Summary 2014 WY 36

Summary of Decision March 12, 2014

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: MICHAEL LEE COOPER v. THE STATE OF WYOMING

Docket Number: S-12-0215

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

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

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Date of Decision: March 12, 2014

Facts: Mr. Cooper challenges his conviction for aggravated assault by threatening to use a drawn deadly weapon. He asserts his trial counsel was ineffective because she failed to call an expert witness; the district court improperly instructed the jury on the law of self defense; and there was insufficient evidence of a threat to support the jury’s guilty verdict.

Issues: Mr. Cooper presents the following issues on appeal: I.Was Mr. Cooper denied his constitutional right to effective assistance of counsel? II. Was the jury improperly instructed on the law? III. Was the evidence sufficient to support the jury’s verdict on the crime charged? Though stated in more detail, the State presents similar issues.

Holdings/Conclusion: We conclude there was sufficient evidence to support the jury’s verdict but that Mr. Cooper did not receive effective assistance of counsel and the jury was improperly instructed on self defense. We, therefore, reverse and remand for a new trial.

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 2013 WY 118

Summary of Decision October 1, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and remanded.

Case Name: GABRIEL R. DRENNEN v. THE STATE OF WYOMING

Docket Number: S-11-0199

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

Appeal from the District Court of Fremont County the Honorable Norman E. Young, Judge

Representing Appellant: Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming.

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

Date of Decision: October 1, 2013

Facts: After Gabriel R. Drennen appealed his convictions for first-degree murder and aggravated assault and battery, we remanded for a hearing on his assertion that defense counsel was ineffective. The district court found his trial counsels’ performance was deficient because they failed to present expert testimony in support of his self-defense claims. The court concluded, however, that Mr. Drennen was not prejudiced by the deficient performance.

Mr. Drennen argues on appeal that his convictions should be reversed because his trial was riddled with instances of prosecutorial misconduct, the district court improperly instructed the jury and he was prejudiced by his trial counsels’ deficient performance.

Issues: The issues in this case are: 1. Did the prosecutor engage in misconduct requiring the reversal of Mr. Drennen’s convictions? 2. Did the district court erroneously instruct the jury on self-defense with respect to the homicide charges? 3. Did the district court erroneously instruct the jury on self-defense with respect to the aggravated assault and battery charge? 4. Did the district court erroneously instruct the jury on the elements of first-degree murder, second-degree murder, and manslaughter? 5. Did the district court err in ruling on Mr. Drennen’s claim of ineffective assistance of counsel?

Holdings/Conclusion: We conclude the prosecutors committed misconduct and Mr. Drennen is entitled to reversal of his convictions. Because we are reversing for a new trial, we address Mr.
Drennen’s claims regarding the jury instructions and find they are wanting in certain respects. We will not analyze the ineffective assistance of counsel arguments with any degree of specificity because we assume any deficiencies will be corrected on remand. We reverse Mr. Drennen’s convictions and remand to the district court for retrial, consistent with this opinion.

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 107

Summary of Decision August 7, 2012

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: DONALD E. INMAN v. THE STATE OF WYOMING

Docket Number: S-11-0211

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

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge.

Representing Appellant: Robert J. O’Neil, Attorney at Law, Gillette, Wyoming

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri V. Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Date of Decision: August 7, 2012

Facts: Donald Inman (Inman) appealed his aggravated assault and battery conviction. Inman did not deny that he assaulted the victim, but claimed he acted in defense of himself and his family. On appeal, Inman asserted the district court erred in allowing a detective to provide lay opinion testimony as to the location of the assault. He also asserted the district court erred in denying his motions for judgment of acquittal, arguing that the victim’s testimony was contradictory and so inherently unreliable that a reasonable juror could not have accepted the victim’s version of events and rejected Inman’s claim of self defense. Affirmed.

Issues: Inman presented the following issues on appeal:

1. The denial by the Honorable District Judge John R. Perry of Defendant’s Motion in Limine: WRE 701 dated January 5, 2011 and the admission of improper lay opinion evidence of Gillette Detective Becky Elger; and

2. The denial by the Honorable District Judge John R. Perry of Defendant’s Motion for Judgment of Acquittal – Criminal Rule 29(c) dated March 25, 2011.

Holdings: The district court did not abuse its discretion in allowing Detective Elger’s Rule 701 opinion testimony, and it properly denied Inman’s motions for judgment of acquittal. 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 2011 WY 147

Summary of Decision October 25, 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:  Benjamin v. State of Wyo.

Citation:  2011 WY 147

Docket Number:  S-10-0204

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464668

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

Representing Appellant (Defendant):  Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.  Argument by Ms. Olson.

Representing Appellee (Plaintiff):  Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General; Stewart M. Young, Special Assistant Attorney General.  Argument by Mr. Young.

Date of Decision: October 25, 2011

Facts:  Appellant shot and killed the victim, her estranged husband, at her home.  The relevant events of that day began in the morning, when Appellant sent a text message to her husband, from whom she was separated and was soon to be divorced, asking whether he was coming to pick up their daughter.  Appellant knew that her daughter was at a friend’s house, but proceeded to leave numerous voicemails and text messages for her husband.  When the victim called to say he was on his way, Appellant told him that their daughter no longer wanted to go fishing.  The victim arrived a few minutes after this conversation.  At some point Appellant grabbed a pistol, and the victim was shot by Appellant.  At some point a glass shower door was shattered. The victim died approximately an hour after arriving.  Appellant turned herself in approximately 18 hours later.

Appellant was charged with first degree murder.  The State argued at trial that Appellant had purposely lured the victim to her home under the false pretense that their daughter was waiting for him.  It argued that this was a premeditated, purposeful, and malicious effort to harm the victim.  The State also presented evidence that contradicted Appellant’s version of the shooting, specifically Appellant’s version that her husband was shot while grabbing the pistol, and that the shower door had been shattered by an elbow. The state’s evidence indicated that the victim was shot at a distance and the shower door was shattered by a bullet.

Appellant never denied that she had shot the victim, but asserted that she had done so in self-defense.  Anticipating Appellant’s claim that she was a victim of domestic abuse, the State offered testimony indicating that she was actually the aggressor in the relationship.   

The jury acquitted Appellant on the charge of first degree murder, but also rejected her claim of self-defense, finding her guilty of the lesser included offense of second degree murder.  The district court sentenced her to twenty to thirty years in prison.  Appellant challenged her conviction in this appeal.

Issues:  1) Whether the trial court erred in not dismissing juror Blaney; 2) Whether the trial court erred in refusing Appellant’s proposed jury instructions G and H; 3) Whether the trial court erred in denying Appellant’s post-trial motion for judgment of acquittal; and 4) Whether reversible prosecutorial misconduct occurred.

Holdings:  Affirmed. 

As to the first issue, during voir dire, a potential juror was identified as the wife of as a possible rebuttable witness for the State.  Neither side exercised a peremptory challenge, and she was seated on the jury.  At the end of the day, and outside of the presence of the jury, the district court again raised the issue of the juror’s relationship to a listed witness.  Defense counsel confirmed the decision not to challenge.  Defense counsel later asked to have her removed from the jury, but the district court denied the request.  Appellant claims that the juror’s presence on the jury impinged upon her constitutional right to a fair and impartial trial, but did not contend that the juror was actually biased.  Instead, Appellant claimed that the juror should have been removed from the jury on the basis of implied bias.  The Court held from prior case law that not every question involving implied bias is subject to de novo review on appeal. The proper standard of review must be adapted to fit the context in which the question is presented.  Accordingly, The Court found here that Appellant had waived her implied bias objection during voir dire.  The Court concluded that the district court did not abuse its discretion when it denied Appellant’s request, late in the course of the trial, having concluded that the circumstances had not changed sufficiently to compel the removal of the juror.

 

As to the second issue, the Court observed that the “Eagan Rule” applies only if the witness’s “credibility has not been impeached” and “is not inconsistent with the facts and circumstances shown.”  The Court found that the rule did not apply in Appellant’s case, and the district court did not err in refusing the “Eagan Rule” instructions she proposed.

As to the third issue, Appellant claimed that the State failed to prove that she did not act in self-defense because it presented “no evidence of [her] state of mind at the time of the shooting.”  The Court’s review of the record confirmed Appellant’s claim that the State presented no direct evidence of her state of mind at the time of the shooting.  However, the Court found that the State provided sufficient evidence for a jury to make reasonable inferences about Appellant’s state of mind.  It provided an adequate basis for the jury to reject Appellant’s testimony that she believed she was in imminent danger of death or serious bodily harm at the time of the shooting.  The Court held that the district court did not err in denying Appellant’s motion for a judgment of acquittal. 

As to the last issue, the Court found that individually and collectively, the instances pointed out by Appellant did not constitute prosecutorial misconduct.

J. Burke delivered the opinion for the court.

Summary 2011 WY 28

Summary of Decision February 18, 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: CG v. The State of Wyoming

Citation: 2011 WY 28

Docket Number: S-10-0124

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461771

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina (Kerin) Olson, Appellate Counsel; Wyoming Public Defender Program

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, and Crofton P. Sacco, Student Intern, of the Prosecution Assistance Program.

Date of Decision: February 18, 2011

Facts: Appellant, a minor, appeals from the order of the juvenile court adjudging her guilty of two delinquent acts – interference with a peace officer and unlawful contact when the officer physically removed her from a neighbor’s car after the neighbor had driven her to school and she refused to exit and attend as was required by her previous CHINS designation.

Issues: Whether there was sufficient evidence that the officer was in the lawful performance of his official duties when he physically removed Appellant from her neighbor’s car. Whether the juvenile court erred in finding that Appellant was not acting in self-defense when she struck the officer in the forearm.


Holdings: A peace officer’s duties are not limited to arrests for crimes but encompass a broad range of activities. In addition to performing traditional law enforcement activities, such as investigating crimes, arresting perpetrators, and issuing traffic citations, peace officers routinely engage in a variety of community caretaker functions that are unrelated to the detection and investigation of criminal activity, including performing welfare checks, helping stranded motorists, preserving property, and assisting and protecting citizens in need. In the instant case, the record discloses that Appellant had refused to exit the neighbor’s vehicle despite numerous requests by her Mother and the neighbor. The neighbor clearly wanted Appellant out of her vehicle and requested the officer’s assistance in getting her out. The officer acted upon the neighbor’s request out of concern for her safety, as well as the safety of Mother and Appellant. He testified that Appellant’s behavior was escalating and he was concerned the situation might get physical if he did not intervene. Given these facts, the officer was engaged in the performance of his community caretaker duties when he directed Appellant out of the neighbor’s vehicle and when he physically removed her. Therefore, the juvenile court correctly found that the officer was acting in the lawful performance of his official duties at the time Appellant resisted his efforts.

The law in Wyoming is clear that self-defense is not available to a person where the peace officer has not used excessive force. Thus, a finding that Appellant acted in self-defense when she struck the officer was contingent on a finding the officer used excessive force in effectuating her removal from the vehicle. The evidence presented to the juvenile court showed that the degree of force employed consisted of applying a compliance grip to Appellant’s right wrist, which she testified hurt “a little,” and physically pulling her from the vehicle. The juvenile court correctly determined that the force used by the officer was not excessive under the circumstances. Absent a finding of excessive force, the juvenile court had no legal basis upon which it could sustain Appellant’s claim of self-defense.

Sufficient evidence exists to sustain the juvenile court’s finding of guilt as to both offenses. The order of the juvenile court adjudicating Appellant a delinquent child is affirmed.

J. Golden delivered the opinion for the court.

Summary 2009 WY 111

Summary of Decision issued September 4, 2009

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

Case Name: Causey v. State

Citation: 2009 WY 111

Docket Number: S-08-0145

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

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

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

Issues: Whether the district court properly instructed the jury regarding Appellant’s right of self-defense with the questions being whether the evidence was sufficient to support a finding that Appellant was the aggressor and whether the phrase “provoke the conflict” has a specialized meaning within the context of self-defense which requires an instruction to define the phrase in accordance with that specialized meaning. Whether the prosecutor improperly commented on Appellant’s right to silence.

Holdings: A trial court is given wide latitude in instructing the jury, and its decisions regarding instructions will be upheld if they are supported by any competent evidence. A review of the record discloses competent evidence to support the district court’s ruling. Key to this determination is the trial testimony of the victim in who’s version of the incident, Appellant was the aggressor. It is true that Appellant provided an alternative version, in which the victim was the aggressor, but the court’s task is not to weigh the evidence, only to determine whether the district court could reasonably conclude that there was competent evidence from which the jury might find that Appellant was the aggressor. If the jury believed the victim, that was enough. The district court did not err in overruling Appellant’s objection and giving instructions regarding aggression to the jury.

At trial, Appellant objected to the proposed instruction, but solely on the basis that there was insufficient proof that Appellant was the aggressor. He made no objection aimed at the phrase “provoking the conflict.” He presented no argument to the district court that the phrase had a specialized legal definition, and he offered no alternate instruction defining the phrase. An objection is not properly preserved on appeal unless the objection was made at trial. Although Appellant did not raise this objection at trial, still plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. The error that Appellant alleges was not an obvious transgression of any clear and unequivocal rule of law. He does not cite any Wyoming case establishing a clear-cut rule of law that the jury must be instructed on a specialized legal definition of provocation. A specialized legal definition of the phrase “provokes the conflict” can be derived only through a meticulous examination of the subtle discussions contained in a number of cases cited by Appellant. If the issue were properly before us, the court might well agree with Appellant’s thoughtful analysis of the definition of “provokes the conflict.” But even if that specialized definition were to be accepted on appeal, it would not establish that, during Appellant’s trial, the failure to define the phrase was so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue. Similarly, Appellant cites no Wyoming case establishing that verbal insults alone cannot constitute provocation. He relies solely on cases from other jurisdictions. Again, if the court were to follow those other jurisdictions at this point, that ruling would still not demonstrate that any clear and unequivocal rule of Wyoming law was violated during Appellant’s trial.

The self-defense instructions given by the district court were not plainly erroneous, and do not require reversal of Appellant’s conviction.

The right to remain silent when accused of a crime is founded on the Fifth Amendment to the United States Constitution and on Article 1, Section 11 of the Wyoming Constitution, and is one of the most fundamental rights accorded a defendant in our criminal justice system. This right is protected zealously. Thus, a prosecutor’s comments on a defendant’s silence are inherently prejudicial, and entitle the defendant to a reversal of his conviction. To determine if a prosecutor has made an improper comment on the right to silence, the record is reviewed as a whole and the prosecutor’s questions and statements placed in the context of the entire trial. In isolation, the prosecutor’s remarks in this case could appear to be an impermissible comment on Appellant’s post-arrest silence. However, when considered in context, the prosecutor was instead making a permissible argument about the evidence presented at trial. Appellant voluntarily gave extensive statements to law enforcement officers at the scene of the incident. His description of the events at that time was substantially different from the description he provided later at trial. The prosecutor highlighted the differences through the testimony of the law enforcement officers. Thus, the prosecutor’s questioning amounted to comments on what Appellant said or neglected to say rather than comments on the exercise of his right to silence. It was not improper for the prosecutor to question the witnesses as a way of highlighting inconsistencies in Appellant’s different versions of the events.

After evidence of the inconsistencies had been admitted, it was also appropriate for the prosecutor to point out the inconsistencies in closing argument. Placed in context with the evidence, the prosecutor’s closing argument appears more of an attempt to convince the jury that Appellant’s trial testimony was not credible, and less of an effort to convince the jury that Appellant’s silence was evidence of his guilt. Thus, the prosecutor’s closing argument was not an attempt to use Appellant’s silence to the State’s advantage, and was, therefore, not an impermissible comment on the right to silence.

Conclusion: Appellant has not demonstrated reversible error based on either of the issues he raises on appeal.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/n6yhmz .

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

Summary 2009 WY 89

Summary of Decision issued July 10, 2009

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

Case Name: Creecy v. State

Citation: 2009 WY 89

Docket Number: S-08-0211

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

Representing Creecy: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and 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; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: A jury convicted Creecy of aggravated assault for intentionally and knowingly causing bodily injury to Chavez with a knife in a bar fight. Creecy asserted the district court erred in instructing the jury concerning the claim of self defense. The Court reviewed the instructions in the instant case and stated the instruction was from the Wyoming Criminal Pattern Jury Instructions and had been used in Harries v. State, Garcia v. State and Small v. State. The Court noted that the difficulty with Creecy’s argument was that evidence was presented from which the jury could have concluded that after Chavez pummeled him, he armed himself and attacked Chavez as he was leaving the bar. Creecy failed to establish that plain error occurred when the district court gave the instruction concerning “duty to retreat.”
ted a clear and unequivocal rule of law. Given the conflicting evidence as to who the aggressor was when Chavez was stabbed, Creecy also failed to show that giving the instruction denied him a substantial right to his material prejudice.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/lms37x .

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