Bhutto v. State

• Decision Date: 13 July 2005
• Docket Number: No. 04-89.,04-89.
• Citation: 2005 WY 78,114 P.3d 1252
• Parties: Rehan BHUTTO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

114 P.3d 1252

2005 WY 78

Rehan BHUTTO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-89.

Supreme Court of Wyoming.

July 13, 2005.

Representing Appellant: Kenneth Koski, Public Defender; Donna Domonkos, Appellate Counsel; and Megan L. Hayes.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Senior Assistant Attorney General.

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

VOIGT, Justice.

[¶ 1] The appellant was convicted of premeditated first-degree murder for killing Valerie McCarthy. The appellant raises numerous issues concerning the proceedings that led to his conviction, the constitutionality of the sentence imposed upon him, and the delay in docketing this appeal. We affirm.

ISSUES

1. Did the district court err in not suppressing statements the appellant made to law enforcement officers?

2. Did the district court err in admitting certain uncharged misconduct evidence?

3. Did the district court err in admitting certain photographs into evidence?

4. Did cumulative error occur?

5. Is the life imprisonment without parole provision of Wyo. Stat. Ann. § 6-2-101(c) (LexisNexis 2003) unconstitutional?

6. Did delay in docketing this appeal deprive the appellant of his right to meaningful appellate review?

FACTS

[¶ 2] At about 6:15 a.m., on April 25, 2001, Casper police officers responding to appellant's 911 emergency call found Valerie McCarthy dead on the couple's bed.¹ She had been shot in the head, and a pistol was found underneath a pillow on the bed. The appellant told the officers that he had last seen Ms. McCarthy when she went to bed around 9:00 the previous evening. He stated that he had fallen asleep on the couch watching television, and that he had discovered Ms. McCarthy in the morning after showering and getting ready for work. He then called 911 and told the police that Ms. McCarthy had committed suicide.

[¶ 3] At approximately 7:00 a.m., the appellant agreed to accompany the officers to the police station. Once there, he waited in an interview room for investigators to arrive. Detective Dietz began interviewing the appellant at about 7:40 a.m., after telling the appellant that he was not in custody and was free to leave. Detective Kirkendall joined the interview at 8:00 a.m. During the interview, the appellant stated his belief that Ms. McCarthy was "involved" with someone else. This statement, coupled with information from the crime scene, led the detectives to believe that the appellant may have killed Ms. McCarthy. Consequently, at about 9:15 a.m., they advised him of his Miranda rights.²

[¶ 4] Despite being "Mirandized," the appellant indicated his willingness to continue talking to the detectives. In fact, he interrupted the advisement of his rights to say, "let me finish this first, I want to tell you about this." He then continued to discuss with the detectives his relationship with Ms. McCarthy and a timetable of recent events. When the detectives informed him around 10:00 a.m. that the evidence in the case did not seem to support what he was telling them, the appellant replied, "I will pay elsewhere, I'll pay with my God." In a statement that Detective Dietz characterized as being "a little out of context," the appellant then said that Ms. McCarthy put the pistol under her pillow to protect herself because she was afraid of him.

[¶ 5] The detectives attempted to follow up on their interview with the appellant by asking him specific questions. After several minutes of what Detective Dietz later described as the appellant answering questions with questions and trying to lead the interview in different directions, the appellant stated, "I think I want my attorney here now." Upon clarifying that this was an unequivocal request for counsel, the detectives ceased the interrogation. However, the appellant asked the detectives how he could re-contact them if he changed his mind. In response, Detective Kirkendall gave the appellant a "re-initiation of contact" form.

[¶ 6] Detectives Dietz and Kirkendall left to conduct further investigation, including interviews and the preparation of search warrant affidavits, one of the latter intended to obtain a warrant to search the appellant's person for evidence. The appellant remained in the interview room, now under the supervision of Detective Freel, with whom the appellant was personally acquainted. Knowing of the appellant's request for counsel, Detective Freel did not question the appellant. However, while the detective was escorting the appellant to the restroom, the appellant asked what he should do, and Detective Freel responded that he could not give him legal advice, but the appellant should tell the detectives the truth. When the appellant told Detective Freel that is what he wanted to do, the detective went and informed Detectives Dietz and Kirkendall of that fact. The latter two then went back into the interview room, but left without further questioning the appellant because he would not sign the form to re-initiate contact.

[¶ 7] Soon after the aborted re-contact, the appellant asked for another restroom break. Detective Freel again responded, and the appellant again asked what he should do. Detective Freel pointed out the failed re-contact and asked what the appellant would like him to do. The appellant said that he did not trust the other detectives, but that he would like to talk to Detective Freel. Detective Freel then obtained a tape recorder, another re-contact form, and a Miranda-rights form. What followed was a two-hour interview, during which the appellant admitted killing Ms. McCarthy because of her disclosure of unfaithfulness.

[¶ 8] Additional facts will be noted as they pertain to particular issues.

DISCUSSION

Motion to Suppress

[¶ 9] The appellant remained in the police station interview room from approximately 7:00 a.m. to 4:30 p.m., with only a few restroom breaks. He was not provided with lunch, and he complained frequently of a headache. The officers testified that, although the appellant had voluntarily accompanied them to the station, he was not free to leave after his constitutional rights were explained to him at about 9:15 a.m. He requested counsel an hour later, and the interview ended. The appellant was not allowed to leave, however, and, after signing a re-contact form, he eventually confessed to killing Ms. McCarthy.

[¶ 10] With these facts in mind, the appellant filed a pretrial motion to suppress his statement to Detective Freel. The district court heard that and other motions on August 31 and September 4, 2001. The motion was denied. In its decision letter, the district court identified three issues surrounding the April 25th statement: (1) whether the statement was obtained during custodial interrogation; (2) whether the statement was voluntary; and (3) whether the appellant reinitiated contact with the detectives after requesting counsel.

[¶ 11] We set forth our standard for reviewing the denial of a motion to suppress as it concerns these issues in Gunn v. State, 2003 WY 24, ¶¶ 5-12, 64 P.3d 716, 719-21 (Wyo.2003):

"`When we review a district court's ruling on a motion to suppress evidence, we do not interfere with the findings of fact unless they are clearly erroneous. When the district court has not made specific findings of fact, we will uphold its general ruling if the ruling is supportable by any reasonable view of the evidence. We consider the evidence in the light most favorable to the district court's ruling because of the district court's ability to assess "the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions" at the hearing on the motion.'"

Meek v. State, 2002 WY 1, ¶ 8, 37 P.3d 1279, 1282 (Wyo.2002) (quoting Frederick v. State, 981 P.2d 494, 497 (Wyo.1999)). Voluntariness, however, is a question of law; thus, it is reviewed de novo. Lewis v. State, 2002 WY 92, ¶ 18, 48 P.3d 1063, 1068 (Wyo.2002).

. . .

Statements made by a suspect during custodial interrogation are admissible into evidence, providing certain advisements are made. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Statements made during custodial interrogation must be excluded upon a showing that the defendant was not advised of his Miranda rights. Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000),cert. denied, 535 U.S. 1106, 122 S.Ct. 2315, 152 L.Ed.2d 1069 (2002). In Dickerson, 530 U.S. at 435,120 S.Ct. 2326, the United States Supreme Court stated:

"Accordingly, we laid down `concrete constitutional guidelines for law enforcement agencies and courts to follow.' ... Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as `Miranda rights') are: a suspect `has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.'"

Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. See also Glass v. State, 853 P.2d 972, 976 (Wyo. 1993) and Wunder v. State, 705 P.2d 333, 334 (Wyo.1985). Neither general on-the-scene questioning as to facts surrounding a crime nor statements volunteered freely without compelling influences are considered to fall within this definition. Miranda, 384 U.S. at 477-78, 86 S.Ct. 1602.

The totality of the...