Summary 2014 WY 1

Summary of Decision January 3, 2014

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: JOY KLOMLIAM v. THE STATE OF WYOMING

Docket Number: S-13-0072

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

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

Representing Appellants: Nicholas H. Carter of The Nick Carter Law Firm, P.C., Gillette, WY.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program; David E. Singleton, Student Director, and James Wilson, Student Intern. Argument by Mr. Wilson.

Date of Decision: January 3, 2014

Facts: Joy Klomliam entered conditional pleas of guilty to one charge of possession of a controlled substance with intent to deliver and one charge of conspiracy to deliver a controlled substance, reserving the right to appeal the district court’s denial of her motion to suppress. On appeal, Klomliam contends that the marijuana evidence discovered in her vehicle following a traffic stop should have been suppressed as the product of an unlawful detention under the Wyoming Constitution.

Issues: Klomliam states the issue for our review as follows: Did the District Court err in denying [Klomliam’s] Motion to Suppress when the detention of [Klomliam] exceeded the scope of permissible detention under article 1, § 4 of the Wyoming Constitution?

Holdings/Decision: Under the totality of the circumstances, Corporal Parker’s questioning and detention of Klomliam were reasonable and did not violate art. 1, § 4 of the Wyoming Constitution. 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 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 2013 WY 30

Summary of Decision March 13, 2013


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: CONNOR TIMOTHY CORRIGAN PHIPPEN v. THE STATE OF WYOMING

Docket Number: S-12-0157

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

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

Representing Appellant (Plaintiff/Defendant): Christopher M. Wages of Goddard, Wages & Vogel, Buffalo, WY.

Representing Appellee (Plaintiff/Defendant): Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General, and Christyne Marie Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: March 13, 2013

Facts: After conditionally pleading guilty to possession with intent to deliver marijuana, Connor Timothy Corrigan Phippen challenges the district court’s denial of his motion to suppress evidence discovered during a search of his vehicle. He contends that the drug dog sniff was inconclusive and that the subsequent search of his vehicle was illegal.

Issues: Phippen presents one issue: Whether or not the warrantless search of Mr. Phippen’s vehicle violated Article I, Section 4 of the Wyoming Constitution because it was unreasonable under the circumstances and was not supported by probable cause.

Holdings: Having concluded that the search of Phippen’s truck was lawful based upon the totality of circumstances prior to his arrest, the Court affirmed the district court’s denial of the Motion to Suppress.

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 2009 WY 67

Summary of Decision issued May 21, 2009

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

Case Name: Feeney v. State

Citation: 2009 WY 67

Docket Number: S-08-0087

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Dion J. Custis of Dion J. Custis, PC, 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, Assistant Attorney General.

After conditionally pleading guilty to a controlled substance offense, the Appellant challenged the district court’s denial of his motion to suppress evidence discovered during a search of the vehicle he was driving. He maintained that he was detained in violation of his constitutional rights.

Issue: Whether the appellant’s right to be free from unreasonable searches and seizures under the Fourth Amendment of the United States Constitution was violated so as to require suppression of evidence and dismissal of charges.

Holdings: The appellant conceded that the traffic stop was justified and that the trooper’s initial questioning inside the patrol car was proper and did not exceed the scope of the stop. However, the appellant claims that he did not consent to further questioning after he exited the trooper’s vehicle and that the trooper did not have reasonable suspicion to further detain him once the appellant received his warning ticket.

The appellant raised his claim under both the Fourth Amendment to the United States Constitution and Article 1 § 4 of the Wyoming Constitution. When a litigant endeavors to interpret the Wyoming Constitution independent of the Federal Constitution, the litigant “must provide a precise, analytically sound approach when advancing” such a claim. Six factors must be analyzed when a separate state constitutional claim has been raised: 1) the textual language; 2) the differences in the text; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern. The appellant’s attempt to present an independent state constitutional claim falls short. Although he mentions the above-cited factors, he fails to analyze any of them, or even generally describe how Article 1 § 4 might provide him greater protection than the Fourth Amendment.

There are three tiers of interaction between police and citizens for Fourth Amendment purposes. The least intrusive contact between a citizen and police is a consensual encounter. A consensual encounter is not a seizure and does not implicate Fourth Amendment protections. The second tier is the investigatory or Terry stop, named after the seminal case Terry v. Ohio, 392 U.S. 1. An investigatory detention is a seizure under the Fourth Amendment. However, because of its limited nature, a law enforcement officer is only required to show “the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime” in order to justify the detention. The most intrusive encounter between police and a citizen is an arrest. An arrest “‘requires justification by probable cause to believe that a person has committed or is committing a crime.

A traffic stop is more analogous to an investigative detention than a custodial arrest; therefore the reasonableness of such a stop is analyzed under the two-part test articulated in Terry v. Ohio: 1) whether the initial stop was justified; and 2) whether the officer’s actions during the detention were “reasonably related in scope to the circumstances that justified the interference in the first instance.

During a routine traffic stop, a law enforcement officer may request a driver’s license, proof of insurance and vehicle registration, run a computer check, and issue a citation. Generally, the driver must be allowed to proceed on his way without further delay once the officer determines the driver has a valid driver’s license and is entitled to operate the vehicle. In the absence of consent, an officer may expand the investigative detention beyond the purpose of the initial stop only if there exists an objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring. The existence of objectively reasonable suspicion of criminal activity is determined by evaluating the totality of the circumstances. The “whole picture” must be considered, common sense and ordinary human experience are to be employed, and deference is to be accorded a law enforcement officer’s ability to distinguish between innocent and suspicious actions. Each factor adding up to reasonable suspicion need not be examined individually, they are evaluated to see how convincingly they fit together into a cohesive, convincing picture of illegal conduct.

In this case, the district court’s order denying the motion to suppress listed the factors it found provided the trooper reasonable suspicion to further detain the appellant. It appeared to the court that there were numerous factors present that led the trooper to conclude that he had reasonable suspicion that some illicit activity was occurring. These factors included: 1) the overwhelming smell of dryer sheets emanating from the car with no dryer sheets or laundry in sight; 2) there was only one small bag visible in the back seat; 3) the appellant exhibited extreme nervousness and this nervousness did not subside even after the appellant was informed he would only be receiving a warning; 4) the appellant’s travel plans were inconsistent with the rental agreement; and, 5) upon being questioned about his travel plans, the appellant initially claimed he had called the rental company to inform them of his intention to return the car in Massachusetts but then stated he never had any intention to return the car in California.

Fourth Amendment precedent is clear that the scent of a potential masking agent is one factor which may be considered in a reasonable suspicion analysis. The strong odor of dryer sheets, especially in the case of rental cars, which typically do not need strong air fresheners, is a factor that may be properly considered in a determination of reasonable suspicion. The district court properly considered this factor in its reasonable suspicion analysis.

Generic nervousness is of little significance in establishing reasonable suspicion because the average citizen is usually nervous when stopped by law enforcement for a routine traffic violation. It is generally accepted that nervousness upon the initial confrontation is normal and the telling information is whether the citizen calmed after the initial few minutes of the encounter. The trooper testified that during the short conversation that took place at the driver’s side window of the appellant’s vehicle, the appellant was acting very nervous. He appeared to be trying to avoid conversing. The trooper testified that, based on his experience, most individuals make eye contact with him and their attention is focused on him during a traffic stop, as most individuals want to know the reason for the stop, what they did wrong, and whether the trooper is going to give them a ticket. The trooper also testified that he found it unusual that the appellant’s nervousness continued even after the trooper informed him that he was only going to write him a warning for speeding. The trooper also noted the appellant’s continued nervous behavior while the trooper reviewed the rental agreement. The trooper testified that in his experience most motorists will engage him in conversation as he looks over a rental agreement, asking him what he is looking for or offering to help the trooper by providing additional information. Finally, even after the trooper told the appellant he was only issuing him a warning and that he was free to go, the trooper described the appellant’s continued nervousness. Thus, it was proper for the district court to consider the appellant’s continuing nervousness as a factor in the reasonable suspicion determination.

Unusual or inconsistent travel plans are a proper consideration in a reasonable suspicion analysis. During their initial conversation, the appellant told the trooper that he was returning home to Massachusetts from California where he had been visiting friends. The trooper became suspicious of this statement after seeing that the terms of the rental agreement required the appellant to return the vehicle to California. Further, the trooper testified that he was concerned that although the rental agreement required the vehicle to be returned to the same location where it was rented, the appellant’s statements indicated that it was actually one-way rental. The trooper testified that in his experience, one-way rental vehicles are often used to transport illegal drugs. Finally, although the appellant represented to the trooper that he had called the rental company to resolve the discrepancies in the rental agreement, when the trooper contacted the rental company, they had no record of any contact by the appellant. The district court properly considered this factor in its reasonable suspicion analysis.

These behaviors and observations when considered in isolation, could be interpreted as innocent. However, when considered together, they justify a reasonable suspicion of illegal activity. Looking at the whole picture, the district court’s determination is affirmed inasmuch as the overwhelming smell of dryer sheets, the appellant’s extreme and continuing nervousness, and the appellant’s behaviors related to the irregularities in his travel plans provided the trooper with reasonable suspicion to detain the appellant until the K-9 unit arrived.

Affirmed.

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

Link: http://tinyurl.com/lv8r65 .

[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]

Summary 2009 WY 28

Summary of Decision issued March 3, 2009

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

Case Name: In re: MM

Citation: 2009 WY 28

Docket Number: S-08-0120

Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge.

Representing Appellant MM: David M. Clark of Worrall & Greear, PC, Worland, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elizabeth B. Lance, Assistant Attorney General.

Guardian Ad Litem MM, a minor: Andrea L. Earhart of McCarty and Reed, Cody, Wyoming.

Facts/Discussion: Father appealed from the adjudication order incorporating the jury’s verdict that the Child was abused while in his custody. Father claimed that the State’s failure to produce the recording of the conversation with the Kempe Children’s Center to the respondents in a timely manner violated the W.R.P.J.C. and the constitutional mandates set forth in Brady v. Maryland.
Rule 3(b)(1) clearly required the State to notify the respondents of all information which tended to negate their involvement in the charged offense. Rule 3(c) required the State to promptly furnish any exculpatory information to the respondents and Rule 3(g) made the duty to disclose continuing. In the district court, the State claimed it was not required to produce the recording because it was privileged work product and not subject to discovery. The Court assumed for the purposes of the case that the evidence was not work product and was subject to disclosure. The record indicated that the recording was played for the jury and the information was available for respondents to use in cross examining the State’s witnesses and that Father referred to it in closing arguments. Father could have requested a continuance in order to fully prepare for its effective use on cross. As he did not, the Court did not feel the district court abused its discretion.
In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of good faith or bad faith of the prosecution. Father had the burden of proving the prosecution suppressed evidence, the evidence was favorable to the defense, and the evidence was material because it was reasonably probable that had the evidence been disclosed to the defense the result of the proceeding would have been different. In Thomas v. State, the Court concluded the defendant’s due process rights were not violated when the State revealed exculpatory evidence on the second and third day of trial because the defense was able to use the evidence for cross and argument during trial and did not request a continuance. In the instant case, the State produced the recording to the respondents the day before trial and it was played for the jury. The defense referred to it during opening statements, had the opportunity to cross examine and emphasized it in closing arguments. In addition, Father did not request a continuance.
The Court considered the evidence in the context of the other evidence presented at trial. The strength of the evidence was reduced because the doctor on the recording did not examine the child at the time of the alleged abuse. His testimony would have been limited to a review of the photographs or medical records. The Court could not conclude that there was a reasonable probability that had the evidence been disclosed to the defense in a timelier manner, the result of the proceeding would have been different.

Conclusion: The juvenile court properly addressed, pursuant to the Wyoming Rules of Procedure for Juvenile Courts, the State’s failure to disclose the evidence by ordering production of the information to Father. In light of the State’s production of the evidence to Father prior to trial and the strength of the State’s case, the Court concluded that Father failed to show a violation of his due process rights.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/dn3qp8 .

[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.]

Sumamry 2009 WY 18

Summary of Decision issued February 12, 2009

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

Case Name: Shaw v. State

Citation: 2009 WY 18

Docket Number: S-08-0055

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

Representing Appellant Shaw: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel.

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

Facts/Discussion: Shaw entered a conditional plea of guilty to felony possession of marijuana. The condition was that he be given leave to appeal the district court’s denial of his motion to suppress the evidence seized from his car by a Wyoming State Trooper.

Propriety of the Search and Seizure: In Speten v. State the Court described the analytical framework for evaluating issues such as in the instant case. The issue of the constitutionality of a search often focuses upon the question of whether or not the officer had probable cause to search, or reasonable suspicion to initiate an investigative detention. These cases are fact intensive and the Court considers the totality of the circumstances. The case began as a consensual encounter when the trooper stopped to aid Shaw who was stuck in deep snow. The trooper asked to see Shaw’s driver’s license which did not invoke any of the protections provided by the U.S. Constitution or the Wyoming Constitution. Once it was determined that Shaw had been driving, but had no driver’s license, the initial consensual encounter came to resemble a traffic stop or investigative detention. Little time passed from when the trooper realized Shaw had no license until she found the marijuana in the car. The trooper received permission from Shaw to look for proof of insurance and registration in the car. The district court concluded that the trooper had a legal right to enter the vehicle pursuant to Shaw’s consent. Once she entered the vehicle and smelled the marijuana, she possessed the requisite probable cause to search the vehicle for contraband. The district court concluded the marijuana was admissible at trial. Given that the Court could not find evidence in the record that Shaw’s consent was not knowing and voluntary, it was persuaded the district court’s findings were not clearly erroneous.

Conclusion: The Court held that Shaw’s consent for the trooper to enter his car was dispositive and declined to address the matter of inevitable discovery of the contraband during the inventory process.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/at6a9k .

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

Summary 2008 WY 78

Summary of Decision issued July 14, 2008

[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: Cohen v. State

Citation: 2008 WY 78

Docket Number: S-07-0082

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

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, 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; Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: July 14, 2008

Issues: Whether there was sufficient evidence to prove Appellant attempted to commit first degree homicide when there was no evidence of a substantial step towards committing first degree homicide. Whether there was sufficient evidence to prove Appellant committed aggravated assault as charged by the State since there was no evidence of a substantial step towards committing aggravated assault. Whether the district court erred when it denied Appellant's motion to suppress evidence seized after an illegal stop.

Holdings: When reviewing sufficiency of the evidence claims, any applicable inferences that may be reasonably drawn from it, are viewed in the light most favorable to the State. It is the jury's responsibility to resolve conflicts in the testimony, weigh the evidence and draw reasonable inferences from the facts. It is presumed that the jury resolved any conflict in the evidence in favor of the State. On appeal, the court will not reweigh the evidence or reexamine the credibility of the witnesses. It will only determine whether a quorum of reasonable and rational individuals could have found the essential elements of the crime proven beyond a reasonable doubt.

Whether a defendant has engaged in a substantial step toward the commission of a crime is a question of fact. Each case, therefore, must be analyzed within the context of its individual facts and circumstances. Since the jury is the ultimate finder of fact, the task in this case is to determine whether a "quorum of reasonable and rational individuals could have found" conduct constituting a substantial step. Among the evidence considered by the jury in this case was the fact that Appellant was resisting arrest, having already injured one officer, and leading officers on a high speed automobile chase. When finally cornered, he gave false information. Appellant refused to obey an instruction to keep his hands in plain sight and, instead, moved his left hand behind his back to retrieve a loaded and ready-to-fire handgun. Even after an officer pulled his weapon and told Appellant to stop, Appellant continued to pull the weapon out from his waistband and bring it forward, with his hand firmly on the grip. The only reason Appellant could not complete his intended action of shooting the officer was because of the officer's prudent actions in grabbing Appellant and dislodging the weapon from his grasp. This evidence is sufficient for a reasonable jury to find that Appellant engaged in substantial conduct strongly corroborative of his intention to murder the officer.

If the facts and circumstances surrounding Appellant's drawing of a loaded gun are sufficient to sustain his conviction for the attempted murder, they are likewise sufficient to sustain his conviction for attempting to cause bodily injury to the officer.

In his motion to suppress in the district court, Appellant invoked both the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution as grounds for suppressing the evidence. On appeal, Appellant bases his challenge to the legality of the stop exclusively on Fourth Amendment principles. Although he references the Wyoming Constitution, he does not provide an independent state constitutional analysis. The failure to present a proper argument supporting "'adequate and independent state grounds' . . . prevents the court, as a matter of policy, from considering other than the federal constitutional principles at issue.

A law enforcement officer may stop and temporarily detain a citizen if the officer has an objectively reasonable suspicion that the person has committed or may be committing a crime.

In order to establish the reasonable suspicion necessary to justify an investigatory stop, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts, reasonably warrant that intrusion. Reasonable suspicion, like probable cause, is dependant upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the 'totality of the circumstances -- the whole picture, that must be taken into account when evaluating whether there is reasonable suspicion. A review of the record in this case, shows that the officer possessed reasonable suspicion justifying the investigatory stop of the SUV. The record discloses the following facts: (1) the officer had been following the events over his police radio and knew there was a warrant out for Appellant's arrest; (2) Appellant was reported to be on foot in the area where the grid search was being conducted; (3) the radio reports indicated the direction towards a particular street Appellant was traveling after abandoning his car; (4) the officer saw a man cross the named street in the direction Appellant was known to be traveling about twenty minutes after Appellant abandoned the car; (5) the male suspect was sighted just a block away from the car; (6) the officer saw the suspect coming out from between two houses, not exiting a residence or other structure; (7) the officer knew from experience that this neighborhood normally had very little pedestrian traffic; (8) the officer was somewhat familiar with Appellant's physical appearance from his participation in a drug investigation involving Appellant a few months earlier; (9) the suspect was the "right size and shape" of Appellant, although his clothing was a little different from the description transmitted earlier over the radio for Appellant; (10) the suspect matched the physical description of Appellant contained in a flier posted at the police station; and (11) the officer observed the suspect enter the passenger door of a waiting vehicle. Under the circumstances, the officer was acting on more than a simple "hunch" when he stopped the vehicle. The totality of these factors, along with rationale inferences, supports a reasonable suspicion that Appellant, the person police were searching for, was a passenger in the stopped vehicle. Although there was a discrepancy in the clothing description, this discrepancy is insufficient to defeat the existence of reasonable suspicion in light of the other factors present in this case. The investigatory stop of the was constitutionally permissible under the circumstances.

There is sufficient evidence in the record to support Appellant's convictions for attempted first degree murder and aggravated assault and battery. Reasonable suspicion existed justifying the investigatory stop of the vehicle in which Appellant was a passenger.

Affirmed.

J. Golden delivered the opinion for the court.

Summary 2007 WY 190

Summary of Decision issued December 6, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Garvin v. State; Lockwood v. State

Citation: 2007 WY 190

Docket Number: S-07-0102

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

Representing Appellants (Defendants): R. Michael Vang of Brown & Hiser LLC, Laramie, Wyoming.

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

Issue: Whether the Defendants’ rights to be free from unreasonable searches and seizures under Article 1 § 4 of the Wyoming Constitution and the Fourth Amendment of the United States Constitution would require suppression of evidence and dismissal of charges.

Facts/Discussion: Appellants entered conditional pleas of guilty to the charge of possession with intent to deliver a controlled substance. They reserved the right to appeal the district court’s denial of their respective motion to suppress the marijuana evidence discovered in Garvin’s rental vehicle following a traffic stop.
Standard of Review: When the Court reviews a district court’s suppression ruling they defer to the court’s findings on factual issues unless they are clearly erroneous.
In this consolidated appeal, Garvin and Lockwood contend the district court erred in denying their motions to suppress the marijuana evidence seized during a search of the rental vehicle Garvin was driving. Lockwood presented no argument on appeal that he was illegally detained or searched. The rights guaranteed by the Fourth Amendment are personal rights and only the person whose rights have been infringed may claim the benefits of the exclusionary rule. Since his rights were never violated, he had no standing to invoke the protections of that rule.
The reasonableness of a traffic stop is analyzed under the two-part test articulated in Terry v. Ohio which includes whether the initial stop was justified and whether the officer’s actions during the detention were reasonably related in scope to the circumstances that justified the interference in the first place. The existence of objectively reasonable suspicion of criminal activity is determined by evaluating the totality of the circumstances. The circumstances included the existence of a one-way rental agreement, the strong odor of air-fresheners and dryer sheets, the open display of religious symbols, the defendant exhibiting extreme nervousness through the entire process, and the rental agreement which stated the car was to have been returned six days prior to the day in question.

Holding: After looking at the whole picture, the Court agreed with the district court’s legal conclusion there was reasonable suspicion of criminal activity to detain Garvin until the arrival of the canine unit. The aggregate of all the information available created reasonable suspicion that criminal activity was afoot, thus warranting Garvin’s further detention.

Affirmed.

J. Golden delivered the opinion.

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

Summary 2007 WY 129

Summary of Decision issued August 9, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: McKenney v. State

Citation: 2007 WY 129

Docket Number: 06-207

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

Representing Appellant (Defendant): Mike Cornia, Evanston, Wyoming.

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

Issues: Whether the smell of raw marijuana alone can create probable cause to search a vehicle. Whether the trial court’s finding that a traffic stop on I-80 at night creates an exigency sufficient to justify a warrantless search error.

Facts/Discussion: Appellant entered a conditional guilty plea to the charge of possessing a controlled substance with intent to deliver, a felony. He reserved the right to appeal the district court’s denial of his motion to suppress the marijuana seized during a search of his vehicle following a traffic stop.
Standard of Review: When the Court reviews a district court’s decision on a motion to suppress evidence, the Court defers to the court’s findings on factual issues unless they are clearly erroneous. The constitutionality of a particular search or seizure is a question of law and is reviewed de novo.
Probable Cause: Probable cause justifying a search of a vehicle is established if under the totality of the circumstances there is a fair probability that the car contains contraband or evidence of a crime. In Rideout v. State the Court accepted that an odor, standing alone, can supply probable cause. The United States Supreme Court pointed out in Johnson v. United States that an odor sufficiently distinctive to identify a forbidden substance might be evidence of the most persuasive character.
Exigent Circumstances: The district court ruled that exigent circumstances were required along with probable case, but no such requirement exists. The search was conducted pursuant to the automobile exception to the warrant requirement. The “automobile exception” is more properly defined as a search or seizure of an automobile upon probable cause. No further exigent circumstances are required. The Court ruled that the order of the district court that the automobile exception requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to the United States Supreme Court’s holdings.

Holding: Under the circumstances of this case, the detection of an odor sufficiently distinctive to identify a forbidden substance by a qualified person is sufficient, standing alone, to establish probable cause for a search of an automobile. The district court’s order denying Appellant’s motion to suppress was affirmed.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/3bzbqy .

Summary 2007 WY 57

Summary of Decision issued April 10, 2007

[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 with a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: McClelland v. State

Citation: 2007 WY 57

Docket Number: 05-280

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley (Retired), Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Deputy Attorney General. Argument by Mr. Rehurek.

Issues: McClelland: Whether there was invalid consent authorizing the search of McClelland’s residence. Whether inadmissible, improperly adduced evidence was admitted during the habitual phase of McClelland’s trial. Whether cumulative error occurred. State: Whether the recent United States Supreme Court decision in Georgia v. Randolph rendered the consensual search of Kimberly Brown’s apartment unlawful. Whether the district court erred by admitting into evidence the State’s documentary evidence related to McClelland’s habitual criminal status as against objections based on chain of custody and authenticity. Whether the doctrine of cumulative error warranted reversal of McClelland’s conviction.

Facts/Discussion: Appellant was convicted of one count of aggravated robbery in violation of Wyo. Stat. Ann. §§ 6-2-401(a)(ii) and (c)(ii) and of being a habitual criminal; under § 6-10-201. In a judgment and sentence entered on September 30, 2005, McClelland was sentenced to life in prison based on the habitual criminal, sentence enhancement statute (five prior felonies).
Suppression of Evidence Seized from Shared Apartment: Whether an unreasonable search or seizure occurred in violation of constitutional rights presents a question of law and is reviewed de novo. The Court noted McClelland did not file a motion to suppress evidence. The search he challenged was the search of the apartment, rented by Brown, but occupied by both of them at the time the crime was committed. The Court declined to address whether they should give the Randolph v. Georgia decision retroactive application to the issue because McClelland did not brief the issue and it was not developed as a matter of fact below. Also, the Court stated it was satisfied the Randolph decision was not applicable to the circumstances of the case to the extent those circumstances were made clear during the trial. The Court continued further to say the Randolph decision had nuances that make describing its exact reach difficult. But, so long as the Randolph decision represents the law of the land, the police must honor the denial of consent to search, by a cotenant who is present and protests the search. Another cotenant may not override that refusal with his/her consent. The Court concluded the rule articulated in Randolph did not apply to the circumstances presented by the case.
Habitual Criminal Evidence: The standard of review for this issue was abuse of discretion. The Court noted they provided a summary of much of the pertinent law in Abeyta v. State. The Wyoming Rules of Evidence explicitly deal with the concerns raised by McClelland in the trial court and that he iterates in the appeal. The evidence offered and admitted during the habitual criminal phase of the trial was all admissible under the governing statute, the applicable rules of evidence and the jurisprudence of Wyoming as it relates to the proof of the status of habitual criminal. Every exhibit offered and admitted was authenticated in one or more of the manners authorized by the applicable law. The objection at trial and pursued in appeal related only to the weight of the evidence and not its admissibility.
Cumulative Error: The cumulative error analysis’ purpose is to address whether the cumulative effect of two or more individually harmless errors had the potential to prejudice the defendant to the same extent as a single reversible error. The Court only considers matters that are determined to be errors, not matters that are asserted as error but determined not to be erroneous. The Court reviewed the incidents asserted by McClelland to constitute reversible error including: the testimony of John Brown; Officer Thompson’s comment on the credibility of the testimony of the Blockbuster employees and his elaborations on an answer to a very limited question during trial; the district court’s revocation of McClelland’s bond in front of the jury after he was found guilty of robbery but before the jury resumed its fact finding role in the habitual criminal phase; and that the State offered Exhibits 4 and 5 during the penalty phase but that they were never admitted into evidence. The Court concluded that none of the matters catalogued by McClelland constituted error and they declined to apply the cumulative error rule.

Holding: Kim Brown’s consent to search the apartment that was her joint residence with McClelland was not obtained in violation of governing constitutional principles. The evidence admitted at the habitual criminal phase of McClelland’s trial was competent, and objections made to it at trial went to its weight not its admissibility. The concept of cumulative error does not require reversal of McClelland’s conviction. The judgment and sentence of the district court were affirmed in al respects.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2qbzk7 .