Worcester v. State, 00-31.

• Decision Date: 31 August 2001
• Docket Number: No. 00-31.,00-31.
• Citation: 2001 WY 82,30 P.3d 47
• Parties: Jeff WORCESTER, Petitioner, v. The STATE of Wyoming, Respondent.
• Court: Wyoming Supreme Court

30 P.3d 47

2001 WY 82

Jeff WORCESTER, Petitioner, v. The STATE of Wyoming, Respondent.

No. 00-31.

Supreme Court of Wyoming.

August 31, 2001.

Michael N. Deegan, Gillette, WY, Representing Petitioner.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Devon O'Connell Coleman, Adjunct Faculty Director of the Prosecution Assistance Program; Mackenzie Hunt, Student Director; and Joseph J. Simola, Student Intern, Representing Respondent. Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Jeff Worcester filed a petition for writ of review based on four alleged errors committed by the justice of the peace court and affirmed by the district court. We granted his petition, and, upon review, we find no basis for reversal.

[¶ 2] We affirm.

ISSUES

[¶ 3] Mr. Worcester presents these issues for our review:

Issue # 1: Whether or not petitioner's constitutional guarantee of due process of law was violated, and thus plain error committed, when the court permitted evidence utilized by the expert witness to go into the jury room and be considered by the jury when the same was not admitted into evidence as an exhibit.

Issue # 2: Whether or not the court, as part of its sentence rendered, exceeded it[s] authority when it ordered petitioner to pay an amount in restitution that was well in excess of the civil jurisdiction of the court.

Issue # 3: Whether or not petitioner's constitutional guarantee of due process of law was violated, and thus plain error committed, when the court failed to give an expert witness instruction to the jury so as to enable [it] to properly understand that while [it] might consider an expert's opinion [it was] not bound to accept it.

Issue # 4: Whether or not the statute under which the petitioner was convicted (W.S. Sec. 41-13-204, 1977 Repub. Ed. as amended) is void for vagueness in violation of the constitutional guarantee of due process of law.

The State of Wyoming rephrases the issues as:

I. Did the justice of the peace court commit plain error when it permitted models of jet skis, which had not been admitted into evidence, to be taken to the jury room?

II. Did the justice of the peace court exceed its jurisdiction in ordering petitioner to pay restitution in the amount of $16,213.04?

III. Did the justice of the peace court commit plain error when it did not give the jury an instruction on expert witnesses?

IV. Where petitioner did not raise the issue of constitutionality of Wyo. Stat.Ann. § 41-13-204 in the trial court, may he raise the issue on appeal? If so, is Wyo. Stat. Ann. § 41-13-204 void for vagueness?

FACTS

[¶ 4] On September 5, 1998, Mr. Worcester and Michael Babich were operating personal watercrafts on Keyhole Reservoir in Crook County. They were anticipating the arrival of a large motorboat which created particularly high wakes sufficient for recreational jumping. Mr. Worcester and Mr. Babich aligned themselves side by side in an attempt to cross the wakes at a ninety-degree angle. Mr. Babich proceeded into the wake, and Mr. Worcester followed. Once Mr. Babich went over the first wake, Mr. Worcester could no longer see him but anticipated that he would clear both wakes. After jumping one wake, Mr. Babich came to a halt when he ran out of fuel, and he proceeded to look for his wife while standing on his personal watercraft. Once Mr. Worcester went over the crest, he saw Mr. Babich. Thereafter, Mr. Worcester collided with Mr. Babich's personal watercraft after Mr. Babich was fortunately able to dive into the water. Even so, Mr. Babich suffered severe injury to his legs as the result of the collision. Mr. Worcester was charged by citation with reckless operation of a watercraft in violation of Wyo. Stat. Ann. § 41-13-204 (LexisNexis 2001).¹

[¶ 5] Mr. Worcester was arraigned in the justice of the peace court and entered a plea of not guilty. On February 17, 1999, a jury convicted him. Thereafter, he filed a pro se notice of appeal in the district court from the justice of the peace court's judgment. Mr. Worcester was ordered to pay a fine of $200, $20 in court costs, a $50 victim's compensation surcharge, and $573.36 for the cost of prosecution. The justice of the peace court ordered incarceration for a period of ninety days but suspended the sentence and placed Mr. Worcester on six months' unsupervised probation with specific terms and conditions. In addition, Mr. Worcester was assessed seventy percent of the total restitution which equaled $16,312.04. On May 13, 1999, Mr. Worcester filed a second notice of appeal in the district court regarding the justice of the peace court's sentence and order for probation. He filed a motion for a new trial and a notice of amendment to the motion for a new trial which the justice of the peace court denied. On June 14, 1999, Mr. Worcester filed a notice of appeal in the district court from the justice of the peace court's order denying his motion for a new trial. On January 10, 2000, the district court affirmed the justice of the peace court's sentence, order of probation, and order denying Mr. Worcester's motion for a new trial.² Mr. Worcester filed a petition for writ of review with this court, seeking review on four specific findings. We granted his petition.

DISCUSSION

A. Demonstrative Models

[¶ 6] During trial, the witnesses used two small personal watercraft models for demonstrative purposes in front of the jury. These models were neither offered nor received into evidence as exhibits in the case. However, during the jury's deliberation, the justice of the peace court permitted the models to be taken into the jury room. Mr. Worcester claims the justice of the peace court committed error by permitting the models to go to the jury room during deliberations when they were not admitted into evidence as an exhibit. No objection was lodged at trial against the submission of the models to the jury; therefore, the plain error analysis applies.

[¶ 7] "A failure to object constitutes a waiver of whatever error occurred, unless the error rises to the level of plain error." Bradley v. State, 635 P.2d 1161, 1163-64 (Wyo.1981). The plain error doctrine is applied cautiously and only in exceptional circumstances. Hays v. State, 522 P.2d 1004, 1007 (Wyo.1974). A three-part test has been established to determine whether plain error exists. Capshaw v. State, 10 P.3d 560, 566 (Wyo.2000). First, the record must be clear as to the incident which is alleged as error. Id. Second, the party claiming the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Id. Finally, that party must prove a substantial right has been denied him and, as a result, he has been materially prejudiced. Id. Mr. Worcester claims all three requirements are met in this case; however, we disagree. We hold the final requirement has not been satisfied since the error did not result in material prejudice.

[¶ 8] The first requirement is easily satisfied as the alleged error is sufficiently clear in the record. Mr. Worcester next claims his right to due process of law was denied and the submission of the nonadmitted demonstrative models to the jury for deliberations was a violation of a clear and unequivocal rule of law. He relies upon Hays, 522 P.2d 1004, wherein this court considered the propriety of submitting nonadmitted evidence to the jury during deliberations without objection. In Hays, the trial court provided the jury with an instruction containing the criminal information in the case with a detailed statement of "the essential facts and acts" upon which the crime was charged. 522 P.2d at 1006. Upon reversal of the case, we stated:

Viewed factually, this resulted in the submission to the jury of a written evidentiary statement inadmissible in evidence by any standard in the guise of an instruction with probable reliance thereon by the jury in its deliberations. The submission to the jury of papers or exhibits not received in evidence is prejudicial error.

522 P.2d at 1008 (emphasis added). This is the law in Wyoming which we herein reaffirm recognizing it still provides the most appropriate bright-line rule. However, the submission of demonstrative models which have not been admitted into evidence presents a factual situation not previously considered by this court.

[¶ 9] Demonstrative evidence has been defined as "[p]hysical evidence that one can see and inspect (such as a model or photograph) and that, while of probative value and usu[ally] offered to clarify testimony, does not play a direct part in the incident in question." Black's Law Dictionary 577 (7th ed.1999). In addition:

[J]ust as the testimony of the witness is not sent to the jury room, so illustrative objects should be left behind when the jury retires to deliberate. This practice will reduce the likelihood that jurors will use the object as a source of original inference. Moreover, it will eliminate any incentive for counsel to use illustrative objects solely as a method of smuggling argument into the jury room.

22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5174 at 137 (1978).

[¶ 10] It is uniformly viewed as improper to send into the jury room items not admitted into evidence. 2 John W. Strong, McCormick on Evidence § 217 (5th ed.1999). Pierce v. Ramsey Winch Company, 753 F.2d 416 (5th Cir.1985), addressed the use of jury charts and other visual aids that have not been admitted into evidence but summarize or organize testimony or documents which have already been properly admitted. The Fifth Circuit Court of Appeals held that such aids are not evidence and, absent the consent of the parties, they should not be sent to the jury room. 753 F.2d at 431; see also GNB Battery Technologies, Inc. v. Exide Corporation, 876 F.Supp. 582, 604 (D.Del.1995), aff'd, 78...