Jones v. State , 1991 Wyo. LEXIS 105 ( 1991 )

OPINION

MACY, Justice.

In Jones v. State, 777 P.2d 54 (Wyo. 1989), this Court reversed Appellant Dale Burton Jones’ conviction for conspiracy to commit murder in the first degree and remanded the case for a retrial. A new trial was held, and Appellant was again found guilty and sentenced to life imprisonment. Appellant appeals from that conviction and sentence.

We reverse and remand for a new trial.

The issues presented by Appellant are:

I. Did the trial court err in refusing to dismiss the Information because the Appellant’s trial did not commence “within one hundred and twenty (120) days of the arrival” of the Appellant in Wyoming, as required by Article IV(c) of the Interstate Agreement On Detainers (IAD) as adopted by W.S. § 7-15-101 et seq.l

II. Did the trial court err in denying Appellant’s Motion For A Mistrial And/Or New Trial when it was conclusively shown that the witness who testified that he had heard Appellant “confess” to the offense had given false testimony?

III.Did the prosecutor engage in conduct requiring reversal when he repeatedly asserted to the jury his personal knowledge and belief in the credibility of the State’s witnesses, and his personal knowledge of the facts of the case in closing argument?

This case involves a conspiracy in which Appellant and an acquaintance allegedly hired Roy Alma Young, Jr. in June 1987 to travel from Salt Lake City, Utah, to Sheridan, Wyoming, to murder Ray Vigil. Following the incident, in December 1987 Appellant pleaded guilty in the United States District Court for the District of Wyoming to conspiracy to commit murder. In a separate state court proceeding, Appellant was tried on a charge of conspiracy to commit first-degree murder. Appellant was convicted and sentenced to life imprisonment. On July 3, 1989, this Court reversed Appellant’s state court conviction because, in the presence of the jury, the prosecution called two witnesses who the court and the prosecution knew would invoke their fifth amendment privileges not to testify. Jones, 777 P.2d at 61.

Following reversal of the state conviction in Jones, Appellant was transported from the Wyoming State Penitentiary to a federal prison in Oklahoma to begin serving his federal sentence. On July 26, 1989, this Court issued its mandate remanding the case for retrial. Appellant was transported to the Sheridan County jail from the federal correctional institute in El Reno, Oklahoma, for trial. Appellant arrived in Sheridan on September 16, 1989, and his trial began on May 8, 1990.

120-Day Trial Requirement Under the Agreement on Detainers

Wyo.Stat. § 7-15-101 (1987) states in pertinent part:

Article IV

He * * * * *

(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

⅜ ⅜ ⅜ ⅜ ⅜! ⅜

Article VI

(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

(Emphasis added.)

Appellant asserts that the State violated the time limitation because his trial was not commenced within 120 days of his arrival in Wyoming. Appellant contends that the remedy for a time limit violation is reversal of the conviction and dismissal of the information with prejudice. Section 7-15-101 (Article V(c));¹ State v. Knauff, 115 Idaho 74, 764 P.2d 441 (Ct.App.1988); People v. Sevigny, 679 P.2d 1070 (Colo.1984).

The events relevant to this first issue are set out in the following chronological order:

July 26,1989 — This Court issued its mandate reversing Appellant’s first conviction in this case and remanding for a retrial. See Jones, 777 P.2d 54.

August 2, 1989 — Appellant filed his challenge for cause to Judge Wolfe.

September 6, 1989 — Appellant filed eleven pretrial motions consisting of a motion for a change of venue; three motions to suppress; a motion for severance; a motion in limine regarding statements of a potential witness; a motion for discovery pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); a motion for discovery pursuant to W.R.Cr.P. 18; a motion to dismiss and/or suppress for prosecutorial misconduct; a motion in limine regarding financial books and records and related testimony; and a motion to require Appellant’s custodian to present Appellant for court in civilian clothes and without restraining devices.

September 16,1989 — Appellant arrived in Sheridan, Wyoming, for retrial on the charge of conspiracy to commit first-degree murder.

November 6, 1989 — The trial date was set for December 11, 1989.

November 16, 1989 — Judge Wolfe granted Appellant’s challenge for cause and assigned the case to Judge Hamm; the December 11, 1989, trial date was vacated without objection from either side.

February 7, 1990 — Judge Hamm decided all remaining pretrial motions raised by Appellant.

February 20, 1990 — Appellant filed a motion to dismiss because the State failed to bring Appellant to trial within 120 days as required by the agreement on detainers.

March 20, 1990 — The trial date was set for May 8, 1990.

April 4, 1990 — Judge Hamm denied Appellant’s motion to dismiss.

May 8, 1990 — Appellant renewed his motion to dismiss, and the court again denied the same. Appellant’s retrial commenced.

May 10, 1990 — Appellant was found guilty of conspiracy to commit first-degree murder.

May 14, 1990 — Appellant’s sentencing hearing was conducted. Appellant moved for a mistrial or, in the alternative, a new trial on the basis of newly discovered evidence of false testimony. His motion was denied.

May 21, 1990 — Judgment was entered, and Appellant was again sentenced to life imprisonment.

While the total number of days between Appellant’s arrival in Wyoming and his trial exceeded the 120 days provided for in the agreement on detainers, the State contends that the delay occasioned by Appellant filing multiple motions tolled the running of the statute. In United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir.1988), cert. denied 488 U.S. 1015, 109 S.Ct. 808, 102 L.Ed.2d 798 (1989), the court stated:

“[Article YI(a) provides] that the running of the 120-day time period shall be tolled whenever and for as long as the prisoner is unable to stand trial.” The Second Circuit has interpreted the language “unable to stand trial” as excluding “all those periods of delay occasioned by the defendant.” In the case at hand, we hold that both the district court’s grant of a continuance on September 30, 1986, as well as the periods of delay occasioned by the multiple motions filed on behalf of the defendant, operate to toll the running of Articles III and IV * * *.

(Citations omitted.) See also United States v. Dawn, 900 F.2d 1132 (7th Cir.), cert. denied — U.S. -, 111 S.Ct. 368, 112 L.Ed.2d 330 (1990); United States v. Scheer, 729 F.2d 164 (2d Cir.1984); Bush v. Muncy, 659 F.2d 402 (4th Cir.1981), cert. denied 455 U.S. 910, 102 S.Ct. 1259, 71 L.Ed.2d 449 (1982); and United States v. Black, 609 F.2d 1330 (9th Cir.1979), cert. denied 449 U.S. 847, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980).

As we did in Green v. State, 784 P.2d 1360 (Wyo.1989), we compute the number of days on which Appellant was unable to stand trial to determine whether he was brought to trial within the statutory period. Appellant arrived in Wyoming on September 16, 1989. At that time, the trial court had before it a challenge for cause to Judge Wolfe and eleven pretrial motions raised by Appellant. Judge Wolfe recused himself on November 16, 1989, and assigned the case to Judge Hamm.

Judge Hamm ruled on Appellant’s pending motions on February 7, 1990. Since it is the duty of the trial judge who will preside over the trial to rule on pretrial motions, such decisions could not have been made until Judge Hamm was assigned to hear the case. A delay of almost three months for the new judge to assume charge of a proceeding and to decide motions of the type involved here is neither unexpected nor unreasonably lengthy. United States v. Taylor, 861 F.2d 316 (1st Cir.1988); State v. Finley, 277 S.C. 548, 290 S.E.2d 808 (1982).

We hold that the trial court did not err in refusing to dismiss the information against Appellant. The 120-day time limit was tolled until February 7, 1990, for the reasons explained above. Only ninety-one days elapsed from that date to the date of the trial.

Denial of Appellant’s Motion for a New Trial

Appellant’s second issue asserts that the trial court erred in denying Appellant’s motion for a new trial on the basis of newly discovered evidence. In its case-in-chief, the prosecution called a court reporter to read from the December 1987 transcript she made during a United States District Court proceeding involving Appellant. The federal proceeding, a factual basis determination for Appellant’s plea of guilty to the federal offense of conspiracy to commit murder, dealt with the same criminal conduct as is at issue here. Since the court reporter was unable to identify Appellant as the person whose testimony she had recorded, the State called Ronald Orton, a detective sergeant for the Sheridan County sheriff’s office, to testify as to the identity of Appellant and to lay foundation for the authenticity of the federal court transcript. The following colloquy occurred between the prosecutor and Detective Orton:

Q. Detective Orton, were you present at an official proceeding which occurred in Cheyenne on December 29th, 1987, during which the defendant Dale Jones gave testimony?

A. Yes, sir, I was.

Q. Did he give testimony under oath at that time?

A. Yes, sir.

Q. Was there a court reporter there?

A. Yes, sir.

Q. Was that a young woman?

A. Yes, sir, it was.

Q. Have you seen her in the courtroom today?

A. I saw her outside just a while ago.

Q. Did the person — Is the person who testified there as Dale Burton Jones present in this courtroom?

A. Yes, sir.

Q. Would you indicate where?

A. The gentleman in the coat over here, with the glasses on. He has a yellow shirt and brown or grey coat.

Shortly after the conclusion of the trial, it was discovered that Detective Orton had not been present in the United States District Court when Appellant made his statement.² At Appellant’s sentencing hearing four days after the jury returned with its verdict, the following colloquy occurred between Appellant’s counsel and Detective Orton:

Q. Deputy Orton, you’re the same Ronald Orton that testified in the trial of this case last week; is that correct?

A. That’s correct.

Q. At that time, one of the things you testified to was the identity of a person who had made certain statements in the United States District Court for the District of Wyoming in Cheyenne on or about December 29, 1987; is that correct?

A. Yes, sir.

Q. The gist of those statements, as you will recall, is in the nature of a confession for a factual basis allegedly by a Dale Jones to the offense of conspiracy to use interstate phone lines for the purpose of committing a murder for hire, a violation of 18 U.S.C. Section 371. Now, if you’re not familiar with the statute numbers, I understand that, but otherwise, is that true?

A. That’s correct.

Q. All right. Mr. Orton, were you in the United States District Court for the District of Wyoming on or about December 29, 1987?

A. No, sir.

Q. Okay. At the time you testified about certain statements or confessions essentially made by Dale Jones, at that time, * * * you were not present—

A. No, sir.

Q. —in the United States District Court.

A. No, sir.

Q. Okay. Your testimony that you were present and that you could identify the defendant in this case as the person who made those statements was incorrect, wasn’t it?

A. Yes, sir.

Q. Do you know now where you were on the date that was in question at that time on or about December 29, 1987, when a statement was made in the United States District Court?

A. Yes, sir.

Q. Where were you on that date?

A. In Sheridan, Wyoming.

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Q. * * * Just so that there is no doubt in the record, your testimony on that subject was false, wasn’t it? I’m not accusing you of deliberately deceiving people, but the information you gave was false, wasn’t it?

A. Yes, sir.

Q. As a matter of fairness, do you want to explain to his Honor how it came about that you gave that false testimony!;?]

A. Yes, sir. I had been in the United States District Court in Cheyenne the week before, and I inadvertently referred to that date thinking that was the same date this same matter came up that we discussed, but I was wrong by a week.

* * * * * *

Q. As you’ve looked into it, what you’ve come to realize is that the only thing you ever saw Dale Jones do in the United States District Court for the District of Wyoming was to plead not guilty to the charge that was prof[f]er[ ]ed against him; is that correct?

A. That’s correct.

Given this development, Appellant moved for a mistrial or, in the alternative, a new trial on the basis of newly discovered evidence. Appellant argued that the prosecutor relied upon unsubstantiated evidence of Appellant’s alleged federal court “confession” in his closing argument. Appellant further maintained that without this evidence the jury probably would have reached a different verdict. In denying Appellant’s motion and sustaining the conviction, the trial court relied, in effect, upon the sufficiency of other evidence presented at trial. The trial court sentenced Appellant to life imprisonment.

W.R.Cr.P. 34 governs motions for new trials and states in pertinent part:

The court on motion of a defendant may grant a new trial to that defendant if required in the interest of justice. * * *

(a) A motion for a new trial based on any grounds, except newly discovered evidence, shall be made within ten (10) days after verdict or finding of guilty or within such further time as the court may fix during the ten (10) day period. The motion shall be determined and a dispositive order entered within ten (10) days after the motion is filed and if not so entered shall be deemed denied, unless within that period the determination shall be continued by order of the court, but no continuance shall extend the time to a day more than thirty (30) days from the date the verdict or finding of guilty is returned.

(b) A motion for a new trial based on the grounds of newly discovered evidence may be made only before or within two (2) years after final judgment but if an appeal is pending, the court may grant the motion only on remand of the case.

(Emphasis added.)

This Court has not had occasion to examine a motion for a new trial on the basis of false testimony of this specific kind. However, in State v. Taylor, 287 N.W.2d 576, 578 (Iowa 1980), a case involving recanted trial testimony and a motion for a new trial, the Iowa Supreme Court analyzed the new trial motion as follows:

As pointed out in State v. Compiano, 261 Iowa 509, 517, 154 N.W.2d 845, 849 (1967) such a motion is not really based on newly discovered evidence, although it is frequently referred to in that way. Instead it points to certain testimony as false — either purposely or inadvertently — and asserts defendant was thereby denied a fair trial.

Though Appellant moved for a new trial on the basis of newly discovered false evidence, we adopt the characterization in Taylor and hold that the testimony was not “newly discovered” evidence but was, instead, evidence of false testimony brought to the trial court’s attention within the ten-day period allowed in W.R.Cr.P. 34(a). We hold that the trial court and both parties erred as a matter of law in viewing this as a newly discovered evidence problem.

We examine the particular facts and circumstances in each case to determine whether the trial court abused its discretion in failing to grant an appellant’s motion for a new trial. Siegert v. State, 634 P.2d 323 (Wyo.1981). It is undisputed that the detective’s testimony was false. Although the State presented other evidence of Appellant’s guilt, Appellant’s federal court statement admitting that he had committed the crime was extremely incriminating. The district court’s determination that sufficient evidence existed to convict Appellant absent the federal court statement invaded the province of the jury. It is for the jury rather than for the judge to decide whether a defendant is guilty beyond a reasonable doubt. See Baum v. State, 745 P.2d 877 (Wyo.1987); and Stewart v. State, 724 P.2d 439 (Wyo.1986).

We hold that under W.R.Cr.P. 34, which allows the district court to grant a new trial in the interest of justice, the district court abused its discretion when, after being confronted with uncontroverted evidence of the detective’s false testimony, it declined to grant Appellant’s motion for a new trial.

The State’s Closing Argument

Since we reverse Appellant’s conviction because of Detective Orton’s false testimony and Appellant’s right to a new trial, it is unnecessary to decide the third issue presented in this appeal. We note, however, that a prosecutor’s use of his personal opinion during closing arguments may be a ground for reversal under Browder v. State, 639 P.2d 889 (Wyo.1982).

Reversed and remanded for a new trial.

1 . Article V(c) of § 7-15-101 provides:

(c) If the appropriate authority shall refuse or fail to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the periods provided by this act, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.

2 . There is absolutely no evidence to suggest that the prosecutor was aware that Detective Orton had not, in fact, been present to hear Appellant's federal court testimony. As soon as it was brought to his attention that perhaps Detective Orton had not been present, the prosecutor initiated an investigation of the incident and confirmed Detective Orton’s absence at Appellant’s federal court appearance.