               IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 128

                                                       OCTOBER TERM, A.D. 2013

                                                                  October 16, 2013

ANTHONY DUANE WEST,

Appellant
(Defendant),

v.                                                   S-13-0012

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                      The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
      Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Prof.
      Darrell D. Jackson, Faculty Director, Prosecution Assistance Clinic; Emily N.
      Thomas, Student Director; Thomas Szott, Student Intern. Argument by Mr. Szott.

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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Anthony Duane West was convicted after a jury trial of conspiracy to commit
burglary. He claims the district court erred by refusing to order one of his co-
conspirators to submit handwriting exemplars so that Mr. West’s expert witness could
evaluate whether the co-conspirator was the author of certain notes sent in jail. We
conclude that the subpoena procedure may be used to order a witness to provide
handwriting exemplars; however, any error was harmless.

[¶2]    We affirm.

                                                ISSUE

[¶3]    The issue on appeal is:

       Did the trial court commit prejudicial error when it denied Mr. West’s
request for handwriting exemplars from a co-conspirator?1

                                               FACTS

[¶4] Jeffery Stumpf was the CEO of Tatooine Industries International, an electronics
company with a recycling facility east of Cheyenne, in Laramie County, Wyoming. His
cousin, Edwin Stumpf, was the supervisor of the recycling facility. Mr. West worked for
Tatooine for a short period of time in 2009. Although he was generally a good employee,
he was terminated because he did not show up for work or call to explain his absence in
accordance with company policy. Mr. West subsequently claimed that he was injured on
the job on his last day of work. Mr. West filed a workers’ compensation claim, and
Tatooine objected. Prior to the contested case hearing, the matter was settled, apparently
for the benefits Mr. West had already received, but without any cash payout to him.

[¶5] On December 4, 2010, approximately one week after the workers’ compensation
settlement, Edwin Stumpf, who was staying at the Tatooine facility, heard a noise at
approximately 11:00 p.m. He looked out the window and saw a car outside and a man
walking toward the building. He thought there were two or three other people in the car.
As the vehicle left, Edwin placed calls to 911 and Jeffery Stumpf.

[¶6] Jeffery Stump drove to a spot where he could see traffic traveling into Cheyenne
and located a vehicle matching the description provided by Edwin. He followed the
vehicle and called 911 to report his location. Eventually, the vehicle pulled over and two
1
  The State asserts the issue was not properly preserved because the notes do not appear in the appellate
record. We will consider the merits of the issue because the record on appeal contains sufficient
information as to the nature of the notes.


                                                   1
males got out and walked toward Jeffery’s truck. When he backed up, they returned to
their vehicle. Law enforcement stopped the vehicle a short time later and found four
people inside—Mr. West, Autumn Garcia, Zachary Hunter, and Robert Stevenson.

[¶7] The State charged Mr. West with conspiracy to commit burglary in violation of
Wyo. Stat. Ann. § 6-1-303(a) (LexisNexis 2013). Mr. West claimed that, while in jail,
Mr. Stevenson had passed notes, or “kites,” to a co-conspirator encouraging him to “pin”
the criminal activities on Mr. West. Consequently, he filed a pre-trial motion to compel
Mr. Stevenson to provide handwriting exemplars. He proposed to have a handwriting
expert evaluate the exemplars and the notes and testify regarding the authorship of the
notes. Although the State did not object, the district court denied the motion, ruling that
it did not have authority to require a witness to do anything other than appear and could
not, therefore, order Mr. Stevenson to provide handwriting samples.

[¶8] Ms. Garcia testified at the trial that she was Mr. Stevenson’s girlfriend and drove
the others to Tatooine on December 4, 2010. She stated that Mr. West gave her
directions to the facility, but she did not know why they were going there. The others
directed her to go to the door to see if anyone was in the building. The men subsequently
got out of the vehicle, and Ms. Garcia and Mr. Stevenson went around the building and
tried a door, which was locked. At that point, someone said they needed to “go because
there was someone there.” Ms. Garcia also testified that after they were arrested, Mr.
Stevenson contacted her by letter saying that he was “lying and stuff.” He told her not to
“tell them this, don’t tell them that,” but she claimed she had not followed his directions.

[¶9] Zachary Hunter testified that his sister was Mr. West’s girlfriend. He stated that
on December 4, 2010, Mr. West said “he was going to do something” and asked if Mr.
Hunter “wanted in on it.” The plan was to obtain TVs and metal from a building, and
Mr. West had drawn a blueprint of the building on a piece of paper. Mr. Hunter was told
he would be “paid good just to be a lookout.” Ms. Garcia and Mr. Stevenson picked up
Mr. Hunter and Mr. West, and they all went to the Tatooine facility. According to Mr.
Hunter, Mr. West provided directions because he had worked there before. Mr. Hunter
testified that Ms. Garcia had knocked on the door to see if anyone was there and then
they all got out and looked around. They left after Mr. Stevenson noticed there was
someone at the facility. Mr. Hunter also testified that, while in jail, he received notes
from Mr. Stevenson, encouraging him to “pin it all” on Mr. West. Mr. Hunter said he did
not pay attention to the notes because he was going to tell the truth.

[¶10] Mr. West also testified at trial. He claimed that he was “high” from smoking
marijuana on December 4, 2010, and did not plan to go to Tatooine or to steal anything.
He claimed he was surprised when they ended up at the facility. Mr. West stated that Mr.
Hunter’s brother had given him the notes in which Mr. Stevenson had encouraged Mr.
Hunter to blame Mr. West for the burglary plan.



                                             2
[¶11] The jury found Mr. West guilty of conspiracy to commit burglary and he was
sentenced to serve thirty to forty-eight months in prison, but the sentence was suspended
and he was placed on probation for five years. Mr. West then appealed to this Court.

                                      DISCUSSION

[¶12] Mr. West asserts the district court denied his constitutional rights to compulsory
process and due process of law when it refused to require Mr. Stevenson to provide
handwriting exemplars for evaluation by his handwriting expert. To the extent Mr.
West’s argument involves constitutional issues, we review it de novo. Smith v. State,
2009 WY 2, ¶ 35, 199 P.3d 1052, 1063 (Wyo. 2009); Bush v. State, 2008 WY 108, ¶ 58,
193 P.3d 203, 217 (Wyo. 2008); Hannon v. State, 2004 WY 8, ¶ 13, 84 P.3d 320, 328
(Wyo. 2004). The abuse of discretion standard, however, applies to the question of
whether the district court properly disallowed the evidence. Bush, ¶ 58, 193 P.3d at 217;
Vigil v. State, 2004 WY 110, ¶ 17, 98 P.3d 172, 177 (Wyo. 2004). “A trial court abuses
its discretion when it could not have reasonably concluded as it did. In this context,
‘reasonably’ means sound judgment exercised with regard to what is right under the
circumstances and without being arbitrary or capricious.” Szymanski v. State, 2007 WY
139, ¶ 15, 166 P.3d 879, 883 (Wyo. 2007) (citations omitted). Moreover, a violation of a
right to compel process is not automatically reversible; prejudice must be demonstrated
before reversal will be required. See State v. Spears, 76 Wyo. 82, 98, 300 P.2d 551, 557
(Wyo. 1956). An error which violates a constitutional right is presumed prejudicial
unless the reviewing court is convinced it was harmless beyond a reasonable doubt.
Daniel v. State, 2003 WY 132, ¶ 15, 78 P.3d 205, 212 (Wyo. 2003); Harlow v. State,
2003 WY 47, ¶ 43, 70 P.3d 179, 194 (Wyo. 2003).

[¶13] A criminal defendant is entitled to compulsory process under the United States and
Wyoming constitutions. The Sixth Amendment to the United States Constitution states
in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor[.]” Similarly, Wyo. Const.
Art. 1, § 10, states in part: “In all criminal prosecutions the accused shall have the right
to defend in person and by counsel . . . [and] to have compulsory process served for
obtaining witnesses[.]” In addition, the due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution and Art. 1, § 6 of the Wyoming
Constitution guarantee a criminal defendant the right to due process of law.

[¶14] In general, the right to obtain witnesses is accomplished by issuance of a
subpoena. W.R.Cr.P. 17 governs subpoenas in criminal cases:

                     (a) For attendance of witnesses; form; issuance. –
              Upon the filing of a precipe therefore, a subpoena shall be
              issued by the clerk under the seal of the court. It shall state
              the name of the court and the title, if any, of the proceeding,


                                             3
             and shall command each person to whom it is directed to
             attend and give testimony at the time and place specified
             therein. The clerk shall issue a subpoena, signed and sealed
             but otherwise in blank to a party requesting it, who shall fill
             in the blanks before it is served.

             ****
                     (d) For production of documentary evidence and of
             objects. – A subpoena may also command the person to
             whom it is directed to produce the books, papers, documents
             or other objects designated therein. The court on motion made
             promptly may quash or modify the subpoena if compliance
             would be unreasonable or oppressive. The court may direct
             that books, papers, documents or other objects designated in
             the subpoena be produced before the court at a time prior to
             the trial or prior to the time when they are to be offered in
             evidence and may upon their production permit the books,
             papers, documents, objects, and portions thereof, to be
             inspected by the parties and their attorneys.

                     (e) Service. – A subpoena may be served by the
             sheriff, or by any other person, over the age of 19 years, not a
             party to the action, appointed for such purpose by the clerk.
             Service of a subpoena shall be made by delivering a copy
             thereof to the person named[.]

The failure of a person to obey a subpoena may be punished with a contempt action. See
W.R.Cr.P. 17(g) and 42(a)(2)(H).

[¶15] Courts have routinely held that a person may be required to provide a handwriting
sample under the authority of a subpoena. See, e.g., United States v. Euge, 444 U.S. 707,
711-13, 100 S. Ct. 874, 877-79, 63 L. Ed. 2d 141 (1980); State v. Jackson, 196 P.3d 559,
561-62 (Ore. Ct. App. 2008). In Euge, 444 U.S. at 711, 100 S. Ct. at 878, the United
States Supreme Court stated that the duty to appear and give testimony “has traditionally
encompassed a duty to provide some forms of nontestimonial, physical evidence,
including handwriting exemplars.” That was true even though the IRS statute at issue did
not explicitly authorize handwriting exemplars. Handwriting is nontestimonial and there
is no reasonable expectation of privacy attached to it; therefore, a command to provide a
handwriting sample does not violate a witness’s Fifth Amendment right against self-
incrimination or Fourth Amendment right to avoid illegal searches and seizures. See,
e.g., Euge, 444 U.S. at 718, 100 S. Ct. at 881-82; United States v. Doe, 457 F.2d 895,
896-99 (2d Cir. 1972). See also, Brunmeier v. State, 733 P.2d 265, 266-67 (Wyo. 1987)
(holding a defendant can be compelled to provide handwriting exemplars without


                                            4
violating the Fifth Amendment to the United States Constitution or Art. I, § 11 of the
Wyoming Constitution).

[¶16] In Fathke v. State, 951 P.2d 1226, 1228 (Alaska Ct. App. 1998), the Alaska Court
of Appeals concluded that Rule 17(c) of the Alaska Rules of Criminal Procedure which
governed subpoenas required a witness to submit to finger and palm printing. Alaska’s
rule was almost identical to W.R.Cr.P. 17(d). The Alaska court held that the requirement
to produce “objects” included fingerprints. The court indicated that certain forms of
nontestimonial physical evidence, such as fingerprints and handwriting samples, are
included within a witness’s duty of production. Id., citing Euge, supra. Similarly, the
Oregon Court of Appeals held in Jackson, 196 P.3d at 562, that a subpoenaed witness can
be compelled to provide handwriting exemplars. In that case, the trial court violated the
defendant’s right to compulsory process by refusing to require the witnesses to provide
samples of their handwriting. Id.

[¶17] Even prior to the enactment of specific rules and statutes, the common law
imposed a similar evidentiary obligation on summoned persons. In United States v.
Bryan, 339 U.S. 323, 331, 70 S. Ct. 724, 730, 94 L. Ed. 884 (1950), the Supreme Court
stated: “[P]ersons summoned as witnesses by competent authority have certain minimum
duties and obligations which are necessary concessions to the public interest in the
orderly operation of legislative and judicial machinery. . . . We have often iterated the
importance of this public duty, which every person within the jurisdiction of the
Government is bound to perform when properly summoned.” In general, a summoned
party must “give what testimony one is capable of giving,” subject to recognized
exemptions and/or privileges. Id.

                 One application of this broad duty to provide relevant
             evidence has been the recognition, since early times, of an
             obligation to provide certain forms of nontestimonial physical
             evidence. . . . [T]he common-law evidentiary duty permitted
             the compulsion of various forms of physical evidence. In
             Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826,
             1832, 16 L.Ed.2d 908 (1966) [limited on other grounds,
             Missouri v. McNeely, 133 S.Ct. 1552, 185 L.Ed.2d 696
             (2013)], this Court observed that traditionally witnesses could
             be compelled, in both state and federal courts, to submit to
             “fingerprinting, photographing, or measurements, to write or
             speak for identification, to appear in court, to stand, to assume
             a stance, to walk, or to make a particular gesture.” In Gilbert
             v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18
             L.Ed.2d 1178 (1967), handwriting was held, “like the ... body
             itself” to be an “identifying physical characteristic,” subject to
             production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct.


                                             5
                764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410
                U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again
                confirmed that handwriting is in the nature of physical
                evidence which can be compelled by a grand jury in the
                exercise of its subpoena power.

Euge, 444 U.S. at 713, 100 S. Ct. at 879 (some citations and a footnote omitted). See
also, Palmer v. United States, 530 F.2d 787, 788 (8th Cir. 1976) (per curiam) (holding
that, prior to enactment of a specific statute, federal courts had “inherent power to compel
the production of [handwriting] exemplars before a grand jury through the civil contempt
power”).

[¶18] In Wyoming, we have not directly addressed the issue of whether a witness in a
criminal case can be compelled to provide a handwriting sample. We do, however, have
some direction on the matter. In Brunmeier, 733 P.2d at 266-67, we followed the general
rule and held that a defendant can be compelled to provide handwriting exemplars
without violating the Fifth Amendment to the United States Constitution or Art. I, § 11 of
the Wyoming Constitution. In Van Riper v. State, 882 P.2d 230, 236-37 (Wyo. 1994), we
held the district court did not abuse its discretion when it denied the appellant’s request to
have a witness provide a handwriting exemplar during cross examination at trial. In
making that ruling, we recognized the district court has discretion regarding the extent
and manner of cross examination. We suggested that a witness may be required to
provide a handwriting sample under appropriate circumstances, but noted the appellant
had not suffered any harm from the court’s ruling because a document showing the
witness’s handwriting had already been admitted into evidence. Id. Consistent with
Wyoming precedent and the general rule, we conclude that a witness in a criminal
proceeding may be required to provide handwriting exemplars through the subpoena
process.

[¶19] Thus, Mr. West was entitled to subpoena Mr. Stevenson’s handwriting exemplars.
However, that was not what he did. Instead, Mr. West filed a motion to compel Mr.
Stevenson to provide the exemplars, which, according to the certificate of service, was
served upon Mr. Stevenson by mail and the State by hand delivery. It does not appear the
motion to compel samples of his handwriting was served upon Mr. Stevenson in the
manner required by W.R.Cr.P. 17(e).2 At the hearing on the motion to compel, Mr.
Stevenson was neither present nor represented. Not surprisingly, the prosecutor did not
object to the motion, stating “we don’t have a dog in that fight. I don’t represent Mr.
Stevenson. I’m not prosecuting Mr. Stevenson [in this case].”

2
  The defense subpoenaed Mr. Stevenson to appear for trial, and the State also sought his appearance.
Mr. Stevenson, however, refused to testify and no further action was taken to compel him to do so. There
is no indication that the issue of providing handwriting exemplars at trial or through the authority of the
subpoena was raised.


                                                    6
[¶20] Had the subpoena procedure been used, Mr. Stevenson could have moved to quash
it and the proper parties would have been involved. Thus, we agree with the district court
that, under these circumstances, the appropriate procedure was not used. However,
consistent with our discussion above, we disagree with the district court’s statement that
there is no legal authority to require a non-party to appear before trial to provide
handwriting exemplars. The subpoena process provides such authority.

[¶21] Nevertheless, in order to warrant reversal of a conviction, error must be
prejudicial. Even when a constitutional error is involved, reversal is not required if we
conclude it was harmless beyond a reasonable doubt. Spears, 300 P.2d at 557; Daniel, ¶
15, 78 P.3d at 212. The purpose of the handwriting exemplars was to provide a means
for Mr. West’s handwriting expert to conclude that Mr. Stevenson authored the notes
which encouraged Mr. Hunter to “pin” the crime on Mr. West. That issue was not,
however, in dispute at trial. Mr. Hunter testified that Mr. Stevenson had given him the
notes, and Ms. Garcia testified that he had also sent her letters encouraging her to lie. As
such, the uncontradicted evidence in the record established that Mr. Stevenson had, in
fact, written notes encouraging the other co-conspirators to implicate Mr. West. Mr.
West’s defense counsel emphasized Mr. Hunter’s testimony about Mr. Stevenson’s notes
in her closing argument. Testimony from a handwriting expert would not have added
anything to the evidence. Consequently, any error regarding Mr. West’s right to obtain
handwriting exemplars from a witness was harmless beyond a reasonable doubt.

[¶22] Affirmed.




                                             7
