Bittleston v. State

• Decision Date: 20 June 2019
• Docket Number: S-18-0233
• Parties: Justin Wade BITTLESTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

442 P.3d 1287

Justin Wade BITTLESTON, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-18-0233

Supreme Court of Wyoming.

June 20, 2019

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Professor Lauren McLane, Faculty Director, and Dami R. Metzler, Student Intern, of the Defender Aid Clinic, University of Wyoming College of Law. Argument by Ms. Metzler.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Katherine A. Adams,^* Senior Assistant Attorney General; Kelly D. Mullen, Assistant Attorney General. Argument by Ms. Mullen.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Justin Bittleston appeals his convictions of one count each of felony stalking and burglary. He claims that statements he made during a traffic stop should have been suppressed because he was not given a Miranda warning, and that his counsel was ineffective for having failed to move for their suppression. He further contends that the district court abused its discretion under W.R.E. 403 by admitting body camera footage of the stop. Lastly, he contends that the evidence was insufficient to support his convictions. We affirm.

ISSUES

[¶2] Mr. Bittleston presents five issues on appeal, which we summarize and restate as follows:

1) Was Mr. Bittleston denied effective assistance of counsel when his counsel failed to move to suppress statements he made without a Miranda warning?

2) Should the district court have suppressed the statements Mr. Bittleston made without a Miranda warning sua sponte?

3) Did the district court abuse its discretion in admitting body camera footage of Mr. Bittleston's traffic stop?

4) Were Mr. Bittleston's convictions supported by sufficient evidence?

[¶3] The State responds to those issues and presents an additional question of whether Mr. Bittleston waived his Miranda claim by failing to raise it before the district court.

FACTS

[¶4] Justin Bittleston and Kelley Skinner met on January 11, 2017 at the Beacon Club in Natrona County, where Ms. Skinner worked as a night manager and bartender. The two immediately began an intimate relationship, and he lived in her home for the next month and a half, aside from a week during that period when they were separated. On February 26, 2017, Ms. Skinner ended the relationship and removed Mr. Bittleston's belongings from her home. She broke the news to him while they were in her car, and he threw her house keys to the vehicle floor.

[¶5] Within an hour, Mr. Bittleston began sending Ms. Skinner text messages, and over the next two weeks, he sent hundreds of those messages and also left numerous voicemails. Ms. Skinner described the text messages as follows:

Q. Was he texting you the same kind of things after you broke up that he was before?

A. No.

Q. How were they different?

A. Threatening, derogatory, disrespectful, mean.

Q. Do you remember any specific language of these texts that were happening early on?

A. "Language" as in?

Q. The contents of the texts.

A. Yeah. Just asking me if this is what I wanted to do. You're going to be sorry. You better make sure that this is what you want. Calling me names.

Q. What names?

A. Cunt, whore, slut, you know, bitch, whatever, you know.

And then he would turn around and say, I love you. I don't want to do this. And then he would say, you – you know, You fucking whore. And it just would go from one – from nice to not nice, you know, back and forth.

Q. Now, when this was happening, were you responding to these texts?

A. At first, I was, because I told – I didn't want him bothering me anymore.

Q. So what would you say in your response?

A. I was just, like, You need to leave me alone. This is crazy. Stop texting me. You know, I can't sleep. You're affecting my work. You're affecting my job. Everything. It was affecting everything.

[¶6] On March 4, 2017, Mr. Bittleston sent Ms. Skinner a text message in which he told her he knew about "Ryan," and who he was. Ryan was a man Ms. Skinner had met on Facebook after her breakup with Mr. Bittleston.¹ Ms. Skinner then became concerned that Mr. Bittleston had been in her home, because the only place he could have seen the name was in her personal journal, which was kept there, and she had not made the journal entry until after her breakup with him. Because Ms. Skinner was at work when she received the text message, she contacted her best friend, Shawn McMillan, and asked her to call the police and check her home. Ms. McMillan did so, and the responding officers found no signs of forced entry but offered to walk Ms. Skinner through her home when she got off work.

[¶7] As promised, the officers met Ms. Skinner at her home after she completed her shift, and she walked through it with them. She did not notice anything out of place, and the officers left and she went to bed. After she went to bed, it occurred to her that she should check her journal. When she did so, she found that the page of which Mr. Bittleston had sent her a photo had been torn from the journal. On looking further, she also discovered that tip money and a key fob for her vehicle were also missing.

[¶8] The next day, Ms. Skinner had a friend change the locks on her home. While that was being done, Mr. Bittleston drove by Ms. Skinner's home twice, went around the block, and then pulled up and parked behind the friend's vehicle on the street. Mr. Bittleston stayed there for a couple of minutes, and Shawn McMillan, who was also present, contacted the Evansville Police Department.² Sergeant Norman Newsome responded, took Ms. Skinner's report, and reviewed some of the text messages Mr. Bittleston had sent her. The text message he later recalled was one in which Mr. Bittleston called Ms. Skinner a whore and told her she would be sorry. Sergeant Newsome advised Ms. Skinner where she could go to obtain a restraining order and then patrolled the immediate area.

[¶9] On March 10, 2017, Mr. Bittleston sent Ms. Skinner numerous text messages,³ with the last two of the night stating, "You laough all you want my turn now," and "The last mother fucker about died so laough all you want." On March 11, 2017, he again sent her numerous text messages, with the first of the morning stating, "What not so funny now." Other messages on the 11th included: "I got a new toy just for the occasion to;" "I can not wait;" "Peak a boo I see you;" "That's the question were am I at and when;" "I like my new toy;" "Bad mother fucker it is it is;" "Your loss and my gain maybe ill find a loyal woman;" "Cant wait to use my new toy oh boy oh boy this is gonna rock;" "That's right i am going to do just as i said watch its coming your a liar and now I know;" "I will do just as i said;" "Just time now;" "Unfaithful no loyalty bitch;" "My turn no;" and "Watch."

[¶10] On March 12, 2017, Mr. Bittleston sent his first text to Ms. Skinner at 7:43 a.m. It stated, "Good morning is it today." This was followed by, "its ok if not im not going a damn place tell its done," which was sent at 8:34 a.m., and "It will be done to," which was sent at 8:50 a.m. That same morning, Ms. McMillan was on her way to see Ms. Skinner and saw Mr. Bittleston drive by Ms. Skinner's home. Ms. McMillan contacted the Evansville Police Department and reported the sighting.

[¶11] Officer Brandy Parmely took the call, which she considered a suspicious activity call, at about 8:30 that morning, and she patrolled the area for the gold Nissan Mr. Bittleston was reported to be driving. She did not see the vehicle, and she then contacted Ms. McMillan, who gave her a general idea of what had gone on between Ms. Skinner and Mr. Bittleston. She then contacted Ms. Skinner and asked her to come in for an interview, and she attempted to contact Mr. Bittleston but was unable to reach him by phone.

[¶12] Later that same morning, Officer Parmely reopened the suspicious activity call when she saw Mr. Bittleston's gold Nissan in a store parking lot in Evansville. Because she was stopped on a nearby highway and not able to immediately reach the location of Mr. Bittleston's vehicle, she asked Natrona County Sheriff's Deputy Melanie Hoffman, who was patrolling in the area, to stop the vehicle so she could talk to Mr. Bittleston. At that point, Mr. Bittleston was on a side road traveling southbound, and Deputy Hoffman was traveling northbound. To stop Mr. Bittleston's vehicle, Deputy Hoffman pulled into his lane with her hood and rear lights activated.

[¶13] When Officer Parmely arrived, she activated her body camera. She then approached Mr. Bittleston's vehicle and spoke with him while he remained in the vehicle. From the time she activated the camera to the time she ended the contact with Mr. Bittleston, a total of two minutes and thirty-two seconds passed. During that time, Officer Parmely asked him if he had sent Ms. Skinner a thousand text messages in the last couple of weeks, and he nodded and responded, "Yeah." She stated that he had threatened to kill Ms. Skinner, and he denied that and said he would not hurt her, but he found a love letter on her kitchen table and it was the other guy he wanted to hurt. Officer Parmely told Mr. Bittleston that the text messages were not appropriate, and she warned him to have no further contact with Ms. Skinner and not to drive by her home or Ms. McMillan's home. He agreed that he would not. Nonetheless, at 5:58 that evening, Mr. Bittleston sent Ms. Skinner a text message that stated, "It wont be long at all."

[¶14] On July 31, 2017, the State filed an information charging Mr. Bittleston with one count of felony stalking and one count of burglary. The defense filed a motion in limine arguing that the body camera footage of Mr. Bittleston's traffic stop should be excluded pursuant to W.R.E. 403. The district court found that the video was not unnecessarily cumulative, and that its probative value was not outweighed...