Gentry v. State

724 P.2d 450, 1986 Wyo. LEXIS 606

• Court: Wyoming Supreme Court
• Decided: August 29, 1986
• Docket: 86-50
• Status: Published

Opinions

MACY, Justice.

Appellant David Gentry was convicted of conspiracy to deliver a controlled substance, cocaine, in violation of §§ 35-7-1042, 35-7-1031(a), and 35-7-1016(b)(iv), W.S.1977.¹ He was sentenced to the Wyoming State Penitentiary for 15 to 36 months and fined $3,000. His sentence was reduced to 60 days, he was given credit for 60 days served, and he was placed on probation for five years.

Appellant raises the following issue on appeal:

“WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO GRANT THE APPELLANT’S MOTION FOR CONTINUANCE AFTER THE APPELLEE GAVE ONE WORKING DAY NOTICE OF ADDITIONAL MATERIAL WITNESS TO BE CALLED AT THE APPELLANT’S JURY TRIAL.”

We affirm.

On March 6, 1985, appellant was contacted by a friend, Joseph DeRohwer, who said that he was participating in a drug deal and needed a ride in order to locate a quarter of an ounce of cocaine. Appellant agreed and drove DeRohwer to the location where he bought the drug. In exchange for his assistance, appellant was to receive gas money and “a little dope.” Upon locating and purchasing the cocaine, appellant and DeRohwer arranged a deal with a man who, unbeknown to them, was an undercover narcotics investigator for the Campbell County sheriff’s office. Although the sale was never completed, appellant was later arrested and charged with conspiracy to deliver a controlled substance.

On August 29, 1985, in its response to the court’s pretrial order, the State listed as its witnesses the undercover and investigating police officers. DeRohwer was a fugitive from justice at that time. On Friday, October 4, 1985, just prior to trial on Monday, October 7, the State notified appellant that DeRohwer had unexpectedly become available and would be called as a witness.

Appellant immediately filed a motion for continuance, claiming that the late addition of DeRohwer as a witness was a surprise and that a continuance was necessary to allow him to prepare an adequate defense. Appellant stated that his strategy was modified because of DeRohwer’s presence. He said he required additional time in which to obtain witnesses who could refute the co-conspirator’s testimony. The court denied appellant’s motion for a continuance on the ground that the officers would testify to the same facts as the co-conspirator, and, therefore, appellant would not need to present additional evidence or witnesses.

This Court has consistently held that the granting of a motion for continuance is within the discretion of the trial court. Tageant v. State, Wyo., 683 P.2d 667 (1984); Haight v. State, Wyo., 654 P.2d 1232 (1982); Sims v. State, Wyo., 530 P.2d 1176 (1975). The standard for review, therefore, is limited to determining whether the trial court abused its discretion by denying the continuance. Nimmo v. State, Wyo., 603 P.2d 386 (1979); Irvin v. State, Wyo., 584 P.2d 1068 (1978). Our definition of abuse of discretion, as articulated in Martinez v. State, Wyo., 611 P.2d 831 (1980), is well established. We also recognize that review of a court’s discretionary ruling on a continuance motion is highly dependent upon individual facts and circumstances. Irvin v. State, 584 P.2d at 1073; Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, reh. denied 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964). The party who is attacking the court’s ruling bears the burden of establishing the abuse of discretion. Buhrle v. State, Wyo., 627 P.2d 1374 (1981). Appellant must show that the trial court’s error affected his substantial rights. Jahnke v. State, Wyo., 682 P.2d 991 (1984).

In cases such as this where a party seeks to admit witnesses just prior to or even during trial, late endorsements have been consistently permitted in Wyoming courts. Coca v. State, Wyo., 423 P.2d 382 (1967); State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, reh. denied 65 Wyo. 1, 198 P.2d 969 (1948). In Coca v. State, a homicide case, the prosecutor listed over a dozen additional witnesses less than one week before trial. The defense attorney sought to suppress the testimony of these witnesses, while also requesting a continuance be; cause two witnesses were out of the state. In finding that the trial court properly denied the motions, this Court noted that the witnesses were available for questioning prior to trial. Coca v. State, 423 P.2d at . The Court also observed that the defendant knew the witnesses and had ample notice of the evidence with which he would be confronted. Id.

As in Coca v. State, appellant here fails to demonstrate an abuse of discretion in that he is unable to show that his substantial rights were affected by the denial. While he claimed in his affidavit that changing the witnesses from those listed at the pretrial conference undermined his preparation, he offers no persuasive explanation as to what he planned to accomplish with an extension. According to 17 Am. Jur.2d, Continuance § 44 at 171 (1964):

“ * * * [T]he affidavit, where required, must set forth facts, not mere generalities or conclusions, and statements contained therein will generally be construed most strongly against the applicant * * *.”

Appellant also insists that fairness demands that he be given more time to gather unspecified witnesses to rebut the co-conspirator’s testimony. When the continuance request concerns the absence of witnesses, the protesting party must show that the testimony of the witnesses would be material if presented and that he has used due diligence to produce the witnesses for trial. Tageant v. State, 683 P.2d at 669. Appellant failed to suggest which, if any, witnesses would be added if an extension were granted. He had prepared a list of witnesses who would respond to the officers’ testimony, which testimony contained the same set of facts as would be presented by DeRohwer.

“ * * * A defendant is not * * * entitled to a continuance on the ground that additional time might enable him to turn up more evidence or persons willing to testify in his behalf * * 17 Am.Jur.2d, Continuance § 29 at 149 (1964).

Finally, there is no indication that the State attempted to “ambush” defense counsel with a surprise witness. DeRoh-wer’s sudden appearance was unexpected by both parties. Appellant was notified immediately after DeRohwer was discovered, at which time the witness became available for questioning.

The delays created by a continuance must be weighed against the responsibility of providing a fair trial. If continuances are granted upon demand, “great and unwarranted delays would be experienced in the administration of justice.” Coca v. State, 423 P.2d at 385. The trial court is in the best position to evaluate all relevant factors affecting requests for continuances — balancing individual interests against unnecessary postponements.

Appellant did not demonstrate that denial of the continuance would affect his substantial rights, and the trial court did not abuse its discretion by denying the motion.

Affirmed.

1 . Sections 35-7-1031(a) and 35-7-1016(b)(iv) were amended effective May 23, 1985.