Amin v. State

• Decision Date: 07 May 1991
• Docket Number: Nos. 90-109,90-110,s. 90-109
• Citation: 811 P.2d 255
• Parties: Abdullah Kru AMIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Donald Brian CALKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 255

811 P.2d 255

Abdullah Kru AMIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Donald Brian CALKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 90-109, 90-110.

Supreme Court of Wyoming.

May 7, 1991.

J. John Sampson, Sheridan, for appellants.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Karen A. Byrne, and Hugh Kenny, Sr. Asst. Attys. Gen., Cheyenne, for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

GOLDEN, Justice.

Appellants, Abdullah Kru Amin and Donald Brian Calkins, appeal from their jury convictions for kidnapping and aggravated assault and battery in which their sentencing was enhanced by the effect of Wyoming's habitual criminal statute.

We affirm.

ISSUES

Appellants raise these issues:

1. The trial court erred and abused its discretion when it failed to grant defendants' motion for change of venue.

2. The trial court erred in excluding the testimony of Raymond Leidig, M.D. and refusing appellants' jury instructions.

3. Appellants should be granted a new trial on the basis that they received ineffective assistance of counsel.

A. Should counsel have called the witnesses requested by appellants, and should counsel have issued a subpoena earlier?

B. Should defendant, Donald Calkins, be evaluated?

C. Should counsel have permitted defendants to be present for motion hearings?

The State of Wyoming poses its statement of the issues as follows:

I. Did the trial court abuse its discretion in denying the motion to change venue?

II. Should the trial court have instructed the jury on the defense of "necessity"?

III. Were the appellants denied effective assistance of counsel?

FACTS

Shortly after 7:00 a.m. on December 2, 1988, at the Wyoming State Penitentiary in Rawlins, Amin, an inmate, entered the office of counselor Barbara France, grabbed her around the neck and held a half pair of scissors to her throat. At that same time, Calkins, also an inmate, entered the office of counselor Betty Lewis and confined her there, holding a homemade razor-knife (a plastic pen with utility razor blades inserted on two sides and reinforced with masking tape) to her neck. Lewis screamed for help, thus alerting a guard to the situation. The guard activated an alarm and set in motion standard prison procedures. The guard approached both Amin and Calkins, but both threatened to kill the counselors if anyone interfered with them. Amin and Calkins demanded to talk to the press and, in addition, Amin demanded to talk to his mother. Prison administrators negotiated with Amin and Calkins for the release of the counselors and, approximately eleven hours later, France and Lewis were released physically unharmed to prison authorities.

                Amin and Calkins were charged with, and convicted by a jury of, kidnapping 1 and aggravated assault. 2  For purposes of enhanced penalty, both were charged under Wyoming's habitual criminal statute. 3  Both were found to be habitual criminals pursuant to W.S. 6-10-201(b)(ii) (June 1988 Repl).  Amin was sentenced to two concurrent life sentences, the sentences to be served consecutively to the sentences he is already serving.  Calkins was sentenced to two concurrent terms of forty to fifty years, the sentences to be served consecutively to the sentences he is currently serving
                

DISCUSSION

Change of Venue

Amin and Calkins filed motions for change of venue on May 5, 1989, asserting they could not receive a fair trial, nor could an impartial jury be impaneled, in Rawlins. The motions were based on the volume of publicity the case received in the local press, as well as upon the economic and social role the Wyoming State Penitentiary plays in Carbon County and Rawlins.

This court has dealt with the subject of change of venue on many and varied occasions, and the law of this jurisdiction is well within the mainstream of other jurisdictions, taking account of United States Supreme Court decisions, as well as other relevant federal precedent. See Annotation, Pretrial Publicity in Criminal Case as Ground for Change of Venue, 33 A.L.R.3d 17 (1970); and Annotation, Pretrial Publicity as Affecting Defendant's Right to Fair Trial, 10 L.Ed.2d 1243 (1964).

Change of venue was, perhaps, most eloquently discussed by Justice Blume in State v. Hambrick, 65 Wyo. 1, 196 P.2d 661 (1948), reh'g denied, 65 Wyo. 1, 198 P.2d 969. In Hambrick, a defendant was found guilty on forty-six counts of embezzling funds from Memorial Hospital of Carbon County. A vituperative editorial appeared in the local paper only two days before trial. A motion for change of venue was denied when the trial court was able to impanel an impartial jury. This court held that it is insufficient to merely show that great prejudice exists against an accused, rather, it must appear that the prejudice existing will have the effect of denying the accused a fair trial. Moreover, the decision to grant a change of venue is within the sound discretion of the trial court and, unless there has been an abuse of that discretion the supreme court cannot intervene. Id., 65 Wyo. at 13-20, 196 P.2d at 663-67.

In Collins v. State, 589 P.2d 1283, 1287-90 (Wyo.1979), this court repeated the conclusions reached in Hambrick and recognized that the fairness of a trial must be tested against the imperatives of Art. 1, § 10, Wyo. Const. and the sixth amendment, U.S. Constitution. In Collins there was substantial publicity which had come to the attention of most of the venire of Gillette. That case involved the murder of two well-known citizens of Campbell County. In addition to the volume of publicity, a bombing occurred at the site of the murders shortly before trial, although no connection was established between the bombing and the murder trial. This court examined both the nature and the extent of the publicity and determined that it was factual, not inflammatory and not excessively extensive. Moreover, the district court was able to seat an impartial jury. Under those circumstances, this court held that the district court did not abuse its discretion in denying a motion for change of venue.

In Murray v. State, 671 P.2d 320 (Wyo.1983), these time-honored and constitutionally sound principles were again employed. Id., 325-27. Murray was charged with attempted sexual assault and felony murder of an 82-year-old woman who resided in a small Wyoming town. In the assault, the victim suffered broken teeth, multiple bruises, and fractures of ten ribs. The pretrial publicity consisted of seven factual newspaper stories over a period of two months between the time of the crime and Murray's trial. Seven jurors were excused for cause because they stated they could not be impartial; however, a jury was seated in just over one day without significant difficulty. Again, this court concluded that the district court had not abused its discretion in denying a motion for change of venue.

Turning to our present case, we note that the news reports in the record reflect factual reporting of the circumstances of the crime, and none contain inflammatory language. Almost all were published within five months after the crimes, although the trial did not take place until almost fifteen months after the crimes were committed. A second round of factual reports appeared in December 1989. One item was a story about what life was then like for the two counselors who had been taken hostage a year before. Another dealt with a hunger strike that Amin and Calkins had undertaken in December 1989. Two other stories related that the trial had been delayed again, several continuances having been previously granted. This court concludes, in harmony with previous decisions in this regard, that neither the nature nor the extent of news coverage in this case provide justification for questioning the district court's decision to deny the motions for change of venue. State v. Wagner, 410 N.W.2d 207, 210-11 (Iowa 1987).

It was evident from voir dire that most of the persons called for jury duty had read or heard news reports about the crimes, but that was not universally true. The district court properly called to the attention of the jury pool the language of W.S. 7-11-106 (June 1987 Repl.) ⁴ , which provides that juror exposure to publicity about a criminal case is to be anticipated and, indeed, jurors may even have formed an opinion as to the guilt of the accused, which by itself, is not a ground for requiring a change of venue. The test is whether a juror can lay aside his opinion and render a verdict based on the evidence. See Smethurst v. State, 756 P.2d 196, 198-99 (Wyo.1988).

Amin and Calkins point to incidents which occurred in the presence of the jury pool to demonstrate abuse of discretion in refusal of the motion for change of venue. These "incidents" inform us that potential jurors who held firm opinions about the case were removed from the pool, that queries into possibly prejudicial biases or knowledge of individual potential jurors were conducted out of the hearing of the rest of the pool, and that several potential jurors knew someone employed at the penitentiary. This illustrates a carefully controlled and thorough voir dire. This evidence is well short of that required to compel a change of venue. Most tellingly, we are able to review voir dire of those ultimately selected for the jury. There is nothing in their responses to suggest that any of the actual jurors would be unable to render a verdict in conformity with all standards relevant to a fair trial.

The record is thorough on this point, which made it possible to review the voir dire procedure for each juror. None of the incidents ⁵ referred to is significant nor any cause for the motion to be granted. Further, our study of the voir dire jury, those who actually served, revealed there was no evidence that any one juror would be unable to render a verdict in absolute conformity with all standards relevant to a fair...