Summary 2011 WY 2

Summary of Decision January 4, 2011

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Case Name: Boucher V. State

Citation: 2011 WY 2

Docket Number: S-10-0029

URL: http://tinyurl.com/268plxy

Appeal from the District Court of Laramie County, The Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender, and Tina N. Kerin Appellate Counsel, Wyoming Public Defender Program. Argument by Ms. Kerin.

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. Argument by Ms. Craig.

Date of Decision: January 4, 2011

Facts: The appellant was convicted of six counts of sexual assault on a minor and sentenced to 30 to 60 years incarceration. The original Information charging the appellant was filed on February 15, 2001. The crimes were allegedly committed in Cheyenne, Wyoming. At some point prior to being arrested for the above charges, the appellant moved to Arizona. The appellant was arrested on March 1, 2008. Following his arrest, the appellant did not go directly to trial. Instead, the State dismissed the original charges against the appellant and re-filed them with more specific dates regarding the alleged crimes. The order granting the State’s motion to dismiss was filed on September 22, 2008. On October 1, 2008, the State filed a new Information charging the appellant. The appellant was finally brought to trial on April 6, 2009. The time between the filing of the original Information and when the appellant was finally brought to trial—excluding the time between the original charges being dismissed and being re-filed—totaled 2,971 days.

Issues: (1) Whether the appellant’s Sixth Amendment right to a speedy trial violated; (2) Whether the prosecutor committed misconduct requiring a reversal of the appellant’s conviction; (3) Whether the district court abused its discretion when it denied the appellant’s motion for mistrial based upon the jury watching a redacted videotaped interview of the victim; and (4) Whether the district court abused its discretion when it admitted “flight evidence”?

Holdings: Finding no reversible errors, the Court affirmed. The Court did not find that the appellant’s speedy trial right was violated, in large part because he failed to raise the issue regarding the pre-arrest delay with the district court and therefore failed to create a sufficient record for review. Furthermore, the appellant failed to demonstrate any abnormal or substantial prejudice beyond that which would be expected from any defendant awaiting trial. The court also rejected the appellant’s arguments relating to prosecutorial misconduct. It was not shown that the prosecutor was attempting to ingratiate himself with the jury via the challenged comments, and as a result the prosecutor did not violate W.R.Cr.P. 24(c)(2). Additionally, the district court did not abuse its discretion when it denied the appellant’s motion for mistrial based on admission of the redacted videotape, because the State reserved its right to object, and because admission of the redacted portions of the tape would have violated state statutes. Finally, the Court found that the district court did not abuse its discretion in admitting evidence of the appellant’s flight.

J. Voigt delivered the opinion for the court.