Williams v. State

• Decision Date: 20 October 2004
• Docket Number: No. 03-163.,03-163.
• Citation: 2004 WY 117,99 P.3d 432
• Parties: Daniel Robert WILLIAMS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

99 P.3d 432

2004 WY 117

Daniel Robert WILLIAMS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-163.

Supreme Court of Wyoming.

October 20, 2004.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Terry L. Armitage, Senior Assistant Attorney General. Argument by Mr. Armitage.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ. HILL, Chief Justice.

[¶ 1] Appellant, Daniel Williams (Williams), challenges his convictions for larceny¹ and unauthorized use of a vehicle.² Williams contends that the district court erred in allowing the admission of evidence in violation of W.R.E. 404(b) and this Court's case law interpreting that rule. Furthermore, he contends that the prosecutor improperly elicited testimony from his co-defendant that he had been convicted of and sentenced for crimes arising out of the same circumstances as the crimes for which Williams was charged. Williams also contends that the prosecutor committed fundamental error by commenting on Williams' right to remain silent. Finally, Williams contends that the district court erred in its computation of the restitution ordered in the sentence imposed. We will reverse and remand for a new trial.

ISSUES

[¶ 2] Williams raises these issues:

I. Whether the trial court erred in the admission of evidence under W.R.E. 404(b)?

II. Whether plain error occurred when a witness, Jay Dunford, testified that he was convicted of offenses arising out of the same circumstances that led to [Williams'] charges, and when the State presented argument on this same topic?

III. Whether the prosecutor improperly commented on [Williams'] exercise of his constitutional right to [remain silent]?

IV. Whether the trial court erred in its order of restitution?

The State enlarges on the issues somewhat:

I. Whether plain error occurred in the admission of uncharged misconduct evidence under W.R.E. 404(b) when Jay Dunford testified, without objection, about a prior related theft of saddles and tack from the Esponda Ranch in which both he and [Williams] were involved?

II. Whether plain error occurred when a witness, Jay Dunford, testified that he was convicted of offenses arising out of the same circumstances that led to [Williams'] charges, and when the State presented argument on the same topic?

III. Whether the prosecutor improperly commented on [Williams'] exercise of his constitutional right to silence?

IV. Whether the trial court erred in its order of restitution?

FACTS

[¶ 3] The facts pertinent to the issues raised in this appeal are relatively brief. On June 18, 2001, Williams was hired as a ranch hand to work on a ranch owned by Gladys Esponda. On August 29, 2001, Esponda hired Jay Dunford as an additional ranch hand. Williams and Dunford worked together, lived in the bunkhouse together, and frequently socialized together, including traveling on the rodeo circuit. Dunford testified that in February of 2002, he and Williams stole saddles from the Esponda Ranch and took them to Billings, Montana, to sell at a tack sale. Dunford asserted that the theft was Williams' idea, although the saddles were offered for sale in Dunford's name and the check representing the proceeds of the sale was mailed to Dunford.³ Dunford testified that the two split the proceeds from the sale of the stolen saddles in order to have money to go to rodeos.⁴ Dunford also related that he and Williams had discussed stealing a horse from the ranch, but that the saddles were easier targets because they were not used. Dunford explained that Gladys Esponda was vulnerable to theft because she had had surgery and was not physically able to oversee all that went on about the ranch.

[¶ 4] After the jury heard this testimony, Williams' attorney lodged an objection to the admission of this evidence citing W.R.E. 404(b).⁵ Defense counsel claimed that he had been given no notice of the testimony, and that his objection was tardily made because he was "in shock" at what he was hearing. The record on appeal demonstrates that defense counsel did not file either a general motion for discovery or a motion for notice of the prosecution's intent to offer W.R.E. 404(b) evidence. The record also shows that this testimony by Dunford was not noted in the State's pretrial memoranda as required by the district court's scheduling order (it required a brief summary of each witness's proposed testimony). The district court made an initial ruling that the disputed testimony was admissible under the exceptions to 404(b).⁶ After Dunford had completed all of his testimony, including cross-examination, the district court added this to its initial ruling:

THE COURT: We're on the record outside the presence of the jury after the testimony of Mr. Dunford. During the testimony of Mr. Dunford, [defense counsel] made an objection of sorts concerning the sale of Esponda's saddles to someone in Billings; and I just want to point out the real dilemma that the Court was placed in during that objection. At the time of the arraignment, the Court asked for reasonably-anticipated motions to be filed within ten days and gave counsel an extra opportunity to file any motions or legal issue in their trial briefs that were due at the time of the pretrial conference.

And the record does not show any requests for that type of information. The Dunford file was public information. Nothing in that file was made confidential by the Court. The Court has already found that the saddle theft, or alleged saddle thefts, would be admissible evidence. Even though it did not take place exactly at the same time as the alleged horse theft, it was relatively close in time. It was during the employment of the Defendant and the witness, same employer. And the State indicated the purposes for which that information was elicited.

I've never understood the portion of the Bishop test that would require the trial court to make some sort of a determination as to how badly the prosecution would need the evidence. But based on the cross-examination of Mr. Dunford, it appears as though they would need to have some additional information regarding opportunity and intent of the defendant.

[Defense counsel], I believe that our case law would allow the defendant to have a jury instruction regarding the alleged saddle thefts and sale in Billings if you want — if you want one that would tell the jury that information was allowed for a limited purpose, you are entitled to it.⁷

[¶ 5] Dunford also testified that in March of 2002, he and Williams made a plan to steal and sell a horse that belonged to Gladys Esponda. On March 24, 2002, they loaded a gray horse owned by her, as well as a sorrel horse owned by Dunford, into a horse trailer owned by the Esponda Ranch, and towed that horse trailer to Sheridan using a pickup owned by the Esponda Ranch, in order to sell both horses.⁸ During his testimony, Dunford related that he had confessed to stealing Mrs. Esponda's horse and had been sentenced to a suspended term of imprisonment in the Wyoming State Penitentiary.

[¶ 6] During the State's cross-examination of Williams, the following questions were asked and answered:

Q. (By [the prosecutor]) Did you ever attempt to contact any of the Espondas after [the] 24th of March to tell them that you had sold one of their horses?

A. No.

Q. Now, [defense counsel] asked you if you had ever been questioned by anyone in law enforcement in Johnson County.

Did you ever volunteer any of the information that you just told us today?

A. Not to the best of my recollection.

Q. And, finally, you testified that you left town for Texas on the 28th of March 2002, is that correct?

A. That was the following day, yes.

[¶ 7] Some additional facts will be noted in the course of our discussion of the issues.

DISCUSSION

Admission of W.R.E. 404(b) Evidence

[¶ 8] The proceedings in this case are sufficiently irregular so that both as a practical matter, and as a logical matter, it is difficult to analyze them under the rather large number of recent precedents forthcoming from this Court on this subject. Although W.R.E. 404(b) has presented unique and very disquieting problems for many years, in 1993 this Court, in a 3-2 decision, made its first effort to definitively solve those problems:

After reviewing the admission of prior bad acts evidence in this case, and in numerous other cases, we perceive the need for a uniform procedure, to be followed in all cases in which the state proposes to introduce such evidence. In the future, when the state wishes to introduce evidence of a defendant's prior bad acts, the state carries the initial burden of demonstrating the admissibility of the evidence in the context of the five-part test we outlined above. The state must articulate which Rule 404(b) or other relevant purpose the evidence is specifically being offered to serve, and how the evidence is relevant for that purpose. The defendant must then respond with its arguments why the evidence should not be admitted, addressing issues of relevancy and Rule 403 concerns.

The trial court must then articulate its findings of relevancy and how it weighed probative value against the countervailing factors. If the trial court determines the evidence should be admitted, it must identify the specific purpose for which the evidence is being admitted.

We recommended this procedure in earlier cases to provide this court with a proper record from which it may pursue the question of any abuse of discretion by the trial court in admitting evidence of prior wrongs. Coleman, 741 P.2d at 102-05; Elliott v. State, 600 P.2d 1044, 1049 (Wyo.1979). We now hold this procedure is mandatory and must be followed, both to

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