Summary 2013 WY 156

Summary of Decision December 19, 2013

Justice Voigt delivered the opinion of the Court. Affirmed.

Case Name: LASHAWN SIDNEY KING v. THE STATE OF WYOMING

Docket Number: S-12-0187

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County the Honorable Catherine E. Wilking, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender; Patricia L. Bennett, Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: December 19, 2013

Facts: The appellant, LaShawn Sidney King, was convicted of attempted first-degree murder, kidnapping, and two counts of aggravated assault and battery after he attacked the victim and hit her several times in the face and body with a sledgehammer. In this appeal, the appellant argues his convictions should be reversed because the district court improperly admitted evidence of the appellant’s previous violent behavior against the victim, a transcript was provided to the jury of a telephone conversation between the appellant and the victim, and trial counsel was ineffective for waiving the appellant’s right to a speedy trial. (In his brief, the appellant also argued that his two convictions of aggravated assault and battery should have merged for the purposes of sentencing. However, at oral argument, the appellant conceded that the issue was moot after this Court’s decision in Sweets v. State, 2013 WY 98, 307 P.3d 860 (Wyo. 2013).)

Issues: 1) Did the district court abuse its discretion when it determined that testimony regarding previous violence in the appellant’s relationship with the victim was admissible under W.R.E. 404(b)? 2) Did the district court abuse its discretion when it allowed the jury to review a transcript of a telephone recording between the appellant and the victim while the recording was being played at trial? 3) Was trial counsel ineffective because he requested a continuance and filed a waiver of speedy trial signed by the appellant, contrary to the appellant’s desire not to waive his right to a speedy trial?

Holdings/Conclusion: The district court did not abuse its discretion when it determined that testimony of previous violent acts committed by the appellant against the victim was admissible under W.R.E. 404(b). Further, the district court did not abuse its discretion when it allowed the jury to review a transcript of a recorded telephone conversation between the appellant and the victim while the jury was actively listening to the recording. Finally, the appellant did not receive ineffective assistance of trial counsel when his counsel requested and was granted a continuance of the trial date so counsel could consult with an expert witness. Affirmed.

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

[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. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2013 WY 47

Summary of Decision April 24, 2013

Justice Burke delivered the opinion for the Court. Convictions affirmed. Sentence vacated and remanded.

Case Name: DHARMINDER VIR SEN v. THE STATE OF WYOMING

Docket Number: S-11-0151

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sheridan County, Honorable John G. Fenn, Judge.

Representing Appellant: Diane E. Courselle, Director, and Samantha Lind, Cally Lund, and Brian Quinn, Student Interns, Defender Aid Program, University of Wyoming College of Law. Argument by Ms. Lind.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General. Argument by Mr. Daraie.

Date of Decision: April 24, 2013

Facts: Appellant, Dharminder Sen, was convicted of first-degree felony murder, aggravated burglary, and conspiracy to commit aggravated burglary for his participation in the killing of Robert Ernst after breaking into Mr. Ernst’s home with Wyatt Bear Cloud and Dennis Poitra, Jr. He challenged his convictions on a number of grounds, and contended that his sentence of life without the possibility of parole is unconstitutional under the United States Supreme Court’s recent decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

Issues: Sen presents six issues, which we discuss in the following order:

1. Did the trial court abuse its discretion when it failed to grant Dhar Sen’s motion to transfer his case to juvenile court, where the court did not meticulously consider the evidence, made inadequate findings, and made serious mistakes weighing the relevant factors?

2. Did the trial court err when it denied Dhar Sen’s motion to suppress his confession where the confession was involuntary as the product of coercion and failure to knowingly and intelligently waive his right to an attorney?

3. Did the trial court err when it found that the gunshot residue kit obtained without a warrant was admissible at trial?

4. Whether excluding expert testimony by Dr. Marie Banich, offered for the purpose of calling into question the specific intent element of aggravated burglary (and felony murder), violated Dhar Sen’s Sixth Amendment right to present a defense?

5. Whether Dhar Sen was denied effective assistance of counsel due to his attorney’s failure to investigate and failure to raise significant issues at sentencing?

6. Whether a sentence of life imprisonment without the possibility of parole or commutation, for a homicide committed at the immature age of 15, violates Dhar Sen’s constitutional protection against cruel and unusual punishment under the United States and Wyoming Constitutions?

The State phrases the issues in a substantially similar manner.

Holdings: The Court found no error impacting Sen’s convictions and, accordingly, affirmed those convictions. However, Sen’s sentence of life without parole was imposed under a sentencing scheme that precluded the possibility of parole. As a result, Sen’s sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment and relevant Supreme Court precedent. Accordingly, the Court vacated Sen’s sentence and remanded to the district court for resentencing on all counts.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 137

Summary of Decision October 30, 2012

Judge Campbell delivered the opinion for the Court. Affirmed.

Case Name: LUKE EDWARD MICKELSON v. THE STATE OF WYOMING

Docket Number: S-11-0285

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County, Honorable Wade D. Waldrip, Judge.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David Westling, Appellate Counsel; Wyoming Public Defender Program. Argument by Mr. Westling.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: October 30, 2012

Facts: Luke Edward Mickelson appealed his conviction for unlawful possession with intent to deliver a controlled substance, contending the Court improperly admitted lay opinion testimony concerning Mr. Mickelson’s level of intoxication, and that he was denied effective assistance of counsel.

Issues: Mr. Mickelson presented two issues for this Court’s consideration:

I. Was trial defense counsel ineffective?

II. Did the testimony of two bartenders about intoxication invade the province of the trier of fact?

Holdings: The testimony of Ms. Tonille and Mr. Groshart regarding Mr. Mickelson’s level of intoxication was properly admitted and considered by the trial court. Further, Mr. Mickelson was not denied effective assistance of trial counsel, and his conviction was affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 105

Summary of Decision August 1, 2012


Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: JULIE ANN JACOBSEN v. THE STATE OF WYOMING

Docket Number: S-11-0120

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge.

Representing Appellant: Robert W. Southard, Laramie, Wyoming

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

Date of Decision: August 1, 2012

Facts: A jury found Julie Ann Jacobsen guilty of ten felony counts involving forgery and larceny. She appealed the convictions, claiming her trial counsel was ineffective. She also asked the Court to allow her to supplement the trial record in order to prove her ineffective assistance claim.

Issues: Ms. Jacobsen presented two issues for this Court’s consideration:

Issue One: Did defense counsel fail to investigate this case, obtain documents and witnesses, including an expert, and therefore deny Ms. Jacobsen effective assistance of counsel?

Issue Two: Will this court effectively deny Ms. Jacobsen the right to due process and a meaningful appeal by denying her the opportunity to supplement the trial record in her attempt to prove her appellate claim of ineffective assistance of trial counsel?

Addressing Ms. Jacobsen’s first issue, the State asserted Ms. Jacobsen received effective assistance of counsel and, in any event, the evidence against her was so overwhelming that she was not prejudiced by any ineffectiveness. Addressing her second issue, the State contended this Court properly denied Ms. Jacobsen’s previous motion requesting a partial remand to supplement the record and should not reconsider that ruling.

Holdings: The Court declined Ms. Jacobsen’s request to supplement the record and affirmed her convictions. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 18

Summary of Decision February 9, 2012

[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.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name: Roger Lee Snow v. The State of Wyoming

Citation:  2012 WY 18

Docket Number: S-11-0031

URL:http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465084

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Appellant (Defendant): Gregory J. Blenkinsop, Senior Assistant Public Defender and Elisabeth M. W. Trefonas, Assistant Public Defender, Jackson, WY.  Argument by Ms. Trefonas.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program; Joshua Beau Taylor, Student Director; and Bret Engstrom, Student Intern.  Argument by Mr. Engstrom.

Date of Decision: February 9, 2012

Facts: After being convicted of felony burglary and a related misdemeanor, appellant Roger Lee Snow (Snow) appeals his conviction, contending that the district court erred when it denied his request for a new attorney and that he received ineffective assistance of counsel. 

Issues:  Snow presents the following two issues: 1) Whether the district court failed to properly inquire as to whether [Snow] wanted and had grounds to terminate appointed counsel and whether [Snow] was given an improper choice between having appointed or retained counsel; and 2)  Whether [Snow’s] trial counsel was ineffective, when he failed to present a lesser-included offense instruction to the jury, and when that lesser-included offense was supported by evidence and would have been accepted by the district court.

Holdings: After consideration of both issues on appeal, the Court concluded that Snow did not demonstrate that the district court failed to properly address his desire for substitute counsel, and accordingly did not abuse its discretion. Furthermore, by not requesting a lesser-included offense instruction, counsel was not ineffective.  Affirmed.

Justice Hill delivered the opinion for the court.

Summary 2012 WY 17

Summary of Decision February 9, 2012

[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.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  Peterson v. State of Wyoming

Citation:  2012 WY 17

Docket Number: S-10-0104

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465082

Appeal from the District Court of Campbell County, The Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant):  Diane M. Lozano, Wyoming State Public Defender; Tina N. Olson, Appellant Counsel; David E. Westling, Senior Assistant Appellate Counsel.  Argument by Mr. Westling.

Representing Appellee (Plaintiff):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Joshua Beau Taylor, Student Director, and Anthony Barton, Student Intern, of the Prosecution Assistance Program.  Argument by Mr. Taylor.

Date of Decision: February 9, 2012

Facts:  Appellant was charged with second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(iii) (LexisNexis 2011)3 (Count I), two counts of first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2011)4 (Counts II and III), and soliciting a minor to engage in sexual relations under Wyo. Stat. Ann. § 6-2-318 (LexisNexis 2011) (Count IV).  Appellant’s jury trial began after several continuances.  The jury found Appellant guilty on Counts I and IV but acquitted him on Counts II and III.  The district court sentenced Appellant to eighteen to twenty years on the sexual abuse count and to a consecutive term of four to five years on the soliciting count.  Appellant then initiated this appeal. 

Contemporaneously with the filing of the appellate brief, Appellant filed a motion seeking a partial remand to the district court to develop evidence concerning the effectiveness of his trial counsel.  This Court granted the remand motion and directed the district court to consider the following four issues:  (1) whether trial counsel failed to conduct a proper investigation and failed to interview the witness SP prior to trial; (2) whether trial counsel was ineffective with regard to the competency/taint hearing involving the minor victim and with regard to a Daubert hearing; (3) whether trial counsel was ineffective because he did not dedicate his full attention to the trial; and (4) whether trial counsel was ineffective with regard to his cross-examination of the victim.  The district court held an evidentiary hearing and determined that trial counsel was not ineffective in his representation of Appellant.  The case then returned to this Court for briefing and argument. 

Issues:  Did the cumulative effect of trial counsel’s general lack of preparation, failure to investigate, failure to propose jury instructions and general incompetence amount to ineffective assistance of counsel?

Holdings:  As to the issue of whether counsel failed to investigate and interview the witness SP, the Court found Appellant failed to demonstrate that counsel’s investigation and evaluation of SP’s likely testimony was flawed and outside the realm of professionally competent assistance.

As to the competency hearing, the Court observed that Appellant made no showing that presenting his slight evidence of taint at the competency hearing would have prevented the child from testifying, or that presenting the evidence only at trial lessened his chances of acquittal.  The Court found Appellant’s failure to make the required showing of deficient performance and resulting prejudice defeated his ineffectiveness claim.

The Court concluded that throughout the trial, defense counsel vigorously represented Appellant and challenged the State’s evidence.  Appellant failed to sustain his burden of proving that he was deprived of his constitutional right to the effective assistance of counsel. 

Affirmed.

J. Golden delivered the opinion for the court.

Summary 2012 WY 15

Summary of Decision February 7, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  Schreibvogel v. State of Wyoming

Citation:  2012 WY 15

Docket Number: S-11-0172

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465078

Original Proceeding, Petition for Writ of Review, District Court of Carbon County, The Honorable Wade E. Waldrip, Judge

Representing Appellant (Petitioner):  W. Keith Goody, Cougar, Washington.

Representing Appellee (Respondent):  Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; Meri V. Geringer, Senior Assistant Attorney General.  Argument by Ms. Geringer.

Date of Decision: February 7, 2012

Facts:  The appellant was convicted of two counts of first-degree sexual assault and one count of robbery.  The Court’s opinion affirming those convictions upon direct appeal is found at Schreibvogel v. State, 2010 WY 45, 228 P.3d 874 (Wyo. 2010).  In that proceeding, the appellant alleged, inter alia, that his trial counsel was ineffective for failing to object to inadmissible evidence, and for failing adequately to cross-examine the victim in regard to the defense of consent. The appellant did not prevail on either allegation.

Just less than a year after losing his appeal, the appellant filed in the district court a Verified Petition for Post-Conviction Relief.  In his petition, the appellant alleged that his appellate counsel was ineffective for not raising in the direct appeal two additional allegations of trial counsel’s ineffectiveness: (1) failure to pursue as a defense the synergistic effect of the victim’s simultaneous use of the prescription drug Paxil and alcohol; and (2) failure to investigate and pursue expert medical testimony as to the cause of an injury to the victim’s face.  In addition, the appellant also alleged that appellate counsel rendered ineffective assistance by failing to seek an evidentiary hearing under W.R.A.P. 21.

The State filed a Motion to Dismiss Petition for Post-Conviction Relief, citing Wyo. Stat. Ann. § 7-14-103(a)(iii) for the proposition that the appellant’s claim of ineffective assistance of trial counsel was procedurally barred because it had been determined on the merits in the direct appeal.  The district court heard the motion to dismiss and subsequently issued a lengthy decision letter and order dismissing the petition. 

In response, Appellant filed this Petition for Writ of Review.  The Court granted the petition, the matter was briefed, and oral argument was heard.

Issues:  Where the appellant has raised the claim of ineffective assistance of trial counsel in his direct appeal, may he raise the claim again, on different factual grounds, in a petition for post-conviction relief by arguing that appellate counsel was ineffective for not raising those different factual grounds? 

Holdings:  This was a question of first impression before the Court.  The Court answered the question in the negative.  The Court held that where a claim of ineffective assistance of counsel has been raised and decided against the appellant in his direct appeal, he may not raise a claim of ineffective assistance of counsel, based upon different allegations, in a petition for post-conviction relief because the claim is procedurally barred by Wyo. Stat. Ann. § 7-14-103(a)(iii).  A stand-alone claim of ineffective assistance of appellate counsel is not cognizable under the post-conviction relief statutes because post-conviction relief is limited to the alleged denial of constitutional rights during the proceedings which resulted in conviction.  The jurisdictional exception for the consideration of ineffective assistance of appellate counsel provided in Wyo. Stat. Ann. § 7-14-103(b)(ii) is limited to situations where a claim “[c]ould have been raised but was not raised” in the direct appeal, as addressed by Wyo. Stat. Ann. § 7-14-103(a)(i).

J Voigt delivered the opinion for the court.

In a concurring opinion, Chief Justice Kite wrote separately because, while she agreed that Petitioner was not entitled to the relief he sought, she disagreed with the majority’s conclusion that the district court and this Court lacked subject matter jurisdiction to decide his post-conviction claim.  The concurrence would hold that Petitioner’s assertion that he was denied his Sixth Amendment right to effective assistance of appellate counsel falls within the scope of § 7-14-101(b) and is not barred under § 7-14-103 and would have addressed the merits of the claim. 

Summary 2012 WY 13

Summary of Decision February 6, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  Brock v. State of Wyoming

Citation:  2012 WY 13

Docket Number: S-11-0108

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465071

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

Representing Appellant (Defendant):  Tamara K. Schroeder, Chapman Valdez, Casper, Wyoming.

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.  Argument by Mr. Daraie.

Date of Decision: February 6, 2012

Facts:  Appellant was employed as an assistant manager at a restaurant. He failed to deposit two days earning at the bank.  Appellant was charged with one count of larceny, which was later amended to larceny by bailee.  Appellant pled not guilty and his case proceeded to trial.

At that hearing, defense counsel objected in advance to the introduction of evidence concerning Appellant’s rumored gambling problems.  The subject of gambling was not mentioned during trial.

Defense counsel also opposed the introduction of recently discovered incriminating statements, and requested that the court grant a continuance or prevent the State from introducing those statements.  In response, the court ordered the State to make the witness available that morning for an interview.  The witness was interviewed by the defense that day, and was called as the State’s final witness on the second day of trial.

At the conclusion of the trial, the jury returned a guilty verdict. The court sentenced Appellant to a term of seven to ten years in prison.  Appellant timely filed this appeal.

Issues: 1) Whether it was ineffective assistance of counsel when trial counsel failed to call the investigating police officers to testify with regard to their investigation; 2) Whether it was ineffective assistance of counsel when trial counsel failed to investigate or interview or call key witnesses with possibly exculpatory information; and 3) Whether the trial court abused its discretion in sustaining the prosecution’s objection to cross-examination of a witness regarding statements made to the police.

Holdings:  As to the first issue, the Court found that Appellant discounted the possibility that police testimony would have been more damaging than helpful to his case.  The Court also found that trial counsel’s effort to preclude evidence of Appellant’s rumored gambling problems did not constitute deficient performance when properly viewed as a strategic decision securely within the reasonable judgment of counsel. 

As to the second issue, the Court did not find that defense counsel’s investigation of witnesses to be presumptively prejudicial.  Appellant made no attempt to identify the favorable evidence that additional investigation by defense counsel would have revealed.  Accordingly, the Court rejected his claim of ineffective assistance of counsel.

Lastly, the court found that Appellant failed to establish that he was prevented from asking any specific question during cross-examination of a witness, or that the district court abused its discretion in sustaining the prosecutor’s objection to a document never specifically identified in the record.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 167

Summary of Decision December 22, 2011

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name:  Ken v. State of Wyoming

Citation:  2011 WY 167

Docket Number: S-10-0103

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464960

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant):  Patricia L. Bennett, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.  Argument by Mr. Armitage.

Date of Decision: December 22, 2011

Facts:  Appellant and his girlfriend were seated in a car in an apartment parking lot when the victim, his fiancée and her five-year-old son pulled into an adjacent parking space.  Words were exchanged and the victim made a racial and derogatory comment to Appellant. As the victim’s group was walking toward the apartment complex, Appellant got a gun from his car, pointed it directly at them and began walking toward them.  The victim testified unequivocally that Appellant pointed the gun directly at him and fired twice while still pointing the gun at him.

A jury convicted Appellant of attempted first degree murder and aggravated assault.  Appellant appealed, asserting defense counsel provided ineffective assistance in several ways, including that he failed to file a timely motion for new trial.  Appellant also contended the evidence presented to the jury was insufficient to support his conviction for attempted first degree murder.

After docketing of Appellant’s appeal, the case was remanded to the district court for an evidentiary hearing on his claim that counsel was ineffective.  On remand, the parties stipulated that defense counsel failed to timely file post-trial motions for acquittal and new trial.  Following a hearing, the district court concluded Appellant was prejudiced by counsel’s failure to timely file a motion for new trial because, had counsel timely filed the motion, the court would have granted it on the ground that the attempted first degree murder conviction was contrary to the weight of the evidence and may have resulted in a miscarriage of justice.

Upon the district court’s entry of its findings of fact and conclusions of law, the case returned to this Court for consideration of the issues presented in the appeal.

Issues: 1) Whether the ineffective performance of trial counsel denied Ken his Sixth Amendment right to effective counsel; 2) Whether evidence presented at trial was sufficient to support convictions of attempted first degree murder and aggravated assault.

Holdings:  The Court reversed the attempted first degree murder conviction and remanded the case for a new trial on that charge.

Addressing the second issue first, the Court concluded that the jury could reasonably have concluded that Appellant was angry, retrieved his gun and purposely aimed it at the victim.  The Court held that sufficient evidence was presented to support the attempted first degree murder conviction; therefore, Appellant was not entitled to a judgment of acquittal.

However, as to the second issue, the Court concluded that Appellant was prejudiced by counsel’s deficient performance because had the motion been timely filed, the district court would have granted it, the State would have had no means to challenge the order and Appellant would have received a new trial on the attempted first degree murder charge. Therefore, the Court held that Appellant satisfied his burden to show ineffective assistance of counsel.

C.J. Kite delivered the opinion for the court.

J. Golden, filed a concurring in part and dissenting in part opinion, in which J. Voigt joined, stating that he agreed with the Court’s holding that Appellant was not entitled to a judgment of acquittal.  However, he respectfully dissented from the Majority’s opinion that (1) Appellant’s trial counsel performed deficiently by failing timely to file a post-verdict motion for new trial pursuant to W.R.Cr.P. 33(a) on grounds that the jury’s verdict was against the great weight of the evidence and a miscarriage of justice occurred, and (2) a reasonable possibility existed that, but for that deficient performance, the outcome would have been different, finding the attorney’s performance and district court’s later comment were nothing more than hindsight which ought to be rejected under the analysis required by Strickland v. Washington.

J. Voigt filed a concurring in part and dissenting in part opinion, in which J. Golden joined, to write separately with a few additional comments.  He agreed with Justice Golden that trial counsel was not ineffective for failing to file a motion for new trial. His additional concern is the effect of W.R.Cr.P. 29 and 33 when the issue is sufficiency of the evidence.  He would hold that a new trial motion under W.R.Cr.P. 33 cannot be based upon sufficiency of the evidence, or the weight given to evidence that has been found sufficient. On an additional point, Justice Voigt agreed with Justice Golden that the majority’s discussion of the State’s inability directly to appeal in a criminal case should have been omitted from the majority opinion, as it would now be indelibly inserted into the concept of ineffective assistance of counsel.

Summary 2011 WY 141

Summary of Decision October 12, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Jenkins v. State

Citation: 2011 WY 141

Docket Number: S-11-0003

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464610

Original Proceeding
Petition for Writ of Review
District Court of Goshen County, Honorable Keith Kautz, Judge

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

Representing Appellee (Respondent): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Jessica Y. Frint, Student Director, and Gregg Bonazinga, Student Intern, of the Prosecution Assistance Program.

Date of Decision: October 12, 2011

Facts: The petitioner was charged with misdemeanor animal cruelty after a horse he owned was discovered in very dire physical condition. He was convicted in circuit court and the district court affirmed that conviction. He now brings the matter to this Court on a petition for review, asserting that his trial counsel was ineffective and therefore the decision should be reversed.

Issues: Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object to testimony and argument regarding the arrest and incarceration of both the petitioner and his brother. Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object when the prosecutor elicited improper witness comment on another witness’s testimony. Whether the petitioner was denied effective assistance of counsel as a result of trial counsel’s failure to object to the prosecutor’s questions relating to irrelevant evidence.

Holdings: An appellant claiming ineffective assistance of counsel must demonstrate on the record that: 1) counsel’s performance was deficient and 2) prejudice resulted. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel’s deficiency prejudiced the defense of the case.

The references to the petitioner’s arrest and incarceration were made in passing and as a means of providing context and foundation for other testimony. There was no undue emphasis placed on the petitioner’s arrest or incarceration, and there is no indication that the prosecution elicited or attempted to use the testimony for any substantive purpose, such as to impeach the petitioner’s credibility or for another purpose impermissible under W.R.E. 404(b). It is doubtful that the jury would have been surprised to hear that the petitioner was arrested for the crime for which he was being tried, and that he was interviewed about that crime while in a detention facility. Additionally, any prejudice that might have resulted would have been mitigated by the instruction advising the jury that: “Citation in this case is only a formal charge and is not to be considered evidence of guilt on the part of the petitioner. Nothing is to be taken by implication against him.” Thus, the petitioner has failed to show material prejudice, and as a result failed to show ineffective assistance.

The petitioner’s sole defense at trial was that he had asked his brother to care for the horses. The petitioner’s brother testified on behalf of the State and directly denied the petitioner’s contention that the brother had agreed to care for the petitioner’s horse. Inasmuch as the brother’s testimony was directly adverse to the petitioner’s defense, it would be a reasonable tactical choice not to object to the brother’s appearance in prison attire and allow any resulting adverse inferences about the brother’s credibility. The burden is upon the defendant to overcome a presumption that, in light of the circumstances, the challenged action or failure of an attorney might be considered sound trial strategy. In the present action, the petitioner fails to show how allowing an adverse witness to testify in prison attire is not sound trial strategy, or how he was prejudiced by such.

It is clearly error and misconduct for the prosecutor to cross-examine a defendant using the ‘lying’ or ‘mistaken’ technique (i.e. well, then, if ‘so-and-so’ said ‘such-and-such,’ was he ‘mistaken’ or ‘lying?’). Such questions invade the province of the jury, create a risk that the jury may conclude that, in order to acquit the defendant, it must find that the other witness lied, and distort the state’s burden of proof. In the present action, the State concedes that the prosecutor’s questioning resulted in misconduct. The question then becomes whether prejudice resulted from the prosecutor’s misconduct.

To evaluate the prejudice of improper “were-they-lying” questions, several factors need to be weighed: 1) the severity and pervasiveness of the misconduct; 2) the significance of the misconduct to the central issues in the case; 3) the strength of the State’s evidence; 4) the use of cautionary instructions or other curative measures; and 5) the extent to which the defense invited the misconduct.

Prejudice doe not result where the questioning was very brief and the prosecutor did not emphasize the responses in closing argument. Given the brevity and lack of emphasis placed on the questions in the present action, it cannot be said that the misconduct was particularly pervasive or severe.

The central issue in the present action was whether the petitioner’s conduct resulted in “cruelty to animals” as defined in Wyo. Stat. 6-3-203(b) (2011). To establish this, the prosecutor had to show that the petitioner had charge and custody of the horse and that he failed to provide the horse with appropriate care when it suffered from immediate, obvious, and serious illness or injury. The prosecutor’s misconduct touched, at least peripherally, on this issue. However, it cannot be said that this misconduct had a significant impact on the central issue. Even if the jury had heard the testimony, untainted by the prosecutor’s inappropriate questioning, it still could reasonably have concluded, based on the evidence presented, that the petitioner was guilty of “cruelty to animals” as defined in the statute.

The evidence clearly showed, and it was virtually undisputed, that the petitioner owned the horse and that he was ultimately responsible for her care. There was also considerable evidence that the petitioner neglected that duty. Additionally, the State presented photographic evidence showing the horse’s condition. The quantum and quality of the State’s evidence cuts against the petitioner’s claim of prejudice

Although no objection was lodged and no cautionary or curative instruction was given, the jury instructions, given before opening statements and again prior to deliberation, did advise that “It is the exclusive province of the Jury to weigh and consider all evidence which is presented to it; to determine the credibility of all witnesses who testify before you, and from such evidence and testimony, to determine the issues of fact in this case” and that “The Jury is the sole judge of the credibility of the witnesses, and of the weight to be given their testimony.” Any prejudice that may have resulted from the prosecutor’s misconduct would have been ameliorated by these instructions.

Although he did not invite the misconduct, the petitioner may have otherwise mitigated the potential prejudicial impact when he stated that his girlfriend “might have made an error” in her testimony that he called his mother every day to check on the horses.

The petitioner failed to meet his burden of showing that he was prejudiced by the prosecutor’s misconduct. As a result, it cannot be said that he was prejudiced by his counsel’s failure to object to the improper questions.

In this final issue, the petitioner claims that he was materially prejudiced by his attorney’s failure to object to the prosecutor’s questions about irrelevant facts. The propriety of the admitted testimony need not be addressed because the petitioner has not met his burden of proving he was prejudiced thereby. His prejudice argument consists solely of a single sentence, concluding that “[h]ad defense counsel assertively advocated for [the petitioner], there is more than a ‘reasonable possibility’ that the outcome of the trial may have been different.” He does not discuss any specific prejudice arising from the admission of the questioned testimony and makes no attempt to explain, in light of the facts of the case, how the challenged statements adversely impacted his trial and, ultimately, the jury’s verdict. The petitioner’s assertion is utterly inadequate to satisfy his burden of showing material prejudice arising from the alleged ineffective assistance.

The petitioner has failed to show that he was materially prejudiced by the arrest and incarceration testimony elicited, the prosecutor’s improper questioning of a witness about the credibility of another witness, or the admission of the allegedly irrelevant testimony about the condition of other horses and the petitioner’s speeding ticket. The order entered by the district court affirming the judgment and sentence of the circuit court is affirmed.

J. Voigt delivered the opinion for the court.

Summary 2011 WY 77

Summary of Decision May 5, 2011




[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]



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



Case Name: Sanchez v. State



Citation: 2011 WY 77



Docket Number: S-09-0113, S-10-0044



URL: http://www.blogger.com/goog_1360459507



Appeal from the District Court of Carbon County, Honorable Wade E. Waldrip, Judge



Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel; Wyoming Public Defender Program; Timothy C. Kingston of the Law Office of Tim Kingston, Cheyenne, Wyoming.



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



Date of Decision: May 5, 2011



Facts: A jury found Appellant guilty of attempted second degree murder, aggravated assault and battery, felony possession of a controlled substance, and interference with an emergency call. Appellant later sought a new trial, which the district court denied. He appealed both the judgment and sentence and the denial of his new trial motion, and the appeals were consolidated.



Issues: Whether the district court erred when it denied Appellant’s motion for judgment of acquittal, for lack of sufficient evidence, on the possession of a controlled substance charge. Whether the district court erred when it allowed in prejudicial hearsay testimony under W.R.E. 803(2). Whether the district court violated Appellant’s constitutional right to be presumed innocent and invade the province of the jury by referring to the complaining witness as “the victim.” Whethers Appellant was denied his constitutional right to a fair trial before an impartial jury when one of the jury members had knowledge that Appellant had previously been incarcerated at the Wyoming State Penitentiary, and failed to divulge this fact when asked on voir dire if he knew Appellant. Whether the Appellant received effective assistance of counsel from his attorneys in their representation of him in the court below.





Holdings: After the district court denied the motion for judgment of aquittal, Appellant introduced evidence in defense of the possession charge. The law is well established that a defendant’s introduction of evidence following the denial of a motion for judgment of acquittal at the end of the State’s case constitutes a waiver of that motion, thereby precluding appellate review of that denial. Thus, Appellant waived the right to challenge the district court’s ruling on appeal.



Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is not admissible unless it falls within a well-delineated exception. An exception is found for an excited utterance, which is defined as a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Five factors are to be considered in determining the admissibility of evidence under the excited utterance exception: (1) the nature of the startling event; (2) the declarant’s physical manifestation of excitement; (3) the declarant’s age; (4) the lapse of time between the event and the hearsay statement; and (5) whether the statement was made in response to an inquiry. The ultimate inquiry is whether the declarant’s condition at the time was such that the statement was spontaneous, excited or impulsive rather than the product of reflection and deliberation. In the present action, a review of the statements in question show that the factors have been met and that the challenged statements were properly admitted as excited utterances under W.R.E. 803(2).



Viewing the challenged statement referring to the witness as “the victim” in proper context, it is clear the district court was simply describing the alleged roles of the major identified players in the case in an effort to ascertain if any of the potential jurors had knowledge of the case, or had any ties to it or the parties which might prevent them from being impartial or fair. The district court did not tell the panel that, as a matter of law, it had to consider the witness to be a victim, much less Appellant’s victim. Moreover, the district court’s statement did not materially prejudice Appellant. The district court’s description of the wtiness as the victim was a single, isolated incident that occurred at the beginning of a four-day trial. The jury was instructed that it was the sole judge of the facts of the case and that it was to disregard any comment the court made regarding the facts in assessing Appellant’s guilt or innocence on the charged offenses. Additionally, it was uncontested at trial that the witness was the victim of a vicious beating. The only real dispute concerned whether Appellant was her assailant and, if so, whether he was the first aggressor or acted in self-defense. Additionally, the evidence of Appellant’s guilt was substantial. After careful consideration of the record, there was no reasonable possibility that the jury’s verdict would have been more favorable to Appellant in the absence of that isolated statement.



For Appellant to prevail on a claim of ineffective assistance of counsel claim, he must first establish that trial counsel’s performance was deficient. This requires a showing that counsel failed to render such assistance as would have been offered by a reasonably competent attorney. Appellant then must demonstrate that counsel’s deficient performance prejudiced his defense. Under the prejudice prong, Appellant must demonstrate a reasonable probability exists that, but for counsel’s deficient performance, the outcome of his trial would have been different. The failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. Appellant did not satisfy his burden on either prong of the ineffectiveness standard. First, Appellant’s ineffectiveness argument is devoid of any analysis establishing that counsel’s performance was legally deficient. More importantly, Appellant has made absolutely no showing of actual prejudice arising from counsel’s alleged deficient performance. That is, he does not explain, within the context of the facts of this case, how counsel’s alleged errors adversely affected the outcome of his trial.



Appellant also presented a motion requesting a partial remand in order for the district court to conduct an evidentiary hearing on the issue of whether his trial counsel provided legally effective assistance. The motion was denied. Appellant challenges that denial in his appellate brief and asks for a reconsideration. There are generally two types of ineffective assistance of counsel claims, those that are apparent in the trial record and those that are outside the record. An evidentiary hearing is necessary only on the latter type of claim, if an appellant can make a showing that his ineffectiveness claim has merit. Such remand shall be available only if the motion is accompanied by affidavits containing non-speculative allegations of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel’s representation was deficient and prejudiced the appellant. Appellant does not show how any of the claims of ineffectiveness being made prejudiced him or would have altered the outcome of his trial.



There are no reversible errors with respect to any of the issues raised in this appeal.



Affirmed.



J. Golden delivered the opinion for the court.

Summary 2011 WY 4

Summary of Decision January 19, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Robison v. State

Docket Number: S-10-0050

URL: http://tinyurl.com/4a3k9ku

Appeal from the District Court of Campbell County, Honorable John R. Perry, 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, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General.

Date of Decision: January 19, 2011

Facts: Appellant’s arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the police department by an employee of the a café and lounge. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Appellant was driving. That report was forwarded via dispatch to an officer who was near the lounge and arrived on the scene as Appellant was driving away in the vehicle described in the REDDI report. The officer stopped Appellant. He ascertained that Appellant did not have a driver’s license (it was suspended). He also ascertained that Appellant was intoxicated and he was placed under arrest for that reason. The officer did not observe Appellant driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

Appellant was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. 31-5-233(b)(ii)(A) (2007). He appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. 31-5-233(e) (fourth or subsequent offense. He contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel’s failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law.

Issues: Whether the failure of Appellant’s trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constituted ineffective assistance of counsel which denied him due process of law. Whether the trial court imposed an illegal sentence by considering a conviction outside of the five-year time limit delineated by Wyo. Stat. 31-5-233(e) as a fourth or subsequent conviction so as to sentence Appellant to a felony.

Holdings: Although an anonymous REDDI report requires independent police corroboration (see McChesney v. State, 988 P.2d 1071 (Wyo. 1999)), the tip in the present action was not anonymous. The police department received detailed information from a lounge employee, who was identified as such to dispatch. Moreover, the vehicle described in that report was observed within minutes, if not seconds, driving away from the lounge. The limitations on stops such as those described in McChesney are not at issue here. When reviewing a claim of ineffective assistance of counsel, the paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance. To warrant reversal on a claim of ineffective assistance of counsel, an appellant must demonstrate that his counsel failed to render such assistance as would have been offered by a reasonably competent attorney and that counsel's deficiency prejudiced the defense of the case. Defense counsel’s failure to file a motion to suppress, given the facts and circumstances detailed above, does not suggest that counsel was unaware of a potential defense for his client. Rather, it suggests counsel was aware of REDDI report jurisprudence and recognized that his client did not have such a potential defense. Appellant’s defense attorney was thus not ineffective.

It can be distilled from Wyo. Stat. 31-7-102(a)(xi) (2007) that the actual date of the unlawful conduct to be punished, where multiple offenses are being considered, may have nothing to do with determining the five-year period that applies. Appellant in the present action was arrested for driving under the influence, in the state of Missouri, on June 16, 2002. A waiver, plea and judgment were entered on May 22, 2003, but sentence was deferred until December 15, 2004, when Appellant’s probation was revoked. Hence the five-year counting period began on December 14, 2004. The next occurrences were two DUIs that were based on two different stops that both occurred on July 7, 2007. Judgment in those two cases was entered on November 1, 2007 (they constituted the second and third qualifying convictions). The fourth “conviction” occurred on October 5, 2009. Judgment of conviction for the fourth DUI charge occurred on November 12, 2009. The counting period for the earliest charge was December 14, 2004, until October 5, 2009, a period of less than five years. Had Appellant successfully fulfilled the terms of his probation for his Missouri offense, then he might not have been “convicted” as contemplated by 31-7-102(A)(xi). However, on December 15, 2004, Appellant’s probation was revoked and sentence was imposed. On that date he was burdened by a “conviction” for the 2002 DUI as the term “conviction” is contemplated by the Wyoming statute. Thus, the district court’s sentence did not constitute an illegal sentence or a sentence that was otherwise erroneous as a matter of law.

The sentence imposed by the district court is affirmed.

J. Hill delivered the opinion for the court.

Summary 2010 WY 136

Summary of Decision issued October 14, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Carter v. State

Citation: 2010 WY 136

URL: http://tinyurl.com/33gjpad

Docket Number: S-09-0181

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Michael H. Reese, Cheyenne, Wyoming.

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

Date of Decision: October 14, 2010

Facts: Appellant was tried by a jury and convicted for second-degree. Appellant appeals from the Judgment and Sentence, arguing prosecutorial misconduct and ineffective assistance of trial counsel.

Issues: Whether the prosecutor committed misconduct by referring to Appellant as the “black guy” and the victim as the “white guy”. Whether trial counsel was ineffective for (1) failing to object to the “white guy” and “black guy” comments; (2) failing to file a motion to suppress Appellant’s statements made to the police and replayed to the jury; and (3) calling a defense witness who was impeached by the State.

Holdings: Appellant’s claim of prosecutorial misconduct regarding the use of the phrases “white guy” and “black guy” fails because the phrases were a legitimate means to describe the parties involved in this case. Furthermore, the phrases were not used in a way that was intended to prejudice Appellant, nor could Appellant demonstrate any prejudice. Appellant’s ineffective assistance of trial counsel claim based on counsel’s failure to object to those comments fails for the same reasons. Likewise, Appellant’s ineffective assistance claim based on his trial counsel’s failure to file a motion to suppress his statements fails because Appellant’s will was not overborne due to sleep deprivation or intoxication, and no showing was made of police misconduct during the interview, meaning his statements were voluntarily given to detectives. Finally, Appellant’s claim of ineffective assistance of trial counsel based upon the calling of E.W. as a witness fails because it cannot be shown that such was not part of counsel’s limited trial strategy options. Affirmed.

Summary 2010 WY 100

Summary of Decision issued July 16, 2010

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

Case Name: Rolle v. State

Citation: 2010 WY 100

Docket Number: S-09-0086

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

Representing Rolle: Michael H. Reese, Contract Appellate Counsel, of Michael H. Reese, PC, Cheyenne, Wyoming.

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

Facts/Discussion: Rolle sought to overturn his convictions for first-degree murder, felony murder, and kidnapping.

Uncharged misconduct evidence: The test that district courts must follow when determining the proper application of the rule and admissibility of uncharged misconduct evidence was adopted in Vigil, modified in Howard and later articulated in Gleason. Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. Rolle specifically took exception to the testimony of D.G. who was one of his former girlfriends. The Court reviewed the evidence of Rolle’s relationships with D.G. as well as another girlfriend. The evidence included instances of threats, assaults, and destruction of property which met the admissibility requirements under 404(b). The district court addressed the relevance and probative value of the evidence by applying the Gleason/Vigil test. The district court properly balanced the probative nature of the evidence against its potential for unfair prejudice.
Limiting instruction: Rolle next argued the district court committed plain error when it failed to give a limiting instruction both at the time the uncharged misconduct evidence was admitted and at the end of trial when instructing the jury. Both the federal courts and the Wyoming court have rejected the dual-instruction requirement. In Connolly, the Court found the district court did not err in failing to give a limiting instruction following the admission of uncharged misconduct evidence where none was requested. The Tenth Circuit reviewed the rule in light of Huddleston and stated that “in the wake of Huddleston it is not error for a trial court to fail to instruct the jury…in the absence of a proper request by counsel.”
Jury question: The jury requested a definition of “maliciously” and for examples of “pre-meditated malice.” The district court referred them back to Instruction 10 and 15. In Spagner, the Court held that an Information is sufficient if it is in the words of the statute. The Information was drafted in the words of the statute therefore Rolle was fully and fairly informed of the charges. A trial court is under no obligation to define a statutory term unless the term carries a technical connotation different from its everyday meaning. Rolle made a comment there was lack of evidence to find him guilty of murder in the first degree but it was not supported by cogent argument or pertinent legal authority so the Court refused to consider the claim.
Ineffective assistance: Rolle contended his trial counsel was ineffective for: failing to request a limiting instruction regarding the State’s uncharged misconduct evidence at the time the evidence was introduced; failing to object to the content of the uncharged misconduct limiting instruction; and failing to object to the qualifications of certain witnesses who were, or could have been considered, experts. The district court was not required to give a contemporaneous limiting instruction. Before trial, defense counsel was informed by the district court that it would give a limiting instruction if requested. Defense counsel did not object to the adequacy of the limiting instruction regarding the uncharged misconduct evidence given to the jury at the end of the trial. He asserted the instruction only applied to prior acts committed against his victim and not to other individuals’ testimony. Rolle did not point to any instances of uncharged misconduct that was admitted but not covered by the limiting instruction therefore, he failed in his burden to demonstrate how he was prejudiced by his defense counsel’s failure to object to the jury instruction. Rolle argued defense counsel was ineffective because he failed to object to the qualifications of certain witnesses who were or allegedly could have been considered experts. He argued trial counsel could have challenged the credentials of the Crisis Intervention Services director and that the person who transcribed the 911 call was not qualified to give expert opinion about certain sounds heard in the call. An attorney’s refusal or failure to voir dire an expert witness is not per se ineffective performance. After the Court’s review of the qualifications of the CIS director and the relevance of her testimony, the Court found she was adequately qualified as an expert and that her testimony was such that it assisted the jury. In Kenyon, the Court recognized the type of testimony offered was proper expert testimony under similar circumstances. As to the testimony of the individual who transcribed the 911 call, the Court noted that trial counsel objected to the subjective statements made and the qualifications of the transcriptionist. Counsel’s efforts to exclude admission of the evidence were not deficient.
Cumulative error: Because the Court found no individual errors occurred, a claim for cumulative error was not possible.

Conclusion: After careful consideration of the appellant’s claims, we conclude that: (1) the district court properly followed the Gleason/Vigil test for determining the admissibility of the uncharged misconduct evidence and we cannot say that the court abused its discretion in admitting testimony concerning the appellant’s prior uncharged misconduct; (2) the appellant’s claim that a court is required, without request, to give a limiting instruction contemporaneously with the introduction of uncharged misconduct evidence is not supported by law; (3) the appellant’s claim that there was a variance between the facts alleged in the Information and those presented at trial is unsupported by the record; (4) the jury was adequately instructed on the difference between first-degree and second-degree murder, and on the meaning of the term “maliciously”; (5) the appellant failed to provide cogent argument or citation to pertinent authority regarding his claim that there was insufficient evidence to support his conviction for first-degree murder; (6) the appellant failed to show that defense counsel’s failure to request, or decision not to request, a limiting instruction contemporaneously with the admission of uncharged misconduct evidence resulted in ineffective assistance; (7) the appellant failed to demonstrate any prejudice arising out of defense counsel’s failure to object, or decision not to object, to the limiting instruction regarding the uncharged misconduct evidence; (8) the appellant’s claim that defense counsel was ineffective for failing to voir dire certain “expert” witnesses is not supported by the record; and finally, (9) because we find no individual error or abuse of discretion, we conclude that cumulative error did not occur.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2fnm7ja .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 88

Summary of Decision issued June 28, 2010

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

Case Name: Bloomer v. State

Citation: 2010 WY 88

Docket Number: S-09-0112

Appeal from the District Court of Park County, the Honorable Steven Cranfill, Judge.

Representing Bloomer: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Wyoming Public Defender Program.

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

Facts/Discussion: A jury found Bloomer guilty of aggravated robbery and aggravated assault and battery and also found him to be a habitual criminal. Because he had three prior felony convictions, the district court imposed two life sentences.

Presumption of innocence instruction: No question existed that the district court failed to instruct the jury on the presumption of innocence. The cases cited do not establish a clear-cut rule mandating that the jury be instructed on the presumption of innocence in every criminal trial. The United States Supreme Court determined in Whorton that a criminal defendant is not automatically entitled to an instruction on the presumption of innocence and that the failure to give one does not in and of itself violate the constitution. The Court noted the better practice is to give the instruction as a matter of course. Plain error did not occur as a result of the district court’s failure to do so.
Habitual criminal sentencing enhancement: Bloomer argued that his Park County drug convictions were used improperly because they were not separately brought and tried. The State conceded that Bloomer’s life sentences were illegal and must be corrected since the drug convictions may only count as one previous conviction under the habitual criminal statute thereby limiting the range on Bloomer’s current convictions to that prescribed in § 6-10-201(b)(i). Secondly, Bloomer contended that since the underlying convictions were committed after the commission of the instant aggravated robbery and assault and battery cases, the drug convictions could not be used as a basis for the habitual criminal sentencing enhancement. The Court previously considered and rejected a similar claim in Green v. State. The Court determined that it was the sequence of convictions and not the sequence of the criminal acts that was relevant to the operation of the habitual criminal statute. Because the jury found that Bloomer’s previous convictions existed and because the record contains sufficient evidence of two prior separately brought and tried felony convictions that can be used as a basis for enhancing Bloomer’s punishment on the instant convictions, the Court found it appropriate for the district court to simply resentence Bloomer in accordance with the statute.
Ineffective assistance of counsel: Bloomer’s argument was insufficient to satisfy his burden of demonstrating that trial counsel rendered prejudicially deficient assistance. He did not establish that he was prejudiced by counsel’s alleged errors. Considering the facts of the case, the Court was unable to conclude a reasonable likelihood that but for counsel’s alleged errors, Bloomer would have enjoyed a more favorable verdict.

Conclusion: The Court affirmed Bloomer’s convictions. However, the Court held that Bloomer’s life sentences are illegal and reversed those sentences. The Court remanded to district court for resentencing in accordance with § 6-10-201(b)(i).

Conviction affirmed; sentence illegal and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/2fd9wlg .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 45

Summary of Decision issued April 16, 2010

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

Case Name: Schreibvogel v. State

Citation: 2010 WY 45

Docket Number: S-09-0044

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Schreibvogel: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Schreibvogel was convicted of two counts of first degree sexual assault and one count of robbery.

Motion to quash: Prior to trial, Schreibvogel served a subpoena duces tecum on the victim. The district court may quash or modify the subpoena if compliance would be unreasonable or oppressive. The subpoena requested all financial records, tax returns, and bank records for the past five years. Schreibvogel had the burden to show that the requested documents were specific, relevant, and not intended as a general fishing expedition. He did not satisfy that burden.
Victim impact testimony: The State agreed that the challenged testimony was victim impact testimony. It was relevant to counter the attack on the victim’s credibility. The State maintained the testimony was relevant to prove the victim had undergone a traumatic experience. The Court stated that the victim’s credibility was at issue and the challenged testimony bolstered her credibility and was appropriate under the circumstances.
Hearsay testimony: Schreibvogel challenged the testimony of the investigating officer, an x-ray technician, and an emergency room nurse who testified regarding statements made to them by the victim shortly after the incident. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence.
404(b) evidence: When the witness was testifying, he stated that Schreibvogel was “coked up” and behind on his child support payments. It did not appear from the record that the State, prior to trial, intended to utilize the evidence of drug use. The witness was asked to tell the jury what he had been told by Schreibvogel. If the prosecution did not intend to introduce such evidence, it was not required to provide the defense with notice.
Prosecutorial misconduct: During questioning of Schreibvogel the prosecutor asked several times whether testimony by other witnesses was correct. A witness may not comment on the truthfulness or veracity of another witness. It is the jury’s duty to resolve factual issues. It is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken. The Court stated that while the questioning was improper, it was brief and the prosecution did not draw attention to Schreibvogel’s answers during closing argument. The Court did not find unfair prejudice. Viewed in context, the prosecutor’s statements referenced the lack of corroboration of Schreibvogel’s version of the events.
Ineffective assistance of counsel: Schreibvogel was required to show that his counsel’s performance was so seriously deficient that he was denied his Sixth Amendment right to counsel. He also needed to show that the deficient performance prejudiced his defense. The Court reviewed the record and stated that Schreibvogel could not show that his defense was prejudiced by his trial counsel’s performance. There was no reasonable possibility that had trial counsel objected to the challenged evidence or questioned the victim about what she heard that night, the outcome of the trial would have been more favorable to Schreibvogel.

Conclusion: Schreibvogel did not satisfy his burden to prove the records requested were not a general fishing expedition. The challenged testimony bolstered the victim’s credibility and was appropriate under the circumstances. Because the challenged evidence was potentially admissible under several evidentiary rules, Scheibvogel failed to establish he was materially prejudiced by the admission of the evidence. The prosecution did not intend to introduce the evidence objected to by Schreibvogel, therefore it was not required to provide the defense with notice. While the prosecutor’s questioning was improper, it was brief. There was no reasonable possibility that had trial counsel objected to the challenged evidence the outcome of the trial would have been more favorable to Scheibvogel.

Affirmed.

J. Burke delivered the decision.

C.J. Voigt specially concurred: The Justice concurred because stare decisis required the Court to place upon Schreibvogel the impossible task of proving prejudice in cases such as this. The prosecutor in the case asked Appellant three times whether another witness was incorrect or mistaken. Perhaps the State would pay attention to the law that it is error and misconduct for a prosecutor to ask a witness whether he thinks other witnesses are lying or mistaken, if it bore the burden of proof as to the lack of prejudice.

Link: http://tinyurl.com/y7utnlw .

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