Capshaw v. State9/29/2000
Harrison, 942 F.2d 751, 759 (10th Cir. 1991) ("variance did not affect defendant's right to a fair trial"). United States v. Meyers, 95 F.3d 1475, 1485 (10th Cir. 1996).
As Meyers suggests parenthetically, even in cases where an appellate court determines the existence of a variance, such a variance:
'is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution.' 3 Charles Alan Wright, Federal Practice and Procedure § 516 at 27 (2d ed. 1982); see Stoner [United States v.] 98 F.3d at 536 [(10th Cir. 1996)]. United States v. Ailsworth, 138 F.3d 843, 849 (10th Cir. 1998).
Here, the information alleged, in pertinent part:
hat GARY CAPSHAW, late of the County aforesaid, from between on or about the 1 st day of March, 1993, to on or about the 1 st day of July, 1993, in the County of Natrona, in the State of Wyoming, did unlawfully conspire to deliver a controlled substance, to-wit: Methamphetamine, in violation of W.S. 1977, as amended, § 35-7-1031 and § 35-7-1042[.]
Appended to the information filed against Capshaw was a detailed affidavit describing the information supplied to the authorities by Draper, detailing his business dealings with Tisdale, his relationship with Horn, and even repeating a narrative of the motel incident.
Capshaw might have sought a bill of particulars. He did not. Nor did he take any other sort of action before, during, or after his trial by which the district court might have been put on notice of his claim that the State's proof was at variance with the crime alleged. In general, matters not presented to the district court will not be considered on appeal, absent the implication of jurisdiction or the abridgment of fundamental rights. Armijo v. State, 678 P.2d 864, 867 (Wyo. 1984).
However, if it clearly appears from the record that such fundamental and prejudicial error has been committed as to amount to a denial of substantial justice, or to deprive the defendant of a fair trial, the court should not hesitate to reverse the judgment and grant a new trial, although proper exceptions were not taken at the time. Parker v. State, 24 Wyo. 491, 500, 161 P. 552, 554 (1916).
What Justice Beard described in Parker is what we have come to know as plain error. The oft-repeated litany of requirements for the showing of plain error will not benefit an appellant unless: "(1) the record clearly reflects the incidents urged as error." Seymour v. State, 949 P.2d 881, 883 (Wyo. 1997).
What the record reveals in this case, exclusive of the evidence of the motel incident, is testimony and exhibits which establish a conspiracy involving Capshaw, Tisdale, Horn, Draper, and McIntosh. To be sure, it was Capshaw's theory that he was simply an unlucky bystander to a conspiracy between Horn, Tisdale, and the others. So stark, however, is the contrast between the State's case and the testimony of Horn that the jury was presented with a clear choice: Believe Horn and acquit Capshaw, or, believe the balance of the evidence adduced at trial and convict. Simply put, viewing the evidence in a light most favorable to the prosecution, as we are obliged to do, Horn was not a generally credible witness. The assertion that the State only proved a conspiracy between Horn and Tisdale is not supported by the record. There was no variance between the crime charged and the crime proven, and Capshaw's right to a fair trial was not violated.
Admission of Conspirators' Guilty Pleas
For his final assignment of error, Capshaw challenges admis
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