Summary 2008 WY 58

Summary of Decision issued May 29, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Carothers v. State

Citation: 2008 WY 58

Docket Number: S-07-0240

Appeal from the District Court of Campbell County, the Honorable Dan R. Price, II, Judge.

Representing Appellant (Defendant): Nicholas H. Carter and Miles A. Jacoby of the Nick Carter Law Firm, PC, Gillette, Wyoming.

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

Facts/Discussion: Carothers was convicted of aggravated homicide by vehicle after she caused the death of a child in a motor vehicle collision in Gillette.

Juror Challenges: The Court reviewed the totality of the voir dire process and determined it had been a careful and deliberative process. The record showed that the district court did not ignore bias challenges and it clearly stated its decision making as to individual jurors based upon the perception by the court whether the juror could or would set aside any improper influences.
Change of Venue: A hearing on the motion for change of venue was held. The two-part test for determining whether there should be a change of venue includes the nature and extent of the publicity and the difficulty or ease in selecting a jury along with the amount of prejudice which actually appears during voir dire. The first part was not included in the record so the Court was unable to determine if the publicity was anything but factual. A sufficient number of jurors declared themselves to be able to determine the matter based solely upon the evidence they heard in court and the instructions given them by the judge.
Prosecutor’s Statements: Carothers contended that statements made by the prosecutor during closing argument violated her right to remain silent and that the prosecutor attempted to shift the burden of proof to the defendant. The State argued that the statements were legitimate responses to defense counsel’s arguments. The Court reviewed the comments within the context of the arguments and determined that the remarks were directed at refuting defense counsel’s allegations.
PSI: A PSI is mandated for all felony cases. After reviewing the record, the Court stated that there was no showing that the district court relied upon the comments in deciding upon the sentence; the comments repeated what was already contained in the victim impact portion of the report and in the mother’s comments; and the sentence imposed was less than that requested by the State, which suggested the court was not “inflamed” by the comments.

Holding: Sufficient evidence in the record supported the district court’s decision to not excuse certain jurors. A venue change was not necessary because a local jury was seated without undue difficulty. The prosecutor’s challenged statements were responsive to arguments made by defense counsel or were comments upon the evidence that was presented. It was not shown that the district court relied upon or that Carothers was prejudiced by the inclusion of the statements in the PSI.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/5os8gj .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 57

Summary of Decision issued May 22, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Hendricks v. Hurley

Citation: 2008 WY 57

Docket Number: S-07-0178

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant (Plaintiff): Bruce S. Asay of Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellees (Defendants): Raymond W. Martin of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Facts/Discussion: Ryan Hendricks was electrocuted after touching an ungrounded well head at his grandparents’ home. Ryan’s mother filed a claim against the grandparents, the Hurleys, alleging they failed to use reasonable care in inspecting the well and supervising Ryan.

Summary Judgment on the Duty to Inspect: The Hurleys had a duty to disclose only if they knew or had reason to know of the defects. Mrs. Hendricks presented no admissible evidence other than her own assertions. In light of the failure to prove a duty, the district court properly granted summary judgment for the Hurleys on Mrs. Hendricks’ first negligence claim.
Negligent Supervision: Mrs. Hendricks asserted a general common law duty to supervise relying on Daniels and Dellapenta. The Court disagreed noting that the determining factor in both cases was the foreseeability of harm to the plaintiff. In the instant case, the Court concluded that there was no evidence showing the Hurleys knew or had reason to know about the dangerous condition of the well. Absent evidence establishing a genuine issue of material fact on the question of whether immediate emergency assistance would have saved Ryan, the summary judgment was appropriate.
Negligent Infliction of Emotional Distress: Absent proof the Hurleys knew or had reason to know of the dangers that existed because of the faulty wiring, Mrs. Hendricks cannot recover for negligent infliction of emotional distress. The limited exception recognized in Larsen was not applicable in the instant case.
Loss of Consortium: In Wyoming, a claim for loss of consortium is derivative of the injured party’s claim. Since the injured party’s claim failed, the loss of consortium claim was properly dismissed.

Holding: Mrs. Hendricks failed to prove a duty. Absent evidence on the question of whether immediate emergency assistance would have saved the victim, summary judgment was appropriate. The limited exception recognized in Larsen was not applicable. The loss of consortium claim was properly dismissed because the injured party’s claim failed.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/6rf3v6 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 56

Summary of Decision issued May 22, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Guy v. State

Citation: 2008 WY 56

Docket Number: 06-151

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Facts/Discussion: Guy sought to overturn his conviction for attempted second-degree murder asserting numerous claims of error.

Prosecutorial Misconduct: Guy alleged numerous instances of prosecutorial misconduct. The Court reviewed them in light of the entire record. The statements in question were from the State’s closing argument and Guy claimed they infringed on his right to remain silent. The Court disagreed and stated he failed to establish plain error. Guy also complained of misstatements made by the prosecutor during closing argument. Guy failed to meet the burden of establishing that he was prejudiced by the alleged misstatements. Guy also objected to the prosecutor’s statement that he stood behind the officer and the investigation in the matter. The Court noted that the quality of the police investigation was a minor issue and stated they did not view the prosecutor’s improper comment to be significant in light of the eyewitness testimony regarding the incident.
Ineffective Assistance of Counsel: Guy claimed it was ineffective assistance by counsel to advise he not testify at his trial because of his prior criminal history. The Court found defense counsel’s advice was not unreasonable. They relied on the district court’s analysis from the Calene hearing. Guy claimed ineffective assistance of counsel because counsel allowed two witnesses called by the State to testify that Guy routinely carried a knife. The fact that Guy customarily carried a knife of a size consistent with the victim’s injury was unquestionably relevant. Defense counsel chose not to call a witness to testify that Guy had lost the knife prior to the incident believing that calling the witness would serve no useful purpose. The Court found no fault with that decision. Guy also contended there was error because an officer was not called as a witness. The Court reviewed the record observing that it supported their decision that Guy failed to establish that his trial counsel was ineffective because he did not call the officer as a witness at trial. The Court reviewed the testimony in the Calene hearing as well as the court record. The Court agreed with the district court that Guy had not been prejudiced.
Sufficiency of the Evidence: The Court stated that even though no person testified to witnessing the stabbing, purpose or malice had been sufficiently proven. The Court concluded the State had presented sufficient evidence to allow a reasonable jury to convict.
Excessive Security: Guy objected to security personnel accompanying him when he moved about the court. The State has a legitimate interest in maintaining custody at trial. Guy failed to establish that the measures utilized were exceptional or that he was prejudiced by the precautions approved by the district court.
Constitutionality of Attempted Second-Degree Murder: The Court next considered his as applied constitutional claim. Guy had not entered a guilty plea and accordingly, the exception applied by the Court in Armijo and Rutti was inappropriate. The Court declined Guy’s challenge.
Guy also asserted other incidents of misconduct occurred during the prosecutor’s closing argument. The Court declined to address the issues because he failed to establish prejudice. The Court also stated that as a result of their detailed review of the record and analysis of the legal issues, they did not find any merit in his claim of cumulative error.

Holding: Guy failed to meet the burden of establishing that he was prejudiced by the alleged misstatements. Defense counsel’s actions were found to be within the wide range of competent assistance. The State presented sufficient evidence to allow a reasonable jury to convict. Guy was not prejudiced by the security precautions taken. Because Guy had not entered a guilty plea, his as applied challenge was declined by the Court.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/6k9yz2 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 55

Summary of Decision issued May 21, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Ervin v. State

Citation: 2008 WY 55

Docket Number: S-07-0239

Order Affirming Judgment and Sentence of District Court

Ervin failed to file a pro se brief within the time allotted by the Court therefore the District Court’s Judgment and Sentence were affirmed.

Link: http://tinyurl.com/6oaeoa .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 54

Summary of Decision issued May 14, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Holman v. State

Citation: 2008 WY 54

Docket Number: 06-140

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant (Defendant): Thomas R.; Smith of Chapman Valdez at Beech Street Law Office, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General: Eric A. Johnson, Faculty Director, Prosecution Assistance Program; and Geoffrey Gunnerson, Student Director, Prosecution Assistance Program.

Facts/Discussion: Holman pled guilty to one count of third possession of a controlled substance reserving his right to appeal the district court’s denial of his motion to suppress evidence seized during the search of his car at the time of his arrest.
The Court has stated that warrantless searches and seizures are per se unreasonable unless justified by probable cause and established exceptions. The Court reviewed the record to determine if an exception applied. The Officer’s reason for conducting the search was clear: search incident to arrest. The officer presented no evidence that the search of the vehicle was conducted to ensure officer safety or preserve evidence. He offered no testimony regarding specific facts or circumstances indicating that those concerns were present in the instant case. The Court’s review of the record revealed no objectively identifiable facts in support of those concerns. The Court stated the State failed to meet its burden. The Court has recognized that the mobility and the diminished expectation of privacy in the use and regulation of vehicles, permits warrantless searches in circumstances where searches would not be reasonable in other contexts. Their review of the record revealed no circumstances which would cause a reasonably prudent person to believe that the vehicle contained evidence of the crime for which Holman was arrested, or any other crime. The limited nature of the search did not justify the otherwise impermissible search. Although a driver of a vehicle has a diminished privacy interest in the contents of his vehicle, it does not mean he has no expectation of privacy. The Court agreed it would be irresponsible to park the vehicle in a public place if the officer had cause to believe it contained contraband or other dangerous items. In the instant case, the officers searched without any reason to believe it contained evidence of any crime.

Holding: Upon their review of the totality of the circumstances surrounding the search of Holman’s vehicle, the Court concluded that the search was not reasonable under any of the recognized exceptions to the warrant requirement and therefore violated Article I, Section 4 of the Wyoming Constitution.

Reversed.

C.J. Voigt delivered the decision.

J. Hill concurred: J. Hill wrote to distinguish the present case from Pierce and Sam. He stated that the goal of the Court’s review is to determine whether or not the search and seizure was “reasonable” under the facts and circumstances presented by any given case. His analysis led to the conclusion that the stop, search and seizure was one prompted more by suspicion than by concrete fact. As a matter of law, he concluded that they were not reasonable and therefore they were unconstitutional.

J. Burke dissented: J. Burke stated that his analysis revealed that similar to Pierce, the decision in the instant case was inconsistent with Wyoming precedent establishing that the arrest itself is sufficient justification to search the arrested person and the area within his immediate control.

Link: http://tinyurl.com/5r8fyg .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 53

Summary of Decision issued May 9, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: PBS Enterprises, Inc. v. CWCapital Asset Management LLC

Citation: 2008 WY 53

Docket Number: S-07-0024; S-07-0251

Appeal from the District Court of Park County, the Honorable Dan Spangler, Judge.

Representing Appellant (Defendant): Timothy Charles Kingston, Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Colin MacKenzie Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cody, Wyoming.

Facts/Discussion: PBS appealed the district court’s entry of summary judgment in favor of CWC. They also challenged the confirmation of the foreclosure sale which took place while the first appeal was pending. PBS owned and operated two hotels, one in Cody and another in Norfolk, Nebraska. CWC held PBS’s promissory note secured by the “Norfolk” mortgage. They also held promissory notes secured by two “Cody” mortgages on the Cody property. The Cody mortgages included cross-default provisions such that a default under the Norfolk mortgage was also a default under the Cody mortgage.
Default: It was undisputed that PBS defaulted on the Norfolk mortgage. PBS did not contest CWC’s foreclosure on that mortgage in Nebraska state court. Regardless of whether the parties agreed to change the payment schedule under the Cody mortgages, PBS’s default under the Norfolk mortgage also put it in default under the Cody mortgages. In the “Pre-Negotiation Agreement”, PBS conceded there were no modifications to the written agreement and confirmed that the written documents continued to define their legal and enforceable obligations.
Negligent or Intentional Misrepresentation: PBS complained that CWC misrepresented amounts due under the Cody mortgages. The Court’s review of the record showed that the Cody mortgage assigned the duty to provide the correct and accurate pay off amount to PBS, not CWC. Because PBS failed to establish that CWC had any duty to provide it with figures for the amount owed under the Cody mortgages, PBS could not sustain its intentional or negligent misrepresentation claims against CWC.
Confirmation of Foreclosure Sale: While PBS’s initial appeal was pending before the Court, CWC proceeded with the foreclosure sale. It then filed a motion asking the district court to confirm the foreclosure sale and enter a deficiency judgment against PBS. The district court retained the right and power to enforce its decree that CWC was entitled to foreclose against PBS even though that decision had been appealed. PBS did not seek to stay the district court’s order. Absent the stay, the district court did not exceed its authority to enforce the judgment.

Holding: The district court properly granted summary judgment to CWC in its foreclosure action against PBS and properly granted summary judgment against PBS’s counterclaims. The district court also had jurisdiction to confirm the foreclosure sale.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5aydoj .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 52

Summary of Decision issued May 8, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Dax v. State

Citation: 2008 WY 52

Docket Number: S-08-0004

Order Affirming Judgment and Sentence of District Court

Dax failed to file a pro se brief within the time allotted by the Court therefore the District Court’s Judgment and Sentence were affirmed.

Link: http://tinyurl.com/56zar6 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 51

Summary of Decision issued May 2, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Wagner v. State

Citation: 2008 WY 51

Docket Number: S-07-0104

Appeal from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge.

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

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Brian Hunter, Student Director; Clarissa Collier, Student Intern.

Facts/Discussion: After being arrested for driving under the influence of alcohol, Wagner filed a motion to suppress claiming that the arresting officer did not have reasonable suspicion to justify the investigatory stop.
The Court focused their attention on the investigatory stop which requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. Regardless of whether or not the officer articulated that she had knowledge of Wagner’s suspended license, it was undisputed that it was indeed suspended. The officer had reasonable suspicion to believe that Wagner was driving while under the influence of alcohol based on the officer’s conversation with an identified citizen-informant, the look on Wagner’s face when he was stopped by the officer and that the officer saw Wagner stumble, hold onto a gate in order to maintain his balance and that he was very unsteady on his feet. Taken together, the information provided helped form the basis for a reasonable suspicion that criminal activity was afoot.

Holding: The totality of the circumstances in the instant case established that the officer had reasonable suspicion to believe that Wagner was not only driving under the influence but also driving on a suspended license. The investigatory stop was justified.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/5m62sh .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]