Allen v. State

Decision Date02 April 2002
Docket NumberNo. 00-192.,00-192.
PartiesJay C. ALLEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellee.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Appellee.

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

VOIGT, Justice.

[¶ 1] In December 1999, a jury found appellant, Jay C. Allen, guilty of two counts of aggravated vehicular homicide in violation of Wyo. Stat. Ann. § 6-2-106(b) (LexisNexis 2001), and the district court sentenced appellant to serve 150 to 240 months in prison for each count, the sentences to run consecutively. Appellant appeals from that judgment and sentence, arguing that the district court erred in not suppressing evidence of appellant's blood-alcohol concentration, that appellant's defense counsel was ineffective in several respects, that the district court erred in not appointing a different attorney to represent appellant, that the evidence was insufficient to convict appellant of the charge relating to victim Mary Fink, that certain hearsay testimony should not have been permitted at trial, and that the district court should have declared a mistrial after appellant was cross-examined regarding a prior criminal conviction. We affirm.

ISSUES

[¶ 2] Appellant phrases the issues on appeal as follows:

I. Did the trial court err in refusing to suppress the results of the blood alcohol test performed on appellant, as implied consent procedures were not followed, and the failure to follow such procedures violated appellant's Fourth Amendment rights?
II. Did the trial court err in refusing to appoint different counsel for appellant, resulting in a violation of appellant's Sixth Amendment right to counsel?
III. Did appellant receive ineffective assistance of counsel?
* * *
IV. Was the evidence insufficient to support a finding of guilty with regard to the charge of aggravated homicide by vehicle pertaining to Mary Fink?
V. Did the trial court err in not ordering a judgment of acquittal as to the charge of aggravated homicide by vehicle pertaining to Mary Fink?
VI. Did the trial court err in permitting hearsay testimony of Heather Johnson?
VII. Did the trial court abuse its discretion when it failed to declare a mistrial or properly instruct the jury after the prosecutor questioned appellant about a conviction more than ten years old?

The State of Wyoming, as appellee, phrases the issues in substantially the same manner.

FACTS

[¶ 3] On April 14, 1999, just prior to 3:00 p.m., appellant was driving a 1979 station wagon that collided with a Ford Tempo driven by Mary Fink near the intersection of Wyoming Boulevard and McKinley Street in Natrona County. Appellant's brother, Frank Allen, the brother's girlfriend, Heather Johnson, and appellant's unrestrained three-year-old nephew were passengers in the station wagon. Mary Fink's husband, Albert Fink, was a passenger in the Ford Tempo.

[¶ 4] Linda Evans, a certified nurse's aide, was one of the first passersby to stop and assist at the scene. Albert Fink was experiencing difficulty breathing and Mary Fink's foot hurt. Mary Fink told Linda Evans that the station wagon "had pulled in front of them and she couldn't stop" and at some point, appellant added, "I'm so sorry. I didn't see them." Linda Evans could smell a strong odor of alcohol on appellant's breath, appellant seemed to be "stumbling a little bit," his speech was "a little slurred," and he had bloodshot eyes. Tina Evans, Linda Evans' sixteen-year-old daughter, echoed her mother's observations of appellant and recalled Heather Johnson stating that she told appellant to "watch out for that car."

[¶ 5] A fireman who responded to the collision spoke with appellant at the scene. He could "smell alcohol" on appellant, noticed that appellant's balance was impaired (at one point appellant "started to stagger and fall against the car"), and observed several "bottles" (possibly Budweiser) in the station wagon. Appellant was able to respond to the fireman's inquiries with appropriate answers and stated repeatedly that he "didn't see them" or "didn't see them turning." A paramedic also observed appellant at the scene "in the process of either sitting down or falling down in front of his vehicle." In assessing appellant for potential injuries, the paramedic smelled alcohol and asked if appellant had been drinking. Appellant replied, "Yes. I had a few. It was a while ago. I'm not drunk...." Appellant's speech was "okay" and appellant gave appropriate responses to the paramedic's questions. The paramedic further testified that while he was transporting Mary Fink, appellant, Heather Johnson and her child to the hospital, Heather Johnson stated that the station wagon was about to turn and "he turned in front of the other vehicle."

[¶ 6] Officer Christopher Schell of the Wyoming Highway Patrol arrived at the scene shortly after the collision. He observed both empty and full beer bottles in the station wagon, including some located in the front seat area. According to Officer Schell, appellant had bloodshot eyes, was unsteady on his feet, and he observed an odor of alcohol coming from appellant.

[¶ 7] Dr. Mary MacGuire, a general surgeon, encountered appellant at the emergency room. Appellant "smelled strongly of alcohol," slurred his speech, experienced difficulty focusing, and appeared to be intoxicated. Dr. MacGuire then treated Albert Fink, who arrived with "flail chest" in at least four segments (patients usually present with only one "flail segment") indicating a very severe injury to the skeleton of the chest wall and severe soft tissue injuries to the lungs and heart. Albert Fink was in irreversible shock, was bleeding into his abdomen, and had suffered severe pulmonary injuries. Dr. MacGuire performed emergency surgery to remove or repair Albert Fink's internal organs and stop his internal bleeding. Even after surgery and receiving medication, Albert Fink was unable to maintain adequate blood pressure. In the doctor's opinion, Albert Fink had suffered "unsurvivable" injuries in the collision. He died at 3:00 a.m. on April 15, 1999, about twelve hours after the collision.

[¶ 8] Mary Fink sustained a complex fracture of the "right lower leg in the region of the ankle" in the collision, in addition to a possible heart contusion. Dr. MacGuire did not observe any other "significant injuries" to Mary Fink during an initial emergency room examination. According to information provided to the Natrona County Coroner, Dr. James Thorpen, Mary Fink was under medical care at the hospital on April 14, 1999, until she was discharged "a couple of days later." She underwent surgery for "an open reduction and internal fixation" of the ankle fracture on May 6, 1999, and the surgery "appeared to go well." After complaining of extreme dizziness early the morning of May 7, 1999, Mary Fink "passed out" and died while at the hospital.

[¶ 9] At 4:10 p.m. on April 14, 1999, a paramedic obtained a blood sample from appellant at Officer Schell's request. According to the State's forensic toxicologist, a subsequent test revealed that appellant's blood alcohol concentration was .15% at the time the sample was taken (assuming appellant had not consumed alcohol since the collision, it would have been as high as .17% at the time of the collision), and the sample was also positive for the presence of cannabinoids, which impair the central nervous system in a manner similar to alcohol. Appellant's testing of the sample resulted in a .127% blood alcohol concentration; however, the State presented testimony regarding the possibility of evaporation associated with delays between testing. Appellant was ultimately charged with two counts of aggravated homicide by vehicle alternatively asserting that appellant violated Wyo. Stat. Ann. § 6-2-106(b)(i) and/or (b)(ii) regarding each count.

[¶ 10] Mary Fink told Officer Schell that immediately prior to the collision, she looked down at her speedometer, took her foot off the accelerator to slow down, looked up and said "Oh, my God," and then collided with the Allen vehicle, which she did not see until the last possible second. Rick Dye, a Wyoming Highway Patrol officer since 1980, testified as an expert accident reconstructionist for the State. According to Officer Dye, the station wagon, traveling eastbound on Wyoming Boulevard, began to execute a left turn onto McKinley Street prematurely, turning into the westbound lane across a double-yellow line twenty to twenty-five feet prior to the actual intersection. The station wagon was traveling between one-half and twenty miles per hour and the Ford Tempo was traveling westbound between fifty and fifty-five miles per hour. The vehicles collided, without an evasive maneuver by the station wagon. Officer Schell observed "very short" skid marks from the Fink vehicle. Had the station wagon completed its turn, it would have entered the wrong lane of travel on McKinley Street.

[¶ 11] Based on Officer Dye's time and distance calculations regarding each vehicle's visibility and reaction time, as well as his observations of the intersection itself, appellant should have seen the Fink vehicle and appellant had an "appreciably longer" opportunity to visualize the intersection than did Mary Fink. In Officer Dye's training and experience, impaired drivers commonly have perception problems, fail to maintain their lane of travel, and execute steering maneuvers similar to that performed by appellant. Officer Schell added that in his training and experience, impaired drivers experience difficulty with distraction and their ability to react is substantially slowed. Officer Dye...

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