Appeal from the District Court of Sublette County The Honorable Marvin L. Tyler, Judge
The opinion of the court was delivered by: Hill, Justice.
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.
[¶1] Travis Kovach was a passenger in a vehicle traveling on a narrow back-country 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.
[¶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?
[¶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, 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. I had a couple beers in the morning and a shot of whiskey.
Q. So maybe three beverages?
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?
[¶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 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.
[¶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 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.
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.
[¶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 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 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?
Q. Have you been threatened about your testimony?
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].
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?
Q. And that's what you just testified to?
Q. Now [defense counsel] has indicated that you were threatened with prosecution; is that correct?
Q. And was that ever explained to you what charges you would be facing if you were not cooperative?
Q. And what charges were those?
Q. Okay. Now do you recall driving a beaten man to Travis Kovach's camp at Travis Kovach's direction?
Q. And do you recall what I told you as to why I was not going to prosecute you?
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?
Q. Now you were scared during this whole ordeal, weren't you?
Q. And in hindsight you probably would have done things differently, wouldn't you?
Q. You would have tried to help those old men, wouldn't you?
Q. But you didn't do those things?
A. I didn't know what to do.
Q. It was out of control, wasn't it?
Q. Mr. Kovach was out of control, wasn't he?
[¶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?
Q. And you told him he probably had the gun out, 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].
Q. You got a lot of pressure from [defense counsel]?
[¶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?
Q. You had already given a statement to my ...