a judicial statute of limitation in a criminal case. Vernier contends his right to due process preserved by the Fourteenth Amendment to the Constitution of the United States was infringed when the State, after investigating allegations of indecent liberties and second-degree sexual assault in 1984, proceeded to prosecute him for those crimes in 1994. Vernier fails to assert any improper motivation by the prosecutor in connection with the pre-charging delay and, even though he asserts substantial prejudice due to the ten-year delay, he does not bring himself within our cases addressing that concept. Consequently, his assertions of prejudice due to loss of evidence and the failure of his memory articulate only the usual reasons justifying statutes of limitation. Vernier also contends the Information is so vague and indefinite as to deny him the right to defend himself under the Sixth Amendment to the Constitution of the United States and Article 1, Section 10 of the Constitution of the State of Wyoming. In this regard, he also asserts the potential loss of his protection against double jeopardy found in Article 1, Section 11 of the Constitution of the State of Wyoming. We are not persuaded to follow Vernier's invitation to adopt a judicial statute of limitation. We hold Vernier's failure to demonstrate substantial prejudice to his rights to a fair trial and the presence of some intentional effort to obtain a tactical advantage due to the delay forecloses relief for pre-charging delay. In accordance with precedent, the Information filed was sufficient to enable him to prepare a defense and protect him from potential future charges arising out of the same conduct. We affirm the Judgment and Sentence entered in the district court.

The issues stated by Vernier, in his Brief of the Appellant, are:

I. The Pre-Accusation delay spanning ten (10) years violated the Appellant's due process rights of the Fourteenth Amendment to the United States Constitution and his right to a fair trial pursuant to the Sixth Amendment to the United States Constitution due to the fact the delay resulted in the loss of evidence, hindered the Defendant's right to effective cross examination, and caused the Government to be unable to specify in the information when the alleged acts occurred [in counts II and III].

II. The charging document in this case was fatally defective and vague thereby violating the Appellant's Sixth Amendment right under the United States Constitution and Article I, § 10 and § 11 of the Wyoming Constitution.

In the Brief of Appellee filed by the State, the issues are said to be:

I. Were Appellant's due process rights violated by the filing of criminal charges ten years after the offenses occurred?

II. Did the Information adequately inform Appellant of the essential elements of the crimes for which he was charged?

Vernier is the sixty-nine-year-old grandfather of the victims. In July of 1984, ME, then seven years old, supported by her sister, JV, informed their mother, "Grandpa touched me in a bad way." An investigation of these claims was conducted by the Department of Family Services and the Sheridan County sheriff's department. Two interviews of the victim and her sister were conducted and recorded on audio tape. The second tape was transcribed by a lieutenant in the sheriff's department who was present during the interview. No charges were filed at that time, and the investigation was terminated.

Ten years later, in March of 1994, LL, another granddaughter, reported to the sheriff's department that, in June, July, and August 1977, she had been molested when she was nine years old and living with Vernier and his wife in Ranchester. ¹ Two weeks after LL presented her Information relating to sexual abuse, ME again informed the sheriff's department that Vernier had sexually assaulted her in 1984, during the time she lived with him and his wife along with her father and her sister, JV. JV provided corroboration, stating that Vernier routinely took ME into the bedroom and locked the door. She could hear ME crying, and Vernier telling ME to be quiet. ME, in turn, said that JV kicked and screamed at the locked door while Vernier was sexually abusing ME. ME advised that the abuse occurred several times a week from March through May 1984, while her grandmother was at work.

During the same time frame in 1994, other evidence emerged about sexual abuse perpetrated by Vernier. DH and DP, Vernier's daughters, recounted repeated sexual abuse and rape by their father when DH was between the ages of twelve and sixteen and DP between the ages of eight and thirteen. Two grandsons disclosed they also had been sexually abused by Vernier.

Following the 1994 investigation by the sheriff's department, the State charged Vernier with two counts of indecent liberties in violation of WYO.STAT. § 14-3-105 (1993) and one count of second-degree sexual assault proscribed by WYO.STAT. § 6-2-303(a)(v) (1988). ² At his arraignment, Vernier entered a plea of not guilty and filed a motion for a bill of particulars requesting that the State be required to furnish specific dates for the alleged offenses; a motion for discovery requesting the State furnish the audio tape recordings from the 1984 interviews of ME, the victim named in Counts II and III; and other motions not material to his appeal. The district court denied Vernier's motion for a bill of particulars, and no ruling was made on his motion for production of the audio tapes.

Later, Vernier moved to dismiss, claiming the State intentionally had delayed filing charges. He contended his right to a fair trial was prejudiced by the lengthy delay since the alleged offenses were committed, the lack of specificity as to dates, and loss of potential evidence. The district court denied the motion to dismiss, holding Vernier had failed to demonstrate both an intentional delay to gain tactical advantage by the State and substantial prejudice to his right to a fair trial. Vernier then entered conditional pleas of nolo contendere, as provided in WYO.R.CRIM.P. 11(a)(2), ³ to all three counts in the Amended Information. Vernier reserved the right to appeal the rulings of the district court in denying his motion for a bill of particulars and his motion to dismiss. Vernier was sentenced to not less than five, nor more than seven, years on each count, with the sentences to run consecutively, and he was ordered to pay $912 in restitution to LL and $300 to the Crime Victims Compensation Fund. Vernier's appeal is from that Judgment and Sentence.

Vernier quotes the Fourteenth Amendment to the Constitution of the United States, ⁴ stating " * * * nor shall any State deprive any person of life, liberty, or property, without due process of law * * *." Vernier contends the pre-accusation delay of ten years from 1984, when the events relating to Counts II and III were first investigated, until 1994, when charges were actually filed, violated his right to due process. He cites United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, reh'g denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977), for the proposition that statutes of limitation in criminal cases provide protection against undue delay in charging and are "the primary guarantee against bringing overly stale criminal charges." Lovasco, 431 U.S. at 789, 97 S.Ct. at 2048. Acknowledging Wyoming has no statutes of limitation in criminal cases, Vernier strongly contends, particularly in his oral argument, that the judicial imposition of a statute of limitation is necessary to protect him from the overly stale charges.

In a case involving a longer period of delay, but perhaps distinguishable because a prior investigation was not conducted, we discussed statutes of limitation with respect to criminal cases and said:

At common law there was no limitation period for the prosecution of any criminal offense. Where no statute of limitations pertaining to criminal offenses has been adopted, prosecution for such an offense may be commenced at any time during the life of the offender. When statutes of limitations governing the commencement of prosecution for specific crimes are adopted, they are said to be acts of grace under which the sovereign surrenders its right to prosecute. Being acts of grace, statutes of limitations may be changed or repealed without violating ex post facto prohibitions; but in the final analysis, whether statutes of limitations governing prosecution of criminal offenses should be adopted at all is a matter solely for the legislature.

Story v. State, 721 P.2d 1020, 1026 (Wyo.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986) (citations omitted, emphasis added).

The proposition articulated there--that since Wyoming has no statutes of limitation in criminal cases, the prosecution may be commenced any time during the life of the offender--has been reaffirmed in a number of cases. McDermott v. State, 897 P.2d 1295 (Wyo.1995); Parker v. State, 882 P.2d 1225 (Wyo.1994); Fortner v. State, 843 P.2d 1139 (Wyo.1992); Phillips v. State, 835 P.2d 1062 (Wyo.1992).

The legislature in Wyoming has yet to adopt a statute of limitation, even though the point has repeatedly been made that Wyoming has none. There is no question the legislature would have the authority to enact a statute of limitation, and...