Wheaton v. State
| Decision Date | 01 May 2003 |
| Citation | 2003 WY 56,68 P.3d 1167 |
| Parties | William WHEATON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant. Argument by Tina Kerin.
Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker; Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Shawn L. Barlow, Student Director, Representing Appellee. Argument Mr. Barlow.
Before HILL, C.J., and GOLDEN, LEHMAN1, and VOIGT, JJ.
[¶ 1] Appellant, William Wheaton (Wheaton), appeals from the judgment and sentence finding him guilty of causing bodily injury to a peace officer engaged in the lawful performance of his duties, and property destruction. Wheaton contends that the State engaged in misconduct when it utilized the results of a blood alcohol test which was accomplished without his consent, and that the blood test was the result of an unreasonable search and seizure. Wheaton also asserts that his arrest was unlawful and that the district court erred in instructing the jury.
[¶ 2] We will affirm.
[¶ 3] Wheaton poses the issues as follows:
The State outlines the issues somewhat differently:
[¶ 4] On January 25, 2000, Rawlins Police Officer Michael Rose was dispatched to the scene of an accident. There were two vehicles at the scene, a pickup truck that was off the road and up against a fence, and a van that appeared to be in use to pull the pickup back onto the roadway. There were two men at the scene, Wheaton and his friend, Alexander Orloff (Orloff). The pickup belonged to Wheaton's girlfriend and the van belonged to Orloff. Officer Rose asked Wheaton if he had been driving the pickup and he responded that he had.
[¶ 5] Rose detected the smell of alcohol emanating from Wheaton and observed that he had poor balance, slurred speech, and was "emotional." Officer Rose could tell that Orloff had been drinking as well. Because he was confronted with two intoxicated men, Rose called for backup police support and, soon after his call, the Rawlins Chief of Police and two other Rawlins police officers arrived on the scene. Officer Rose again asked Wheaton if he had been driving the pickup and Wheaton pointed to his dog. The dog was loose and running around the scene of the accident. Rose again asked Wheaton who was driving the pickup, and this time Wheaton pointed to the Rawlins Police Chief. Based upon Wheaton's initial admission that he had been driving the pickup which belonged to his girlfriend, the fact that there were two people present and two vehicles, the fact that Wheaton was obviously intoxicated, and Wheaton's refusal to perform field sobriety maneuvers or do a breathalyzer test (Alcosensor), Officer Rose determined that Wheaton should be arrested for driving while under the influence (DWUI).
[¶ 6] After being handcuffed, Wheaton became combative when Officer Rose attempted to do a pat down search on Wheaton before placing him in the police car. It took two police officers to complete the pat down search and get Wheaton into the police car. Wheaton expressed concern about his dog and Officer Rose told him he would call animal control to have the dog picked up. With Wheaton in the back seat of Officer Rose's patrol car, the police officers turned their attention to Orloff.
[¶ 7] At this point, Wheaton, who was lying on the back seat of the patrol car, began kicking the right rear window of the vehicle. Wheaton also was screaming that the police were going to kill his dog. In his testimony at trial, Wheaton testified that Officer Rose threatened to shoot his dog and/or send it to the pound to be put to sleep. Officer Rose denied making any such threats and another police officer corroborated that testimony. An audio/video tape made at the scene did not reveal any such threat. Orloff did corroborate Wheaton's testimony in this regard. In any event, Wheaton's dog was taken to the pound and he was able to get it back the day after his arrest, which was what Officer Rose testified that he told Wheaton would happen.
[¶ 8] Wheaton continued kicking the patrol car's rear window until it finally shattered. Wheaton was placed in leg chains, his feet were secured to the floor of the patrol car, and he was then driven to the county jail. Because of the difficulties at the accident scene, two deputy county sheriffs and a state trooper were called to assist, and they followed Officer Rose to the county jail to help him with the combative Wheaton. Four police officers, including Officer Rose, were involved in moving Wheaton from the back seat of Rose's car and into the jail. Once out of the patrol car, Wheaton screamed out Officer Rose's name ("that f---ing Rose") and then reared backwards striking Rose in the forehead with the back of his head. Rose suffered serious injuries as a result of that attack. Wyo. Stat. Ann. § 6-5-204 (Lexis-Nexis 2001) (emphasis added) provides:
[¶ 9] Wheaton also caused significant damage to Officer Rose's police car, including a broken window and window run channel, and a torn fabric head liner, at a total cost of $1,489.27. Wyo. Stat. Ann. § 6-3-201 (LexisNexis 2001) (emphasis added) provides:
[¶ 10] A focal point of Wheaton's defense was that he was not driving at the time he was arrested, so there did not exist probable cause to arrest him for DWUI. Indeed, the record is clear that Wheaton was not actually driving at the time Officer Rose came upon the scene of the accident. Wyo. Stat. Ann. § 31-5-233 (LexisNexis Supp.2002) (emphasis added):2 § 31-5-233. Driving or having control of vehicle while under influence of intoxicating liquor or controlled substances; penalties.
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