Volume 2, Number 9 - June 3, 2002
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Winters case to be trial by jury
Kelly Winters of Pinedale spent half a day in front of Ninth Judicial District Circuit Court Judge Frank Zebre last Friday, as his attorney, Mike Cornia of Evanston, argued the merits of several motions for the court to consider in preparation for Winters' upcoming trial on two misdemeanor counts of battery. The date for the jury trail has not yet been set.
The battery charges were filed as a result of an alleged April altercation with Richard and Gloria Thomas at the Elkhorn Bar in Bondurant. The Thomases are the bar's owners.
The first item for argument was Corniaıs motion to dismiss the charges against Winters.
The statute provides that: "A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another." Cornia argued that the law is too vague in allowing juries to decide whether the touching was rude, insolent or angry, which would lead to arbitrary
enforcement, which is unconstitutional. He said six Hara Krishnas and six roughnecks would have entirely different views on the subject.
"The statute is unconstitutional on arbitrary enforcement grounds," Cornia argued. Aronson argued, "The statute does offer clear notice or warning of what is prohibited."
Zebre agreed with Aronson, denying Corniaıs motion to dismiss. He said, "I think the law is pretty clear," and that statutes are presumed to be constitutional.
Cornia argued that the court should order that Aronson "not offer as evidence, make references or allegations to, or make statements during its arguments, concerning the defendant or his family membersı reputation in the community." Zebre said this is one motion in which it appears both attorneys actually agreed and ruled that reputation evidence is generally excluded, except under certain court rules. In effect, Wintersı attorney canıt claim that the Winters brothers have a reputation for non-violence without Aronson being able to offer a rebuttal focused on that claim.
Zebre said he wonıt issue a ruling prohibiting a law-enforcement officer from testifying, but he did question the relevance of the testimony to the case. Aronson said that objections could be made at the trial itself, but added that the officer may give testimony regarding statements made to the officers.
Cornia asked the court to order Aronson to give notice of his intention to offer any prior bad act evidence, but Aronson said he doesn't anticipate introducing any such evidence regarding the three named witnesses: Kelly Winters, Brad Winters and Charnery Winters. According to Aronson's response, "The state would provide the timely notice requested if such evidence becomes available."
Cornia also sought to limit testimony regarding who was the aggressor, before or during the incident. Cornia said this is an area where law-enforcement officer testimony may come in, but since the cops weren't on the scene, they shouldn't be able to testify on this point. Only the actual witnesses will be allowed to testify on this matter.
Corniaıs motion for a change of venue was denied. Cornia told the court Friday that the main reason he wanted the trial moved to Lincoln County was the reputation issue.
According to Corniaıs motion: "The defendant and many of his witnesses are well known in the county and possibly have a reputation for physical confrontation. It would be mpossible to inquire into the potential jurors' awareness of this reputation without polluting the entire jury pool. The defendant has a Constitutional right to be tried on the facts of this case and not what the jurors, or a juror, has heard about reputation or past
Cornia said he knows that the majority of case law was not in his favor on this point, but wanted to raise the issue of his concern for Winters' ability to receive a fair trail in Sublette County. Zebre denied the request for a change of venue. Cornia submitted a motion requesting that the Winters' case be dismissed because the charging documents are fatally flawed and because the court lacks jurisdiction to hear the case, but Zebre denied these claims as well. (This portion of the hearing took a great deal of time, with some suprising comments made by the presiding judge. See this week's Sublette Examiner for full details.)
Zebre agreed to Aronsonıs request for a larger-than-normal jury pool for the Winters' trial, although he didn't agree to Aronson's request for a pool of 50. While a pool of 20 people is normally called in, Zebre agreed to have 35 in this case. Each attorney is allowed to have four potential jurors removed, and six jurors will be seated, which leaves a pool of 21 candidates subject to be stricken from the panel "for cause." Zebre said, "If I can't get a panel seated (with 35 potential jurors) then maybe a change of venue should be granted." Aronson said he would stipulate to that.
Cornia requested the court remove Aronson from the case and that he be replaced by a special prosecutor. Cornia's motion stated that Aronson has represented both of Kelly Winters' brothers in the past and that the brothers would probably be called as witnesses in this case and their credibility will be at issue.
"The matters that were the subject of the representation by Mr. Aronson could be matters that would call the credibility of the witness into question," Cornia wrote, and Aronson is prohibited from delving into these matters by his obligation to his former clients.
In addition, Cornia wrote, "Mr. Aronson was also consulted by the defendant on a legal matter that could be used as impeachment." Aronson's written response cited the Wyoming Rules of Professional Conduct and requested that any such disclosure be made in court chambers. Zebre agreed, and court was held behind closed doors on this issue for an hour and a half, before Zebre adjourned without issuing a ruling at that time.
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