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Capshaw v. State9/29/2000
P.2d at 376; Wyoming Rules of Professional Conduct for Attorneys at Law, 3.8, comment 1.
When the belated Vigil hearing was finally convened, the prosecutor sought to legitimize evidence regarding the motel incident by noting that it fit within the time frame of the alleged conspiracy, was described in the affidavit supporting the information filed against Capshaw, involved the drug which Capshaw was accused of conspiring to deliver, and placed him on "the only route that's going to get him [from Casper to Stockton and back]." With respect to the dual occupancy of the motel room in which the drugs were found, the prosecutor asserted that he need not conclusively link the drugs to Capshaw but could rely upon the jury to make that inference.
In response, the defense noted that the prosecutor had failed the Vigil test at the outset by neglecting to explain what part of the alleged conspiracy the motel incident would be presented to prove or, put another way, the evidentiary purpose of that information. Given the problems engendered by the motel room's double occupancy, counsel observed that any connection of the drugs to Capshaw was speculative at best. Finally, counsel noted that the dubious probative value of the motel incident was overwhelmed by the clear likelihood that it would simply inflame the jury by suggesting that Capshaw had a propensity to engage in crimes involving drugs, rather than serving to prove any necessary element of the charged crime.
In ruling on Capshaw's motion in limine, the district court observed that the motel incident was offered for the purpose, inter alia, of showing the "course of conduct of the conspiracy." The court went on to make findings as to the remaining three prongs of the Vigil test, finding the evidence to be relevant and more probative than prejudicial and offering to give a limiting instruction if one was offered by Capshaw .
The district court appropriately applied the Vigil test to the motel incident evidence, and we are unable to conclude that the determination was an abuse of discretion.
Variance Between Conspiracy Charged and Conspiracy Proven
For his second assignment of error, Capshaw claims that while the State alleged that Tisdale and he, inter alia, conspired to deliver methamphetamine, all that was conclusively established were smaller conspiracies to the same end between Tisdale and Horn. Capshaw argues that such a variance between the crime with which he was charged and the crime upon which he was convicted is fatal to that conviction.
In making his case, Capshaw relies exclusively upon federal case law. This constitutes appropriate recognition of our observation that Wyo. Stat. Ann. § 35-7-1042 (LEXIS 1999) is derived from 21 U.S.C. § 846, rendering federal case law on the latter "convincing authority when construing the former." Apodaca v. State, 627 P.2d 1023, 1027 (Wyo. 1981). In resolving the variance argument, then, we look to the Tenth Circuit Court of Appeals for guidance:
A variance arises when the evidence presented at trial establishes facts that are different from those alleged in the indictment. Dunn v. United States, 442 U.S. 100, 105, 99 S.Ct. 2190, 2193-94, 60 L.Ed.2d 743 (1979); United States v. Powell, 982 F.2d 1422, 1431 (10th Cir. 1992), cert. denied, 507 U.S. 946, 113 S.Ct. 1356, 122 L.Ed.2d 736 (1993). However, no variance occurs when the government's theory on which the case was tried is the same as that charged in the indictment. Dunn, 442 U.S. at 106, 99 S.Ct. at 2194. Moreover, even if a variance exists, we will not reverse unless the variance affects the defendant's substantial rights. Powell, 982 F.2d at 1431; United States v.
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