Osborne v. State

806 P.2d 272, 1991 Wyo. LEXIS 20, 1991 WL 14087

• Court: Wyoming Supreme Court
• Decided: February 11, 1991
• Docket: 90-66 to 90-68
• Status: Published

Opinions

CARDINE, Justice.

Jerry Osborne challenges her conviction for procuring and receiving money from prostitution. The conviction also resulted in revocation of her probation on two other charges. In this consolidated appeal, she challenges those revocations as well.

We affirm.

Appellant brings the following issues:

ISSUE I

Whether appellant’s conviction and probation revocations should be reversed due to insufficiency of the evidence? ISSUE II

Whether appellant’s trial attorney had sufficient opportunity to discover the State’s evidence?

ISSUE III

Whether appellant’s conviction and probation revocations should be reversed due to ineffective assistance of counsel? ISSUE IV

Whether the trial court erred by failing to dismiss for lack of a speedy trial?

Appellant Jerry Osborne ran a business in Casper known as the A-l Escort Service. The business operation attracted customers through a newspaper advertisement listing a telephone number to call. The caller would reach an answering machine and hear a tape recorded message with appellant’s voice requesting that the caller leave a number. Appellant would then return the call and arrange a meeting with a woman who would solicit an act of prostitution.

Appellant had five women working for her. Upon receiving a call, she would send one of them out to meet a customer. She instructed these “employees” how much they should charge and what precautions to take upon meeting a customer. These precautions included checking the customer for identification, checking in with her after completion of the services rendered, and collection of the money. The “employee” would then go to appellant’s house and deliver to appellant her share of the proceeds. Charges ranged from $60 to $120. The “employee” retained $50 plus tips, and appellant kept the difference.

Appellant was charged with promoting prostitution under W.S. 6-4-103 on December 13, 1988. On December 27, 1988, she waived her right to a speedy preliminary hearing. On January 11, 1989, her preliminary hearing was held in Natrona County Court, and the case was bound over for trial in district court. A criminal information was filed on January 13, 1989, charging appellant with violation of W.S. 6-4-103(a) and conspiracy to violate W.S. 6-4-103(a), which provides:

“(a) A person commits a felony if he:

“(i) Knowingly or intentionally- entices or compels another person to become a prostitute;

“(ii) Knowingly or intentionally procures, or offers or agrees to procure, a person for another person for the purpose of prostitution;

“(iii) Having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution; or

“(iv) Receives money or other property from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.”

Appellant’s arraignment was scheduled for February 2, 1989, but was rescheduled due to inclement weather. At a February 16, 1989 arraignment, appellant pled not guilty. The trial, scheduled for May 15, 1989, was continued upon appellant’s motion. On June 26, 1989, the State requested a setting for trial. The court scheduled a trial for October 10, 1989.

Prior to trial, the conspiracy charge was dismissed. On the day of the trial, appellant moved for dismissal due to lack of speedy trial. The court denied the motion, attributing part of the fault for the delay to the appellant.

Following a trial to the court, appellant was found guilty of violation of subsections (ii) and (iv) of W.S. 6-4-103(a), procuring a person for the purpose of prostitution and receiving money for prostitution. At the time of this conviction, appellant was on probation for an insufficient funds check charge to which she pled guilty in 1985 and for charges of fraud by check and misdemeanor larceny by bailee to which she pled guilty in 1987. Her probation was revoked, each revocation garnering appellant two to four years in prison to be served concurrently. For the prostitution conviction, appellant was given a sentence of 13 to 16 months in prison to be served consecutively to the revocation sentences. This sentence was suspended and replaced with a sentence of one year probation which included a six-month term at the Casper Community Alternatives program following her release from prison.

SUFFICIENCY OF THE EVIDENCE

When reviewing a challenge to a criminal conviction on the basis of sufficiency of the evidence, we examine all the evidence in a light most favorable to the State. Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989). We then draw all favorable, reasonable inferences from this evidence to determine whether any rational trier of fact could have found, beyond a reasonable doubt, the elements of the crime necessary for a conviction. Griffin v. State, 749 P.2d 246, 248 (Wyo.1988). We apply this same standard whether trial is to a jury or to the court as in this case. Tennant v. State, 776 P.2d 761, 763 (Wyo.1989).

The evidence at the trial included testimony from a Casper police officer and a former A-l “employee,” plus records from A-l transactions and a telephone answering machine tape. The telephone answering machine tape captured appellant’s voice describing A-l services; and the records in appellant’s handwriting documented the names of customers, the amount of money received and the split of the proceeds between her and her “employees.” The testimony established appellant made arrangements for acts of prostitution in violation of subsection (ii) and received money from it in violation of subsection (iv). Even one of appellant’s witnesses, Tina Meastas, whose testimony implicated herself instead of appellant as the proprietor of this business, admitted that appellant participated in numerous factions of the enterprise and received money from it.

Appellant directs attention to the case of Konopisos v. State, 26 Wyo. 350, 185 P. 355 (1919), for the proposition that a conviction for promoting prostitution cannot stand when the evidence consists solely of admissions by the defendant. Konopisos was convicted of running a house of ill fame based solely on the testimony of two men who stated that Konopisos maintained such an establishment. 185 P. at 356. We reversed because this evidence alone was insufficient to establish the corpus delicti, i.e., the existence of a “cat house” (as Justice Blume said, “whatever that may be,” Boschetto v. Boscketto, 80 Wyo. 374, 343 P.2d 503, 505 (1959)) and women to staff it. 185 P. at 356. The holding in Konopisos has no application here. The evidence to convict appellant consists not of admissions by the defendant at all but of testimony concerning her activities plus physical evidence. This type of evidence is similar to the type of evidence in Belondon v. City of Casper, 456 P.2d 238 (Wyo.1969), where the appellant challenged the sufficiency of the evidence for convictions of soliciting an act of prostitution and maintaining a house of prostitution. In Belondon, the evidence included testimony that the appellant directed the activities of the prostitutes, controlled the premises, and had possession of marked money. 456 P.2d at 240. Sufficient evidence was presented in this case for any rational finder of fact to find beyond a reasonable doubt the elements of the crime necessary to conclude that appellant violated W.S. 6-4-103(a)(ii) and (iv).

ACCESS TO THE STATE’S EVIDENCE

Appellant contends in her second issue that the prosecutor improperly denied her access to the State’s evidence. W.R. Cr.P. 18 deals with discovery in criminal matters. It states in pertinent part:

“(a) Defendant’s statement; report of examinations and tests; defendant’s grand jury testimony. — Upon motion of a defendant, the court may order the attorney for the state to permit the defendant to inspect and copy or photograph any relevant:

“(1) Written or recorded statements or confessions made by the defendant or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney;

“(2) Results of reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney; and

“(3) Recorded testimony of a defendant before a grand jury.

“(b) Other books, papers, documents, tangible objects or places. — Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, upon a showing of the materiality to the preparation of his defense, and that the request is reasonable. Except as provided in subdivision (a)(2) this rule does not authorize the discovery or inspection of reports, memoranda or other internal governmental documents made by governmental agents in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses (other than the defendant) to governmental agents except as provided in subdivision (c) of this rule.

“(c) Demands for production of statements and reports of witnesses.

“(1) After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the state to produce any statement (as hereinafter defined) of the witness in the possession of the state which relates to subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

“(2) If the state claims that any statement ordered to be produced under this subdivision contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the state to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to the adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the state, and in event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to the defendant pursuant to this rule, the court in its discretion, upon application of the defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant in his preparation for its use in the trial.

“(3) If the state elects not to comply with an order of the court under subdivision (1) or (2) hereof to deliver to the defendant any such statement or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

“(4) The term ‘statement’ as used in subdivisions (1) and (2) and (3) of this rule relating to any witness called by the state, means:

“(a) A written statement made by said witness and signed or otherwise adopted or approved by him; or

“(b) A stenographic, mechanical, electrical or other recording or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the state and recorded contemporaneously with the making of such oral statement.” W.R. Cr.P. 18.

On June 26, 1989, appellant filed a motion pursuant to W.R.Cr.P. 18 for discovery. No order for discovery, however, was ever issued, and appellant’s trial counsel admits this was due to her oversight. In absence of an order, we cannot find that the prosecution engaged in misconduct. Capshaw v. State, 714 P.2d 349, 351 (Wyo.1986).

Appellant also advances this issue by maintaining that the prosecutor granted her trial attorney permission to view the evidence at the police station, but the evidence technician never let her see the evidence. Her attorney, however, admitted she never went to the police station although she called the station. The evidence technician recalled a telephone call during which he invited the attorney to come to the police station to inspect the evidence. Appellant’s attorney maintained she never received permission over the telephone. Neither the attorney’s statement nor the evidence technician’s statement were made under oath or in an affidavit. This brings the competency of either version of events into question and demonstrates the need for confirmatory writing and litigating within the rules of procedure. Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3450, 73 L.Ed.2d 1193 (1982). We cannot predicate error on what might have transpired between the evidence technician and appellant’s attorney. Appellant has the burden to make an affirmative showing of error. Charter Thrift and Loan v. Cooke, 766 P.2d 522, 524 (Wyo.1988). A record amounting to unsworn accusations does not amount to such a showing.

Even if we assume, arguendo, that appellant counsel’s version of these events is accurate, we cannot find error. The prosecution was. under no obligation to permit discovery absent an order. Capshaw, 714 P.2d at 351.

ASSISTANCE OF COUNSEL

Appellant presents this issue as the other side of the coin to her second issue. She argues that if her access to the State’s evidence was not attributable to the prosecutor, then it should be attributable to ineffective assistance of counsel.

Establishing ineffective assistance of counsel at the trial requires meeting two tests. It must be demonstrated that counsel’s representation was so deficient by showing errors were made that were so serious that counsel was not functioning in accordance with the constitutional guarantee of counsel and that the deficient performance prejudiced the appellant. Murray v. State, 776 P.2d 206, 210 (Wyo.1989).

Although appellant’s trial counsel should have pursued her motion for discovery and attempted to have the court issue an order, no demonstration of prejudice as a result of this dereliction is apparent. Appellant must show a reasonable probability that, but for counsel’s errors, the result would have been different. Frias v. State, 722 P.2d 135, 146 (Wyo.1986). A reasonable probability is a probability sufficient to undermine the outcome. Id. Counsel had an opportunity to review the State’s evidence before trial. Appellate counsel also had access to this evidence as it was included in the record on appeal. In order to make the requisite showing of prejudice, something in the State’s evidence would have to suggest that a different verdict was probable. Appellant did not point us to anything in this evidence to suggest the probability of a different verdict. We cannot say that the trial counsel’s ineffectiveness prejudiced the appellant.

SPEEDY TRIAL

Our speedy trial analysis is well established. We use the balancing test for evaluating speedy trial challenges that the United States Supreme Court formulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). This test requires us to look at: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of her right; and (4) the prejudice to the defendant. Id.; Harvey v. State, 774 P.2d 87, 92 (Wyo.1989). We consider all four factors together and balance them in relation to all relevant circumstances. Id.

Length of the Delay

The speedy trial clock starts to run upon arrest or when the complaint is filed. Id. at 94. The complaint was filed on December 13, 1988. Trial was held on October 10, 1989, a span of 301 days. Appellant’s preliminary hearing was moved from December 27, 1988, to January 11, 1989, after she waived her right to a speedy preliminary hearing. Thus a 15-day delay is attributable to the defendant.

Rule 204 of the Uniform Rules for the District Courts of the State of Wyoming contains a 120-day deadline from the filing of the indictment or information for bringing a defendant to trial in order to ensure a speedy trial. This rule is advisory in nature and is a factor to be considered in the balancing test. Harvey, 774 P.2d at 93.

An information against appellant was filed on January 13, 1989. She was brought to trial on October 10, 1989. This is a span of 270 days. Delays caused by continuances on a motion of the defendant are subtracted from this time span when computing the amount of delay. Rule 204(c)(3) and (d)(1).

The trial was first scheduled for May 15, 1989. On May 12, 1989, appellant’s counsel moved for, and the court granted, a continuance. On June 26, 1989, the State filed a request for a setting for a bench trial. The court set the trial for October 10, 1990. We subtract 42 days for the period from the date the trial was first scheduled to the date when the State filed its request for a setting.

Thus, the length of time between the filing of the information and the date of the trial not attributable to appellant is 228 days. Subtracting the 15-day delay for the speedy preliminary hearing waiver along with the 42-day delay for the continuance, 244 days passed between the filing of the complaint and commencement of trial. This case contrasts greatly with the Harvey case where a delay of 531 days from the filing of an information to the trial or 562 days from the date of the arrest to the trial was found to be “presumptively prejudicial.” 774 P.2d at 94. We do not find this delay to be presumptively prejudicial but it is significant enough to warrant further analysis. Caton v. State, 709 P.2d 1260, 1265 (Wyo.1985). See also Estrada v. State, 611 P.2d 850, 853 (Wyo.1980).

Reason for the Delay

Much of the delay is due to the court’s schedule as well as the weather. Appellant’s arraignment was delayed from February 2, 1989, to February 16, 1989, a total of 14 days, due to inclement weather. After the State filed its request for a setting in June, the court scheduled a trial for October due to its stacking for bench trials. The reasons for these two delays are neutral, so we accord it less weight than a delay which would have been deliberately caused by the State. Estrada, 611 P.2d at 854. The State’s request came after appellant waived her right to a jury trial. The record indicates that a jury trial could have been scheduled sooner. We will take this into account in our balancing as well. We also find no lack of diligence on the part of the prosecution. This contrasts to the Harvey case where even the State conceded that much of the delay had no reasonable explanation. 774 P.2d at 94.

Defendant’s Assertion of Her Rights

Although it is not necessary that a defendant assert the right to a speedy trial in order to find a speedy trial violation, it is a relevant and proper factor to consider. Harvey, 774 P.2d at 95. Appellant has had the benefit of counsel since she was charged. We distinguish between assertions of the right made without benefit of counsel and ones made with the benefit of counsel. Estrada, 611 P.2d at 855.

Appellant raised the issue first on the morning of her trial when she moved for dismissal because of a lack of a speedy trial. Appellant did not assert her right when the court scheduled the trial. The trial court stated that had appellant urged in June that the October setting was too late, then court would have adjusted its schedule to accommodate an earlier setting. Appellant renewed her motion after the State rested its case. Appellant asserted her right less vigorously than did the appellant in Robinson v. State, 627 P.2d 168 (Wyo.1981). In Robinson, appellant pressed a speedy trial issue two weeks before trial. Id. at 171. We put little weight on this factor in Robinson; we place even less here.

Prejudice to the Defendant

Prejudice is a key element in the balancing test but not a necessary one. Caton, 709 P.2d at 1266. Prejudice to the defendant may consist of (1) lengthy pretrial incarceration, (2) pretrial anxiety, or (3) impairment of the defense. Harvey, 774 P.2d at 96. Unless the delay exceeds a point where there is a probability of substantial prejudice, the burden is on the appellant to show prejudice. Id. The length of the delay here is about the same length as it was in Catón. 709 P.2d at 1264. The length of the delay is not the 18 months which we found to be presumptively prejudicial in Harvey. 774 P.2d at 97. The burden is on the appellant to show prejudice.

Appellant apparently argues that the only prejudice the delay caused was of the pretrial anxiety type. She claims that while awaiting trial, she was unable to find a job which impaired her ability to care for her daughter and mother. The record does not bear this out. In fact, the record indicates that appellant continued involvement with the escort service until her sentencing, ran a pool hall which was shut down for being unlicensed, and attempted to start a hair salon business. Appellant fails to carry her burden, and we find the delay caused her no prejudice.

Balancing

Although her trial was delayed, the reasons for the delay not attributable to her are neutral. Appellant did not vigorously assert her right to a speedy trial, and although she had the benefit of counsel, she never pressed for an earlier setting. She has shown no prejudice caused by the delay. These considerations lead us to conclude that appellant’s right to a speedy trial was not violated.

Finding no error in the issues raised, this case is

Affirmed.