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Broussard v. State

Supreme Court of Wyoming

June 16, 2017

ADAM JAMES BROUSSARD, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge.

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

          Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson, Director, Kevin T. Farrelly, Student Director, and Micaela Lira, Student Intern, Prosecution Assistance Program, University of Wyoming, College of Law. Argument by Ms. Lira.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          BURKE, Chief Justice.

         [¶1] Adam Broussard challenges his conviction on one count of aggravated robbery. He claims the district court erred in ordering him to make pretrial disclosure of information requested by the State pursuant to W.R.E. 404(b). He further contends that enforcement of that order during trial, as a sanction for his failure to disclose, violated his constitutional right to confront and cross-examine witnesses against him. We conclude that a defendant is not required to make a pretrial disclosure of evidence under W.R.E. 404(b) and that the district court erred in limiting cross-examination by defense counsel as a sanction for failing to disclose such evidence. However, we also conclude that the error was harmless. Accordingly, we affirm.


         [¶2] Mr. Broussard presents one issue:

Did the court err by ruling that the State of Wyoming was entitled to demand disclosure of W.R.E. 404(b) evidence and then further err by limiting Appellant's constitutional right to confrontation and cross-examination because of a failure to disclose such evidence?


         [¶3] On May 23, 2015, Mr. Broussard and Keevin Ware went to Kayla Walker's apartment. According to Ms. Walker, Mr. Broussard was upset with her because she did not give him a ride the previous evening. Angered by their discussion, Mr. Broussard pulled out a gun, put it to Ms. Walker's head, and demanded that she give him money. Ms. Walker told him that her money was in her car. Mr. Broussard preceded her out of the apartment and she dashed back into the apartment and locked the door. Mr. Ware had remained in the apartment and he advised her to give the money to Mr. Broussard. Mr. Ware convinced Ms. Walker to unlock the car by using a remote control clicker from inside her apartment. Ms. Walker unlocked the car and Mr. Ware left the apartment. From her window, Ms. Walker saw Mr. Broussard near her car and Mr. Ware in her car. A few minutes later, Ms. Walker went to the car and found that her money was gone. The incident was reported to the police. Mr. Broussard was apprehended and arrested a few hours later. A revolver matching the description given by Ms. Walker was located in the automobile in which he was riding.

         [¶4] Mr. Broussard was charged with one count of aggravated robbery in violation of Wyo. Stat. Ann. § 6-2-401(a)(c)(ii) (LexisNexis 2015) and one count of use or possession of a firearm in violation of Wyo. Stat. Ann. § 6-8-102. He entered a guilty plea to the use or possession of a firearm charge and does not challenge his conviction on that charge in this appeal. He pled not guilty to the charge of aggravated robbery.

         [¶5] Prior to trial, the State filed a demand pursuant to W.R.E. 404(b) that Mr. Broussard provide pretrial notice of "any bad acts or charged or uncharged misconduct evidence which the Defendant intends to elicit or introduce at trial regarding any of the witnesses for either party." Mr. Broussard filed a response claiming that W.R.E. 404(b) does not require defendants to make such pretrial disclosure. "Rather, " he asserted, Rule 404(b) "requires the prosecution to provide notice of 404(b) evidence to the defendant, as set forth in the plain language of the Rule." (Emphasis in original.)

         [¶6] The State filed a motion in limine asking the district court to resolve the issue. After a hearing on the motion, the district court ruled that Mr. Broussard was subject to the State's demand under W.R.E. 404(b). The district court also warned that if Mr. Broussard did not disclose the requested information, the evidence could be excluded at trial. Mr. Broussard did not disclose any information in response to the State's demand prior to trial. During trial, the district court imposed the sanction by limiting defense cross-examination of at least two State witnesses.

         [¶7] The jury returned a guilty verdict on the charge of aggravated robbery. Mr. Broussard was sentenced to a prison term of six to ten years on that charge, and to a concurrent term of two to three years on the firearm charge. He filed this timely appeal.


         [¶8] Although we generally review a trial court's orders governing discovery or the admissibility of evidence for an abuse of discretion, the primary question presented by Mr. Broussard is one of rule interpretation, which we review de novo. Kovach v. State, 2013 WY 46, ¶ 77, 299 P.3d 97, 121 (Wyo. 2013). Whether Mr. Broussard's constitutional rights have been violated also raises a legal issue that we review de novo. Miller v. State, 2006 WY 17, ¶ 7, 127 P.3d 793, 796 (Wyo. 2006).

         [¶9] As discussed above, Mr. Broussard asserted during a hearing on the State's 404(b) motion that the pretrial notice provision of W.R.E. 404(b) applies only to the prosecution, not to the defense. The district court responded:

Well, I disagree. It typically is the State [but] 404(b) is not exclusive just to impose it upon the State, we use it in civil trials, we use it -- it's a Rule of Evidence that applies to all the parties. Now there are some distinctions under 404(a) that we don't need to delve into and specific to criminal law, but 404(b) is a fundamental, straightforward, albeit complex and often one of the most litigated rules, it is one that applies to parties, whether you're a defendant or a plaintiff or a prosecution or a civil or criminal. So that argument isn't going to carry the day.

         On appeal, Mr. Broussard asserts that the district court misinterpreted the rule because, based on the plain language, defendants are not subject to the pretrial notice provision of W.R.E. 404(b). The State contends that the disclosure requirement of the rule applies to all parties, including criminal defendants. We agree with Mr. Broussard.

         [¶10] When interpreting a rule, "we consider the language of the Rule 'as a whole, giving effect to every word, clause, and sentence.'" Hamilton v. State, 2015 WY 39, ¶ 14, 344 P.3d 275, 281 (Wyo. 2015) (quoting Jones v. State, 2011 WY 115, ¶ 11, 256 P.3d 536, 541 (Wyo. 2011)). If the language is sufficiently clear and unambiguous, the Court simply applies the words according to their ordinary and obvious meaning. In re CRA, 2016 WY 24, ¶ 16, 368 P.3d 294, 298 (Wyo. 2016). W.R.E. 404(b) is clear and unambiguous. It provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

(Emphasis added.) The first portion of this rule, the portion not highlighted, applies to all parties, and governs the admission of evidence offered at trial by either party. See Edwards v. State, 2007 WY 146, ¶ 9, 167 P.3d 636, 638 (Wyo. 2007) (Rule 404(b) "is not limited to use by the prosecution and should be equally available to a defendant when used to prove his theory of defense.") (quoting State v. Young, 739 P.2d 1170, 1174 (Wash.Ct.App. July 8, 1987)). In contrast, the highlighted portion of the rule explicitly applies "upon request by the accused, " and expressly requires "the prosecution in a criminal case" to comply with the request. It does not apply to a request by the prosecution, and it does not require the defense to provide notice in advance of trial. This language is sufficiently clear and unambiguous for us to apply the words' ordinary and obvious meaning: the defendant is not required to provide pretrial disclosure under W.R.E. 404(b).

         [¶11] The State cites a single authority in support of its interpretation. A comment in the advisory notes to the 1991 amendments to the federal rules of evidence states that F.R.E. 404(b) "expects that counsel for both the defense and the prosecution will submit the necessary request and information in a reasonable and timely fashion." See 22B Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure: Evidence, Preamble to Chapter 5, at 4 (2014). This comment, the State asserts, suggests that both parties may submit requests, and both parties must respond. We take a different view. We interpret the comment to mean that counsel for the defense should submit reasonable and timely requests, while counsel for the prosecution should submit reasonable and timely information in response to those requests. Given the explicit language of the rule, this is the only sensible interpretation of the advisory comment.

         [¶12] The State also claims, however, that the district court has discretion to control its courtroom and proceedings, and it did not abuse that discretion when it ordered Mr. Broussard to make a pretrial disclosure. In making that assertion, the State refers to this exchange that occurred between the court and defense counsel at the motion hearing:

THE COURT: So, you know, I'm simply applying the rule and it is a level playing field, both parties have a right to a fair trial and fundamental fairness under 404(b) analysis. This notion it -- that it applies to the State -- you've made your record, [Defense Counsel], and the Court very clearly finds that it does apply to both parties.
[DEFENSE COUNSEL]: Your Honor, just to clarify -- I'm not arguing that it doesn't -- that, 404(b) can't be introduced by the defendant to support his defense, I'm arguing that there's no obligation to provide any notice of that evidence pretrial, especially when it could compromise his ability to present his defense.
THE COURT: Let me make it very clear: The Court rejects that argument, and irrespective of the law or -- the law is the Court has the ability to control pretrial issues of this nature and the Court, in its discretion, specifically finds and adopts those same pretrial procedures that apply to the State under Gleason to the defense, and it's something this Court has done historically since I've been on the bench. So, there's your clarification.

         [¶13] In general, pretrial discovery in criminal cases is governed by statute, rule, or precedent. Kovach, ¶ 50, 299 P.3d at 112. There is no relevant statute and, as previously discussed, W.R.E. 404(b), which the district court and the State relied upon as authority for compelled disclosure, does not apply to pretrial disclosure by a defendant. The district court referenced the pretrial procedure set forth in Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002), as a basis for its ruling but, again, Gleason addresses 404(b) evidence offered by the State, not the defendant.

         [¶14] The State correctly notes that in Gleason we expressed a "firm preference for the pretrial determination of issues concerning uncharged misconduct evidence." Id., ¶ 18 n.2, 57 P.3d at 340 n.2 (emphasis in original), citing Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo. 2002). Howard also dealt with the State's use of 404(b) evidence and we made it clear that the pretrial notice and hearing process was intended to protect a defendant's due process rights:

We now hold that where a defendant files a pretrial demand for notice of intent to introduce evidence under W.R.E. 404(b), the same shall be treated as the making of a timely objection to the introduction of such evidence. The State must then respond with sufficient information to meet the balance of the Huddleston test adopted in Vigil. Not only will such a rule enhance the defendant's prospects of receiving due process and a fair trial, it will also enhance the district court's ability to reflect and rule upon a significant evidentiary issue. Rulings on uncharged misconduct evidence are too important to be made in the heat and pressure of a trial, with the jury twiddling its thumbs in the next room.

Howard, ¶ 23, 42 P.3d at 491. Those protections are necessary because of the "dangerously prejudicial nature of prior bad acts evidence" when that evidence is employed against the accused. Williams v. State, 2004 WY 117, ¶ 8, 99 P.3d 432, 436 (Wyo. 2004); Dean v. State, 865 P.2d 601, 610 (Wyo. 1993).

Juries in our system of criminal justice . . . are not charged with determining a defendant's guilt based on the defendant's propensity to commit crime. In fact, they are expressly prohibited from doing so. Nevertheless, the overwhelming consensus of empirical studies on the use of prior-crimes evidence for impeachment purposes confirms a point made by one of the ...

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