Adam James Broussard v. State , 2017 Wyo. LEXIS 73 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 73
APRIL TERM, A.D. 2017
June 16, 2017
ADAM JAMES BROUSSARD,
Appellant
(Defendant),
v. S-16-0151
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, State Public Defender;
Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant
Appellate Counsel. Argument by Mr. Westling.
Representing Appellee:
Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson,
Director, Kevin T. Farrelly, Student Director, and Micaela Lira, Student Intern,
Prosecution Assistance Program, University of Wyoming, College of Law.
Argument by Ms. Lira.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.
[¶1] Adam Broussard challenges his conviction on one count of aggravated robbery.
He claims the district court erred in ordering him to make pretrial disclosure of
information requested by the State pursuant to W.R.E. 404(b). He further contends that
enforcement of that order during trial, as a sanction for his failure to disclose, violated his
constitutional right to confront and cross-examine witnesses against him. We conclude
that a defendant is not required to make a pretrial disclosure of evidence under W.R.E.
404(b) and that the district court erred in limiting cross-examination by defense counsel
as a sanction for failing to disclose such evidence. However, we also conclude that the
error was harmless. Accordingly, we affirm.
ISSUE
[¶2] Mr. Broussard presents one issue:
Did the court err by ruling that the State of Wyoming was
entitled to demand disclosure of W.R.E. 404(b) evidence and
then further err by limiting Appellant’s constitutional right to
confrontation and cross-examination because of a failure to
disclose such evidence?
FACTS
[¶3] On May 23, 2015, Mr. Broussard and Keevin Ware went to Kayla Walker’s
apartment. According to Ms. Walker, Mr. Broussard was upset with her because she did
not give him a ride the previous evening. Angered by their discussion, Mr. Broussard
pulled out a gun, put it to Ms. Walker’s head, and demanded that she give him money.
Ms. Walker told him that her money was in her car. Mr. Broussard preceded her out of
the apartment and she dashed back into the apartment and locked the door. Mr. Ware had
remained in the apartment and he advised her to give the money to Mr. Broussard.
Mr. Ware convinced Ms. Walker to unlock the car by using a remote control clicker from
inside her apartment. Ms. Walker unlocked the car and Mr. Ware left the apartment.
From her window, Ms. Walker saw Mr. Broussard near her car and Mr. Ware in her car.
A few minutes later, Ms. Walker went to the car and found that her money was gone.
The incident was reported to the police. Mr. Broussard was apprehended and arrested a
few hours later. A revolver matching the description given by Ms. Walker was located in
the automobile in which he was riding.
[¶4] Mr. Broussard was charged with one count of aggravated robbery in violation of
Wyo. Stat. Ann. § 6-2-401(a)(c)(ii) (LexisNexis 2015) and one count of use or possession
of a firearm in violation of Wyo. Stat. Ann. § 6-8-102. He entered a guilty plea to the use
or possession of a firearm charge and does not challenge his conviction on that charge in
1
this appeal. He pled not guilty to the charge of aggravated robbery.
[¶5] Prior to trial, the State filed a demand pursuant to W.R.E. 404(b) that
Mr. Broussard provide pretrial notice of “any bad acts or charged or uncharged
misconduct evidence which the Defendant intends to elicit or introduce at trial regarding
any of the witnesses for either party.” Mr. Broussard filed a response claiming that
W.R.E. 404(b) does not require defendants to make such pretrial disclosure. “Rather,” he
asserted, Rule 404(b) “requires the prosecution to provide notice of 404(b) evidence to
the defendant, as set forth in the plain language of the Rule.” (Emphasis in original.)
[¶6] The State filed a motion in limine asking the district court to resolve the issue.
After a hearing on the motion, the district court ruled that Mr. Broussard was subject to
the State’s demand under W.R.E. 404(b). The district court also warned that if
Mr. Broussard did not disclose the requested information, the evidence could be excluded
at trial. Mr. Broussard did not disclose any information in response to the State’s demand
prior to trial. During trial, the district court imposed the sanction by limiting defense
cross-examination of at least two State witnesses.
[¶7] The jury returned a guilty verdict on the charge of aggravated robbery.
Mr. Broussard was sentenced to a prison term of six to ten years on that charge, and to a
concurrent term of two to three years on the firearm charge. He filed this timely appeal.
DISCUSSION
[¶8] Although we generally review a trial court’s orders governing discovery or the
admissibility of evidence for an abuse of discretion, the primary question presented by
Mr. Broussard is one of rule interpretation, which we review de novo. Kovach v. State,
2013 WY 46, ¶ 77, 299 P.3d 97, 121 (Wyo. 2013). Whether Mr. Broussard’s
constitutional rights have been violated also raises a legal issue that we review de novo.
Miller v. State, 2006 WY 17, ¶ 7, 127 P.3d 793, 796 (Wyo. 2006).
[¶9] As discussed above, Mr. Broussard asserted during a hearing on the State’s 404(b)
motion that the pretrial notice provision of W.R.E. 404(b) applies only to the prosecution,
not to the defense. The district court responded:
Well, I disagree. It typically is the State [but] 404(b) is not
exclusive just to impose it upon the State, we use it in civil
trials, we use it -- it’s a Rule of Evidence that applies to all
the parties. Now there are some distinctions under 404(a) that
we don’t need to delve into and specific to criminal law, but
404(b) is a fundamental, straightforward, albeit complex and
often one of the most litigated rules, it is one that applies to
parties, whether you’re a defendant or a plaintiff or a
2
prosecution or a civil or criminal. So that argument isn’t
going to carry the day.
On appeal, Mr. Broussard asserts that the district court misinterpreted the rule because,
based on the plain language, defendants are not subject to the pretrial notice provision of
W.R.E. 404(b). The State contends that the disclosure requirement of the rule applies to
all parties, including criminal defendants. We agree with Mr. Broussard.
[¶10] When interpreting a rule, “we consider the language of the Rule ‘as a whole,
giving effect to every word, clause, and sentence.’” Hamilton v. State, 2015 WY 39,
¶ 14, 344 P.3d 275, 281 (Wyo. 2015) (quoting Jones v. State, 2011 WY 115, ¶ 11, 256
P.3d 536, 541 (Wyo. 2011)). If the language is sufficiently clear and unambiguous, the
Court simply applies the words according to their ordinary and obvious meaning. In re
CRA, 2016 WY 24, ¶ 16, 368 P.3d 294, 298 (Wyo. 2016). W.R.E. 404(b) is clear and
unambiguous. It provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses
pretrial notice on good cause shown, of the general nature
of any such evidence it intends to introduce at trial.
(Emphasis added.) The first portion of this rule, the portion not highlighted, applies to all
parties, and governs the admission of evidence offered at trial by either party. See
Edwards v. State, 2007 WY 146, ¶ 9, 167 P.3d 636, 638 (Wyo. 2007) (Rule 404(b) “is
not limited to use by the prosecution and should be equally available to a defendant when
used to prove his theory of defense.”) (quoting State v. Young, 739 P.2d 1170, 1174
(Wash. Ct. App. July 8, 1987)). In contrast, the highlighted portion of the rule explicitly
applies “upon request by the accused,” and expressly requires “the prosecution in a
criminal case” to comply with the request. It does not apply to a request by the
prosecution, and it does not require the defense to provide notice in advance of trial. This
language is sufficiently clear and unambiguous for us to apply the words’ ordinary and
obvious meaning: the defendant is not required to provide pretrial disclosure under
W.R.E. 404(b).
[¶11] The State cites a single authority in support of its interpretation. A comment in the
advisory notes to the 1991 amendments to the federal rules of evidence states that F.R.E.
404(b) “expects that counsel for both the defense and the prosecution will submit the
3
necessary request and information in a reasonable and timely fashion.” See 22B Charles
A. Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence, Preamble
to Chapter 5, at 4 (2014). This comment, the State asserts, suggests that both parties may
submit requests, and both parties must respond. We take a different view. We interpret
the comment to mean that counsel for the defense should submit reasonable and timely
requests, while counsel for the prosecution should submit reasonable and timely
information in response to those requests. Given the explicit language of the rule, this is
the only sensible interpretation of the advisory comment.
[¶12] The State also claims, however, that the district court has discretion to control its
courtroom and proceedings, and it did not abuse that discretion when it ordered
Mr. Broussard to make a pretrial disclosure. In making that assertion, the State refers to
this exchange that occurred between the court and defense counsel at the motion hearing:
THE COURT: So, you know, I’m simply applying the rule
and it is a level playing field, both parties have a right to a fair
trial and fundamental fairness under 404(b) analysis. This
notion it -- that it applies to the State -- you’ve made your
record, [Defense Counsel], and the Court very clearly finds
that it does apply to both parties.
[DEFENSE COUNSEL]: Your Honor, just to clarify -- I’m
not arguing that it doesn’t -- that, 404(b) can’t be introduced
by the defendant to support his defense, I’m arguing that
there’s no obligation to provide any notice of that evidence
pretrial, especially when it could compromise his ability to
present his defense.
THE COURT: Let me make it very clear: The Court rejects
that argument, and irrespective of the law or -- the law is the
Court has the ability to control pretrial issues of this nature
and the Court, in its discretion, specifically finds and adopts
those same pretrial procedures that apply to the State under
Gleason to the defense, and it’s something this Court has
done historically since I’ve been on the bench. So, there’s
your clarification.
[¶13] In general, pretrial discovery in criminal cases is governed by statute, rule, or
precedent. Kovach, ¶ 50, 299 P.3d at 112. There is no relevant statute and, as previously
discussed, W.R.E. 404(b), which the district court and the State relied upon as authority
for compelled disclosure, does not apply to pretrial disclosure by a defendant. The
district court referenced the pretrial procedure set forth in Gleason v. State, 2002 WY
161, 57 P.3d 332 (Wyo. 2002), as a basis for its ruling but, again, Gleason addresses
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404(b) evidence offered by the State, not the defendant.
[¶14] The State correctly notes that in Gleason we expressed a “firm preference for the
pretrial determination of issues concerning uncharged misconduct evidence.” Id., ¶ 18
n.2, 57 P.3d at 340 n.2 (emphasis in original), citing Howard v. State, 2002 WY 40, ¶ 23,
42 P.3d 483, 491 (Wyo. 2002). Howard also dealt with the State’s use of 404(b)
evidence and we made it clear that the pretrial notice and hearing process was intended to
protect a defendant’s due process rights:
We now hold that where a defendant files a pretrial demand
for notice of intent to introduce evidence under W.R.E.
404(b), the same shall be treated as the making of a timely
objection to the introduction of such evidence. The State
must then respond with sufficient information to meet the
balance of the Huddleston test adopted in Vigil. Not only will
such a rule enhance the defendant’s prospects of receiving
due process and a fair trial, it will also enhance the district
court’s ability to reflect and rule upon a significant
evidentiary issue. Rulings on uncharged misconduct
evidence are too important to be made in the heat and
pressure of a trial, with the jury twiddling its thumbs in the
next room.
Howard, ¶ 23, 42 P.3d at 491. Those protections are necessary because of the
“dangerously prejudicial nature of prior bad acts evidence” when that evidence is
employed against the accused. Williams v. State, 2004 WY 117, ¶ 8, 99 P.3d 432, 436
(Wyo. 2004); Dean v. State, 865 P.2d 601, 610 (Wyo. 1993).
Juries in our system of criminal justice . . . are not charged
with determining a defendant’s guilt based on the defendant’s
propensity to commit crime. In fact, they are expressly
prohibited from doing so. Nevertheless, the overwhelming
consensus of empirical studies on the use of prior-crimes
evidence for impeachment purposes confirms a point made by
one of the researchers in Kalvin and Zeisel’s landmark study,
The American Jury: that juries exhibit an
“almost universal inability and/or unwillingness either
to understand or follow the court’s instructions on the
use of defendant’s prior criminal record for
impeachment purposes. The jurors almost universally
used defendant’s record to conclude that he was a bad
5
man and hence was more likely than not guilty of the
crime for which he was then standing trial.”
Brunson [v. State], 625 A.2d [1085,] 1100 [(N.J. 1993)]
(Justice Handler, concurring in part and dissenting in part).
The same danger adheres when evidence of prior crimes is
introduced for Rule 404(b) purposes, and an instruction
merely reciting Rule 404(b) is insufficient to overcome that
danger.
Williams, ¶ 8, 99 P.3d at 436 (quoting Dean, 865 P.2d at 610). For obvious reasons, the
potential prejudice or danger of misuse is not nearly so great when W.R.E. 404(b)
evidence is introduced by a defendant.
The main concerns expressed in Rule 404, which justify
limiting proof going to character, do not apply when it comes
to proving third-party misconduct, at least in the same way
and in the same degree that they apply to defendants. To put
it simply, the third party is not on trial, so the jury cannot
misuse or overvalue evidence of his misconduct, penalizing
the third party in anger.
1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:37, at 848 (4th
ed. 2013) (discussing use of “reverse” 404(b) evidence).1 Additionally, requiring pretrial
discovery or disclosure from a defendant may have constitutional implications: “What is
apparent from the cases cited and from the continuing debate over pretrial discovery and
disclosures against a criminal defendant is that whether such a pretrial requirement raises
a constitutional issue depends upon the circumstances surrounding the requirement and
the information that will be disclosed.” Kovach, ¶ 74, 299 P.3d at 120.
[¶15] Kovach also involved a challenge to a district court’s order requiring pretrial
disclosure by a defendant and the limiting of cross-examination as a sanction for failure
to comply with the order. In Kovach, the State requested pretrial disclosure of all witness
statements in the defendant’s possession. Kovach objected contending, inter alia, that
the statements were not discoverable under W.R.Cr.P. 16. The district court ordered that
the statements be produced. Kovach did not produce statements of several state
1
We would also note that protection of a defendant’s due process rights also requires the State to disclose
exculpatory information to the defendant. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97,
10 L. Ed. 2d 215 (1963); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104
(1972); Kovach, ¶ 20, 299 P.3d at 104. There is no duty of a defendant to make a similar disclosure.
6
witnesses. As a result, the district court imposed a sanction limiting cross-examination
and ordered that “for those witnesses for whom Kovach had refused to provide
statements, Kovach’s cross-examination would be limited to the scope of the State’s
direct examination.” Id., ¶ 60, 299 P.3d at 114. The court enforced the sanction during
trial. Id., ¶ 61, 299 P.3d at 114-15. On appeal, we determined that the district court erred
in ordering pretrial disclosure of statements from witnesses not listed by Kovach and in
limiting cross-examination because the disclosure and the sanctions were not permitted
under W.R.Cr.P. 26.2. Kovach, ¶ 92, 299 P.3d at 124. We reach a similar conclusion in
this case.
[¶16] The district court’s decision to order disclosure was driven largely by a
misinterpretation of W.R.E. 404(b). The rule does not require disclosure by a defendant.
Absent some compelling reason to depart from the rule, the rule should govern a
defendant’s disclosure obligation. The only justification offered by the State is the trial
court’s inherent authority to control the course of pretrial discovery and evidentiary
matters.2 Given the specific language of the rule, that justification is insufficient. We
conclude that the district court erred in ordering the defendant to provide pretrial
disclosure of evidence under W.R.E. 404(b).3
2
The only authority the State cites in support of its position is Sanchez v. State, 2006 WY 116, 142 P.3d
1134 (Wyo. 2006). In Sanchez, the appellant claimed he was denied his right to a fair trial because the
court imposed a time restriction on closing arguments. Id., ¶ 30, 142 P.3d at 1143. We recognized that
trial courts have discretion to control “their courtrooms and the proceedings therein, including closing
arguments,” and arrived at the unremarkable conclusion that placing a reasonable time limit on closing
arguments was not an abuse of that discretion. Id., ¶ 33, 142 P.3d at 1143. That decision provides no
assistance in determining the scope of a trial court’s authority to control pretrial discovery in criminal
cases.
3
We would also note that it is not immediately apparent how a defendant would be able to determine all
of the potential 404(b) evidence that he intended to introduce at trial. Unlike the State, a defendant
typically does not have the burden of producing any evidence. A defendant’s decision to introduce
evidence is largely dependent on the evidence produced by the State at trial.
In his initial response, Mr. Broussard sought clarification of the scope of the State’s demand for
disclosure:
Due to the potential overlap of what appears to be the State’s
interpretation of the Defendant’s obligation with regard to providing
notice under 404(b) and the Defendant’s right to present his defense
(which includes introducing character evidence of witnesses and
impeaching the credibility of witnesses as permitted by [the] Wyoming
Rules of Evidence, and includes the Defendant’s right to put on evidence
of third-party guilt regardless of whether the person is a witness), the
Defendant seeks clarification from the State as to what its Demand
actually requests pre-trial, the authority for such demand, and a pre-trial
7
[¶17] As set forth above, Mr. Broussard did not disclose any evidence in response to the
order and does not assert any prejudice resulting from entry of the order. His only claim
of prejudice involves the sanctions imposed during trial. He contends that the district
court improperly infringed on his constitutional right to confront and cross-examine
witnesses when it limited his cross-examination of prosecution witnesses as a sanction for
failing to comply with the pretrial disclosure order.
[¶18] We previously explained: “The Sixth Amendment to the United States
Constitution and Article 1, § 10 of the Wyoming Constitution guarantee the right of an
accused to confront the witnesses against him. The primary right secured by the
Confrontation Clause is the right of cross-examination.” Hannon v. State, 2004 WY 8,
¶ 16, 84 P.3d 320, 329 (Wyo. 2004) (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct.
1105, 1110, 39 L. Ed. 2d 347 (1974)). However, to establish a confrontation violation a
defendant must show more than just a denial of the ability to ask specific questions of a
particular witness. Rather, a defendant must show that he was prohibited “from engaging
in otherwise appropriate cross-examination designed to show a prototypical form of bias
on the part of the witness … ‘to expose to the jury the facts from which jurors … could
appropriately draw inferences relating to the reliability of the witness.’” Kovach, ¶ 98,
299 P.3d 125-26 (quoting Hannon, ¶ 18, 84 P.3d at 330); Delaware v. Van Arsdall, 475
U.S. 673, 680, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986). We apply a “harmless error
analysis” in assessing whether a Confrontation Clause violation has occurred. Hannon,
¶ 11, 84 P.3d at 328.
[T]he correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized, a
reviewing court might nonetheless say that the error was
harmless beyond a reasonable doubt. Whether such an error
is harmless in a particular case depends upon a host of
factors, all readily accessible to reviewing courts. These
factors include the importance of the witness’ testimony in
the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
material points, the extent of cross-examination otherwise
permitted, and, of course, the overall strength of the
prosecution’s case.
ruling from the Court on this issue.
Mr. Broussard’s request for clarification was never specifically addressed by the court or the State.
8
Id., ¶ 25, 84 P.3d at 332-33 (quoting Olden v. Kentucky, 488 U.S. 227, 232-33, 109 S. Ct.
480, 483-84, 102 L. Ed. 2d 513 (1988)). Mr. Broussard contends that the district court, in
imposing the sanction, improperly limited his cross-examination of three state witnesses,
Kayla Walker, Officer Adam Balthazor, and Gates Lund. We will address each in turn.
[¶19] Kayla Walker was the victim of the crime. On cross-examination, defense counsel
asked questions concerning her ability to remember events accurately:
[DEFENSE COUNSEL]: [W]ere you under the influence of
anything at the time that this happened?
A: No.
Q: And so was there anything going on at the time that
would have interfered with your memory of these events?
A: No.
Q: And I guess -- and I don’t mean this to be
confrontational, but has anything happened since the time of
these events that you’ve reported and now that would have
changed or affected your memory or your physical abilities?
A: Uhm, I did have a stroke.
Q: Okay.
A: Uhm, but it’s just my physical condition, it’s not
mentally.
Q: Okay.
A: I’m still --
Q: Okay. Thank you. And I guess as far as you know,
was that stroke related to anything that could have affected
your memory?
[PROSECUTOR]: I’m going to object at this point under
Rule 403. She said that her memory was intact.
9
THE COURT: Please approach.
(THEREUPON, the following discussion was held between
the Court and counsel at the bench:)
THE COURT: Where are we going, [Defense Counsel]?
[DEFENSE COUNSEL]: Your Honor, I guess my
understanding is that she -- this witness suffered a stroke that
was related to an overdose of drugs, and the reason for
inquiring about that is not because of the potential criminality
of any of that, it’s just simply to discover whether her
memory is intact and whether it’s been affected by anything
at the time or that’s happened since.
THE COURT: You can get into if she had a stroke and
whether that affected her memory. The fact that it was
caused by substance abuse or an accident or whatever it may
be caused [by], the Court is applying 403 and finds that that’s
inappropriate.
So if you can test her ability, that this affect had on her
memory, that’s fine, but the cause of the stroke is
inadmissible at this point in time. [Prosecutor]?
[PROSECUTOR]: You know, you understand our 404(b)
position better, I believe she’s already answered that her
memory is unaffected, so unless there is some basis for the
normal rules of evidence to impeach her current testimony,
that’s the only avenue to pursue.
THE COURT: I’m going to allow her a little more latitude
on that and test that a little bit more, but we don’t need to get
in -- whatever the case may be that caused the stroke, it’s the
effect of the stroke that may be relevant, not what caused it.
So, make your objection, asked and answered, if appropriate.
She gets a little latitude to delve into that a little more than
she has. All right.
(THEREUPON, the following proceedings were held in open
court:)
THE COURT: Please continue, [Defense Counsel].
10
[DEFENSE COUNSEL]: Thank you. So how many times
have you met with the county attorney’s office or with [the
prosecutor] to prepare your testimony or to review the events
that you’re testifying to today?
A: Twice.
Although W.R.E. 404(b) was mentioned once during this exchange by the prosecutor, it
is clear that the district court did not make any reference to the sanction in ruling on the
objection. Additionally, the district court specifically authorized additional inquiry about
any memory issues that Ms. Walker may have. Mr. Broussard has failed to establish that
his cross-examination of Ms. Walker was improperly limited as a sanction for failure to
comply with the pretrial disclosure order.
[¶20] Next, Mr. Broussard contends that his cross-examination of the investigating
officer, Adam Balthazor, was improperly curtailed. He points to this exchange:
[DEFENSE COUNSEL]: Officer Balthazor, I just have a
couple more questions for you. As the investigating officer in
this case, I presume that you’re familiar with or you were
familiar before this trial with the alleged victim -- you talked
to her for 40, 45 minutes, right -- and some of the other actors
in this case?
Throughout your investigation of this case, have you -- have
you come into any information regarding any criminal
culpability of Kayla Walker?
[PROSECUTOR]: I would object to this.
[DEFENSE COUNSEL]: And, Your Honor, the reason --
THE COURT: Just a second, let me read it.
[PROSECUTOR]: On 404(b) grounds, 609 grounds, 402
grounds, 403.
THE COURT: Please approach.
(THEREUPON, the following discussion was held between
the Court and counsel at the bench:)
11
THE COURT: Are you done with your objection?
[PROSECUTOR]: Yes.
THE COURT: Your response?
[DEFENSE COUNSEL]: My response would be, Your
Honor, that Kayla Walker has been a witness who has been
cooperative with the State. She’s with them a couple of
times, that’s in evidence. The reason for my inquiry is so that
the jury can evaluate any motive that she may have for her
testimony.
It’s also in evidence that her testimony is a little bit different
at trial than it was when she was interviewed by
Mr. Balthazor, and for that reason I think that her motive to
cooperate as a witness in this case is relevant to her credibility
as a witness.
THE COURT: What is -- what’s the answer? I mean, this --
when you say she was -- she had some criminal culpability, is
she guilty of this charge as well?
[DEFENSE COUNSEL]: No, Your Honor. I don’t know the
answer. I just want to know if they have any information that
she’s committed crimes that would cause her to cooperate
with the State, because as far as I know, she hasn’t been
charged with anything since these events.
THE COURT: So you have no basis whether that’s true or
not.
[DEFENSE COUNSEL]: I have an idea that the answer is
yes, that they do have incriminating information on her, but
like I said, it can’t be verified because it hasn’t been charged.
THE COURT: And are you talking about drug issues?
[DEFENSE COUNSEL]: Yes.
THE COURT: All right. The objection is sustained. This is
404(b) information that wasn’t disclosed. We discussed this
at pretrial, the Court has ruled that 404(b) applies to the
12
defendant as well as the prosecution. It wasn’t disclosed, it
was demanded; the objection is sustained.
[DEFENSE COUNSEL]: Your Honor, for the record, can I
respond to that?
THE COURT: Sure.
[DEFENSE COUNSEL]: My response, for the record, would
be -- would include the arguments that were made at the
pretrial, that the defense has no obligation to disclose this
type of information to the State. The State, in fact, would be
more likely to have information like this than the defendant
would.
Furthermore, it goes to the witness’[s] credibility, which is
always material, which is always relevant for cross-
examination purposes.
THE COURT: The objection is sustained.
(THEREUPON, the following proceedings were held in open
court:)
...
[DEFENSE COUNSEL]: I have no further questions. Thank
you.
[¶21] Here, there is no question that the district court limited cross-examination as a
sanction for failure to comply with the 404(b) disclosure order. Mr. Broussard, however,
has failed to identify any prejudice resulting from the imposition of the sanction. At trial,
defense counsel did not make an offer of proof and specifically advised the court that she
didn’t know what information would be generated by her questioning of Officer
Balthazor. In the absence of an offer of proof showing the testimony that defense counsel
hoped to elicit, we have no means of determining whether the error was prejudicial.
Kovach, ¶ 96, 299 P.3d at 125.
[¶22] Finally, Mr. Broussard alleges that error occurred during his cross-examination of
Gates Lund. During cross-examination, Mr. Broussard sought to introduce evidence that
Mr. Lund was on probation when the vehicle was stopped and Mr. Broussard was
arrested. When the State objected, citing W.R.E. 404(b) and the court’s pretrial
disclosure order, counsel for Mr. Broussard asserted that the information “isn’t 404(b)
13
evidence,” but “impeachment evidence only.” He offered the evidence to demonstrate
that Mr. Lund had a reason to cooperate with law enforcement and to indicate Mr. Lund’s
bias and partiality. An offer of proof established that Mr. Lund had been on probation at
the time of this encounter for a misdemeanor, and that the police officer involved told
him that if he cooperated, he was not likely to be arrested. The district court excluded
this evidence because Mr. Broussard had not disclosed it before trial as the court had
ordered.
[¶23] The record establishes that Mr. Broussard was attempting to engage in otherwise
appropriate cross-examination. He was attempting to establish that Mr. Lund had a
motive to provide testimony that was favorable to the State. We have stated that
testimony which “shows a ‘relationship between a party and a witness which might lead
the witness to slant, unconsciously or otherwise, his testimony in favor of or against a
party,’ is properly characterized as evidence of bias.” Garner v. State, 2011 WY 156,
¶ 13, 264 P.3d 811, 817-18 (Wyo. 2011) (quoting United States v. Abel, 469 U.S. 45, 52,
105 S. Ct. 465, 469, 83 L. Ed. 2d 450 (1984)). “Cross-examination intended to show bias
is generally permitted by W.R.E. 607, which provides that ‘The credibility of a witness
may be attacked by any party, including the party calling him.’” Garner, ¶ 13, 264 P.3d
at 818 (citing Abel, 469 U.S. at 51, 105 S.Ct. at 468); see also Counts v. State, 2012 WY
70, ¶ 33, 277 P.3d 94, 105 (Wyo. 2012); Lawrence v. State, 2007 WY 183, ¶ 22, 171 P.3d
517, 524 (Wyo. 2007) (“Evidence of a witness’s partiality is always relevant.”). As we
reasoned in Hannon, ¶ 24, 84 P.3d at 332: “At the least, this line of questioning could
have cast doubt on [the witness’s] credibility by exposing a motive” to favor the
prosecution. In this case, the trial court’s ruling denied Mr. Broussard the opportunity to
explore potential evidence of bias and a possible ulterior motive for Mr. Lund’s
testimony. Mr. Broussard was deprived of his Sixth Amendment right of confrontation.
[¶24] We are convinced, however, that any error was harmless beyond a reasonable
doubt. Mr. Lund’s testimony was, for the most part, cumulative. His testimony involved
only the stop and the arrest. He testified that he was riding as a passenger in the car with
Mr. Broussard and Mr. Ware when the vehicle was stopped and Mr. Broussard was
arrested. He was in the right front passenger seat. His fiancée was driving the vehicle.
Mr. Broussard was in the rear seat, behind Mr. Lund. Mr. Ware was seated next to
Mr. Broussard. Three police officers who were present at the stop also testified to the
seating arrangement -- Officers Balthazor, Rasmussen and Waugh. A black revolver
matching the description of the gun used to threaten Ms. Walker was found in the vehicle
on the floor where Mr. Broussard had been sitting. The black revolver was found by
Officer Balthazor. Mr. Lund did not provide any testimony about the revolver. To the
extent that his cooperation with law enforcement was an issue, it appears that it related
only to consent to search the vehicle, not to his testimony at trial. Mr. Lund provided no
testimony about the crime. Given the relative unimportance of Mr. Lund’s testimony and
the strength of the State’s case against Mr. Broussard, we are confident beyond a
reasonable doubt that the limitation placed on Mr. Broussard’s cross-examination of
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Mr. Lund was harmless error.
[¶25] Affirmed.
15