Summary 2011 WY 10

Summary of Decision January 24, 2011

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Case Name: Breazeale v. State

Docket Number: S-10-0097

URL: http://tinyurl.com/4jjzbw9

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

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, 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; Jenny Lynn Craig, Assistant Attorney General.

Date of Decision: January 24, 2011

Facts: Appellant appeals his conviction on one count of aggravated homicide by vehicle.

Issues: Whether the trial court erred in denying the suppression of medical records obtained from Appellant after assertion of his right to silence and counsel. Whether the evidence supported a conviction of reckless driving. Whether the evidence supported a conviction of driving under the influence of cocaine. Whether the presentation of evidence of cocaine use two days prior to the incident violated W.R.E. 404(b). Whether the district court had jurisdiction to try Appellant on a charge different from the one on which he was bound over by the circuit court. Whether the trial court denied Appellant his constitutional right to present his defense of a medical cause of his unconsciousness.

Holdings: In the hospital after the wreck, a police officer asked to talk with Appellant. Appellant contends that he told the officer he did not want to talk without an attorney present. The officer nevertheless remained in the room with Appellant, and later asked him to sign a form consenting to the release of his medical records. Appellant admits, that he was not in police custody while he was in the hospital. Because he was not in custody, Appellant’s right to counsel and his right to remain silent did not yet apply. A person has no right to have an attorney present during a non-custodial interview. That right does not exist outside the context of custodial interrogation. One cannot invoke a right that does not yet exist. In Appellant’s case, the record is devoid of any suggestion that the police officer was coercive or threatening at any time during the interview. There is no basis to conclude that Appellant’s consent to release his medical records was coerced. Therefore, the district court’s denial of Appellant’s motion to suppress the evidence contained in his medical records is affirmed.

When reviewing a sufficiency of the evidence claim in a criminal case, it must be determined whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. Appellant acknowledges that there was evidence he had inhaled a controlled substance which could have impaired his ability to drive, and admits that driving while under the influence of a controlled substance is prohibited by Wyo. Stat. 31-5-233. He claims, however, that driving while under the influence of a controlled substance does not necessarily constitute reckless driving, which is prohibited by a separate statute, Wyo. Stat. 31-5-229. Absent evidence of willful or wanton disregard, Appellant contends, he could not be found guilty of driving in a reckless manner. The record contains ample evidence that Appellant consciously disregarded a substantial and unjustifiable risk when he drove while inhaling the “canned air.”

At trial, the prosecution presented evidence that the blood and urine samples taken from Appellant after the wreck tested positive for the presence of cocaine metabolites. An expert witness explained that the metabolites indicated Appellant had used cocaine in the recent past. The expert witness further indicated that although the cocaine metabolites were present, that did not mean there was any cocaine present in Appellant’s system. Because there was no cocaine in his system, only cocaine metabolites, Appellant argues that he could not have been under the influence of cocaine at the time of the wreck. However, the prosecution’s basic theory, as reflected in the jury instructions, was that Appellant was under the influence of “glue, aerosol or other toxic vapor which, when intentionally inhaled or sniffed, results in impairment of an individual’s ability to drive safely.” This language is taken from the definition of a controlled substance found in Wyo. Stat. 31-5-233(a)(ii)(B). The record contains ample evidence from which a rational jury could find that Appellant was under the influence of a controlled substance after he inhaled the “canned air.”

Appellant argues that evidence of his prior use of cocaine was evidence of “other crimes, wrongs or acts;” that his use of cocaine two days before the wreck was not directly related to the crime, and that the district court should have excluded this evidence pursuant to W.R.E. 404(b). In making a pretrial determination regarding the admissibility of evidence under W.R.E. 404(b), the district court must rely on the prosecution’s representations about what the evidence will be. When the actual evidence is presented at trial, however, it may not be exactly as represented in the pretrial hearing. This does not necessarily mean that the prosecution intentionally misrepresented the evidence. Variations could occur, for example, because new evidence is discovered, a witness provides unexpected testimony, or counsel did not fully understand the evidence at the time. When the evidence at trial is not the same as represented by the prosecution during the pretrial hearing, defense counsel has an opportunity to make an appropriate objection. In other words, the district court’s pretrial ruling on the admissibility of evidence under W.R.E. 404(b) does not preclude an objection at trial that the evidence is not as represented earlier, and is not admissible under W.R.E. 404(b). Appellant made no such objection during his trial. In the present action, a review of the record reveals no meaningful discrepancy between the evidence as represented during the pretrial hearing and as actually introduced at trial. At the hearing, the prosecution represented that the evidence would show that Appellant was “under the influence of drugs under the influence of the cocaine metabolites in his blood.” At trial, the prosecution’s expert witness admitted that the presence of cocaine metabolites did not mean Appellant was under the influence of cocaine at the time. However, she indicated that the use of cocaine two days earlier could still have a direct effect on his physical condition on the day of the wreck. W.R.E. 404(b) prohibits evidence of “other crimes, wrongs, or acts” offered “to prove the character of a person in order to show that he acted in conformity therewith.” It does not prohibit evidence of a defendant’s physical condition at the time of the alleged crime. The district court did not abuse its discretion by admitting this evidence at trial.

Appellant’s basic contention that a defendant should not be bound over to the district court on one charge, but tried on a different charge is correct. However, a review of the record establishes that the recitation in an “Amended Transcript” that Appellant was charged under Wyo. Stat. 6-2-101(b)(i) and (ii) (first degree murder) rather than 6-2-106(b)(i) and (ii) was a clerical or typographical error. The record indicates that this typographical error never caused any confusion about the actual charges against Appellant. The typographical error listing the wrong statute number was utterly harmless and did not deprive the district court of jurisdiction to try Appellant on the correct charge of aggravated homicide by vehicle.

Appellant contends that the district court’s ruling which precluded three defense witnesses from testifying at trial that Appellant suffered from a seizure disorder. impinged upon his constitutional right to present his defense. However, the right to offer testimony is grounded in the Sixth Amendment Compulsory Process Clause and can be violated by imposition of a discovery sanction that excludes defense witness testimony. In the present case, the three witnesses were not excluded because of a missed discovery deadline. The defense had missed deadlines for filing its notice, but the district court granted an extension, and the notice was filed by the extended deadline. Instead, the district court excluded the witnesses because the notice did not “state with particularity the facts upon which the defendant relies to justify the defense of unconsciousness,” as required by W.R.Cr.P. 12.3(a). Based upon a review of the record, the district court’s conclusion was reasonable. The notice filed by Appellant stated that the witnesses “can provide information relating to the Defendant’s seizure diagnosis and treatment,” but provided no other details about the testimony they were expected to give. It listed the witnesses’ names and addresses, but provided no information about their qualifications to provide medical testimony. The notice did not list any of the facts relied upon by the defense, but only indicated that such information could be found in Appellant’s medical records. As the district court observed, the parties knew from the beginning of the case that Appellant claimed to have suffered a black out. Accordingly, the minimal information contained in the notice “was not new to anybody.” Further, the district court said, a broad reference to medical records “is not particularly helpful” to the prosecution’s efforts to respond to a defense of unconsciousness. Because the notice did not state with particularity the facts upon which Appellant’s defense was based, the district court reasonably determined that it did not comply with W.R.Cr.P. 12.3(a). Appellant has not demonstrated that it was an abuse of discretion to rule that the three medical witnesses could not testify at trial.

Affirmed.

J. Burke delivered the opinion for the court.