Travis J. Kovach v. The State of Wyoming , 2013 Wyo. LEXIS 50 ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 46APRIL TERM, A.D. 2013
April 19, 2013
TRAVIS J. KOVACH,
Appellant
(Defendant),
v. S-12-0150
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sublette County
The Honorable Marvin L. Tyler, Judge
Representing Appellant:
Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY; and Tim Newcomb,
Laramie, WY. Argument by Mr. Newcomb.
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and
Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
HILL, Justice.
[¶1] Travis Kovach was a passenger in a vehicle traveling on a narrow backcountry
road. As the vehicle in which Kovach was traveling passed another oncoming vehicle,
the two vehicles clipped each other. Kovach pursued the other vehicle, and after catching
up with it, he assaulted the vehicle’s seventy-three-year-old driver and sixty-seven-year-
old passenger. Kovach then forced the two men back to his hunting camp, where he
again assaulted them.
[¶2] A jury found Kovach guilty of numerous charges, including false imprisonment,
felonious restraint and aggravated assault and battery. On appeal, Kovach contends the
prosecutor suppressed exculpatory evidence in violation of his state and federal due
process rights. He also challenges the district court’s order requiring him to disclose
witness statements and its imposition of sanctions related to that order; alleges
misconduct in the prosecutor’s failure to correct false or misleading testimony; alleges
the district court relied on impermissible information in sentencing; and alleges the
district court erred in sua sponte issuing an amended judgment correcting the fine
imposed against Kovach. We affirm.
ISSUES
[¶3] Kovach presents eight issues on appeal, which we consolidate and restate as
follows:
1. Did the prosecutor suppress exculpatory evidence in violation of Kovach’s
federal and state due process rights?
2. Did the district court abuse its discretion and violate Kovach’s federal and
state constitutional rights when it ordered him to disclose witness statements and then
limited his cross-examination of two prosecution witnesses as a sanction for failure to
comply with that order?
3. Did the prosecutor commit plain error in violation of Kovach’s due process
rights by failing to correct the testimony of two witnesses?
4. Did the district court commit plain error in its sentencing of Kovach by
relying on uncharged misconduct evidence and by sua sponte issuing an amended
judgment correcting the fine imposed against Kovach?
FACTUAL BACKGROUND
[¶4] On October 15, 2010, Travis Kovach was hunting and camping in the LaBarge
Creek/Little Fall Creek area. Kovach was thirty-three years old, approximately six-feet,
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one-inch tall, and weighed about two hundred pounds. His hunting and camping party
also included, among others, MW, Isaac Zimmerman, David Huber, and Dan Frear. A
few hundred yards away from the Kovach campsite was another campsite, this one
occupied by two brothers, Jess Ribelin, age seventy-three, and Richard Ribelin, age sixty-
seven. The Ribelins were from Kansas and had eight others in their party, including Jess
Ribelin’s grown sons and a friend.
[¶5] Late in the afternoon on October 15th, Kovach and Zimmerman borrowed MW’s
vehicle, an Escalade, to drive to LaBarge to pick up Kovach’s son. Kovach asked
Zimmerman to drive, which Zimmerman explained as follows:
Q. Now I’m going to take you back to the camp
early in the day about 3:00. Had you been drinking that day?
A. Yes, I had.
Q. How much?
A. I had a couple beers in the morning and a shot
of whiskey.
Q. So maybe three beverages?
A. Correct.
Q. And are you the one who got the keys from
[MW]?
A. I don’t recall, I don’t know.
Q. Do you recall going into her tent and getting the
keys or do you recall that that was Mr. Kovach?
A. I don’t recall how I wound up with the keys at
all.
Q. Okay. Do you recall why you were driving that
day instead of Mr. Kovach?
A. He asked me to drive because we were going to
go pick up his son I believe.
Q. And do you recall why he asked you to drive?
A. He had been drinking and he didn’t feel like he
needed to be driving with his son.
Q. It was because he wasn’t sober; is that correct?
A. Correct.
[¶6] At the same time Zimmerman and Kovach were driving on LaBarge Creek Road
headed into town, Jess and Richard Ribelin were on LaBarge Creek Road returning to
camp after a supply run into town. The two vehicles met, and as they passed on the
narrow road, they clipped each other. The collision damaged the side mirror on the
Escalade in which Zimmerman and Kovach were traveling, and it left a four to six-inch
black mark on the rear wheel well of the Dodge Ram dually truck in which the Ribelins
were traveling. Both Ribelins testified that, as the vehicles passed each other, they heard
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a noise that sounded like a rock bouncing up and hitting the fender and that they did not
realize that the vehicles had made contact. Shortly after the collision, Zimmerman and
Kovach turned around and drove after the Ribelins. When they caught up to the Ribelins,
Zimmerman and Kovach flashed their lights and honked their horn, and the Ribelins
pulled over.
[¶7] What happened next is in dispute. Jess Ribelin testified that he pulled his vehicle
over when he saw the Escalade behind him flashing its lights and honking its horn, and
that after both vehicles were stopped, he saw Kovach jump out of the Escalade. He
testified that through his open window he could hear Kovach swearing at him and that he
was concerned that Kovach might attack him because of the way he got out of his
vehicle, the way he was swearing, and because earlier in the day, he had met Kovach and
Kovach had said he was going to kick some hunters’ asses for using his friend’s normal
campsite. Jess Ribelin further testified:
I told my brother, I said, “I better get out and see what
they want” and so I got out of the truck. I have a little trouble
getting out because I just had an operation on my knee so it
wasn’t as workable as it should have been, and when I
stepped out he was still raising all kinds of cane so I grabbed
the fencing pliers I had there that would help protect me if he
was going to attack me.
[¶8] Jess Ribelin and Richard Ribelin testified that Kovach attacked and injured first
Jess and then Richard when Richard intervened to help Jess. The Ribelin brothers
testified that during the course of the attack, Kovach broke out both side mirrors on the
Ribelin vehicle, drew a large caliber pistol, fired a shot at the ground with the pistol,
threatened both men with the gun, and struck Richard Ribelin in the face with the gun.
Both men also testified that Kovach used the threat of the firearm to force Jess Ribelin
into the passenger seat of the Ribelin vehicle and to force Richard Ribelin into the
passenger seat of the Escalade. The brothers testified that with Kovach driving the
Ribelin vehicle and Isaac Zimmerman driving the Escalade, the four drove to Kovach’s
campsite. Jess Ribelin testified that once they were at the camp, Kovach struck him in
the ribs with the fencing pliers and knocked him to the ground. Richard Ribelin testified
that Kovach struck him in the head with his elbow, knocking him to the ground.
[¶9] Kovach did not testify, but he gave statements to law enforcement, and those
recorded statements were presented to the jury. In those statements, Kovach denied that
he had consumed any alcohol before the incident with the Ribelins. He reported that
once he caught up with the Ribelin vehicle, he wanted only to confront the Ribelins about
the damage done to the Escalade. He stated that when he approached the Ribelin vehicle,
Jess Ribelin attacked him with a pair of fencing pliers, and that after that attack, any
injuries he caused to either Jess Ribelin or his brother Richard were in self defense.
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[¶10] Kovach admitted that he used the fencing pliers to break out a mirror on the
Ribelin vehicle. He also admitted that he was carrying a .44 Magnum revolver and that
he drew his firearm, but he denied pointing the firearm at anyone, threatening anyone
with the firearm, or discharging the firearm. Kovach admitted to taking the Ribelins back
to his hunting camp after injuring them, but he stated that his only reason for doing so
was to have them apologize to MW for the damage done to her vehicle. He denied that
he hit, shoved or injured either of the Ribelins after bringing them back to his camp.
[¶11] Isaac Zimmerman was called as a defense witness and confirmed much of
Kovach’s version of events. He testified that during the initial altercation on the road,
Kovach acted in self defense because Jess Ribelin swung the fencing pliers at him. He
denied that Kovach pointed his gun at anyone or fired the weapon. As to the events at the
campsite, Zimmerman testified that he saw Kovach knock the Ribelins to the ground,
with no provocation by the Ribelins, but he denied seeing Kovach hit Jess with the pliers
or elbow Richard in the head.
[¶12] MW was called as prosecution witness. She testified as to what occurred at the
hunting camp and stated that she saw Kovach knock the Ribelins to the ground. She
denied seeing Kovach hit Jess with the pliers or elbow Richard in the head, but she
agreed that the Ribelins had done nothing to provoke Kovach’s attack at the campsite.
MW intervened to stop Kovach’s assault and assist the Ribelin brothers, and she directed
other men in the camp to restrain Kovach and take him to a camper. MW and her
husband then helped the Ribelins to the Escalade, and MW drove the men back to their
own camp, with her husband following in the Ribelin vehicle. Back at the Ribelin camp,
MW, a nurse, attended to the injured men and determined that they should be taken into
town for medical treatment. She then drove the two men to a clinic, contacting law
enforcement on the way to report the incident.
[¶13] The Ribelin brothers were treated at the Marbleton clinic. Jess Ribelin suffered
two fractured ribs, damage to his inner ear, and multiple cuts, abrasions, and bruises to
his face, chest and back. Richard Ribelin suffered what the treating physician described
as “a major injury to the facial structure,” including a broken nose, a fractured eye socket,
loosened front teeth, and cuts and bruises to his face.
[¶14] Kovach had abrasions and swelling on his right hand and reported to law
enforcement that his shoulder muscles were sore from being grabbed. He reported no
other injuries and received no medical treatment.
[¶15] Kovach was arrested and subsequently went to trial on charges that included: two
counts of kidnapping, two counts of felonious restraint, two counts of battery, one count
of unauthorized use of a vehicle, one count of property destruction, and two counts of
aggravated assault and battery. On January 5, 2012, following a five-day trial, a jury
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returned a verdict finding Kovach not guilty as to the kidnapping charges, not guilty as to
the felonious restraint of Richard Ribelin, but guilty as to the false imprisonment of
Richard Ribelin, guilty as to the felonious restraint of Jess Ribelin, guilty as to both
battery charges, guilty as to both aggravated assault and battery charges, and guilty as to
the unauthorized use of a vehicle and property destruction charges.
[¶16] On January 20, 2012, Kovach filed a motion for new trial. He argued the verdict
should be set aside because the district court improperly restricted Kovach’s cross-
examination of two prosecution witnesses and because the prosecution suppressed
exculpatory evidence, contending both errors violated his state and federal constitutional
rights. On March 6, 2012, following an evidentiary hearing, the district court denied
Kovach’s new trial motion. Additional facts related to Kovach’s new trial motion will be
set forth as needed in our discussion of Kovach’s related claims on appeal.
[¶17] On March 23, 2012, the district court held a sentencing hearing. Kovach
requested that the court impose a sentence of supervised probation and restitution, and the
State requested a sentence of incarceration for a term of not less than sixteen years nor
more than twenty years. The court sentenced Kovach to prison for a term of twelve to
eighteen years, imposed three fines of $3,000 each against Kovach, and ordered
restitution. On April 2, 2012, the court entered its Judgment and Sentence, which on
page eight of nine ordered Kovach to pay, among other assessments, fines in the amount
of $6,000. On April 5, 2012, the court entered its Amended Judgment and Sentence,
which crossed out the reference to $6,000 in fines, and inserted the amount of $9,000 in
its place. Additional facts related to Kovach’s sentencing will be set forth as needed in
our discussion of Kovach’s related claims on appeal.
DISCUSSION
I. Suppression of Exculpatory Evidence
[¶18] Kovach argues that the prosecutor suppressed favorable evidence material to his
guilt in violation of both his federal and state due process rights. In particular, Kovach
asserts that the prosecutor suppressed: 1) an e-mail sent to Isaac Zimmerman’s attorney
threatening to charge Mr. Zimmerman for his involvement in Kovach’s crimes if Mr.
Zimmerman did not cooperate with the prosecutor; 2) a conversation between the
prosecutor and MW in which the prosecutor allegedly promised to reopen MW’s
unrelated sexual assault case in exchange for her favorable testimony; and 3) the
statement of David Huber, a member of Kovach’s hunting camp, taken by the
prosecutor’s investigator. Kovach contends that the Zimmerman and MW evidence
could have been used for impeachment purposes, and that the Huber statement contained
favorable evidence that could have altered the outcome of the trial.
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[¶19] Our discussion will first address Kovach’s argument that the prosecutor
suppressed evidence in violation of the federal constitution, and we will then turn to
Kovach’s separate arguments under the state constitution. We generally review a district
court’s denial of a new trial motion for an abuse of discretion, but because Kovach’s
suppression argument is a constitutional claim, our review is de novo. Lawson v. State,
2010 WY 145, ¶ 19, 242 P.3d 993, 1000 (Wyo. 2010); Hicks v. State, 2008 WY 83, ¶ 30,
187 P.3d 877, 883 (Wyo. 2008).
A. Fourteenth Amendment Suppression Analysis
[¶20] A prosecutor’s suppression of evidence that is favorable to a defendant and
material to his guilt violates the Due Process Clause of the Fourteenth Amendment.
Lawson, ¶ 20, 242 P.3d at 1000 (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 1196–97, 10 L.Ed.2d 215 (1963)). To establish a Brady violation, a defendant
must show “that the prosecution suppressed evidence, the evidence was favorable to the
defendant, and the evidence was material.” Lawson, ¶ 21, 242 P.3d at 1000 (citing
Brady, 373 U.S. at 87, 83 S.Ct. at 1196–97)). “It is well-established that ‘[f]avorable
evidence includes impeachment evidence.’” Chauncey v. State, 2006 WY 18, ¶ 13, 127
P.3d 18, 21 (Wyo. 2006) (quoting Davis v. State, 2002 WY 88, ¶ 18, 47 P.3d 981, 985–
86 (Wyo. 2002)).
[¶21] With regard to suppression, this Court has recognized that “[t]he essence of Brady
is the discovery of information after the trial, which was known to the prosecution but
unknown to the defense during the trial.” Thomas v. State, 2006 WY 34, ¶ 16, 131 P.3d
348, 353 (Wyo. 2006) (citing United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49
L.Ed.2d 342 (1976) (italics in original)). With regard to materiality, we have said
evidence that is cumulative is not material. Chauncey, ¶ 21, 127 P.3d at 23 (citing Relish
v. State, 860 P.2d 455, 460 (Wyo. 1993)). We have further explained:
Evidence is material under Brady only when a
reasonable probability exists that the result of the proceeding
would have been different had the evidence been disclosed.
Bagley, 473 U.S. at 682, 105 S.Ct. at 3383; Thomas v. State,
2006 WY 34, ¶ 15, 131 P.3d 348, 353 (Wyo. 2006). A
reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id. When the defense
makes a specific request and the prosecution fails to respond
fully, the reviewing court may consider directly any adverse
effect the failure to respond might have had on the
preparation or presentation of the defendant’s case. Bagley,
473 U.S. at 683, 105 S.Ct. at 3384. “The reviewing court
should assess the possibility that such effect might have
occurred in light of the totality of the circumstances and with
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an awareness of the difficulty of reconstructing in a post-trial
proceeding the course that the defense and the trial would
have taken had the defense not been misled by the
prosecutor’s incomplete response.” Id. In judging materiality,
the focus is on the cumulative effect of the withheld evidence,
rather than on the impact of each piece of evidence in
isolation. Id.; United States v. Nichols, 2000 WL 1846225,
2000 U.S.App. Lexis 33183, 2000 Colo. J. C.A.R. 6735 (10th
Cir. 2000).
Lawson, ¶ 22-23, 242 P.3d at 1000-01.
[¶22] Using this framework, we turn to the evidence Kovach contends the prosecutor
suppressed in violation of his Fourteenth Amendment due process rights. The State
concedes that none of the evidence at issue was provided to Kovach. Our inquiry
therefore is whether the evidence was suppressed; that is to say, available to the
prosecutor during the trial but not to Kovach and, if so, whether the evidence was
favorable and material.
1. E-mail Re Isaac Zimmerman Charges
[¶23] The first allegedly suppressed evidence we address is a December 8, 2010, e-mail
the prosecutor sent to Isaac Zimmerman’s attorney. The prosecutor attached to the e-mail
a criminal warrant for Mr. Zimmerman’s arrest and a draft criminal information charging
Mr. Zimmerman with reckless endangering and with accessory before the fact to
kidnapping and felonious restraint. The e-mail included the following message:
Against the wishes of the Sublette County Sheriff’s Office, I
chose not to prosecute Mr. Zimmerman due to Mr.
Zimmerman’s cooperation with the State, and my belief Mr.
Zimmerman would make a favorable witness at trial against
Mr. Kovach. It now appears I was wrong about Mr.
Zimmerman’s willingness to assist in this matter.
Mr. Zimmerman was a clear accessory before the fact to
kidnapping and felonious restraint, as well as committing an
act of reckless endangerment by knowingly transporting a
victim for Mr. Kovach’s continued physical abuse and
terrorization.
I chose not to charge Mr. Zimmerman based on a totality of
circumstances, and those circumstances have now changed.
Now that Mr. Zimmerman has changed his mind about
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lending assistance to the State, I have changed mine about
charging him with the crimes he committed.
Will you accept service on behalf of your client?
[¶24] By a post-trial affidavit dated January 17, 2012, Isaac Zimmerman stated, “After
receiving this information from the Sublette County Attorney, I decided to meet with the
Sublette County Attorney without counsel and cooperate with the Sublette County
[Attorney] as he wanted.”
[¶25] Kovach contends that this e-mail was material impeachment evidence because it
could have been used to impeach Isaac Zimmerman’s testimony by showing that he was
pressured to cooperate with the prosecutor and testify favorably for the State. Although
the e-mail certainly shows that Mr. Zimmerman was under pressure to testify favorably
for the State, we do not agree with Kovach that the prosecutor’s failure to turn the e-mail
over to Kovach resulted in a Brady violation. The record shows that Kovach knew before
trial that Mr. Zimmerman had been threatened with prosecution, and the record further
shows that the e-mail would have been nothing more than cumulative evidence of those
threats.
[¶26] We note at the outset that, whatever pressure may have initially been brought to
bear on Isaac Zimmerman for his cooperation, the State did not follow through on its
efforts to compel Mr. Zimmerman to testify as a prosecution witness. During the trial,
Mr. Zimmerman was called as a defense witness, not as a State witness, and as indicated
above, Mr. Zimmerman’s testimony matched Kovach’s version of events in many
respects.
[¶27] As to the prosecution’s efforts to secure Isaac Zimmerman’s favorable testimony,
the record is far from silent. Mr. Zimmerman testified on direct examination by defense
counsel:
Q. Okay. Now Mr. Zimmerman, you and I have
spoken. Have you spoken to anybody else about this matter?
A. I spoke to the officers and the county attorney
and the investigator.
Q. And how many times did you speak to them?
A. Five times total I believe.
Q. Okay. Have you been promised anything for
your testimony here today?
A. No.
Q. Have you been threatened about your
testimony?
A. Yes, I have.
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Q. And how so?
A. I was threatened with charges against me as
well.
Q. Okay. And how did that happen?
A. I guess I wasn’t giving them what they wanted
to hear.
Q. And who made those threats to you?
A. I believe it was [the prosecutor’s investigator].
Q. Anybody else?
A. I believe [the prosecutor] also said that, you
know – I don’t believe he – I take that back. I don’t think
[the prosecutor] actually made any threats, he just said there
was some pressure for me to be charged.
[¶28] On cross-examination by the prosecutor, Isaac Zimmerman again testified to the
threatened prosecution against him:
Q. Okay. You and I have spoke several times; is
that correct?
A. Yes.
Q. And that’s what you just testified to?
A. Yes.
Q. Now [defense counsel] has indicated that you
were threatened with prosecution; is that correct?
A. Correct.
Q. And was that ever explained to you what
charges you would be facing if you were not cooperative?
A. Yes.
Q. And what charges were those?
A. Accessory.
Q. Okay. Now do you recall driving a beaten man
to Travis Kovach’s camp at Travis Kovach’s direction?
A. Yes.
Q. And do you recall what I told you as to why I
was not going to prosecute you?
A. Yes.
Q. And what was that?
A. Because you didn’t think I had anything to do
with it.
Q. Does it refresh your recollection that I told you
I didn’t want to ruin a young man’s life because he didn’t do
the right thing?
A. Yes.
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Q. Now you were scared during this whole ordeal,
weren’t you?
A. Yes.
Q. And in hindsight you probably would have done
things differently, wouldn’t you?
A. Yes.
Q. You would have tried to help those old men,
wouldn’t you?
A. Yes.
Q. But you didn’t do those things?
A. No.
Q. And why?
A. I didn’t know what to do.
Q. It was out of control, wasn’t it?
A. Yes.
Q. Mr. Kovach was out of control, wasn’t he?
A. Yes.
[¶29] On further cross-examination by the prosecutor, Isaac Zimmerman adhered to his
testimony that Kovach did not fire his weapon and it was only because of pressure by the
prosecutor’s investigator that he ever said otherwise:
Q. And so what did you tell [the prosecutor’s
investigator] on November 10th?
A. I was pretty angry at that point because we had
been talking on for quite awhile and I just told him what he
wanted to hear.
Q. Oh, okay. And what was it that he wanted to
hear?
A. He wanted to hear that there had been a gun
fired.
Q. And you told him he probably fired a shot,
correct?
A. Correct.
Q. And you told him he probably had the gun out,
correct?
A. Correct.
Q. But you’re now saying that was only because
you were telling [the prosecutor’s investigator] what he
wanted to hear?
A. I was getting a lot of pressure from [the
prosecutor’s investigator].
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Q. You got a lot of pressure from [defense
counsel]?
A. No.
Q. Or Mr. Kovach?
A. No.
[¶30] Finally, on re-direct examination by defense counsel, Isaac Zimmerman again
insisted that Kovach had not fired his weapon and that any statements to the contrary
were the result of pressure by the prosecution.
Q. Now [the prosecutor] had asked you about this
gun issue and he had you read a statement. Prior to that time
had you already given two statements to law enforcement?
A. Yes.
Q. You had already given a statement to my
investigator?
A. Yes.
Q. In all of those statements did you say you did
not hear the gun?
A. I did.
Q. Okay. And actually in the statement that [the
prosecutor] read to you earlier on, in that statement you told
[the prosecutor’s investigator] that you didn’t hear the gun
either; isn’t that right?
A. Correct.
Q. A n d i t w a s n’t u n t i l [ t h e p r o s e c u tor’s
investigator] threatened you that you told him what he wanted
to hear?
[PROSECUTOR]: Objection, leading.
COURT: Sustained.
Q. Why did you eventually say to [the prosecutor’s
investigator] that, you know, “I think that’s what happened”?
A. Because of the pressure that they were putting
on me.
[¶31] Isaac Zimmerman’s trial testimony clearly informed the jury that he was
threatened with prosecution and that he felt pressured to cooperate with the prosecutor
and testify favorably for the State. The prosecutor’s e-mail to Mr. Zimmerman’s attorney
would have been cumulative evidence to the same effect. See Chauncey, ¶ 21, 127 P.3d
at 24 (“Where, as in the instant case, a witness for the State has been exhaustively
impeached, both generally and as to the specific issue addressed by the suppressed
evidence, we do not believe that one additional piece of cumulative information makes
the verdict unworthy of confidence.”). Additionally, defense counsel’s examination of
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Mr. Zimmerman shows that Kovach knew of the threats in time to use them during the
trial. Any doubt concerning Kovach’s access to that information was further resolved by
the testimony of both Mr. Zimmerman and defense counsel during the evidentiary
hearing on Kovach’s new trial motion. Mr. Zimmerman testified:
Q. You were very cooperative with [defense
counsel] through the entire trial; is that correct?
A. Yes.
Q. And very cooperative with [defense counsel]
prior to trial; is that correct?
A. Correct.
....
Q. Now did you ever tell [defense counsel] that
you had seen or heard of an e-mail with a criminal
information from my office?
A. Yes, I believe I did.
Q. When did you tell him that?
A. I don’t know.
Q. Did you bring that to his attention after the trial
was over?
A. I think it was before, but I’m not sure.
Q. Now he actually brought that to your attention;
is that correct? After the trial he contacted you and said, “Mr.
Zimmerman, I know that there is an affidavit” – or, excuse
me, “an e-mail and some charging information,” he brought
that to your attention; isn’t that correct?
A. Yes, yes.
Q. Okay. You didn’t bring that to his attention?
A. No.
Q. How many days after trial was it that he brought
that to your attention?
A. I don’t know, I don’t recall. Maybe a week,
maybe two weeks.
Q. But you didn’t contact him out of the blue and
tell him about it; is that correct?
A. No.
[¶32] Kovach’s counsel testified:
Your Honor, I mean – let me put it in the form of
testimony. Mr. Zimmerman had approached me after being
interviewed several times and said that he was feeling
threatened and was there anything that I could do for him and
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I said no, I said I couldn’t, but I said I could give him some
names of some lawyers in Pinedale.
[¶33] We are satisfied that the prosecutor’s failure to provide the Isaac Zimmerman e-
mail to defense counsel did not result in a Brady violation. The evidence was
cumulative, and defense counsel had information relating to the threats against
Zimmerman before trial. See Thomas, ¶ 18, 131 P.3d at 353 (defendant failed to show a
Brady violation where evidence was available and used during trial).
2. Evidence of Promises to MW
[¶34] We turn then to the next evidence Kovach contends that the prosecutor
impermissibly suppressed—an alleged promise the prosecutor made to MW to reopen her
sexual assault case in exchange for her favorable testimony. Kovach argues that this
impeachment evidence was important because the prosecution attempted to portray MW
as a reluctant witness against Kovach, when according to Kovach, the prosecution had in
fact made a deal to procure MW’s favorable testimony. We reject this alleged
suppression as a Brady violation because the record does not support Kovach’s
characterization of the conversation between the prosecutor and MW. See Chauncey,
¶ 17, 127 P.3d at 22 (rejecting Brady argument as to an interview because the argument
mischaracterized the evidence).
[¶35] Kovach offered the following affidavit statements from MW in support of his new
trial motion.
5. I was interviewed on several occasions by the Sublette
County Sheriff, Sublette County Investigator … and the
Sublette County Prosecuting Attorney.
6. At one time during these interviews I was informed by
Sublette County officials that I was the State’s most important
witness and that I was going to help them put Mr. Kovach
away.
7. Weeks before trial I met with the Prosecuting Attorney
and him and I discussed my rape that occurred some years
prior to this incident. The Prosecuting Attorney expressed to
me that he felt the prosecution of the case was not handled
properly. He said that after the Kovach case was over, he
would look into the case and see if there was anything missed
and might be able to reopen it.
13
8. The night before I was to testify I met with the
Prosecuting Attorney at his office. We sat in his office for
about an hour and a half and talked about among other things
my testimony.
9. During this conversation the Prosecuting Attorney told
me that Jess Ribelin was hit with the pliers at camp. I told the
Prosecuting Attorney that I was certain that Jess Ribelin was
not hit with the pliers as I was standing right next to him. We
argued about this point and the Prosecuting Attorney said he
believed Mr. Ribelin and it was dropped.
10. I also [asked] the Prosecuting Attorney during this
conversation what would happen if I ever came across the
man that attacked me. I told the Prosecuting Attorney that I
would beat the crap out of him and asked what would happen
to me. The Prosecuting Attorney told me they would have to
arrest me, but would not charge me.
[¶36] During the evidentiary hearing on Kovach’s new trial motion, MW testified that
the prosecuting attorney made no promise to reopen her sexual assault case and there was
no quid pro quo exchange for her favorable testimony. On direct examination by defense
counsel, MW testified:
Q. Was there at some point any discussion about
reopening the case or restarting the [sexual assault] case or
something of that nature?
A. Right, [the prosecutor] had said that after this
was done and over with, Kovach’s trial, that he would have
his investigator -- that he might have his investigator look
into it.
Q. Was there any explanation as to why it needed
to wait until after the Kovach trial was done?
A. Just because he was busy with this trial.
[¶37] On cross-examination by the prosecutor, MW testified:
Q. Did [defense counsel] approach you about
signing a different affidavit than this one?
A. He had e-mailed me one prior to this one to
look over, yes.
Q. And was it the same as this one?
A. No.
14
Q. And what were the differences in the affidavit
that you didn’t sign versus the one that’s presented here
today?
A. On number 7 on the list about that once the case
was over that you had promised me you would look into my
case.
Q. And why did you not sign that affidavit?
A. Because that’s not what was said, it was that
you – after this was all done and over with that you might
look into it, you and your investigator or your investigator.
Q. Have I ever promised you anything –
A. No.
Q. -- for your testimony?
A. No.
Q. Have I ever given you any representations of
incentives if you testified?
A. No.
Q. When you and I met, we talked about your role
as a witness in Mr. Kovach’s case; is that correct?
A. Yes.
Q. And we also would talk about your role as a
victim in a different case; is that correct?
A. Yes.
Q. Did you ever believe that those conversations
were in any way intertwined between your prior case and Mr.
Kovach’s case?
A. No, I felt when we were talking about Travis’
case that I was the witness and then when you and I were
talking that it was simply you and I talking, not the
prosecuting attorney and the witness talking, just that we
were having a conversation.
Q. And did you feel like I was listening to your
concerns and the concerns you expressed--
A. Yes.
Q. --in your role as a witness?
A. Yes.
Q. Now [defense counsel] has asked you about the
night before the trial –
A. Uh-huh.
Q. --when we discussed what would happen if you
saw your alleged perpetrator in the grocery store?
A. Yes.
15
Q. We had some pretty serious conversations about
your rape incident that night, did we not?
A. Yes.
Q. When you brought up seeing him in the grocery
store and what you would do, did you present that question to
me in a serious –
A. No.
Q. --question?
A. No.
Q. If I recall correctly you were actually laughing
or smiling a bit when you asked that question?
A. Correct.
Q. And in many ways it was a way to lighten the
mood from what had been a very serious conversation; is that
correct?
A. Yes, yeah.
Q. And when I responded, “Well, you would have
to be arrested, but I’m not sure you’d be charged” and I
smiled when I said that, did you feel like that I was making a
promise of any kind?
A. No, no.
[¶38] MW’s testimony is clear that the prosecutor made no promises to her in exchange
for her favorable testimony. And, her testimony during Kovach’s trial was consistent
with the lack of any such promise. MW testified that she at no time saw Kovach hit Jess
Ribelin with a pair of fencing pliers, which was contrary to the testimony the prosecution
wanted from her. She also openly disagreed with the prosecutor at another point in her
testimony, when the prosecutor asked her to confirm her belief that Jess Ribelin’s ear was
injured in the manner Mr. Ribelin had reported, that is, when Kovach shoved the fencing
pliers into his ear canal:
Q. Just as a – your common, every-day experience
and your common sense, did what you see inside his ear, did
that match the description as to how he got it?
A. Being hit with a fist could have caused the same
thing too, but my concern –
Q. [MW], that’s not what you said yesterday
evening, was it?
A. Yes, it was.
Q. Do you recall having a conversation with me
yesterday evening?
A. Yes, I do.
16
Q. Do you recall telling me that it was unlikely that
that could have been caused by a fist because it was inside the
ear canal?
A. That is not what I said, ….
[¶39] Kovach bears the burden of proving that exculpatory evidence existed but was
suppressed. Wilkening v. State, 2007 WY 187, ¶ 12, 172 P.3d 385, 388 (Wyo. 2007).
We find that Kovach did not meet his burden of showing that a promise was exchanged
between the prosecutor and MW, and we therefore reject the claimed Brady violation.
3. Dave Huber Interview
[¶40] On July 26, 2011, the prosecutor’s investigator interviewed Dave Huber, a
member of Kovach’s hunting camp who was present when Kovach returned to the camp
with the Ribelin brothers. This interview was recorded and transcribed, but it was not
provided to defense counsel.
[¶41] As noted above, the burden is on Kovach to prove that material exculpatory
evidence was suppressed. See Wilkening, ¶ 12, 172 P.3d at 388. On appeal, however,
Kovach has made no argument as to what portion of the Huber interview was exculpatory
or how the evidence was material to the outcome of the trial. Kovach does no more than
identify the interview as evidence the prosecution failed to turn over, and he thus has not
met his burden of proving a Brady violation.
[¶42] Additionally, the record shows that defense counsel had the same information the
prosecution had as to any evidence Mr. Huber could provide. See Thomas, ¶ 16, 131
P.3d at 353 (“The essence of Brady is the discovery of information after the trial, which
was known to the prosecution but unknown to the defense during the trial.”).
Specifically, the record contains an affidavit signed by Mr. Huber in which he attested:
5. I was interviewed by an investigator from the [defense
counsel’s] office.
6. I w a s a l s o i n t e r v i e w e d b y [ t h e p r o s e c u tor’s
investigator], an investigator from Sublette County, in late
July of 2011 about this matter.
7. A f t e r b e i n g i n t e r v i e w e d b y [ t h e p r o s e c u tor’s
investigator], the investigator from Sublette County, I was
also interviewed by [defense counsel] about this matter. My
interview with [defense counsel] occurred before December,
2011. During this interview, I told [defense counsel] I had
17
given a tape recorded interview to [the prosecutor’s
investigator] at my home in Wyoming.
8. During each interview with both investigators and
[defense counsel], I told the same story about what I recalled
from the confrontation at the Kovach hunting camp on
October 15, 2010.
9. During each interview, I stated that I heard Travis
Kovach and one of the other men arguing with each other.
Although I don’t recall what was said, I do recall telling each
interviewer that both men were using loud voices.
10. During each interview, I stated that I did not see Travis
Kovach hit anyone.
11. During each interview, I state[d] that I never heard
anyone mention at camp that Travis Kovach had fired his gun
or used his gun to hit the other gentlemen.
[¶43] Based on our reasoning above, we are unable to find a Brady violation in the
prosecution’s failure to disclose the Huber transcript to defense counsel. Nonetheless, we
do not condone the failure to disclose the evidence, and we remind prosecutors that when
they “fail … to disclose exculpatory evidence they not only fail in their duty and risk
otherwise justifiable convictions, but expose themselves to the charge that they have
violated Rule of Professional Conduct 3.8.” Lawson, ¶ 53, 242 P.3d at 1009.
B. State Constitution Suppression Analysis
[¶44] As an alternative to the rigors of the Brady analysis, Kovach offers an independent
state constitutional basis to find reversible error in the prosecution’s failure to disclose
the above-discussed evidence. Kovach contends that under the Wyoming Constitution, a
prosecutor must disclose to the defense not only favorable material evidence but also any
relevant evidence in its possession. Specifically, Kovach argues that the failure to
disclose such evidence violates article I, § 6 of the Wyoming Constitution--the Wyoming
due process guarantee, as well as the Wyoming constitutional provisions governing
effective assistance of counsel, the right to present a complete defense, the right to
effective cross-examination and separation of powers. Kovach also argues that a
prosecutor’s decisions regarding evidence disclosure are an exercise of the State’s police
power that affect a defendant’s fundamental rights and such decisions are therefore
subject to a strict scrutiny level of judicial review.
18
[¶45] In determining whether the Wyoming Constitution provides greater protection
than its federal counterpart, we have identified six non-exclusive criteria to be
considered: “1) the textual language of the provisions; 2) differences in the texts; 3)
constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of
particular state or local concern.” O’Boyle v. State, 2005 WY 83, ¶ 24, 117 P.3d 401, 408
(Wyo. 2005) (citing Saldana v. State, 846 P.2d 604, 622 (Wyo. 1993)). Applying these
criteria, we conclude that Kovach has failed to articulate a separate and independent state
constitutional basis for imposing such a broad disclosure obligation on the prosecution.
[¶46] As discussed above, the basis for the Brady rule is the due process clause of the
Fourteenth Amendment. The U.S. Supreme Court has explained:
The Brady rule is based on the requirement of due
process. Its purpose is not to displace the adversary system as
the primary means by which truth is uncovered, but to ensure
that a miscarriage of justice does not occur. Thus, the
prosecutor is not required to deliver his entire file to defense
counsel, but only to disclose evidence favorable to the
accused that, if suppressed, would deprive the defendant of a
fair trial[.]
United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3379-80 (1985) (footnotes
omitted).
[¶47] This Court likewise generally addresses a prosecutor’s suppression of evidence as
a due process question. See Lawson, ¶ 53, 242 P.3d at 1009; Wilkening, ¶ 7, 172 P.3d at
386-87; Chauncey, ¶ 12, 127 P.3d at 21. Due process being our usual concern in these
cases, we turn first to Kovach’s argument that Wyoming’s due process provision imposes
a greater disclosure obligation than its federal counterpart.
[¶48] Our decisions addressing a prosecutor’s failure to disclose evidence have analyzed
the suppression under the Fourteenth Amendment and have followed the analysis
prescribed by the U.S. Supreme Court. Our attention in that analysis has been not on the
prosecutor’s conduct but instead on the materiality of the suppressed evidence and its
impact on the trial’s fairness. Lawson, ¶ 53, 242 P.3d at 1009; Wilkening, ¶ 7, 172 P.3d
at 386-87; Chauncey, ¶ 17, 127 P.3d at 22-23. In Lawson, we explained:
[T]he constitutional obligation [to disclose unrequested
information] is [not] measured by the moral culpability, or
willfulness, of the prosecutor. If evidence highly probative of
innocence is in his file, he should be presumed to recognize
its significance even if he has actually overlooked it.
Conversely, if evidence actually has no probative significance
19
at all, no purpose would be served by requiring a new trial
simply because an inept prosecutor incorrectly believed he
was suppressing a fact that would be vital to the defense. If
the suppression of the evidence results in constitutional error,
it is because of the character of the evidence, not the character
of the prosecutor.
Lawson, ¶ 53, 242 P.3d at 1009 (quoting United States v. Agurs, 427 U.S. 97, 110, 96
S.Ct. 2392, 2401 (1976)).
[¶49] Kovach’s argument based on the Wyoming Constitution essentially reverses our
usual and accepted analysis. Rather than looking to the character of the evidence and the
suppression’s effect on the trial, Kovach focuses entirely on the prosecutor’s power and
discretion--and the need to restrain prosecutorial authority. Applying the O’Boyle factors
to Wyoming’s due process provision, we are unable to find support for Kovach’s
proposed approach to this question.
[¶50] First, the text of Wyoming’s due process guarantee is indistinguishable from the
text of the Fourteenth Amendment’s due process clause, and Kovach thus cannot, and
does not attempt to, support his argument by reference to textual differences. See Wyo.
Const. art. I, § 6 (“No person shall be deprived of life, liberty or property without due
process of law.”), U.S. Const. amend. XIV, § 1 (“nor shall any State deprive any person
of life, liberty, or property, without due process of law”). Second, Kovach’s argument is
at odds with our preexisting state law. Kovach contends that the Wyoming Constitution
mandates that the prosecution disclose all relevant evidence in its possession, effectively
asserting a constitutional right to discovery--a right that this Court has repeatedly held a
criminal defendant does not have:
Although there is no constitutional right to discovery, a
defendant has a constitutionally protected right to present a
defense. Ceja [v. State], 2009 WY 71, ¶ 13, 208 P.3d at 68;
Dysthe v. State, 2003 WY 20, ¶ 5, 63 P.3d 875, 879 (Wyo.
2003). A defendant may request discovery of certain items
from the state, but the state is only required to provide such
information as indicated by statute, rule or case law. Ceja,
2009 WY 71, ¶ 13, 208 P.3d at 68.
Washington v. State, 2011 WY 132, ¶ 17, 261 P.3d 717, 722 (Wyo. 2011); see also Gale
v. State, 792 P.2d 570, 575 (Wyo. 1990) (defendant “does not have a general state or
federal constitutional right to conduct wide-ranging criminal discovery in the state’s
files”).
20
[¶51] We turn then to our next consideration, the history of the Wyoming constitutional
provisions. This is where Kovach directs most of his argument with a lengthy recitation
of Wyoming’s constitutional history. That history, however, gets us no closer to the
interpretation urged by Kovach because he has not demonstrated how that history shifts a
Wyoming due process analysis away from the fairness of the trial and our confidence in
the trial’s outcome and toward a focus on the prosecutor’s conduct. As we observed in
Lawson, the cornerstone of our analysis is the defendant’s fair trial, and our search for
constitutional error must therefore focus on the character of the evidence suppressed and
not on the prosecutor’s character or actions. Lawson, ¶ 53, 242 P.3d at 1009.
[¶52] The remainder of Kovach’s state constitutional argument is likewise unpersuasive.
Suppression of evidence does not present a separation of powers issue. The prosecutor
decides what evidence to disclose, and a court subsequently reviews that decision to
determine whether it comports with the defendant’s due process rights. And, while
certainly a defendant has a right to effective assistance of counsel, to present a complete
defense, and to conduct an effective cross-examination, those rights do not equate to a
constitutional right to discovery--or that is, a right to compel the prosecution to disclose
all relevant information in its files. See Washington, ¶ 17, 261 P.3d at 722.
[¶53] Finally, we also reject Kovach’s argument that we must review the prosecution’s
suppression of evidence using a strict scrutiny analysis. Kovach has cited no authority
that a prosecutor is exercising the State’s police power when he decides what evidence to
disclose to the defense, and the proposed analysis is entirely at odds with the above-
discussed manner in which this Court has historically analyzed discovery and suppression
issues.
[¶54] Kovach has not demonstrated an independent state constitutional basis for
evaluating the prosecutor’s failure to disclose the Issac Zimmerman e-mail, the
prosecutor’s conversation with MW, or the Dave Huber interview. We therefore
conclude, based on our Fourteenth Amendment review above, that the prosecutor’s
failure to disclose this evidence did not result in a violation of Kovach’s due process
rights.
II. Disclosure Orders and Sanctions
[¶55] In Kovach’s next assignment of error, Kovach contends that the district court erred
both in ordering Kovach to disclose statements for witnesses not listed as defense
witnesses and in the sanctions the court imposed for Kovach’s violation of that disclosure
order. Kovach alleges that the disclosure order and the sanctions violated the Rules of
Criminal Procedure and infringed on his constitutional protections. With regard to
Kovach’s constitutional challenge to the pretrial disclosure order, we conclude that
Kovach presented the district court with an insufficient factual basis to evaluate this
claim, and we therefore affirm the court’s rejection of that claim. With regard to the
21
alleged procedural violations, we agree that the court erred in requiring Kovach to
disclose statements of witnesses not listed as witnesses for the defense and in imposing
an evidentiary sanction outside the sanctions identified in W.R.Cr. P. 26.2. We conclude,
however, that the error was harmless and therefore find no reversible error in the orders.
A. Background
[¶56] On December 29, 2010, shortly after filing its charges against Kovach, the State
filed a motion for production of witness statements in defendant’s possession. Kovach
objected to the State’s request, contending such statements were protected by the attorney
work product doctrine, that their production would violate Kovach’s right against self
incrimination, and that the statements were not discoverable under W.R.Cr.P. 16. On
October 17, 2011, the district court held a motions hearing during which it addressed,
among other pretrial issues, Kovach’s objection to producing witness statements. During
that hearing, the court invited Kovach’s counsel to submit the witness statements for an
in camera review to determine whether the statements revealed attorney work product or
could be construed as self incriminating, and whether portions of the statements should
be redacted before disclosure.
[¶57] Kovach did not submit the disputed witness statements to the district court for an
in camera review, and on November 14, 2011, the court, pursuant to W.R.Cr.P. 26.2,
issued an order requiring that Kovach produce the requested witness statements by
December 16, 2011, which was ten days before trial. On December 1, 2011, Kovach
filed an Expedited Motion to Stay Proceedings Pending Filing and Resolution of Petition
for Writ of Mandamus. In that motion, Kovach objected to the district court’s order to
produce witness statements, stating:
3. Defendant believes that the order violates his
constitutional right to counsel and is in violation of the
Wyoming Criminal Rules of Procedure, specifically, Rule 16.
4. If Defendant’s counsel produces the statements, then
Defendant does not have a remedy on appeal as the bell
cannot be un-rung in this matter.
5. Defendant’s rights involved in this issue go to the heart
of our legal process and the rights outlined in the Wyoming
and United States Constitutions.
6. Defendant requests that the proceedings be stayed
pending the filing and resolution of a Petition for Writ of
Mandamus (now referred to as a writ of review) with the
Wyoming Supreme Court.
22
[¶58] On December 2, 2011, Kovach provided notice to the district court that he was
electing not to comply with the court’s order to produce witness statements, with the
exception of the statement of Isaac Zimmerman. Kovach further informed the court that
he had elected to accept a mandatory sanction under W.R.Cr.P. 26.2 of not being
permitted to call in his case in chief the witnesses whose statements he refused to
disclose. On that same date, the court held a hearing on Kovach’s motion to stay
proceedings, during which the court commented:
I’ve received a notice from the Defendant today that the
Defendant elects not to comply with that order to deliver
those statements except for Isaac Zimmerman, I did review
that briefly before I came into court just the first part is what I
reviewed, frankly I haven’t devoted a lot of time or attention
to it. It appears to me that the Defendant has taken a position
that the exclusive and mandatory sanctions are those that are
provided in Rule 26.2. I do not agree with that, but I’m not
going to make that decision at this point because we haven’t
hit December 16th yet. If we hit December 16th and those
statements are not produced then you’re going to require me
to take a position and I would point out that you carefully
exam[ine] Rule 42 of the Wyoming Rules of Criminal
Procedure and the consequences that can come under Rule 42
and Rule 42.1 because I don’t know that I agree that Rule
26.2 provides for the exclusive sanctions for failure to
produce statements.
....
What I think would be consistent, and I’d have to devote
some research and thought to this, is to limit the ability of a
defendant to cross-examine one of these witnesses, without
turning over the statements as I’ve ordered, to only that
testimony raised on direct-examination by the State, in other
words, you can’t come in with new, new information based
upon statements that you know about that you refused to
produce and you didn’t give the State notice about that in
time. I may consider and I will research my ability to do that
as a potential reason to limit the scope of examination by
counsel for the Defendant.
[¶59] On December 5, 2011, Kovach filed in the Wyoming Supreme Court a Petition for
Writ of Review. Through that petition, Kovach requested that this Court either vacate the
district court’s order requiring defendant’s disclosure of witness statements, or in the
alternative, order that the remedies for Kovach’s non-compliance are limited to those set
23
forth in Rule 26.2. On December 16, 2011, this Court issued an order denying Kovach’s
petition for writ of review.
[¶60] Although the record does not show when it happened or in what form the district
court issued its order, at some point after December 16th and before trial, the court
responded to Kovach’s failure to comply with its disclosure order. The court apparently
rejected Kovach’s self-prescribed sanction and instead imposed the sanction it referenced
in the earlier hearing, ordering 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. Not only does the record not contain an order imposing the
sanction, it also does not reflect an objection by Kovach to the sanction. This Court’s
knowledge of the sanction and Kovach’s response to the sanction is limited to the
exchanges during trial related to Kovach’s cross-examination of two witnesses for whom
he had refused to disclose witness statements, MW and Dan Frear.
[¶61] During MW’s testimony, the following transpired:
COURT: Cross-Examination.
[Defense Counsel]: Thank you, your Honor.
COURT: Based on Rule 26.2(e), [Defense
Counsel], you’re limited to strictly the scope of Direct, that’s
of the Wyoming Rules of Criminal Procedure.
[Bench Conference]
[Prosecutor]: Your Honor, I would also ask that
[Defense Counsel] be precluded from using any statements
that he refused to produce for impeachment purposes with
[MW].
COURT: [Defense Counsel], your position about
that?
[Defense Counsel]: No objection.
COURT: Motion granted.
....
Q. Is it safe to say as you were standing there, … ,
that you related to Jesse (sic) Ribelin?
A. Yes.
Q. And is that because of your personal
experiences?
[Prosecutor]: Your Honor, I'm going to object to this
line of questioning.
COURT: Sustained.
[Defense Counsel]: It goes to state of mind, your
Honor.
24
COURT: S h e a l s o s a i d t h a t s h e r e l a t e d , i t’s
sustained. You got her state of mind.
Q. Were you a victim of a violent attack?
COURT: This is irrelevant.
[Defense Counsel]: Your Honor, can I make an offer
of proof, please?
COURT: Over at the bench.
[Bench Conference]
[Defense Counsel]: [Prosecutor] has asked about --
insinuated that she is lying about what she has done, that she is
on Mr. Kovach’s side because of her relationship with Mr.
Kovach, I think that I have a right to at least explore what her
state of mind is.
COURT: What’s your offer of proof?
[Defense Counsel]: Y o u r H o n o r , t h e w i t n e s s’s
experience in this regard is crucial. The witness was subjected
to a brutal attack that she had experienced, that’s why she used
the word attacked. When people are exposed to horrific
situations, those experiences shape their perceptions. Her own
experience in that regard is what prompted the use of the word
attack and it goes directly to her state of mind, your Honor,
and I should be able to explore that, this is Cross-Examination.
COURT: If you would have turned over the
statements it would be. Denied.
[¶62] Dan Frear testified just after MW. During Mr. Frear’s testimony, the district court
issued the same admonition concerning defense counsel’s cross-examination, after which
defense counsel cross examined Mr. Frear regarding his testimony that Kovach may have
told him he had fired his gun during his altercation with the Ribelins:
COURT: Cross-Examination. Again, pursuant to
Rule 26.2(e) of the Wyoming Rules of Criminal Procedure
you’re limited to Cross-Examination only within the scope of
Direct Examination.
[Defense Counsel]: Thank you, your Honor.
....
Q. Mr. Frear, you said you don’t recall exactly the
conversation you had with Mr. Kovach; is that right?
A. Correct.
Q. And why don’t you exactly remember that
conversation?
A. One is over a year ago and there was quite
amounts of alcohol drinking.
25
Q. You had been drinking all day, right?
A. Yes, sir.
Q. Do you remember even how much you had
been drinking?
COURT: This is beyond the scope of Direct, ask a
different question.
[Defense Counsel]: Your Honor, I have nothing
further.
[¶63] On January 20, 2012, Kovach filed a motion for new trial in which he contended
he was entitled to a new trial based on the alleged Brady violations and because the
district court abused its discretion under Rule 26.2 by limiting defense counsel’s cross-
examination of MW and Dan Frear. With respect to the discovery sanctions, Kovach’s
argument was one sentence which argued that the district court abused its discretion
under Rule 26.2. On February 21, 2012, Kovach filed a reply in support of his new trial
motion in which he pointed out that the State had not responded to his Rule 26.2
argument, and then for the first time, he asserted that the district court’s limitations on his
cross-examination also violated his constitutional rights to effective assistance of counsel
and effective cross-examination.
[¶64] The district court denied Kovach’s motion for a new trial on the ground that
Kovach had failed to show how the limitations on his cross-examination denied him a fair
trial. On appeal, Kovach presents several arguments relating to, first, the district court’s
order requiring Kovach to produce witness statements, and second, the court’s sanction
for Kovach’s failure to comply with its disclosure order. With respect to the order
requiring disclosure of the witness statements, Kovach argues that the required disclosure
violated his constitutional right to effective assistance of counsel in that the disclosure
would interfere with counsel’s ability to make reasonable investigations. He further
argues that the district court misconstrued the requirements of Rule 26.2 and ordered a
disclosure that violated Rule 16. With respect to the court’s sanction for violation of the
disclosure order, Kovach argues that the court exceeded its authority under Rule 26.2 and
that the sanction violated his constitutional rights to effective assistance of counsel and
effective cross-examination.
B. Disclosure Order: Impact on Constitutional Rights
[¶65] We address first Kovach’s argument that the district court’s order requiring the
defense to make a pretrial disclosure of witness statements violated his constitutional
rights. Kovach initially objected to the State’s request for the statements on the ground
that such a disclosure would violate his privilege against self incrimination and would
require disclosure of attorney work product. After the district court later ordered that
Kovach disclose the witness statements for trial, Kovach again objected, arguing
generally that the required disclosure violated his constitutional right to counsel. On
26
appeal, Kovach has expanded his argument and contends that the required disclosure was
improper because it would violate his right to effective assistance of counsel by
undermining his attorney’s ability to conduct a reasonable investigation. Although
Kovach’s constitutional argument has been something of a moving target, our more
fundamental concern is that the argument lacks a factual basis to allow for its
consideration.
[¶66] Kovach cites no authority for the proposition that requiring a criminal defendant to
make a pretrial disclosure of witness statements is a per se violation of that defendant’s
right to effective assistance of counsel. Nor has Kovach provided a factual record to
demonstrate how the specific witness statements at issue in this case would have revealed
information that intruded on the attorney client relationship or otherwise interfered with
counsel’s effectiveness. From this Court’s own research, we are unable to discern a
bright line rule governing the constitutionality of ordering pretrial disclosures by a
criminal defendant. As will be discussed hereinafter, the constitutional questions relating
to pretrial discovery against a criminal defendant are instead largely fact sensitive,
depending for their resolution upon the circumstances surrounding the required disclosure
and the information that the disclosure will reveal. It is for this reason that we ultimately
affirm the district court’s rejection of Kovach’s constitutional challenge to the disclosure
order. Kovach failed to provide the district court with a factual basis sufficient to allow
that court to consider the alleged constitutional infringement, and this Court is likewise
without any basis on which to judge the alleged infringement.
[¶67] To begin our discussion, we briefly outline in general terms the constitutional
questions that may arise when allowing pretrial discovery against a criminal defendant.
We do not intend this to be an exhaustive summary of these questions, or to suggest how
this Court would rule when presented with a properly framed challenge to a disclosure
order. Rather, we wish simply to illustrate that the constitutional questions relating to
pretrial discovery against a criminal defendant are largely fact sensitive, depending for
their resolution upon the circumstances surrounding the required disclosure or discovery
and the information that the disclosure or discovery will reveal.
[¶68] We turn first to the U.S. Supreme Court’s decision in Williams v. Florida, 399
U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970). In that case, the Supreme Court
addressed the constitutionality of a Florida rule requiring a defendant to provide pretrial
notice of any alibi defense. In upholding the rule, the Court recognized “the ease with
which an alibi can be fabricated” and “the State’s interest in protecting itself against an
eleventh-hour defense.” Id., 399 U.S. at 81, 90 S.Ct. at 1896. The Court then concluded:
In the case before us, the notice-of-alibi rule by itself
in no way affected petitioner’s crucial decision to call alibi
witnesses or added to the legitimate pressures leading to that
course of action. At most, the rule only compelled petitioner
27
to accelerate the timing of his disclosure, forcing him to
divulge at an earlier date information that the petitioner from
the beginning planned to divulge at trial. Nothing in the Fifth
Amendment privilege entitles a defendant as a matter of
constitutional right to await the end of the State’s case before
announcing the nature of his defense, any more than it entitles
him to await the jury’s verdict on the State’s case-in-chief
before deciding whether or not to take the stand himself.
Petitioner concedes that absent the notice-of-alibi rule
the Constitution would raise no bar to the court’s granting the
State a continuance at trial on the ground of surprise as soon
as the alibi witness is called. Nor would there be self-
incrimination problems if, during that continuance, the State
was permitted to do precisely what it did here prior to trial:
take the deposition of the witness and find rebuttal evidence.
But if so utilizing a continuance is permissible under the Fifth
and Fourteenth Amendments, then surely the same result may
be accomplished through pretrial discovery, as it was here,
avoiding the necessity of a disrupted trial. We decline to hold
that the privilege against compulsory self-incrimination
guarantees the defendant the right to surprise the State with
an alibi defense.
Williams, 399 U.S. at 85-86, 90 S.Ct. at 1898 (footnotes omitted).
[¶69] Three years later, the U.S. Supreme Court decided Wardius v. Oregon, 412 U.S.
470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). In Wardius, the Court ruled Oregon’s alibi
notice rule unconstitutional, holding that “the Due Process Clause of the Fourteenth
Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are
given to criminal defendants.” Id., 412 U.S. at 472, 93 S.Ct. at 2211. In so holding, the
Court did not retreat from its holding in Williams. It reasoned:
Notice-of-alibi rules, now in use in a large and
growing number of States, are based on the proposition that
the ends of justice will best be served by a system of liberal
discovery which gives both parties the maximum possible
amount of information with which to prepare their cases and
thereby reduces the possibility of surprise at trial. … The
growth of such discovery devices is a salutary development
which, by increasing the evidence available to both parties,
enhances the fairness of the adversary system. As we
recognized in Williams, nothing in the Due Process Clause
28
precludes States from experimenting with systems of broad
discovery designed to achieve these goals. ‘The adversary
system of trial is hardly an end in itself; it is not yet a poker
game in which players enjoy an absolute right always to
conceal their cards until played. We find ample room in that
system, at least as far as ‘due process’ is concerned, for (a
rule) which is designed to enhance the search for truth in the
criminal trial by insuring both the defendant and the State
ample opportunity to investigate certain facts crucial to the
determination of guilt or innocence.’ 399 U.S., at 82 (footnote
omitted), 90 S.Ct., at 1896.
Although the Due Process Clause has little to say
regarding the amount of discovery which the parties must be
afforded, … it does speak to the balance of forces between
the accused and his accuser. …
…[I]n the absence of a strong showing of state
interests to the contrary, discovery must be a two-way street.
The State may not insist that trials be run as a ‘search for
truth’ so far as defense witnesses are concerned, while
maintaining ‘poker game’ secrecy for its own witnesses. It is
fundamentally unfair to require a defendant to divulge the
details of his own case while at the same time subjecting him
to the hazard of surprise concerning refutation of the very
pieces of evidence which he disclosed to the State.
Wardius, 412 U.S. at 474-76, 93 S.Ct. at 2211-13 (footnotes and citations omitted).
[¶70] In 1975, the U.S. Supreme Court decided United States v. Nobles, 422 U.S. 225,
95 S.Ct. 2160, 45 L.Ed.2d 141 (1975). At issue in Nobles was disclosure of a defense
investigator’s report containing statements taken from prosecution witnesses. Id., 422
U.S. at 227, 95 S.Ct. at 2164. The trial court did not order a pretrial disclosure of the
report, but it did order that it would examine the report in camera, would excise all
reference to matters not relevant to the precise statements at issue, and would order
disclosure if the investigator testified as to the witness interviews and statements. Id.,422 U.S. at 229, 95 S.Ct. at 2165. After defense counsel stated that he would not comply
with such a disclosure order, the trial court barred the investigator from testifying about
the witness interviews. Id. The Court upheld the trial court’s order, explaining:
It w a s … apparent to the trial judge that the
investigator’s report was highly relevant to the critical issue
of credibility. In this context, production of the report might
29
substantially enhance ‘the search for truth,’ Williams v.
Florida, 399 U.S., at 82, 90 S.Ct., at 1896. We must
determine whether compelling its production was precluded
by some privilege available to the defense in the
circumstances of this case.
....
The Court of Appeals concluded that the Fifth
Amendment renders criminal discovery ‘basically a one-way
street.’ 501 F.2d at 154. Like many generalizations in
constitutional law, this one is too broad. The relationship
between the accused’s Fifth Amendment rights and the
prosecution’s ability to discover materials at trial must be
identified in a more discriminating manner.
The Fifth Amendment privilege against compulsory
self-incrimination is an ‘intimate and personal one,’ which
protects ‘a private inner sanctum of individual feeling and
thought and proscribes state intrusion to extract self-
condemnation.’ … As we noted in Couch, supra, 409 U.S., at
328, 93 S.Ct., at 616, the ‘privilege is a personal privilege: it
adheres basically to the person, not to information that may
incriminate him.’
In this instance disclosure of the relevant portions of
the defense investigator’s report would not impinge on the
fundamental values protected by the Fifth Amendment. The
court’s order was limited to statements allegedly made by
third parties who were available as witnesses to both the
prosecution and the defense. Respondent did not prepare the
report, and there is no suggestion that the portions subject to
the disclosure order reflected any information that he
conveyed to the investigator. The fact that these statements of
third parties were elicited by a defense investigator on
respondent’s behalf does not convert them into respondent’s
personal communications. Requiring their production from
the investigator therefore would not in any sense compel
respondent to be a witness against himself or extort
communications from him.
We thus conclude that the Fifth Amendment privilege
against compulsory self-incrimination, being personal to the
defendant, does not extend to the testimony or statements of
30
third parties called as witnesses at trial. The Court of
Appeals’ reliance on this constitutional guarantee as a bar to
the disclosure here ordered was misplaced.
Nobles, 422 U.S. at 232-234, 95 S.Ct. at 2167-2168 (footnotes and citations omitted).
[¶71] The final U.S. Supreme Court case we include in our discussion is Taylor v.
Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). In Taylor, a trial court, as a
sanction against a criminal defendant for failing to identify a witness in response to a
pretrial discovery request, refused to allow the undisclosed witness to testify. Id., 484
U.S. at 402, 108 S.Ct. at 650. The Court held that such a sanction was not absolutely
prohibited by the Compulsory Process Clause of the Sixth Amendment and found no
constitutional error on the specific facts of the case. Id. In upholding the sanction, the
Court observed the need for discovery in criminal proceedings:
The principle that undergirds the defendant’s right to
present exculpatory evidence is also the source of essential
limitations on the right. The adversary process could not
function effectively without adherence to rules of procedure
that govern the orderly presentation of facts and arguments to
provide each party with a fair opportunity to assemble and
submit evidence to contradict or explain the opponent’s case.
The trial process would be a shambles if either party had an
absolute right to control the time and content of his witnesses’
testimony. Neither may insist on the right to interrupt the
opposing party’s case, and obviously there is no absolute
right to interrupt the deliberations of the jury to present newly
discovered evidence. The State’s interest in the orderly
conduct of a criminal trial is sufficient to justify the
imposition and enforcement of firm, though not always
inflexible, rules relating to the identification and presentation
of evidence.
The defendant’s right to compulsory process is itself
designed to vindicate the principle that the “ends of criminal
justice would be defeated if judgments were to be founded on
a partial or speculative presentation of the facts.” … Rules
that provide for pretrial discovery of an opponent’s witnesses
serve the same high purpose. Discovery, l i k e cross-
examination, minimizes the risk that a judgment will be
predicated on incomplete, misleading, or even deliberately
fabricated testimony. The “State’s interest in protecting itself
against an eleventh-hour defense” is merely one component
31
of the broader public interest in a full and truthful disclosure
of critical facts.
Taylor, 484 U.S. at 410-12, 108 S.Ct. at 654 (footnotes and citations omitted).
[¶72] In Taylor, the Supreme Court explained that, although the Sixth Amendment right
to present a defense is fundamental, it is not absolute if outweighed by countervailing
public interests. Taylor, 484 U.S. at 414, 108 S.Ct. at 656. The Court offered several
non-exclusive factors to be considered in determining whether a sanction against a
defendant for a pretrial discovery violation will impermissibly infringe on a defendant’s
Sixth Amendment rights:
The integrity of the adversary process, which depends both on
the presentation of reliable evidence and the rejection of
unreliable evidence, the interest in the fair and efficient
administration of justice, and the potential prejudice to the
truth-determining function of the trial process must also
weigh in the balance.
A trial judge may certainly insist on an explanation for
a party’s failure to comply with a request to identify his or her
witnesses in advance of trial. If that explanation reveals that
the omission was willful and motivated by a desire to obtain a
tactical advantage that would minimize the effectiveness of
cross-examination and the ability to adduce rebuttal evidence,
it would be entirely consistent with the purposes of the
Compulsory Process Clause simply to exclude the witness’
testimony.
Taylor, 484 U.S. at 414-15, 108 S.Ct. at 656 (footnotes and citations omitted); see also
Gruwell v. State, 2011 WY 67, ¶¶ 11-17, 254 P.3d 223, 227-29 (Wyo. 2011); Breazeale
v. State, 2011 WY 10, ¶¶ 33-35, 245 P.3d 834, 843-44 (Wyo. 2011); Dysthe v. State,
2003 WY 20, ¶¶ 5-9, 63 P.3d 875, 878-81 (Wyo. 2003); Lawson v. State, 994 P.2d 943,
946-47 (Wyo. 2000) (Wyoming cases applying Taylor factors to exclusion of evidence as
sanction for defense pretrial notice violations).
[¶73] What the Supreme Court’s rulings in Williams, Wardius, Nobles, and Taylor
instruct, and what is implicit in this Court’s above-cited rulings, is that there is no
absolute constitutional bar to requiring pretrial discovery or a pretrial disclosure from a
criminal defendant. Indeed, the limits on such pretrial disclosures remain the subject of
much debate among scholars.
Does the accelerated disclosure doctrine of Williams take into
32
account the potential for such disclosure being utilized by the
prosecution to obtain evidence of the formative elements of
the crime that would not have been obtained if disclosure was
required only after the prosecution established a prima facie
case? Commentators taking a narrow view of Williams argue
that it does not and that the Court would distinguish Williams
if fairly faced with such a case. Williams, they note, simply
did not present a situation in which pretrial disclosure would
“accelerate” a choice that would otherwise never have to be
made because the prosecution, without leads provided by the
disclosure, would not have established a prima facie case in
its case-in-chief. Indeed, they argue, the facts there clearly
negated such a possibility. In describing the prosecution’s use
of the alibi disclosure, the Court noted that the prosecution
had responded by laying the groundwork for impeaching the
alibi witness and establishing by independent evidence the
falseness of her testimony. Although Justice Black in dissent
raised the possibility that an accelerated disclosure might be
used directly or derivatively to enhance the strength of the
prosecution’s case-in-chief, there was no suggestion in the
facts presented by the majority that such had been the case
and, indeed, no such claim had been made by the defendant.
Moreover, the very nature of an alibi defense, the
commentators note, made such use largely unlikely. Alibi
witnesses, as persons who were elsewhere, are not likely to be
helpful sources to the prosecution in proving the elements of
the offense. While they conceivably could have some relevant
information on that score in unusual cases, that possibility as
a general matter falls far below the requirement of a “real and
appreciable danger” the standard commonly used in
determining whether the likelihood of incrimination is
sufficient to raise a legitimate self-incrimination claim. The
likelihood would be far greater, the commentators note, as to
other types of defense witnesses, particularly those who
would be present at the scene (as in the case of witnesses
supporting a claim of self-defense). Where a pretrial
discovery rule would require disclosure of the identity of such
witnesses, the Court might be far less willing to accept the
disclosure requirement by drawing an analogy between the
pretrial and the trial choice to disclosure. At the least, it is
argued, the Court might hold that pretrial discovery could not
be ordered where the defense can establish in camera that
there exists a real and appreciable danger that the disclosure
33
could be used by the prosecution in developing its case-in-
chief. Arguably disclosure also would not be required where
the defense could make a showing in camera that the
disclosure would be incriminating with respect to some
unrelated offense. Here too, the defense would not be
required to decide whether the disclosure is worth the risk
until it is clear that the prosecution can meet its burden of
establishing its case-in-chief.
Other commentators contend that there is no limitation to the
Court’s acceptance of the accelerated disclosure concept in
Williams. The Williams ruling demands at most that the
defense be given broad discovery of the prosecution’s case, as
was true in Florida, so it can make a reasoned tactical
judgment as it would at trial.
5 Wayne R. LaFave, et al., Criminal Procedure § 20.4(d) (3d ed. 2012) (footnotes
omitted); see also Allis, Limitations on Prosecutorial Discovery of the Defense Case in
Federal Courts: The Shield of Confidentiality, 50 S. Cal. L. Rev. 461 (1977); Blumenson,
Constitutional Limitations on Prosecutorial Discovery, 18 Harv.Civ.R.-Civ.L. L.Rev.
122 (1983); Clinton, The Right to Present a Defense, 9 Ind. L. Rev. 713 (1976);
Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 Cal. L.
Rev. 1567 (1986); Tomlinson, Constitutional Limits on Prosecutorial Discovery, 23 San
Diego L. Rev. 923 (1986); Van Kessel, Prosecutorial Discovery and the Privilege
Against Self-Incrimination: Accommodation or Capitulation, 4 Hast.L.Q. 855 (1977);
Westen, Order of Proof: An Accused’s Right to Control the Timing and Sequence of
Evidence in His Defense, 66 Cal. L. Rev. 935 (1978).
[¶74] 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. While the above-cited cases and
authorities do not discuss pretrial disclosures in terms of interfering with the right to
counsel, which was the particular right Kovach asserted in refusing disclosure in this
case, our precedent shows that a claimed infringement on the right to counsel is likewise
a fact-specific inquiry. See Trusky v. State, 7 P.3d 5, 9 (Wyo. 2000) (observing that
required pretrial disclosure of defense expert’s notes is not an impermissible intrusion
into attorney-client relationship in absence of a showing of substantial prejudice, e.g.,
disclosure “of confidential information pertaining to the defense plans and strategy, from
government influence which destroys the defendant’s confidence in his attorney, and
from other actions designed to give the prosecution an unfair advantage at trial”).
34
[¶75] This Court has consistently held that trial courts have broad discretion over pretrial
matters and discovery. See Schreibvogel v. State, 2010 WY 45, ¶ 12, 228 P.3d 874, 880
(Wyo. 2010); Ceja v. State, 2009 WY 71, ¶ 11, 208 P.3d 66, 68; Trusky, 7 P.3d at 11. In
exercising that discretion over pretrial disclosure requests or orders, and in considering a
defendant’s constitutional challenge to such requests or orders, a trial court, given the fact
sensitive nature of such challenges, must necessarily consider the factual circumstances
of the request and the information that will be revealed by the disclosure. To that end,
the district court in this case invited Kovach to submit the relevant witness statements for
an in camera review. For reasons not disclosed by the record, Kovach did not submit the
statements. The trial court therefore had no basis for evaluating whether requiring
disclosure of the disputed witness statements would infringe on any of Kovach’s cited
constitutional rights, and this Court is left in the same position. As we explained in a
similar case:
We do not need to address whether the notes fall under
the rubric of W.R.Cr.P. 16(b)(1)(B) and W.R.Cr.P. 26.2(a)
because the record does not include a copy of the report or the
notes. Without copies of the report or the notes in question,
we are unable to determine whether the trial court abused its
discretion in Wendy’s case. The appellant has the burden to
prove abuse of discretion and the burden to provide an
adequate record on appeal. Clark v. Alexander, 953 P.2d 145,
150 (Wyo. 1998); Stadtfeld v. Stadtfeld, 920 P.2d 662, 664
(Wyo. 1996). Given Wendy’s failure to provide us with a
copy of the social worker’s notes or the report, we have no
choice but to affirm the trial court’s decision to allow
discovery of the notes pursuant to the relevant rules of
criminal procedure.
Trusky, 7 P.3d at 11.
[¶76] Kovach did not provide the district court a sufficient factual basis on which to
evaluate his constitutional challenge to the court’s disclosure order, and this Court is
likewise left with no record on which we are able to evaluate the alleged infringement.
We thus affirm the district court’s rejection of Kovach’s constitutional challenge to the
court’s pretrial disclosure order.
C. Kovach’s Remaining Challenges to Disclosure and Sanctions Order
[¶77] We turn next to Kovach’s argument that the district court’s pretrial disclosure and
sanction orders contravened Rules 26.2 and 16 of the Wyoming Rules of Criminal
Procedure and Kovach’s Sixth Amendment confrontation rights. With respect to
Kovach’s Rule 26.2 and Rule 16 objections to the disclosure order, Kovach preserved
35
this issue for appeal with his objections to the State’s discovery request and his
reassertion of those objections in his formal election to not comply with the ordered
disclosure. Although we generally review a court’s orders governing discovery or trial
procedures for an abuse of discretion, the question presented by Kovach is one of rule
interpretation, which we review de novo. See Kelly v. Kilts, 2010 WY 151, ¶ 9, 243 P.3d
947, 950 (Wyo. 2010) (citing Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196
P.3d 787, 790 (Wyo.2008)) ( “The interpretation of rules, like the interpretation of
statutes, involves a question of law which we review de novo.”).
[¶78] With respect to Kovach’s argument that the sanction exceeded the sanctions
permitted by Rule 26.2, as well as his argument that the sanction violated his Sixth
Amendment confrontation rights, the record is less clear as to Kovach’s preservation of
these issues for appeal. These arguments relate to the restrictions the district court placed
on Kovach’s cross-examination of MW and Dan Frear, and as we indicated in our
background discussion of the disclosure order and sanctions, Kovach’s first objection to
the court’s sanction order does not appear in the record until Kovach’s new trial motion.
His constitutional objection does not make an appearance until his reply in support of the
new trial motion. Indeed, during trial, when the court reminded Kovach of the limits on
his cross-examination, Kovach did not object to the sanctions and even stated he had no
objection.1
[¶79] Under these circumstances, our analysis is appropriately confined to a review for
plain error. See Causey v. State, 2009 WY 111, ¶ 17, 215 P.3d 287, 293 (Wyo. 2009)
(objection not properly preserved on appeal unless particular objection made at trial); see
also 23A C.J.S. Criminal Law § 1930 (2012) (“Where a party fails to properly object to a
matter at trial, that party may not object for the first time in a motion for a new trial. A
defendant’s motion for a new trial will be denied if he or she fails to raise an issue during
trial, including a constitutional issue.”) (footnotes omitted). Our plain error analysis
subjects a claim of error to the following review:
To show plain error, an appellant “must establish, by
reference to the record, a violation of a clear and unequivocal
rule of law in a clear and obvious, not merely arguable, way
and that the violation adversely affected a substantial right
resulting in material prejudice.” Jealous v. State, 2011 WY
171, ¶ 11, 267 P.3d 1101, 1104 (Wyo. 2011) (citing Cazier v.
State, 2006 WY 153, ¶ 10, 148 P.3d 23, 28 (Wyo. 2006)). To
establish material prejudice, an appellant “must show a
reasonable possibility exists that he would have received a
1
Although Kovach made an offer of proof with respect to the testimony of MW, he did not object on the
record to the court’s discovery sanction as an abuse of discretion or as an infringement on his
constitutional rights.
36
more favorable verdict in the absence of the errors.” Jealous,
¶ 11, 267 P.3d at 1104 (citing Pendleton v. State, 2008 WY
36, ¶ 11, 180 P.3d 212, 216 (Wyo. 2008)).
Joreski v. State, 2012 WY 143, ¶ 11, 288 P.3d 413, 416 (Wyo. 2012).
1. Disclosure Obligations and Limitations under Rules 16 and 26.2
[¶80] This Court interprets rules of procedure using our usual rules of statutory
construction:
Our initial effort is directed at ascertaining if a statute or
procedural rule is ambiguous. If it is not, we apply the plain
language of the statutes and/or rules. We begin by making an
inquiry respecting the ordinary and obvious meaning of the
words employed, according to their arrangement and
connection. We construe the statute as a whole, giving effect
to every word, clause, and sentence, and we construe together
all parts of the statute in pari materia.
Busch, ¶ 13, 196 P.3d at 790 (citing Cotton v. McCulloh, 2005 WY 159, ¶ 14, 125 P.3d
252, 258 (Wyo. 2005)).
[¶81] Kovach first argues that if Rule 26.2 is interpreted to allow a court to order
disclosure of witness statements held by the defense, the rule will conflict with Rule 16’s
limitations on a defendant’s disclosure obligations. We disagree.
[¶82] Rule 16 allows for the discovery of information from both the State and the
defendant, subject to the following limitations on the information available from the
defendant:
(2) Information Not Subject to Disclosure. Except as to
scientific or medical reports, this subdivision does not
authorize the discovery or inspection of reports, memoranda,
or other internal defense documents made by the defendant,
or the defendant’s attorneys or agents in connection with the
investigation or defense of the case, or of statements made by
the defendant, or by state or defense witnesses, or by
prospective state or defense witnesses, to the defendant, the
defendant’s agents or attorneys.
W.R.Cr. P. 16(b)(2).
37
[¶83] We reject Kovach’s argument that this Rule 16 language bars a trial court from
ordering a defendant to make a pretrial disclosure of witness statements. Kovach’s
argument fails because it ignores that Rules 16 and 26.2 serve different functions and
come into play at different stages of the criminal proceedings. Rule 16 is a discovery rule
and limits the information a defendant is required to disclose during discovery. Rule
26.2, on the other hand, governs the district court’s authority to order production for trial.
See State v. Naple, 2006 WY 125, ¶ 12, 143 P.3d 358, 361 (Wyo. 2006) (Wyo. R. Crim.
P. 16 modeled after federal Rule 16); United States v. Nobles, 422 U.S. 225, 234-36, 95
S.Ct. 2160, 2168-69 (1975) (Rule 16 governs pretrial disclosure and was not intended to
constrict trial court’s control over trial). When the two rules are read in the context of the
respective stages they govern, they can be reconciled. Rule 16 precludes discovery of the
statements at an earlier point in the criminal proceedings, but Rule 26.2 gives the trial
court discretion to order disclosure for trial at some point before trial.
[¶84] Alternatively, if we were to accept Kovach’s argument, Rule 16’s limitation on
disclosure would directly contradict and nullify the Rule 26.2 language authorizing a
court to order the defense to produce witness statements for trial. See Rule 26.2(a)
(“Upon order of the court, the attorney for the state or the defendant and the defendant’s
attorney shall produce . . . .”). We must, and do, choose the interpretation of Rules 26.2
and 16 that allows the rules to be harmonized and avoids nullifying the operation of
either rule. See Redco Const. v. Profile Props., LLC, 2012 WY 24, ¶ 26, 271 P.3d 408,
416 (Wyo. 2012) (“[W]e must not give a statute a meaning that will nullify its operation
if it is susceptible of another interpretation.”).
[¶85] The plain language of Rule 26.2(a)(2) authorizes a court to order both the defense
and prosecution to produce witness statements for trial, and we find no violation of Rule
16 in the district court’s order doing so in this case. In so ruling, however, we caution
that our finding of no Rule 16 violation is based on the facts of this case. Here, although
the State moved for production of the defense witness statements early in the case, just
after filing its charges, the court did not order their production until ten days before trial.
In so ordering, the court reasoned that a pretrial disclosure would be less disruptive and
time consuming than requiring production of statements during trial, after a witness’
testimony. In other words, the record clearly reflects that the ordered disclosure was a
trial disclosure and not a discovery disclosure.
[¶86] We emphasize that Rule 16 applies to discovery and Rule 26.2 applies to trial
disclosures, meaning that an order requiring the defense to disclose witness statements
must reflect, based on its timing and the circumstances of its issuance, that it is a trial
order and not a discovery order. Without this delineation, we could foresee the conflict
between Rules 16 and 26.2 asserted by Kovach, as well as the potential constitutional
implications we discussed above.
38
[¶87] Kovach next argues that even if the district court’s disclosure order did not violate
Rule 16, the order did nonetheless exceed the court’s authority under Rule 26.2.
Specifically, Kovach argues that Rule 26.2 permits a court to order a pretrial disclosure of
a witness statement only by the party calling that witness to testify. With this argument,
we agree.
[¶88] In keeping with our rules of interpretation, we look first to the plain language of
Rule 26.2, which authorizes a trial court to order disclosure of witness statements as
follows:
(a) Order for Production. Upon order of the court, the
attorney for the state or the defendant and the defendant’s
attorney shall produce for the examination and use of the
other party, any written or recorded statement of a witness
other than the defendant in their possession or which they
may reasonably obtain and which relates to the subject
matter about which the witness has testified or will testify
and:
(1) Upon demand of the other party, the court shall
order the statement to be produced after a witness has
testified; and
(2) Upon motion of a party or upon its own
motion, the court may require the statement to be
produced at any time before trial.
W.R.Cr.P. 26.2(a) (emphasis added).
[¶89] Rule 26.2 authorizes a court to order either party to produce any witness statement
in that party’s possession that relates to the subject matter of the witness’ testimony, and
nothing in the above-quoted language limits that authority to statements in the possession
of the party calling a witness on direct examination. In keeping with our rules of
interpretation, however, we must read all parts of Rule 26.2 together. In that regard,
because this Court has held that a trial court must consider the Rule 26.2 sanctions in
response to a party’s violation of a Rule 26.2 disclosure order, we find the rule’s
sanctions provision particularly relevant. See Seivewright v. State, 7 P.3d 24, 28 (Wyo.
2000) (Rule 26.2 sanctions provision “mandatory in all respects”). Rule 26.2 provides
the following sanctions:
(e) Failure to Comply With Order. If a party elects not to
comply with an order to deliver a statement, the court shall
order:
39
(1) That the witness not be permitted to testify; or
(2) That the testimony of the witness be stricken from
the record and that the trial proceed; or
(3) If it is the attorney for the state who elects not to
comply, shall declare a mistrial if required in the interest of
justice.
W.R.Cr.P. 26.2(e).
[¶90] The first Rule 26.2 sanction, that the witness not be permitted to testify,
contemplates a pretrial disclosure violation. That is, the trial court orders a pretrial
disclosure, a party refuses or fails to comply, and the court responds by barring the
witness from testifying. By its plain terms, this sanction would be effective only against
a party proposing to call the witness in question--that is, if a party does not list a witness,
that party is not going to be affected by an order barring the witness from testifying. The
second sanction, because it calls for the striking of testimony already given, contemplates
an order to disclose after the witness has testified. By its terms, the sanction would be
effective against either the party who called the witness, or the party who cross-examined
the witness, assuming that the cross-examining party used a witness statement in its
cross-examination and refused to disclose that statement after being so ordered. The third
sanction relates only to prosecution violations, and by its terms, likewise contemplates
violation of an order to produce a witness statement after the witness has testified.
[¶91] Of the Rule 26.2 authorized sanctions, only the first sanction relates to a pretrial
disclosure. Because that sanction applies only to a disclosure violation by the party
calling a witness, we are persuaded that the Rule 26.2(a)(2) language permitting a court
to order a pretrial disclosure permits such an order only against the party calling the
witness. Otherwise we would be forced to conclude that Rule 26.2 authorizes a pretrial
disclosure order without at the same time authorizing a concomitant sanction, a result that
would be at odds with the importance this Court has previously attached to the sanctions
provision.
[¶92] Based on this interpretation of Rule 26.2, we must conclude that the district court
erred in ordering Kovach to make a pretrial disclosure of witness statements for witnesses
not listed by Kovach. With respect to this error, however, the only prejudice that Kovach
alleges is the impact from the district court’s sanction order entered in response to
Kovach’s refusal to comply with the disclosure order. We thus turn to Kovach’s
arguments relating to the court’s sanction order.
2. Sanctions Order: Rule 26.2 and Sixth Amendment
40
[¶93] Kovach contends that the district court’s sanctions order, which limited his cross-
examination of those witnesses for which he refused to disclose witness statements,
exceeded the court’s authority under Rule 26.2 and infringed on his constitutional right to
confront witnesses against him. As indicated above, we review these claimed errors
under our plain error analysis, which requires that: 1) the alleged error clearly appears in
the record; 2) the error transgressed an unequivocal rule of law in a clear and obvious
way; and 3) the error adversely affected a substantial right resulting in material prejudice
to the defendant. See Joreski, ¶ 11, 288 P.3d at 416.
[¶94] We address first Kovach’s argument that the sanctions order exceeded the district
court’s authority under Rule 26.2. As noted earlier, the record does not contain the
district court’s order imposing the discovery sanction, or the court’s reasoning for its
order. The record does, however, contain sufficient information to show the substance of
the sanction, and the alleged error does therefore clearly appear in the record. As to the
second prong of our plain error analysis, we agree with Kovach that the sanction
transgressed an unequivocal rule of law. This Court has held that the Rule 26.2(e) is in
all respects mandatory and that the sanctions identified in Rule 26.2(e) are the exclusive
evidentiary sanctions that a court may impose for a party’s failure to disclose a witness
statement in violation of a Rule 26.2 order. Seivewright, 7 P.3d at 28 (rejecting sanctions
order because allowing objections to particular questions at trial was “not one of the
sanctions mandated by the rule”). Because limiting the cross-examination of witnesses is
not one of the exclusionary sanctions authorized by Rule 26.2(e), we find that the district
court erred in imposing the sanction.2
[¶95] We turn then to the third question in our plain error analysis--whether the error
resulted in material prejudice to Kovach. The prejudice Kovach asserts is the violation of
his Sixth Amendment right to confront witnesses against him. This dovetails with
Kovach’s constitutional challenge to the sanction order, and we thus consider the
prejudice to Kovach in our discussion of the alleged constitutional violation that resulted
from the disclosure sanction.
[¶96] As to the alleged constitutional violation, the record is again sufficient to establish
the district court’s sanction itself. With regard to the cross-examination of Dan Frear,
2
We do not intend this holding to interfere with a trial court’s obligation to exercise its discretion before
excluding evidence as a sanction for a defendant’s disclosure order violation. See Gruwell, ¶¶ 11-17, 254
P.3d at 227-29; Breazeale, ¶¶ 33-35, 245 P.3d at 843-44; Dysthe, ¶¶ 5-9, 63 P.3d at 878-81; Lawson, 994
P.2d at 946-47 (identifying factors a court must consider before excluding evidence as a sanction for a
defense discovery or disclosure violation). While a trial court must, as we held in Seivewright, give
consideration to the Rule 26.2(e) sanctions, the court need not exclude the evidence if it finds such a
sanction would infringe on a defendant’s Sixth Amendment right to present his case. Moreover, although
the Rule 26.2(e) sanctions are the exclusive evidentiary sanctions a court may order in response to a
failure to comply with a Rule 26.2 order, this holding does not restrict a court’s discretion to take other
non-exclusionary actions, such as ordering a continuance or imposing non-evidentiary contempt sanctions
under W.R.Cr.P. 42 or 42.1.
41
however, Kovach made no offer of proof. In the absence of that offer of proof showing
the testimony Kovach hoped to elicit, we have no means of determining whether there
was a clear and obvious violation of an unequivocal law or whether that alleged violation
resulted in material prejudice. We therefore find no plain error with respect to the court’
s sanction as it was used to restrict Kovach’s cross-examination of Dan Frear.
[¶97] With respect to the alleged constitutional infringement resulting from the district
court’s restriction on Kovach’s cross-examination of MW, Kovach did make an offer of
proof establishing the testimony that Kovach was precluded from exploring as a result of
the sanction. We turn then to the next prong of our plain error analysis and address
whether Kovach has established a clear and obvious violation of his confrontation rights.
[¶98] This Court has explained the limitations a court may properly place on a
defendant’s cross-examination:
.... In order for there to be a violation of the right of
confrontation, 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.’” Hannon, ¶ 18, 84 P.3d at 330
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106
S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)). The Confrontation
Clause guarantees a defendant an “opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defendant might
wish.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435(quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct.
292, 295, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in
original)). A defendant’s right to cross-examination of a
witness is not unfettered, but is subject to the trial court’s
“discretion to reasonably limit cross-examination to prevent,
among other things, questioning that is repetitive or of
marginal relevance.” Hannon, ¶ 2 2 , 8 4 P . 3 d a t 3 3 1–32
(quoting United States v. DeSoto, 950 F.2d 626, 629–30 (10th
Cir. 1991)); see also Olden v. Kentucky, 488 U.S. 227, 232,
109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (per curiam).
Downing v. State, 2011 WY 113, ¶ 11, 259 P.3d 365, 368-69 (Wyo. 2011) (quoting
Miller v. State, 2006 WY 17, ¶ 8, 127 P.3d 793, 796 (Wyo. 2006) (emphasis in original).
42
[¶99] We have also explained the showing that must be made to support a Confrontation
Clause violation:
[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.
Downing, ¶ 11, 259 P.3d at 368.
[¶100] With respect to the testimony of MW, Kovach contends that he should have been
permitted to explore MW’s history as a sexual assault victim. He contends that this
would have allowed him to show that it was her own history rather than anything in
Kovach’s conduct that caused her to use the term “attack” when describing what occurred
between Kovach and the Ribelins. Although Kovach’s argument is less than clear, we
assume it is the following testimony by MW that Kovach sought to address with his
cross-examination:
Q. What did you tell the dispatcher as to how they
received their injuries?
A. That they were attacked.
Q. Anything else?
A. (Shakes head.)
Q. Do you recall stating that a young man went off
on them?
A. I don’t recall actually saying that, but . . .
Q. Is that your impression of what occurred?
A. To me it was more of an altercation and I had
just used the wrong words at that time because I don’t know
what happened up to there besides what the old men had told
me at this point.
Q. Okay. Do you recall telling me why you felt
they had been attacked?
43
A. Because Jesse had pulled fencing pliers on
Travis.
Q. Do you recall telling me what your impression
was as to why you felt they were attacked?
A. Because Jesse had pulled the fencing pliers.
Q. Do you recall telling me that the old man didn’t
do anything, he didn’t deserve to be attacked?
A. In the camp, correct? Are you talking about the
camp or up top?
Q. I’m talking about in the camp.
A. Okay. Then right, Jesse wasn’t doing anything.
Q. And isn’t that the reason you used the word
attacked?
A. Yes.
[¶101] On cross-examination, defense counsel was permitted to elicit testimony that MW
related to Jess Ribelin, but he was not permitted to explore her history as a sexual assault
victim. Applying our Confrontation Clause analysis to this limitation on Kovach’s cross-
examination, we are unable to find a clear and obvious violation of his right to cross-
examination.
[¶102] Our analysis requires that we assume the damaging potential of the cross-
examination was fully realized and then consider the impact of that cross-examination on
the prosecution’s case. Doing so, it is simply inconceivable to this Court that the
proffered cross-examination as to MW’s use of the term “attack” would have had any
measureable impact on the prosecution’s case.
[¶103] First, regardless of how MW characterized Kovach’s behavior, she testified as to
what she witnessed after Kovach brought the Ribelins back to his hunting camp: Kovach
shoved the Ribelins to the ground without provocation. Moreover, by the time MW
testified: The jury had heard the testimony of the Ribelins as to how they were injured,
along with the testimony of the attending physician regarding the seriousness of their
injuries; the jury had viewed photographs of the injuries; the jury had heard the testimony
of Isaac Zimmerman that at the hunting camp, Kovach knocked the Ribelins to the
ground without provocation and that Kovach had gone “too far” and used “[m]ore force
than was required for what went down;” and the jury had been presented with Kovach’s
recorded statement in which he used the terms “whipped his ass” when referring to what
he did to one of the Ribelin brothers. Given the evidence before the jury, we can
ascertain no discernible defensive gain from Kovach’s proposed cross-examination of
MW.
[¶104] Kovach has not shown a clear and obvious violation of his Confrontation Clause
rights with respect to the district court’s limitation on his cross-examination of MW.
44
MW’s use of the word “attack” simply does not stand out from the other evidence
presented to the jury showing that Kovach was the aggressor in the confrontation with the
Ribelins, was not acting in self defense, and was not justified in the injuries he inflicted
on the two men. We therefore find no plain error in the district court’s discovery
sanction.
III. Prosecutorial Misconduct
[¶105] Kovach contends that the prosecutor engaged in misconduct when he failed to
correct false or misleading testimony by MW concerning promises the prosecution made
to her to procure her favorable testimony and by Isaac Zimmerman concerning threats by
the prosecution. Defense counsel did not object to this testimony during trial, and we
therefore review the claim for plain error. See Lawson, ¶¶ 48-50, 242 P.3d at 1008 (plain
error review of prosecutorial misconduct claim where plea agreement uncovered after
trial). The testimony Kovach challenges as false or misleading is the same testimony we
discussed in our analysis of Kovach’s Brady claims, and for much the same reason we
rejected the Brady claims, we likewise reject Kovach’s prosecutorial misconduct claims.
[¶106] As indicated above, our plain error analysis requires that: 1) The alleged error
clearly appears in the record; 2) the error transgressed an unequivocal rule of law in a
clear and obvious way; and 3) the error adversely affected a substantial right resulting in
material prejudice to the defendant. Lawson, ¶ 48, 242 P.3d at 1008.
[¶107] The alleged false and misleading testimony clearly appears in the record, and this
prong of the plain error test is therefore satisfied. We turn then to the second prong of
our plain error analysis, the clear and obvious violation of an unequivocal rule of law.
We have recognized that a due process violation results when a prosecutor elicits false or
misleading testimony or allows the same to go uncorrected. Lawson, ¶ 50, 242 P.3d at
1008 (citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)). The
heart of this prong is of course a showing that the cited testimony was false or
misleading, and in this case we find neither.
[¶108] With respect to MW’s testimony that she was not promised anything by the
prosecutor in exchange for favorable testimony, we addressed this alleged promise in our
discussion of Kovach’s Brady claim and found no such promise existed. Because no
promise was made, MW’s testimony was neither false nor misleading and required no
correction by the prosecutor.
[¶109] We likewise addressed Isaac Zimmerman’s testimony. Mr. Zimmerman testified
on direct that he was threatened by the prosecutor’s investigator, not the prosecutor. On
cross-examination by the prosecutor, however, the prosecutor’s first questions were
directed at disclosing the numerous conversations he personally had with Mr.
Zimmerman and that he had threatened to charge Mr. Zimmerman as an accessory. To
45
the extent there was anything misleading in Mr. Zimmerman’s initial testimony, the
prosecutor promptly corrected it. Moreover, as discussed earlier in the context of
Kovach’s Brady claims, Mr. Zimmerman’s testimony was replete with discussions of
threatened prosecution and pressure brought on him by the prosecutor. The jury was not
misled concerning the threats of prosecution against Mr. Zimmerman.
[¶110] Kovach has not established that the prosecutor allowed false or misleading
testimony to go uncorrected. We therefore reject his claim of prosecutorial misconduct.
IV. Sentencing Errors
[¶111] Kovach asserts two errors in sentencing. First, he contends the district court erred
in considering uncharged misconduct in sentencing. Second, he contends the court erred
in sua sponte amending its judgment and sentence to increase the fines assessed against
Kovach from a total of $6,000 to a total of $9,000. Kovach did not object below to the
court’s sentencing rationale or its amendment of its judgment, and we therefore review
these claims for plain error. Again, this requires that we find: 1) the alleged error clearly
appears in the record; 2) the error transgressed an unequivocal rule of law in a clear and
obvious way; and 3) the error adversely affected a substantial right resulting in material
prejudice to the defendant. Lawson, ¶ 48, 242 P.3d at 1008.
A. Uncharged Misconduct
[¶112] Kovach contends that the district court erred in sentencing by considering
previously excluded uncharged misconduct evidence related to an incident between
Kovach and a neighbor. While the record clearly reflects the court’s reference to the
uncharged misconduct, Kovach has not established that the court violated an unequivocal
rule of law in its sentencing, and we thus reject this claimed error.
[¶113] Because this issue presents a challenge to the court’s sentencing decision, we are
guided by the following in applying our plain error analysis:
We review a district court’s sentencing decisions for
abuse of discretion. Roeschlein v. State, 2007 WY 156, ¶ 17,
168 P.3d 468, 473 (Wyo. 2007). A sentence will not be
disturbed because of sentencing procedures unless the
defendant can show an abuse of discretion, procedural
conduct prejudicial to him, circumstances which manifest
inherent unfairness and injustice, or conduct which offends
the public sense of fair play. Id. An error warrants reversal
only when it is prejudicial and it affects an appellant’s
substantial rights. Id. The party who is appealing bears the
burden to establish that an error was prejudicial. Id.46
Joreski, ¶ 10, 288 P.3d at 416 (quoting Noller v. State, 2010 WY 30, ¶ 7, 226 P.3d 867,
869 (Wyo. 2010)).
[¶114] A sentencing court may consider a wide range of factors about the defendant and
the crime when imposing sentence. Joreski, ¶ 11, 288 P.3d at 416.
They are free, in the exercise of their sentencing discretion, to
consider victim impact statements, PSIs and other factors
relating to the defendant and his crimes in imposing an
appropriate sentence within the statutory range. Garcia v.
State, 2007 WY 48, ¶ 10, 153 P.3d 941, 944 (Wyo. 2007),
citing Smith v. State, 2005 WY 113, ¶ 37, 119 P.3d 411, 422
(Wyo. 2005). Trial courts are permitted to consider a
defendant’s character when exercising their discretion to
impose sentence. Doherty, ¶ 35, 131 P.3d at 974. In
evaluating character, the trial court may consider a broad
range of reports and information. Gorseth v. State, 2006 WY
109, ¶ 15, 141 P.3d 698, 703 (Wyo. 2006). A defendant’s
cooperation with authorities and remorse for his actions are
appropriate factors to be considered when imposing sentence.
Dodge v. State, 951 P.2d 383, 386 (Wyo. 1997). A sentencing
recommendation contained in a PSI is one of the factors that a
court may properly consider in determining the appropriate
sentence to impose. Duke v. State, 2009 WY 74, ¶ 15, 209
P.3d 563, 569 (Wyo. 2009).
Joreski, ¶ 13, 288 P.3d at 417 (quoting Noller, ¶ 13, 226 P.3d at 871); see also Manes v.
State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo. 2004) (quoting Mehring v. State, 860
P.2d 1101, 1117 (Wyo.1993)) (“Evidence of prior criminal activity is ‘highly relevant to
the sentencing decision’ and may be considered by the sentencing court despite the fact
that no prosecution or conviction may have resulted.”).
[¶115] In addressing Kovach during the sentencing hearing, the district court commented
as follows:
Okay. Mr. Kovach, I don’t know what happened. I
read these letters and they portray a Travis Kovach that I did
not see in court, that I did not hear about in court and that I
did not view in the way of documentary or pictorial evidence
in court. It’s an inexplicable situation where I’m described
about the kind of man that you are, that I see in these letters
and that I’ve heard about from your family and your son’s
47
mother today from what I heard in the way of testimony and
evidence during the trial and reviewed in the information that
wasn’t necessarily part of the trial but led up to the trial, I’m
talking more specifically about the incident involving the
threat to a neighbor that was the subject of the 404(b)
evidentiary motion that I decided last summer. … So it’s
difficult to reconcile the Travis Kovach that wreaked this
brutal and unrelenting attack on the Ribelin brothers on that
day and to try and consider you in another way without some
explanation that would tell me why there was this progressive
escalation of violence and anger and I don’t know what other
adjectives might be appropriate. But you’re here because of
that day, you’re not here because of saving the life of another
person from drowning, you’re not here because of all these
other things that I’ve heard and read about you[.]
[¶116] We need not address whether the district court could have appropriately relied on
the referenced uncharged misconduct evidence; that is, whether the evidence was
sufficiently reliable for the court to consider in its sentencing. See Hubbard v. State,
2008 WY 12, ¶ 24, 175 P.3d 625, 630 (Wyo.2008) (sentencing decision must be based
upon reliable and accurate information). The above-quoted statement shows that the
court disclaimed reliance on information describing Kovach before the incident with the
Ribelins and was instead focused on Kovach’s conduct on that day. The court reiterated
its focus on the incident itself when subsequently during the hearing, the court again
referenced the incident and commented on Kovach’s failure to seek treatment or
counseling to address his behavior during the incident. Based on the record before us,
Kovach has not established that the court relied on inaccurate or unreliable uncharged
misconduct evidence in sentencing Kovach, and we therefore find no plain error in the
court’s sentencing.
B. Amendment of Judgment to Correct Fine Assessment
[¶117] In his final allegation of error, Kovach asks this Court to review the correction of a
clerical error in the district court’s final judgment and sentence. Again, the record is
clear that the court made a handwritten correction to the total amount of fines assessed
against Kovach, increasing that total from $6,000 to $9,000. The question we must
address is whether the court’s correction of a clerical error violated an unequivocal rule
of law in a clear and obvious way. We answer that question in the negative and find no
error.
[¶118] The district court imposed fines of $3,000 each on three separate charges on which
the jury returned a guilty verdict: $3,000 for each of two counts of aggravated assault and
battery, and $3,000 for one count of felonious restraint. The court first announced these
48
fines during the sentencing hearing. The court again imposed each individual fine in its
Judgment and Sentence, dated April 2, 2012. The April 2nd order identified each of three
individual fines of $3,000, but then added up the assessed fines for a total of $6,000. On
April 5, 2012, the court issued an Amended Judgment and Sentence, which contained
handwritten notes changing the total of the fines from $6,000 to $9,000.
[¶119] W.R.Cr.P. 36 authorizes a court to correct clerical mistakes in judgments at any
time and “after such notice, if any, as the court orders.” Nothing changed in the district
court’s sentence between the time that it announced its sentence during the sentencing
hearing and its issuance of the Amended Judgment and Sentence. The record clearly
reflects that the court did no more than correct a mathematical error, a clerical adjustment
that Rule 36 plainly allows. Kovach has failed to establish a clear and obvious violation
of an unequivocal rule of law in the court’s amendment of its Judgment and Sentence.
CONCLUSION
[¶120] We find no violation of Kovach’s constitutional rights in the prosecutor’s failure
to disclose information to the defense or in the district court’s discovery orders. We
further find no prosecutorial misconduct, and no plain error in the court’s sentencing
decisions and orders. Affirmed.
49