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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
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?
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.
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.
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
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.
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.
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).
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
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.
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
(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).
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
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.
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.
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
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 ...