Summary 2008 WY 42

Summary of Decision issued April 9, 2008

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Case Name: Six v. State

Citation: 2008 WY 42

Docket Number: S-07-0199

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

Representing (Appellant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing (Appellee): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.

Date of Decision: April 9, 2008

Issues: Whether the failure to afford Appellant an initial appearance within 72 hours of arrest constituted a violation of W.R.Cr.P. 5(a) and warranted a dismissal of the case. Whether the trial court failed to properly instruct the jury on intent as an element of escape.

Facts: Appellant was a transitional inmate in the custody of the Wyoming Department of Corrections and was housed at Community Alternatives of Casper (CAC). On October 25, 2006, Appellant left CAC to go to work. When he arrived at work, he was fired because he had not shown up for work the preceding day and had not called to say he was not coming to work. He then returned to CAC but did not sign himself back into the facility. Instead, he picked up another inmate and left. At 3:00 p.m. that same day, Six returned to CAC and was transferred to the custody of the Natrona County Sheriff pending review of his case under Wyo. Stat. Ann. § 7-18-113 (2007). Appellant was moved from the CAC to the county jail. It appears that he was released on bond on November 8, 2006. His preliminary hearing was held on November 16, 2006. On December 27, 2006, Appellant appeared before the district court for arraignment. On January 25, 2007, Appellant filed a motion to dismiss the charge against him on the basis that he had not had a speedy initial hearing. In that pleading he did not cite any pertinent authority or make any cogent argument in support of his position. On February 6, 2007, the State responded to that motion, asserting that W.R.Cr.P.5(a) did not apply to the circumstances of Appellant’s case, and that Appellant was properly and legally incarcerated, as the sentence that he was then serving would not be completed until February 27, 2007. The district court held a hearing on February 22, 2007, and by order entered of record on March 13, 2007, the district court denied Appellant’s motion, stating that the extreme remedy of dismissal was not warranted in his circumstances.

Holdings: In this appeal, Appellant attempts to liken his circumstances to the authority that we have applied in cases involving violation of the right to a speedy trial. Such an argument by analogy simply will not stand up in the face of the statutes that governed Appellant’s status as an “inmate” already incarcerated, or in light of the purposes of Rule 5(a) itself, i.e., that persons not be incarcerated for more than 72 hours without there being judicial intervention made available. Although Appellant concedes that there is no authority that requires dismissal with prejudice in these circumstances, he argues that his analogy should at least require dismissal without prejudice. However, the court declined to embrace that argument because it was deemed to be a doctrine that applies to persons newly incarcerated and not those whose incarceration has merely undergone a geographic change and/or a change in the degree of incarceration. There may be circumstances where such changes warrant an internal, administrative-type hearing or procedure, but not an initial appearance before a judicial officer under Rule 5(a).
Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Jury instructions are analyzed as a whole and individual instructions or parts thereof are not singled out. Trial courts are given great latitude in instructing juries and reversible error will not be found in the jury instructions as long as the instructions correctly state the law and the entire set of instructions sufficiently covers the issues which were presented at the trial.
In the present action, the instructions in question, when read together and in the light of each other, were adequate. It is, of course, of some considerable disappointment that the trial court and the parties did not proof read and ponder these instructions a bit more methodically. The intent element should have been included with the other elements, and it is difficult for us to grasp why it was not. Nonetheless, while that represents a deficiency, it does not rise to a level where we are willing to say that Appellant was prejudiced by that oversight. While the error is readily identifiable in the record, and the applicable rule of law is clear and unequivocal, that rule was not violated in a clear and obvious way. Because the rule was substantially met by the instructions, Appellant was not prejudiced by the error, and we decline to reverse his conviction on that basis.

The failure of the State to provide Appellant with an initial appearance as set out in W.R.Cr.P. 5(a) does not require dismissal of the charge against him. The instructions were adequate, and the infirmities identified in them do not necessitate reversal of his conviction. Therefore, the judgment and sentence of the district court are affirmed.

J. Hill delivered the opinion for the court.