Summary 2008 WY 97

Summary of Decision issued August 18, 2008

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

Case Name: Eaton v. State

Citation: 2008 WY 97

Docket Number: 04-180 & 06-255

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

Representing Appellant: Kenneth M. Koski, Public Defender; Tina N. Kerin, Senior Assistant Appellate Counsel; Marion Yoder, Senior Assistant Public Defender; Ryan R. Roden, Senior Assistant Appellate Counsel; and Donna D. Domonkos, Appellate Counsel.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling; David L. Delicath; and Melissa Swearingen, Senior Assistant Attorney General.

Facts/Discussion: Eaton sought review of his conviction for the crime of first degree murder, three counts of felony murder, aggravated kidnapping, aggravated robbery and first degree sexual assault, and the sentence of death which was imposed on June 3, 2004.
The Court divided the opinion into three parts. Part I dealt with those asserted errors that occurred in the guilt/innocence phase of the trial that would require reversal of Eaton’s convictions. Part II dealt with whether or not there were errors in the sentencing phase of the trial that would require reversal of the sentence of death. Part III dealt with the issues raised in Eaton’s appeal of the district court’s denial of his motion for a new trial.

TABLE OF CONTENTS

Introduction-------------------------------------------------------------------------------¶ 1

Issues--------------------------------------------------------------------------------------¶ 2

Facts and Proceedings-------------------------------------------------------------¶¶ 3-10

Discussion--------------------------------------------------------------------------¶¶ 11-12

PART I. Guilt/Innocence Phase

A. Was Eaton Incompetent During Trial and the Proceedings in this Court

(i) Competency as a medical/mental issue.---------------------------¶¶ 13-23

(ii) Competency as suggested by events at trial.---------------------¶¶ 24-30

B. Voir Dire as Predisposing Jury to Find Eaton Guilty----------------------¶¶ 31-32

C. Ineffective Assistance of Counsel--------------------------------------------¶¶ 33-37

(i) Did the theory-of-the-case defense chosen by defense

counsel meet the ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases

(February 2003).----------------------------------------------------------¶¶ 38-47

(ii) No challenge to DNA.------------------------------------------------¶¶ 48-50

(iii) Failure to know the applicable law.--------------------------------¶¶ 51-54

(iv) Concession of guilt without Eaton’s consent.-------------------¶¶ 55-61

(v) Defense counsel’s election to allow the trial to proceed

when Eaton was not competent to stand trial constitutes

ineffective assistance of counsel.--------------------------------------------¶ 62

(vi) Waiver of venue.----------------------------------------------------¶¶ 63-65

(vii) Failure to object to instructions.----------------------------------¶¶ 66-73

(viii) The foregoing arguments, in combination,

demonstrate that Eaton was abandoned by defense counsel.-----¶¶ 74-76

D. Hostility/Prejudice/Bias Toward Eaton at Guilt/Innocence

Phase; Additional Remand--------------------------------------------------¶¶ 77-79

(i) Guilt/innocence phase prejudice/bias/hostility.------------------¶¶ 80-81

(ii) Need for additional remand.---------------------------------------------¶ 82

E. Juror Misconduct--------------------------------------------------------------¶¶ 83-91

F. Admission of Evidence--------------------------------------------------------------¶ 92

(i) Testimony of Joe Dax.-----------------------------------------------¶¶ 93-96

(ii) Dr. Thorpen in the jury box.---------------------------------------¶¶ 97-98

(iii) Mary Follette.-------------------------------------------------------¶¶ 99-100

G. Record Incomplete---------------------------------------------------------¶¶101-102

H. Prosecutorial Misconduct-------------------------------------------------¶¶ 103-104

I. Cumulative Error--------------------------------------------------------------------¶ 105

CONCLUSION-------------------------------------------------------------------------¶ 106

PART II: Sentencing Phase---------------------------------------------------------¶ 107

A. Voir Dire----------------------------------------------------------------------¶¶ 108-114

B. Application of the 2003 Statute to this Case---------------------------¶¶ 115-125

C. Ineffective Assistance of Counsel------------------------------------------------¶ 126

(i) 2003 statute---------------------------------------------------------------¶ 127

(ii) Whether Trial Counsel Provided Ineffective

Assistance in the Investigation and Presentation in

the Sentencing Phase of Mitigating Evidence---------------------¶ 128-185¶

(iii) Instructions-------------------------------------------------------¶¶ 186-188

(iv) Sentencing form inadequate------------------------------------------¶ 189

D. Hostility of Judge-----------------------------------------------------------------¶ 190

E. Prosecutorial Misconduct----------------------------------------------------------¶ 191

(i) In closing argument----------------------------------------------¶¶ 192-200

(ii) During examination of witnesses------------------------------¶¶ 201-205

(iii) Destruction of evidence-----------------------------------------------¶ 206

F. Allowing Dr. Ash to Testify------------------------------------------------¶¶ 207-210

G. Instructions Improper-----------------------------------------------------¶¶ 211-213

H. Record Incomplete---------------------------------------------------------------¶ 214

(i) Instructions conference/other discussions---------------------¶¶ 215-216

(ii) Remand hearing too limited-------------------------------------------¶ 217

I. Error in Admission of Too Much Evidence About 1998 Conviction--------¶ 218

Conclusion-------------------------------------------------------------------------------¶ 219

Part III: Motion for New Trial-------------------------------------------------------¶ 220

Discussion-----------------------------------------------------------------------¶¶ 221-227

Conclusion------------------------------------------------------------------------¶¶ 228-230

Holding: The Court examined the briefs of the parties and the record on appeal and held that no error occurred during the guilt/innocence phase of Eaton’s trial that would require reversal of his seven convictions. Therefore, the judgment was affirmed in all respects. The Court found no reversible error in the penalty phase and affirmed the death sentence. A constitutional death penalty sentencing scheme must ensure the availability of meaningful judicial review as a final safeguard that improves the reliability of the sentencing process. Throughout the opinion the Court applied the final safeguard as provided in § 6-2-103(c) (d) and (e). The Court was satisfied that the evidence supported the jury’s findings with respect to aggravating and mitigating circumstance. It was the Court’s determination that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor.
The Court affirmed the judgment and sentence of the district court, as well as its order denying Eaton’s motion for a new trial. The case was remanded to the district court for the purpose of vacating the suspension of the sentence of death and setting a specific date for the execution of that sentence.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/5j69ta.

[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 96

Summary of Decision issued August 15, 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: R.C.R., Inc. v. Deline

Citation: 2008 WY 96

URL: http:// wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=453653

Docket Number: S-07-0029

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

Representing Appellants (Defendants): Steven F. Freudenthal of Freudenthal Salzburg & Bonds, Cheyenne, Wyoming.

Representing Appellees (Plaintiffs): J. Kent Rutledge of Lathrop & Rutledge, Cheyenne, Wyoming; and Frederick B. Skillern of Montgomery Little Soran & Murray, Denver, Colorado

Date of Decision: August 15, 2008

Issues: Whether principles against splitting causes of action, of judicial estoppel, of collateral estoppel and of res judicata, as applied to the facts contained in the pleadings, evidence, findings, conclusions and rulings in the easement litigation and the private road litigation, bar the Appellees' claims. Whether the district court erroneously applied Lozier v. Blattland Investments, LLC, 2004 WY 132, 100 P.3d 380 (Wyo. 2004), without regard to the factual differences in that the Appellees do not own the property and no common source of title for the lands at issue, or the applicable rules against splitting causes of action, of judicial estoppel, of collateral estoppel and of res judicata. Whether controlling legal principles prohibit the unilateral expansion of the size of the dominant estate to be served by the easement.

Holdings: Wyoming has recognized the rule against splitting causes of action. In the present action, it appears that Appellant has relentlessly pursued legal, as well as perhaps some extra-legal, remedies in his campaign to frustrate the Appellees' enjoyment of their property. It is Appellant who has created, or recreated, causes of action that the Appellees, of necessity, had to pursue in self-defense. The purpose of the rule against splitting causes of action is "to promote fairness to the parties by protecting defendants against fragmented, harassing, vexatious, and costly litigation, and the possibility of conflicting outcomes." While Appellant is nominally the "defendant" in this litigation (as he has been in the past as well), it is Appellant's conduct/misconduct that has necessitated all of the legal proceedings. Although Appellant did not develop this issue in much detail or with much clarity, it is evident from the record that the Appellees' lawsuit was prompted by harassment from Appellant. The Appellees' action was not barred by the rule against splitting causes of action.

Judicial estoppel is applied to foreclose a party from maintaining inconsistent positions in judicial proceedings. The doctrine is applied sparingly and not in a highly technical manner that prevents litigation on the merits. Judicial estoppel is sometimes referred to as a doctrine which estops a party to play fast and loose with the courts or to trifle with judicial proceedings. It is an expression of the maxim that one cannot blow hot and cold in the same breath. A party will just not be allowed to maintain inconsistent positions in judicial proceedings. Judicial estoppel requires that where a man is successful in the position taken in the first proceeding, then that position rises to the dignity of conclusiveness. Appellant's claim of judicial estoppel is based upon his contention that the Appellees should be estopped from claiming that the easement benefits Rainbow Canyon, Inc., lands because they did not seek to have Rainbow Canyon, Inc., added as a party to earlier private road litigation. The present litigation does not, however, seek to adjudicate the right of Rainbow Canyon, Inc., or any of its owners to use the easement. Rather, this litigation concerns the Appellees' use of the easement. Thus, judicial estoppel does not apply to the circumstances presented here.

Collateral estoppel bars re-litigation of previously litigated issues (as contrasted with "claims"), as well as issues which could have been but which were not raised in the prior litigation. These factors are used in the analysis of collateral estoppel: (1) Whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom the collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. The prior litigation in question dealt only with the location of the easement and not its scope and hence collateral estoppel did not bar the Appellees from pursuing this litigation. Moreover, it was Appellant's conduct in attempting to unilaterally limit the Appellees' use of the easement and otherwise interfere with their property rights that necessitated this litigation. The only one of those four factors that is met here is that the parties are the same. The issues are not identical, there was a determination on the merits but both the issues and the claims are entirely different here, and the Appellees did not have an opportunity to litigate the issues now before us because they had not yet come to light. The Appellees' action was not barred by the principles that constitute collateral estoppel.

Res judicata bars the re-litigation of previously litigated claims or causes of action, as well as claims that could or should have been raised in the prior litigation. These factors are applied to the analysis of res judicata: (1) Identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. The resolution of the collateral estoppel contentions applies equally to res judicata. Res judicata did not bar this litigation, which was prompted almost exclusively by Appellant's improper interference with the Appellees' property rights.

Appellant contends that the interpretation the district court placed on Lozier v. Blattland, changes the law dramatically because its "implicit" holding requires a new evidentiary hearing in all cases to determine the intention of the parties, even where the matter has been previously and fully litigated. Appellant postulates that such a construction will substantially chill the free transferability of any real property which is a subservient estate to any easement since the scope and burden of that easement would be subject to re-interpretation and re-evaluation at any time a dominant estate holder requested. It suffices to note that Appellant grossly exaggerates the doom that the district court's application of that case, in these circumstances, spells for owners of servient estates. To allay any lingering concerns, the district court's decision in this case is not viewed as altering/expanding/contracting the essence of the holding in Lozier in any way.

Appellant also contends that the district court's order amounts to allowing the Appellees to unilaterally expand the size of the dominant estate. Appellant has made no claim that the "burden" on the easement had been expanded and the facts establish that the Appellees used the easement at issue only a few times a year. The district court did not err in taking evidence about the circumstances which surrounded the creation and use of the easement and none of its findings of fact is clearly erroneous. Indeed, the district court took a very sensible and rational approach to resolving this festering conflict. The uses the Appellees make of the easement are reasonable in every respect, given the language used in the written conveyance. Those uses are much the same as the uses made prior owners. The district court did not err by going outside the four corners of the easement to ascertain its "extent" or "scope," and its conclusions are wholly consistent with governing law.

There is no merit in any of Appellant's contentions. Therefore, the judgment of the district court is affirmed.

J. Hill delivered the opinion for the court.

Summary 2008 WY 95

Summary of Decision issued August 15, 2008

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

Case Name: Capshaw v. Osbon

Citation: 2008 WY 95

Docket Number: S-07-0228

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

Representing Appellant: Billie L.M. Addleman and Gary R. Scott of Hirst & Applegate, PC, Cheyenne, Wyoming.

Representing Appellee Osbon: Mary Helen Reed of McCarty and Reed, LC, Cody, Wyoming.

Representing Appellee Corbett: John P. Worrall of Worrall & Greear, PC, Worland, Wyoming.

Facts/Discussion: Capshaw entered into a contract to purchase a large portion of real estate held by the Corbett Trust. Corbett, one of the beneficiaries of the Corbett Trust, joined with a number of other beneficiaries in objecting to the sale to Capshaw. Osbon, trustee for the Corbett trust, filed a motion to intervene which motion was granted.
The parties largely frame their appellate arguments around whether Capshaw should have been allowed to intervene and participate in the matter. Capshaw claimed that as an intervening party she should have been given an opportunity to be heard. Corbett argued that the court erred in allowing Capshaw to intervene.
Although there may be legitimate issues concerning whether the motion to intervene was properly granted, Corbett did not appeal on the Order Granting Motion to Intervene. Capshaw’s notice of appeal only challenged the order on the declaratory judgment action. Because Corbett failed to appeal from the order granting the motion to intervene, the Court did not have jurisdiction to determine whether the motion was properly granted. The Court proceeded on the basis that Capshaw was properly made a party to the action below.
The order allowing Capshaw was entered after the hearing on the matter had already occurred and on the same day the declaratory judgment order was entered. Capshaw was not given the opportunity to present argument or evidence regarding the question of whether the sale should have been approved. Capshaw had no opportunity to protect her interest, if any, in the property.

Holding: Corbett failed to appeal from the order allowing Capshaw to intervene in this matter and therefore cannot challenge that order in this appeal. Inasmuch as Capshaw was a party to the dispute below, she should have been given notice and an opportunity to be heard in those proceedings. Because that did not occur, the Court reversed and remanded for a new hearing.

Remanded.

J. Voigt delivered the decision.

Link: http://tinyurl.com/6brrye .

[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 94

Summary of Decision issued August 14, 2008

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

Case Name: Burnett v. Steeley

Citation: 2008 WY 94

Docket Number: S-07-0225; S-08-0051

Appeal from the District Court of Platte County, the Honorable John C. Brooks, Judge.

Representing Appellant: Jared S. Crecelius of Bailey, Stock & Harmon PC, Cheyenne, Wyoming.

Representing Appellee: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Facts/Discussion: Following divorce proceedings, the district court entered a judgment requiring Burnett (Husband) to pay Steeley (Wife) the amount of $417,609 in cash or property by April 1, 2006. Burnett did not pay or make any effort to pay the judgment by the date due. The district court entered another order requiring Burnett to pay the amount owed to Steeley in cash. The court entered an order awarding Steeley attorney’s fees and costs.
Authority to Order Payment in Cash: The judgment was to be paid by April1, 2006. It was not paid and Burnett’s initial offer to transfer property involved parcels to which he did not have clear title. Burnett’s subsequent offers of property appeared to have included provisions or complications making acceptance by Steeley impossible or at least difficult in light of her financial situation and her out of state residence. Once the judgment became final, Steeley had the legal right to proceed with enforcement. The district court had the discretion to determine the manner in which to enforce the judgment including the discretion to order Burnett to pay the unsatisfied amount in cash.
Order of Interest Deemed Proper: Burnett claimed the district court erred in ordering him to pay interest on the judgment after May 1, 2007, the date when he offered to convey property by warranty deed to Steeley in satisfaction of the judgment. He contended that Steeley’s rejection of his offer tolled the accrual of statutory interest. The words “until paid” as used in § 1-16-102(a) do not require the payment of a judgment amount to be made and accepted by the prevailing party to toll the accrual of statutory interest. By paying the judgment to the district court, i.e. surrendering control to the court, the defendant has “paid” the judgment amount and stopped the accrual. Burnett did not pay the judgment amount to the district court. Depositing quitclaim deeds for property to which he did not have clear title did not constitute “payment” such as would stop the accrual of interest, nor did his offer to convey property by warranty deed upon receipt of $43,000 from Steeley.
Attorney’s Fees: On appeal of an award of attorney’s fees, the burden is on the party attacking the district court’s ruling to show an abuse of discretion, and the ultimate issue is whether the court could reasonably conclude as it did. Upon consideration of the motions, affidavits and the arguments of counsel, the district court entered an order granting Steeley’s attorney’s fees motion. Given the evidence presented, Burnett did not meet his burden of showing an abuse of discretion.

Holding: After Burnett failed to satisfy the 2006 judgment, the district court had the authority to enforce it by ordering him to pay the unsatisfied amount in cash. They district court also properly ordered Burnett to pay statutory interest on the amount owing from the date it entered the judgment until it was paid. The court did not abuse its discretion when it awarded attorney’s fees Steeley incurred in enforcing the 2006 judgment.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/63ngv7 .

[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 93

Summary of Decision issued August 14, 2008

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

Case Name: DeMillard v. State

Citation: 2008 WY 93

Docket Number: S-07-0290

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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Director, PAP; Brian Hunter, Student Director, PAP; Jonah Buckley, Student Intern.

Facts/Discussion: The district court denied DeMillard’s requests to modify the terms of his probation or to discharge him from probation. He claimed his constitutional rights were violated because he was not present during the hearing on his motions.
A criminal defendant has the right to be present during every critical stage of his criminal proceeding. The State argued that a post-sentencing probation modification hearing is not a critical stage in a criminal prosecution because it is not part of the criminal prosecution at all. The Court reviewed the Supreme Court’s decisions in Morrissey v. Brewer and Gagnon v. Scarpelli. Because post-sentencing revocation proceedings are not part of the criminal prosecution, they are not governed by the specific constitutional provisions requiring a defendant’s attendance. Due process principles do apply to probation revocation hearings because there is a potential for loss of liberty. Wyoming statutes and regulations recognize that a defendant is entitled to a hearing on a petition to revoke his probation. Wyo. Stat. Ann § 7-13-304(a) indicates the court can modify the conditions of probation at any time. The Court has ruled that even in the context of criminal prosecution, when a hearing is not necessary, attendance by the defendant is not constitutionally required. Since DeMillard was not entitled to a hearing on his motions, the court was not required to assure his attendance at the hearing.
DeMillard argued that the proceedings pertained to his fundamental right to associate with his children, thereby implicating constitutional protections including the right to attend the hearing on his motions. The argument failed to acknowledge that his right to associate with his children had already been limited in his sentence which included the condition in his probation that he have no contact with them.

Holding: DeMillard’s motions to modify the conditions of his probation or release him from probation were not part of his criminal prosecution and the specific constitutional, statutory and procedural rules requiring a defendant’s attendance during the criminal prosecution did not apply.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/6e6azw .

[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 92

Summary of Decision issued August 14, 2008

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

Case Name: Schluck v. Schluck

Citation: 2008 WY 92

Docket Number: S-07-0286

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

Representing Appellant: Raymond D. Macchia and Juliana Hernandez of Macchia & Associates, Cheyenne, Wyoming.

Representing Appellee: Mitchell Osborn, Cheyenne, Wyoming.

Facts/Discussion: The Court rejected Husband’s contention of error for the reason that he failed to provide an adequate record to permit rational review of the district court’s decision.

Holding: Lacking a properly authenticated transcript or an appropriate substitute for the transcript, the reliability of the district court’s decision and the competency of the evidence upon which that decision was based must be presumed.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/5zpw24 .

[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 91

Summary of Decision issued August 1, 2008

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

Case Name: In re Hittner

Citation: 2008 WY 91

Docket Number: S-07-0262

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant: Frank R. Chapman and Tamara K. Schroeder of Chapman Valdez, Casper, Wyoming.

Representing Appellee: Bruce A. Salzburg, Attorney General; and Robin Sessions Cooley; Deputy Attorney General.

Facts/Discussion: Hittner sought review of an order of the district court which affirmed orders of the Office of Administrative Hearings upholding the “implied consent” suspension of Hittner’s driver’s license and upholding Hittner’s commercial vehicle disqualification as imposed by the WYDOT.
Duty to Inform: Hittner’s claim that the arresting officer failed to inform him he had no right to consult with an attorney before taking the breath test was contradicted by his testimony at the administrative hearing where he stated he was told that he could not contact an attorney.
Refusal of Test: Hittner claimed he did not refuse the second breath test; he was physically unable to do what was required because of ill health. Hittner’s argument contradicts the arresting offer’s view of the circumstances. The Court would not second guess the factual finding of the hearing officer that the officer’s evidence was more credible.

Holding: The Court held there was substantial evidence in the record to sustain a conclusion that Hittner was given complete implied consent advisements and that he was not misled in any way about what his rights were. The district court’s order affirming the hearing officer’s orders with respect to Hittner’s driver’s licenses was affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/63keql .

[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.]