Summary 2013 WY 114

Summary of Decision September 27, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed and Remanded. Justice Hill concurs in part and dissents in part, with whom Justice Burke joins

Case Name: CARLA STALCUP v. THE STATE OF WYOMING

Docket Number: S-12-0232

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

Appeal from the District Court of Laramie County, the Honorable T.C. Campbell, Judge

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

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: September 27, 2013

Facts: A jury found Carla Stalcup guilty of aggravated vehicular homicide while driving under the influence of alcohol, a felony, and two related driving under the influence (DUI) misdemeanors. She appeals the convictions and sentence, claiming the district court improperly refused to allow her to call an expert witness to testify concerning her theory of defense, incorrectly answered a jury question and imposed an illegal sentence.

Issues: Ms. Stalcup presents the following issues for this Court’s consideration:
The district court abused its discretion when it prohibited her from calling an expert witness to testify in her defense; The district court committed reversible error when it incorrectly answered a jury question presented during deliberations; and The sentence is illegal because the district court entered separate convictions and sentences on the DUI counts, which were the same criminal act and charged in the alternative.

The State asserts the district court committed no error.

Holdings/Conclusion: The district court erred in precluding Ms. Stalcup’s expert witnesses from testifying concerning EMDR therapy, and she is entitled to a new trial. The district court did not err in answering the jury’s question about seat belt use “no.” The district court erred in entering convictions and imposing sentences on both counts under § 31-5-233(b). We reverse and remand the aggravated vehicular homicide matter for a new trial. We reverse the DUI convictions and remand for entry of a new judgment and sentence convicting Ms. Stalcup of one violation of § 31-5-233 and imposing one sentence.

Justice Hill concurs in part and dissents in part, with whom Justice Burke joins

I concur with the majority opinion’s disposition of Ms. Stalcup’s second and third issues on appeal, but I find that I must respectfully dissent from the reversal of Ms. Stalcup’s aggravated vehicular homicide conviction.

Ms. Stalcup’s defense was that her passenger’s action of grabbing the steering wheel was what caused the vehicle accident that claimed her passenger’s life, not Ms. Stalcup’s impaired driving. Ms. Stalcup thus sought to use expert testimony regarding EMDR therapy to explain why she had no memory of her passenger grabbing the steering wheel immediately following the accident but did have a memory of the passenger’s action sometime later. Given the purpose for which Ms. Stalcup sought to use this expert testimony, I feel it is important to consider the definition of the term “memory.”

Memory means “the mental capacity or faculty of retaining or recalling facts, events, impressions, or previous experiences,” or “the act or fact of retaining and recalling impressions, facts, etc.” Random House Webster’s College Dictionary 846 (1992). It is a term that connotes a recollection of a fact or event that occurred, and that is of course how Ms. Stalcup sought to present her post-therapy perception of what occurred during her vehicle accident.

On the other hand, as the majority opinion points out in its Paragraph 17, during Ms. Stalcup’s offer of proof, her expert testified that EMDR therapy is not designed to induce memory recall, that neither she nor anyone else in her field could attest to the accuracy of any memory recalled, and that the reliability of memory recall produced by EMDR therapy had not been subjected to peer review. In other words, the expert testified that the perception of facts or events that is produced by EMDR therapy might be a recollection of something that actually occurred or it might not be.

This Court reviews a trial court’s decision regarding the admissibility of expert testimony for an abuse of discretion and only reverses such a decision if we find that the trial court could not reasonably conclude as it did. See Dean v. State, 2008 WY 124, ¶ 14, 194 P.3d 299, 303 (Wyo. 2008). We have long recognized that this standard of review contemplates allowing a trial court broad latitude in making these determinations.

Decisions of the trial court with respect to the admissibility of evidence are entitled to considerable deference and, as long as there exists a legitimate basis for the trial court’s ruling, that ruling will not be reversed on appeal.

Dean, ¶ 14, 194 P.3d at 303 (quoting Bunting v. Jamieson, 984 P.2d 467, 470 (Wyo. 1999)).

Under these circumstances, I cannot conclude that the district court abused its discretion in excluding the proffered testimony concerning EMDR therapy. While Ms. Stalcup’s expert was certainly qualified in the field of EMDR therapy, and a reliable scientific basis existed for the therapy’s use in treating trauma, the record supports the court’s determination that a reliable scientific or scholarly basis does not exist to link use of EMDR therapy with memory recall. Nor can I conclude that exclusion of the EMDR testimony interfered with Ms. Stalcup’s constitutional right to present her defense. I agree instead with the State that:

[T]he district court permitted two different experts to provide testimony on Stalcup’s behavior in the wake of the accident. Schaad testified that people who suffer trauma feel overwhelmed and can develop mental disorders like anxiety and depression. She also explained that traumatic situations can cause the brain to stick, leading to numbness and repression. Stalcup’s treating psychologist reinforced these statements when he testified that Stalcup could not function and suffered emotional injury because of the crash. In short, Stalcup succeeded in having an expert give the jury a scientifically sound explanation for her memory gap—without describing EMDR.
For these reasons, I would affirm the district court’s decision to exclude the expert testimony concerning EMDR therapy.

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 10

Summary of Decision January 24, 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]

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Case Name: Breazeale v. State

Docket Number: S-10-0097

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

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

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

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

Date of Decision: January 24, 2011

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

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

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

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

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

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

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

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

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2010 WY 162

Summary of Decision December 10, 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: Tucker v. State

Citation: 2010 WY 162

Docket Number: S-10-0006

URL: http://tinyurl.com/24deumm

Appeal from the District Court of Fremont County, The Honorable Marvin L. Tyler, Judge

Representing Appellant (Defendant): Diane E. Courselle, Director, UW Defender Aid Program; Kevin Ward, Student Intern. Argument by Mr. Ward.

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

Date of Decision: December 10, 2010

Facts: Appellant challenged his convictions on two counts of aggravated vehicular homicide.

A bartender stopped serving Appellant alcohol due to his level of intoxication. Approximately an hour later, Appellant asked the bartender for help starting his truck. The bartender then asked another patron, a mechanic, to help Appellant with his vehicle. The mechanic determined that the truck would not start because the clutch had not been pressed. During this time, Appellant was in the driver’s seat attempting to start the truck, the girlfriend was in the passenger seat with her head against the passenger door, and the girlfriend’s son was asleep in the backseat. After it was determined that the truck did not need a jump, Appellant got out of the truck momentarily while the mechanic got into the driver’s seat, pushed in the clutch, and started the truck. Appellant got back into the driver’s seat and the mechanic saw Appellant drive away. Approximately seven miles from town, the truck left the road, flipped over, and crashed into a tree. The girlfriend and her son were ejected from the vehicle and were found dead at the scene of the accident.

Prior to trial, the State filed a witness list designating the investigating officer as a witness. Appellant filed a motion which sought to prevent the investigating officer from testifying as an expert. The court granted the motion “in part” but also indicated that the officer could testify “in accordance with his designation.” Before the officer took the stand, another hearing was held concerning the anticipated testimony. The court stated that it would limit the officer’s testimony to the matters described in the witness designation and that it would give a curative instruction to the jury in the event that the officer’s testimony crossed into the realm of expert opinion. During the State’s examination of the officer, the prosecution asked him to describe his training in accident investigations and his experience in investigations involving ejections. The State also asked the officer to give his opinion as to where the victims were seated prior to being ejected from the vehicle. Finally, the officer was asked whether he thought the accident was influenced by alcohol impairment.

Defense counsel repeatedly objected to the State’s questions regarding the officer’s training and experience, and to the officer’s testimony regarding the position of the occupants of the vehicle, on the grounds that he was stating opinions that only an expert witness could provide. In response, the court instructed the jury several times that the investigating officer could not provide expert opinions and as to how much weight, if any, should be given to opinion testimony from a witness who is not an expert witness

Ultimately, the jury found Appellant guilty on both counts of aggravated vehicular homicide. Appellant was subsequently sentenced to 12 to 20 years for each conviction, with the sentences to be served consecutively.

Issues: I – Whether the district court abused its discretion when it admitted the portion of a trooper’s testimony challenged in the motion for new trial. II – Whether there was sufficient evidence of Appellant’s guilt. III -- Whether Appellant’s consecutive sentences were illegal.

Holdings: The Court held that the district court erred in admitting the investigating officer’s opinion as to the location of the occupants of the vehicle at the time of the crash and as to whether alcohol impairment was a factor in the crash. However, in light of the remaining evidence produced by the State, the Court held these errors were harmless. The evidence was sufficient to establish that Appellant was driving the vehicle and that his intoxication was the proximate cause of the crash and the resulting deaths of the victims. Finally, the Court held that Appellant’s constitutional rights against double jeopardy and against cruel and unusual punishment were not violated by the imposition of consecutive sentences of 12 to 20 years. For these reasons, the decision of the district court was affirmed.

J. Burke delivered the opinion for the court.

A special concurrence was delivered by J. Voigt.

Specifically, to address why the State did not offer the trooper/investigating officer as an expert witness under W.R.E. 702 and offer some form of Wyoming Criminal Pattern Jury Instruction No. 6.08A (2004), which instruction tells the jury how to consider the opinion of an expert witness.

The concurrence concludes that an expert in the field of accident investigation or reconstruction, particularly one who investigated the scene immediately after the accident and who interviewed the pre-accident witnesses, may opine as to the position of the occupants in the vehicle, assuming that he or she is able to testify as to a sufficient basis for that opinion.