Sodergren v. State

• Citation: 715 P.2d 170
• Decision Date: 26 February 1986
• Docket Number: No. 85-71,85-71
• Parties: Barry SODERGREN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 170

715 P.2d 170

Barry SODERGREN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-71.

Supreme Court of Wyoming.

Feb. 26, 1986.

Susan K. Overeem and Patricia Nagel, Casper, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John Renneisen, Sr. Asst. Atty. Gen., Michael A. Blonigen, Sylvia Lee Hackl, Asst. Attys. Gen., Cheyenne and J. Scott Evans, Natrona County Dist. Atty., Casper, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, ROONEY (Retired), and GUTHRIE (Retired), JJ.

BROWN, Justice.

Appellant was convicted by a Natrona County jury of two counts of manslaughter and sentenced to the penitentiary. In appealing the judgment and sentence appellant raises as issues:

"I

"Is State v. Thomas still controlling and thus the District Court erred in denying Appellant's motion to dismiss for lack of jurisdiction?

"II

"Is § 6-4-107 W.S. 1977 unconstitutional, therefore Appellant could not be charged under that statute?

"III

"Does Appellant's trial and conviction of manslaughter violate the Ex Post Facto and Due Process Clause of the United States Constitution and Wyoming Constitution?

"IV

"Was Appellant's right to a speedy trial as guaranteed by the United States Constitution and the Wyoming Constitution violated?

"V

"Did the District Court err in refusing to give Appellant's requested instructions on the lesser included offense of vehicular homicide?

"VI

"Did the District Court err in refusing to give Appellant's requested instructions P, K, and J?

"VII

"Should Appellant have been sentenced under the penalty provision of § 31-5-1117 W.S. 1979 or § 6-2-106 W.S. 1983?"

We will affirm.

In a collision August 23, 1982, between a truck driven by appellant Barry Sodergren and a Pinto automobile driven by Mia Olsen, Miss Olsen and a passenger, her mother, were killed. The collision took place west of Casper at the intersection of Highway 20-26 and Ten Mile Road. Appellant testified that he never saw the Olsen vehicle and that he failed to stop at the stop sign on Ten Mile Road before entering the highway. He also testified that he slowed down to 20-25 miles per hour before entering the intersection; however, other witnesses testified that he was traveling 60 to 75 miles per hour and that he never slowed down before entering the intersection. Appellant's own witness, a traffic accident analyst, testified that appellant's minimum speed upon entering the intersection was 32.5 miles per hour, and that it was "reasonably possible" that he could have been driving as fast as 70 miles per hour.

On September 10, 1982, a criminal complaint was signed, charging appellant with two counts of involuntary manslaughter. After a preliminary hearing on September 19, 1982, appellant was bound over to Natrona County District Court; and on October 1, 1982, an information was filed in district court. At the arraignment on November 9, 1982, appellant pled not guilty. On the same day, the district court wrote a letter to counsel expressing doubts regarding the court's jurisdiction over the case. A motion to dismiss was filed by appellant November 12, 1982, questioning the jurisdiction of the district court. The district court issued a decision letter, November 16, 1982, ruling that the court had no jurisdiction over the matter. A bill of exceptions in response to the district court decision letter was entered by the state on November 24, 1982. An order of dismissal was signed and entered December 15, 1982.

On June 8, 1983, this court entered an order denying the state's application to file a bill of exceptions; and on June 10, 1983, the attorney general filed a petition for a writ of certiorari requesting this court to review the district court's order dismissing the manslaughter charges. On June 28, 1983, this court entered an order granting certiorari for the purpose of reviewing the district court's ruling that appellant could not be prosecuted under § 6-4-107, W.S.1977 (Cum.Supp.1979). On June 26, 1984, this court rendered its decision in which a majority held that Barry Sodergren could be charged under § 6-4-107, reversed the district court's order, and remanded the case to the district court for trial. State v. Sodergren, Wyo., 686 P.2d 521 (1984).

For clarification the following dates after remand are set out: The trial date had been set for August 27, 1984; on August 23, 1984, the district attorney filed a motion for continuance of the trial date to October 1, 1984. Over the objection of appellant, the trial date was continued to September 24, 1984. On September 4, 1984, appellant filed a motion to dismiss for lack of speedy trial; and on September 13, 1984, the district court denied appellant's motion to dismiss. On September 18, 1984, appellant filed a motion to dismiss for lack of jurisdiction by the district court and a motion to compel discovery. Appellant also filed an application for a stay of proceedings in district court to enable him to apply for a writ of certiorari to the Wyoming Supreme Court for review of the district court's denial of appellant's motion to dismiss for lack of speedy trial.

The trial commenced on September 24, 1984; on September 25, 1984, an order was entered denying appellant's pending motions. On October 2, 1984, this court entered a nunc pro tunc order denying appellant's petition for writ of certiorari and application for stay of proceedings. On September 27, 1984, a verdict was returned finding Barry Sodergren guilty of two counts of manslaughter. On February 15, 1985, appellant was sentenced to a term in the penitentiary. On February 25, 1985, notice of appeal was filed by appellant.

I

In his first assignment of error appellant invites us to reconsider State v. Sodergren, supra, (hereinafter Sodergren I ). In that case a divided court held that manslaughter, under § 6-4-107, W.S.1977 (Cum.Supp.1979), was the appropriate charge rather than vehicular homicide, under § 31-5-1117(a), (b), W.S.1977 (Cum.Supp.1982). Because the majority expressed two different reasons for the holding, counsel has characterized Sodergren I as a plurality opinion.

Two justices in the majority determined that there was an infirmity in a portion of the vehicular homicide statute which rendered that portion inoperative. Because of this infirmity appellant could not be prosecuted under the vehicular homicide statute, and therefore it was proper to prosecute him under the manslaughter statute. One justice in the majority determined that the vehicular homicide statute could be read together with the manslaughter statute to the end that both could stand. This case is the latest chapter in the torturous history of the relationship of the vehicular homicide statute to the manslaughter statute. We are not optimistic that this case will be the final chapter.

In Thomas v. State, Wyo., 562 P.2d 1287 (1977), we held that the vehicular homicide statute and the "culpable neglect" or "criminal carelessness" portion of the manslaughter statute proscribed the same conduct, provided different penalties for the same conduct, and were therefore repugnant. In Bartlett v. State, Wyo., 569 P.2d 1235 (1977), we held that the vehicular homicide statute had impliedly repealed the "unlawful act" portion of the manslaughter statute, at least to the extent that an act "malum prohibita" was involved.

In Lopez v. State, Wyo., 586 P.2d 157, 160 (1978), in an effort to resolve the recurring conflict between the vehicular homicide and the manslaughter statutes, this court held:

"In order to level out and bring order to a chaotic state of the law, we hold that all vehicular homicides, short of murder and voluntary manslaughter, are prosecutable exclusively as a violation of § 31-5-1115, W.S.1977. We overrule all decisions of this court to the contrary. * * * "

Perhaps the Lopez case would have finally settled the vehicular homicide statute-manslaughter statute problem except the statutes were amended. For a more detailed history of the problem reconciling vehicular homicide and manslaughter, see Sodergren I.

It is significant that in Thomas, Bartlett and Lopez, supra, this court determined that a manslaughter charge was improper because an existing viable vehicular homicide statute proscribed the same conduct, but provided different penalties, and was therefore repugnant. In those cases it is succinctly stated that an existing viable vehicular homicide statute barred a manslaughter charge and conviction for vehicular death. In the absence of a vehicular homicide statute, a prosecution for manslaughter would have been proper. In Sodergren I we held that a vehicular homicide statute did not bar a conviction for manslaughter. Two different reasons were expressed by the majority as to why the vehicular homicide statute was not a bar to prosecution for manslaughter.

We have reviewed our holding in Sodergren I and are not persuaded that we should reverse our determination. Under the circumstances, manslaughter was the proper charge. ¹

II

Appellant contends in his second assignment of error that the manslaughter statute under which he was prosecuted, § 6-4-107, W.S.1977 (Cum.Supp.1982), is unconstitutional. ² This issue was raised for the first time on appeal. In Jahnke v. State, Wyo., 692 P.2d 911, 928 (1984), we stated:

" * * * Our rule is that in the absence of fundamental error affecting a substantial right of the appellant or involving the jurisdiction of the court, we do not consider questions sought to be raised for the first time on appeal. Hopkinson v. State, Wyo., 664 P.2d 43 (1983), cert. denied 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983); Nickelson v. People, Wyo., 607 P.2d 904 (1980); and Nisonger v. State, Wyo., 581 P.2d 1094 (1978). Furthermore, unless plain error is present, questions concerning the constitutionality of a statute are not considered on appeal if the party presenting them failed to present or argue the contentions in the trial...