Kearns v. State, 00-305.

• Decision Date: 26 June 2002
• Docket Number: No. 00-305.,00-305.
• Parties: Jerald Dennis KEARNS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

48 P.3d 1090

2002 WY 97

Jerald Dennis KEARNS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-305.

Supreme Court of Wyoming.

June 26, 2002.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Assistant Appellate Counsel, Representing Appellant. Argument by Mr. Roden.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore Lauer, Director, Prosecution Assistance Program; and Carrie Dawn Tate-Meyer, Student Intern, Representing Appellee. Argument by Ms. Tate-Meyer.

Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.

LEHMAN, Chief Justice.

[¶ 1] Appellant Jerald D. Kearns appeals from the judgment and sentence entered after a jury found him guilty of aggravated robbery and the judge sentenced him as an habitual criminal.

[¶ 2] We affirm.

ISSUES

[¶ 3] Kearns presents the following issues for our analysis:

I. Whether the district court made reversible error and erred as a matter of law by not discharging and dismissing the jury once it realized that it had improperly read count 3, habitual criminal charge including appellant's alleged previous felony convictions, to the jury panel.

II. Whether appellant received ineffective assistance of counsel when appellant's counsel erroneously advised appellant to waive the district court's prejudicial error of informing the jury of count 3 of the information, the habitual criminal charge which included appellant's alleged prior felony convictions.

III. Whether appellant's state and federal constitutional rights not to be placed twice in jeopardy for the same offense were violated by the enhanced penalties of the habitual criminal act.

IV. Whether appellant's conviction for attempted aggravated robbery did not fall within the definition of a violent felony, and the trial court therefore erred in sentencing him as an habitual criminal, and violated his due process rights.

Appellee State of Wyoming offers the following issues for our review:

I. Did appellant voluntarily, knowingly and intelligently waive his right to request that the court discharge the venire and summon a new venire for his trial?

II. Did appellant receive ineffective assistance of counsel regarding appellant's waiver of his right to request that a new venire be summoned for his trial?

III. Was appellant's right against double jeopardy violated when his prior convictions were used to enhance his sentence as an habitual criminal under Wyo. Stat. § 6-10-201?

IV. Did the trial court properly sentence appellant as an habitual criminal, since appellant was convicted of the violent felony of aggravated robbery, and not of attempted aggravated robbery as appellant contends?

FACTS

[¶ 4] On August 19, 1999, Kearns was on parole after serving seventeen years of a twenty to twenty-five year sentence for burglary and arson. In 1998, he had been released from the Wyoming State Penitentiary to the Community Alternatives of Casper (CAC). In August of 1999, Kearns was released from CAC. On the morning of August 19, 1999, Kearns decided he wanted to travel to Deadwood, South Dakota, to play some blackjack. He called his parole officer and, instead of asking her if he could travel to Deadwood, he asked her if he could go to Gillette to visit his brother. While the parole officer denied granting Kearns permission to leave town at all, Kearns testified that he believed that she had given her permission as long as he returned to Casper that night. On his way to Deadwood, Kearns purchased a bottle of whiskey to sip on during his trip even though it was a violation of his probation to possess and consume alcohol.

[¶ 5] Kearns spent the day in Deadwood. On his way back to Casper, Kearns spotted a hitchhiker. He picked up the hitchhiker, whose name was Millard Lynd, and loaded Lynd's belongings into the car. As they drove toward Wyoming, the two made small talk. Kearns described Lynd's claims that he had worked undercover for the NYPD, the FBI, and the CIA in Vietnam as "nutty." During this time, Lynd helped himself to some of Kearns' cigarettes, which were on the dash of the car. After two or three cigarettes, Kearns told Lynd that he should just buy the pack from him. Kearns testified that Lynd gave him a handful of coins for the cigarettes.

[¶ 6] Eventually, Kearns pulled onto an off ramp to urinate. Kearns claims that Lynd was yelling at him to hurry up because they needed to get to Gillette before it was too late for him to find a hotel room. According to Kearns, this pushed his last button. This yelling for Kearns to hurry up, the "nutty" talk, and Lynd's taking the cigarettes without permission had irritated Kearns to such a degree that he wanted Lynd out of his car.

[¶ 7] At this point, Kearns' and Lynd's versions of the ensuing struggle conflict substantially. Kearns claims that when he got back in the car, he told Lynd to get out of the car and that when Lynd refused, Kearns reached across Lynd, opened the passenger door and began pushing Lynd out of the car. Kearns said that Lynd fought him pretty hard and even broke the rearview mirror off and began hitting Kearns with it. Once Kearns got Lynd out of the car, he continued toward Gillette. By the time Kearns got to Moorcroft, he testified that he had realized that he still had Lynd's belongings. He said he turned around, intending to return Lynd's things to him. This plan was thwarted, however, when Kearns discovered flashing lights where he had forced Lynd out of the car. Kearns kept driving and dumped the items at an exit near Sundance.

[¶ 8] Lynd's version of the struggle begins with Kearns approaching the passenger door from the outside after he had finished urinating. Lynd said Kearns started hitting him through the passenger window and that when Kearns opened the door, Lynd fell out of the car. At some point during the fight, Lynd realized that he was covered in blood and was being cut by some sort of sharp object. He testified that he kept various coins that he was saving in his wallet, some new American quarters and some foreign coins, and that they ended up in Kearns' possession when Kearns demanded Lynd's money and Lynd handed over his wallet. Lynd explained that after Kearns drove away, some motorists discovered Lynd and called the sheriff and ambulance. Lynd was taken to the Campbell County Memorial Hospital to be treated for his wounds. Coincidentally, Kearns had also stopped at the Campbell County Memorial Hospital for treatment because he was experiencing severe pain due to a chronic kidney stone condition.

[¶ 9] Officer Gary Spears of the Crook County Sheriff's Department interviewed Lynd at the hospital and was given a description of the alleged assailant and his vehicle. While Officer Spears was at the hospital, he noticed Kearns, and he recognized that Kearns fit the description of Lynd's assailant. Officer Spears proceeded to the parking lot where he found the car that Lynd described. He then approached Kearns and asked him some questions. Officer Spears confiscated Kearns' clothing, and a search revealed some money, including the identifiable coins that belonged to Lynd. Officer Spears then sent the clothing to the Wyoming State Crime Lab for testing.

[¶ 10] On August 20, 1999, Lieutenant William Lessner of the Crook County Sheriff's Department impounded Kearns' car and retrieved Lynd's dumped belongings. Kearns was arrested and charged with attempted first-degree murder, aggravated robbery, and with being an habitual criminal. The jury convicted Kearns of the aggravated robbery charge, and the judge sentenced him under the habitual criminal statute to a term of life imprisonment in the Wyoming State Penitentiary. Kearns makes this timely appeal.

DISCUSSION

A. Waiver

[¶ 11] Kearns claims that the trial court committed reversible error and erred as a matter of law when it failed to discharge the jury panel after the judge mistakenly read the habitual criminal charge, which included information regarding his previous felony convictions. He maintains that the trial court did not possess the discretion to allow Kearns to waive this error. The State replies that Kearns' waiver was valid because the trial court fully informed Kearns of the mistake and gave him the option of continuing with the sitting jury panel or discharging it and empanelling a new one.

[¶ 12] When analyzing whether the waiver of a personal right was accomplished effectively, we first inquire into whether the right is a waivable right. Taylor v. State, 612 P.2d 851, 860-61 (Wyo.1980). If the right is one that can be waived, then we analyze whether the waiver was done voluntarily, knowingly, and intelligently. Vargas v. State, 963 P.2d 984, 990 (Wyo.1998). Wyo. Stat. Ann. § 6-10-203 (LexisNexis 2001) applies in cases that involve an habitual criminal charge. It provides:

(a) An information or indictment which charges a person as an habitual criminal shall set forth the charged felony and allege the previous convictions.

(b) The trial on the charged felony shall proceed as in other cases, but the jury shall not be informed of the previous convictions. If the defendant is convicted of the charged felony and does not plead guilty to the charge of the previous convictions, he shall be tried immediately by the same jury or judge on the charge of the previous convictions.

(c) In a trial under this article, a duly authenticated copy of the record of previous convictions and judgments against the defendant of any court of record are prima facie evidence of the previous convictions and may be used in evidence against the defendant.

(Emphasis added.)

[¶ 13] At the beginning of the voir dire process, the trial court read the charging information to the jury panel. Instead of just reading the first two counts, however, the judge mistakenly read the third count as well, which included information about Kearns'...