Towner v. State

685 P.2d 45, 1984 Wyo. LEXIS 324
CourtWyoming Supreme Court
DecidedAugust 10, 1984
Docket83-223
StatusPublished
Cited by22 cases

This text of 685 P.2d 45 (Towner v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Towner v. State, 685 P.2d 45, 1984 Wyo. LEXIS 324 (Wyo. 1984).

Opinions

CARDINE, Justice.

Appellant Charles Towner was convicted of four counts of concealing stolen goods in violation of § 6-7-304, W.S.1977.1

We will reverse.

Appellant’s trial began on February 7, 1983. A motion to sequester the witnesses was granted. The State presented several witnesses who testified to various burglaries, the items which were taken, and the value of those items. Police officers testified concerning the search of the Towner residence and interview of appellant. There is no dispute that the stolen items were found in appellant’s living quarters in the basement of his parents’ home.

Appellant based his defense on lack of requisite knowledge that the items were stolen. One element necessary for conviction is that the person charged buy, receive or conceal stolen goods "knowing the same to have been stolen.” § 6-7-304, supra. Appellant testified that his wife had brought the property into the residence; that he had believed her explanation that she was purchasing and had acquired the property lawfully. Appellant’s wife was not available to be called as a witness at the trial. The defense then planned to call [47]*47Mr. Towner, appellant’s father, and Gloria Towner, appellant’s sister, to testify that appellant’s wife had made similar statements concerning her acquisition of the property to them.

Appellant’s attorney was informed by the court and the prosecuting attorney that Mr. Towner and Gloria Towner had been seen in the courtroom during appellant’s testimony, thereby violating the sequestra-' tion order. The court excluded their testimony because of the violation. The defense, therefore, rested. Subsequently appellant’s attorney learned from Mr. Towner and Gloria Towner that an agent of the district attorney’s office had attempted to interview them; that they had been asked by the agent to enter the courtroom, and they did so because of this request. Appellant’s attorney informed the court of the Towners’ explanation of their being in the courtroom, protested the exclusion of their testimony, and asked that they be permitted to testify. The prosecution read a statement from the agent relating to a conversation he had with Mr. Towner shortly before Mr. Towner entered the courtroom. It is unclear from this statement whether or not the agent induced the witnesses to enter the courtroom. He may have; at the very least, that matter was in dispute.

The court asked for an offer of proof as to what the testimony of these witnesses would be if permitted to testify. Appellant’s counsel stated that Mr. Towner would testify that appellant’s wife had told him that she was buying the property items found in appellant’s living quarters, and that she was going to get the bill of sale and show it to him. He was also going to testify that appellant’s wife had told him that she was getting the money to pay for the items from her parents. Gloria Towner was essentially going to testify to similar conversations. The court ruled that this testimony

“is not only of dubious relevance but is also cumulative to what the defendant has already testified to, and which no one has challenged”

and, therefore, affirmed his previous ruling excluding the testimony of the witnesses.

The question presented to us is whether the trial court erred in excluding the defense witnesses’ testimony due to their apparent violation of the sequestration order. Rule 615, W.R.E., provides for exclusion of witnesses.2 Under this rule, sequestration of witnesses is a matter of right for either party. The purpose is to prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid. United States v. Ell, 718 F.2d 291 (9th Cir.1983); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); 3 Louisell & Mueller § 370 (1979). Although Rule 615, W.R.E., does not provide for sanctions for violations of the rule, the most often invoked remedies are (1) to hold the witness in contempt; (2) to make the violation a subject for cross-examination and comment; and (3) to disallow the testimony altogether. 3 Louisell & Mueller § 371; 13 Land* & Water L.Rev. 909 (1978), “Article VI of the Wyoming Rules of Evidence: Witnesses.”

The United States Supreme Court held in Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893):

“If a witness disobeys the order of withdrawal, while he may be proceeded against for contempt, and his testimony is open to comment to the jury by reason of his conduct, he is not thereby disqualified, and the weight of authority is that he cannot be excluded on that ground, merely, although the right to exclude under particular circumstances may be supported as within the sound discretion of the trial court.” 14 S.Ct. at 10.

[48]*48We have previously addressed this question in circumstances where the judge allowed witnesses to testify although they had been in the courtroom in violation of a sequestration order. We affirmed the allowance of that testimony,«stating that permitting witnesses to testify was a matter addressed to the discretion of the court and that we would reverse only for gross abuse of that discretion. Whiteley v. State, Wyo., 418 P.2d 164 (1966); Pixley v. State, Wyo., 406 P.2d 662 (1965). We have not, however, addressed the question of the propriety of excluding testimony because of a violation of a sequestration order.

The general rule is that a party who does not know of nor procures the violation should not be deprived of essential testimony. 88 C.J.S. Trial § 70. However, when a party knows that a witness is violating the rule and allows the violation to continue, he may lose the right to present the witness or to object on those grounds. 23 C.J.S. Criminal Law § 1013.

“A party should not be denied his witness because of misconduct which the party has not caused. ‘Refusal to permit a witness to testify in a criminal case on the ground that he had violated the order excluding witnesses is reversible error where neither the state nor the defendant was responsible for the violation of the order and did not know he was present.’- Excluding testimony is not an appropriate remedy. Rather, the jury should be instructed on the credibility of the witness. If the order is willfully violated, the court may properly hold the witness in contempt of court.” (Citations omitted.) State v. Wells, Mont., 658 P.2d 381 (1983).

Exclusion of the witness’ testimony is too grave a sanction where the violation was not intentional and was not procured by the connivance of the party or his counsel. A practical and sensitive accommodation between the defendant’s right to present a defense and the trial court’s need to control the proceedings must be maintained. Exclusion should be allowed only when it is necessary to preserve the integrity of the fact finding process. State v. Burdge, 295 Or. 1, 664 P.2d 1076 (1983).

United States v.

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Towner v. State
685 P.2d 45 (Wyoming Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
685 P.2d 45, 1984 Wyo. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/towner-v-state-wyo-1984.