Fortner v. State

¶1dissenting.

¶2I joined in this court’s decision to affirm this appellant’s conviction in the companion case of Fortner v. State, 835 P.2d 1155 (Wyo.1992). However, I cannot accept the additional infirmities in the present appeal, both constitutional and procedural, which constitute denial of appellant’s right to a fair trial. I dissent.

¶3My greatest concern results from the discernible shifting of a real burden of proof from the state to the defendant as a justification to affirm. I fear that this case further illustrates an adjudicatory direction for trial and appeal that “anything goes” when necessary to obtain a conviction or to justify affirming upon appeal. Haworth v. State, 840 P.2d 912 (Wyo.1992), Urbigkit, J., dissenting.

¶4Further need exists to address the three general issues presented by this appeal: (1) obvious unexplained and prejudicial delay in charging appellant with a criminal offense and conduct of the trial thereafter; (2) comments of the prosecutor related directly to both burden of proof to be placed on the defendant and failure of the defendant to testify; and (3) bad acts evidence again becoming a significant contributor to the prosecutorial evidence used to obtain the conviction.

¶5Within these conjunctive events, a weak case, at best, is sustained for conviction by circumstances not related to proof of guilt. Historically, we are well served by the reminder that Anglo-American courts long ago determined that conviction of a crime should be based solely upon evidence of guilt. Wehr v. State, 841 P.2d 104 (Wyo.1992), Urbigkit, J., dissenting. After a general analysis of the issues presented, I *1150am not encouraged by my understanding of the judiciary’s concept of fairness and justice under the analytical framework used here for decision.

¶6First, this court places the burden on the defendant to show improper tactical advantage in favor of the prosecutor, without requiring justification of the delayed charging and trial pursuit. Even “balancing” is rejected leaving an impossible subjective burden for the disadvantaged accused to attempt to pursue any rights of due process. All of this is done conjunctively to address due process only if both bad faith of the prosecutor and substantial prejudice to the defendant can be proven by the accused.

¶7In recitation of United States v. Comosona, 614 F.2d 695 (10th Cir.1980), this majority decision does not even follow the generally stated rule:

Those cases that employ burden-shifting after a defendant’s prima facie showing of prejudice generally employ balancing as well, weighing the prejudice to the accused against the reasons for the delay. The Fifth [United States v. Brand, 556 F.2d 1312, 1317 n. 7 (5th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1237, 55 L.Ed.2d 763 (1978)], Seventh [United States v. Solomon, 688 F.2d 1171, 1179 (7th Cir.1982)], Eighth [United States v. Savage, 863 F.2d 595, 598 (8th Cir.1988), cert. denied, 490 U.S. 1082, 109 S.Ct. 2105, 104 L.Ed.2d 666 (1989); United States v. Taylor, 603 F.2d 732, 735 (8th Cir.), cert. denied, 444 U.S. 982, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979) ], Ninth [United States v. Moran, 759 F.2d 777, 781 (9th Cir.1985), cert. denied 474 U.S. 1102, 106 S.Ct. 885, 88 L.Ed.2d 920 (1986); United States v. Mays, 549 F.2d 674 [670], 677 (9th Cir.1977)] and Tenth Circuits [Comosona, 614 F.2d at 696] all rendered decisions endorsing a balancing approach to the due process question once the defendant establishes both delay-related prejudice and impermissible reasons for delay.

¶8Phyllis Goldfarb, When Judges Abandon Analogy: The Problem Of Delay In Commencing Criminal Prosecutions, 31 Wm. & Mary L.Rev. 607, 625 (1990) (footnotes omitted).

¶9The unexplained delay of this case was dismissed by a conjectural analysis in the fact finding surmised by this court about what might have been. The question of prejudice fares no better within this result-oriented analysis. This court’s opinion cites a comprehensively written law journal article, Goldfarb, supra, 31 Wm. & Mary L.Rev. 607. After having cited that legal resource, this majority totally neglects to understand that article’s analysis of the constitutional issues involved here.

¶10In introduction, Phyllis Goldfarb first recognized, by remembering great writings of times past:

“Time is like a river made up of the events which happen, and a violent stream [it is]; for as soon as a thing has been seen, it is carried away and another comes in its place and this will be carried away as well.”

“It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man’s life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.”

¶11Id. at 607 (quoting G. Long, Meditations of Marcus Aurelius 140 (Book IV, § 43) (1930) and The Queen of Robbins, 1 Cox Crim.Cas. 114 (Somerset Winter Assizes 1844)).

¶12The author, after comprehensive and cogent analysis, concludes:

The problems posed by the languid pace of American criminal justice argue for the development of procedures to expedite the processing of criminal cases. Tinkering with the case law of pre-accu-sation delay is less likely to promote this goal than other institutional modifications. Nevertheless, because the Constitution does provide some protection to defendants from the hazards of charging *1151delay, constitutional criminal law should be responsive to the harms that such delay can create. This Article has sought to demonstrate that the current body of law is poorly suited to that task.

Moreover, the law of charging delay defies mainstream understandings of analogical reasoning processes. Had legal reasoning operated as advertised, we would likely analyze charging delay as a speedy trial problem, or less preferably but still appropriately, as a compulsory process problem or a true due process problem, because each is analogous to charging delay in legally significant ways. Any of these doctrinal choices represents a sounder analysis of the underlying issues than the analysis the Supreme Court specially fashioned.

The abandonment of analogical reasoning in this situation is likely explained by psychological pressures derived from the decisionmakers’ awareness of the need for crime control, although crime control needs are not well-served by sacrificing individual protections in these circumstances. Moreover, institutional integrity is undermined by inconsistency in the application of the internal logical rules of the legal system. Given the facility with which courts sidestepped such rules in the instant context, we should explore a less categorical and more straightforward approach to addressing the harms of pre-accusation delay. I have suggested one approach, a harm-based approach involving reasoning by analogy to societal norms, in the hope that it can stimulate thinking about improved methods of legal analysis. Until expansive approaches to analogical reasoning become more fashionable, analytic inconsistencies that threaten the legitimacy of the legal process should be highlighted and their damage repaired. In the meantime, some number of accused persons will continue to lose their liberties, potentially even their lives, when, after the ravages of time’s passing, they are convicted at trials that cannot be trusted.

¶13Id. at 679-80 (footnote omitted).

¶14The right to speedy justice is not a casual idea recently developed to bedevil those involved in dilatory prosecutorial activities. The right to speedy justice has been part of the Anglo-American criminal tradition since the Magna Charta. United States v. Lovasco, 431 U.S. 783, 800, 97 S.Ct. 2044, 2054, 52 L.Ed.2d 752 (1977), Stevens, J., dissenting. Justice Stevens had earlier recognized this legal tradition:

[T]he right to a speedy trial “is one of the most basic rights preserved by our Constitution.” That holding rested in part on common-law tradition of such a fundamental nature as to be reflected in the Magna Carta itself.5

“In [Coke’s] explication of Chapter 29 of the Magna Carta, he wrote that the words ‘We will sell to no man, we will not deny or defer to any man either justice or right’ had the following effect:

“ ‘And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any denial, and speedily without delay.’ ” Quoting E. Coke, 2 Institutes 55 (Brooke, 5th ed. 1797).

¶15Moody v. Daggett, 429 U.S. 78, 92, 97 S.Ct. 274, 281, 50 L.Ed.2d 236 (1976), Stevens, J., dissenting (quoting Klopfer v. North Carolina, 386 U.S. 213, 224, 87 S.Ct. 988, 994, 18 L.Ed.2d 1 (1967)).

¶16To insure speedy justice in Wyoming under the clear and specific terminology of the Wyoming Constitution, I submit that this majority applies the wrong rule for the wrong reason with the wrong result. Cf. Lovasco, 431 U.S. 783, 97 S.Ct. 2044. In this case, the delays from the date of the occurrence, November 17, 1988, to the date the complaint was filed, December 17, 1990, to the date that the information was *1152filed, June 7, 1991, to the date of trial, September 19, 1991, are factually unjustified within this record by actual evidence and cannot, by any criteria, be accorded acceptance as speedy justice. From the Magna Charta of English law to Wyo. Const. art. 1, § 6, due process, and Wyo. Const. art. 1, § 10, speedy trial, this detail of delay offends justice. Justice is not, in my perspective, a concept of “tipping the balance” on some imaginary scale; it is an enduring search to justify the integrity of any justice delivery system in a civilized society. See Wehr, 841 P.2d 104, Urbigkit, J., dissenting; and Doggett v. United States, — U.S. -, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

¶17I am additionally offended with the pros-ecutorial closing argument which highlights the fact that appellant chose not to testify and further to suggest that a burden of proof of non-guilt can be thrust upon the accused. “Guilty unless proven innocent” is not an unknown tactic of some prosecutors. There really is a proper way to communicate with the jury in argument without sidestepping the constitutionally protected rights of the accused, including switching the burden of proof and highlighting, for effect, the exercise of the privilege not to testify. Argument by presentation of the full story is different than a discourse about what somebody else failed to do in defense which attacks a constitutional right. Summers v. State, 725 P.2d 1033 (Wyo.1986); Westmark v. State, 693 P.2d 220 (Wyo.1984); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

¶18Finally, bad acts evidence as a substitute for proof of guilt, Wehr, 841 P.2d 104, Urbigkit, J., dissenting, does not change colors when characterized as following an evidentiary presentation of the accused which “opened the door.” In this case, it was not appellant’s cross-examination that communicated bad acts evidence to the jury. In essence, what this majority determines is that use of cross-examination as a constitutionally guaranteed due process right demeans and extinguishes rights further anchored in ancient legal history that guilt should be proven by actual probative evidence of occurrence and not reputation or irrelevant insinuation. W.R.E. 404(b); Bishop v. State, 687 P.2d 242 (Wyo.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985).

¶19Appellant may have been guilty of the offense charged — delivery of a controlled substance. Whether or not that is true, he was not fairly convicted under the circumstances indelibly highlighted by this trial record.

¶20Consequently, I dissent.