Bloomquist v. State
| Decision Date | 03 April 1996 |
| Docket Number | No. 95-65,95-65 |
| Citation | 914 P.2d 812 |
| Parties | James BLOOMQUIST, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia L. Hackl, State Public Defender; and Deborah Cornia, Assistant Public Defender, for Appellant.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael
Pauling, Senior Assistant Attorney General; and Mary B. Guthrie, Special Assistant Attorney General, for Appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant James Bloomquist appeals from his conviction for aggravated vehicular homicide.
We affirm.
Appellant presents several issues for our review:
Issue I
Did the trial court abuse its discretion and deny Appellant the right to confront an adverse witness when it ruled that the State's expert witness was unavailable and admitted the witness' videotaped deposition into evidence?
Issue II
Was the Appellant denied his constitutional right to a unanimous verdict?
Issue III
Was Appellant denied effective assistance of counsel due to trial counsel's deficient performance?
Issue IV
Did the sentencing proceeding violate Appellant's right to due process, and Wyoming Rule of Criminal Procedure 32, as well as the Eighth Amendment to the United States Constitution and Article 1 Section 14 of the Wyoming Constitution?
Issue V
Was the evidence produced at trial sufficient to prove beyond a reasonable doubt that the Appellant caused the death of his passenger?
Issue VI
Was the cumulative effect of the errors discussed above such as to deny the Appellant his right to a fair trial and substantial justice?
At approximately 10:15 p.m. on December 6, 1993, Patrolman Earl Frye, who was patrolling the highway between Glenrock and Casper, came upon a Jeep which was parked diagonally in the right westbound lane of I-25 just east of Casper. The door on the driver's side of the Jeep was open, the Jeep's engine was not running, and its headlights were not turned on. Patrolman Frye checked the inside of the Jeep and found that it was empty. Shortly thereafter, a truck driver, who was traveling on the eastbound side of the interstate, advised Patrolman Frye that a man's body was lying in the road. Patrolman Frye drove to the paved crossover and proceeded to the location where the victim was lying. He examined the man, determined that he had suffered severe body and head trauma, and concluded that he was dead.
Patrolman Frye subsequently investigated the accident scene by examining the path that the vehicle traveled and the markings which were left. He established that, as the Jeep was traveling in an easterly direction, it drifted off the left side of the road. It made a sharp turn to the right and then a hard turn to the left. The vehicle became airborne as it entered the median, and it remained airborne for thirty-two feet, five inches. The Jeep skidded to a stop in the westbound lane of the interstate.
During Patrolman Frye's investigation, he determined that the victim had been ejected from the Jeep through the passenger door when the vehicle made the sharp turn to the left and that he had landed in the eastbound lanes of traffic. The position of the victim's body as well as the damage on the passenger door supported Patrolman Frye's conclusion. The fabric and flesh transfers which Patrolman Frye found on the pavement were also consistent with a conclusion that the victim had been ejected through the Jeep's passenger door.
Witnesses testified that the victim had been lying on his back, lifting his head, trying to sit up but that several vehicles subsequently ran over him because it was dark and very difficult for anyone to see him. The coroner determined that a head injury was After sitting in a field and watching the accident scene for approximately ninety minutes, Appellant approached a patrolman and identified himself as the driver of the Jeep. He was very cold, he smelled of alcohol, his speech was slurred, and he staggered when he walked. Appellant was informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and then questioned. Although he later denied that a third person was in the Jeep, Appellant originally explained that he, the victim, and another individual were in the Jeep and that they were traveling east on I-25 at a high rate of speed after having consumed a substantial amount of alcohol and some marijuana when he lost control of his Jeep.
the cause of the victim's death. The victim had a blood alcohol content of .32 percent.
At approximately 1:30 a.m., more than three hours after the accident occurred, a sample of Appellant's blood was drawn in order to measure his blood alcohol content. The test showed that Appellant had a blood alcohol content of .21 percent.
Appellant was charged with aggravated vehicular homicide. The jury found Appellant guilty of the crime, and the trial court sentenced him to serve a term of not less than twelve years nor more than fourteen years in the Wyoming State Penitentiary. Appellant appeals to this Court.
Appellant claims that the trial court abused its discretion and denied him his right to confront an adverse witness when it ruled that Patrolman Rick Dye, an accident reconstructionist, was unavailable and admitted his videotaped deposition into evidence.
The trial date was continued several times. Patrolman Dye had incurred nonrefundable expenses in connection with a vacation he was planning to take. His vacation date and the date to which the trial had been continued conflicted with each other. The district attorney, therefore, requested permission to take and videotape Patrolman Dye's deposition. The trial court granted the request. Patrolman Dye testified that, although he could not determine how fast the vehicle was moving when it went out of control, he was able to determine that, at the point where the Jeep began skidding to a stop, it was going fifty-four miles per hour. He also testified that the victim had been ejected from the vehicle when it veered radically to the left.
The trial court allowed the prosecution to use Patrolman Dye's videotaped deposition at trial in lieu of his live testimony and, pursuant to W.R.Cr.P. 15, W.R.E. 803(24), and W.R.E. 804(b)(6), admitted the deposition into evidence over the defense counsel's objections. W.R.Cr.P. 15(e), which addresses the subject of depositions, provides in pertinent part:
(e) Use.--At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a), W.R.E., or the witness gives testimony at the trial or hearing inconsistent with that witness's deposition.
The pertinent portion of the unavailability definition found in W.R.E. 804(a)(5) is as follows:
(a) Definition of unavailability.--"Unavailability as a witness" includes situations in which the declarant:
. . . . .
(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
The determination of whether a witness is unavailable is a matter which rests within the discretion of the trial court, and we will not overturn that determination unless a showing has been made that the trial court abused its discretion. Williams v. Collins Communications, Inc., 720 P.2d 880, 889 (Wyo.1986). The proponent of the evidence bears the burden of establishing that the witness is unavailable. Id.; Grable v. State, 649 P.2d 663, 672 (Wyo.1982). The witness's absence from the state will not be sufficient, except in the most unusual circumstances, to We find guidance on this issue from a similar Washington Court of Appeals case. State v. Sanchez, 42 Wash.App. 225, 711 P.2d 1029 (1985). In Sanchez, the defendant was charged with "negligent homicide by means of a motor vehicle" after he had driven when he had a blood alcohol content of .19 percent and had caused the death of another person. 711 P.2d at 1031. The trial was continued to a date on which the arresting deputy had planned to be on vacation in Mexico. Id. The prosecution was allowed to preserve the deputy's testimony by way of a videotaped deposition at which all parties were present. Id. Over the objection of the defense, the trial court allowed the videotape into evidence at trial. Id. On appeal, the Washington Court of Appeals reversed the defendant's conviction because the prosecution had failed to establish that the deputy was in fact unavailable to testify at the trial. 711 P.2d at 1033. The court had the following to say with regard to the unavailability requirement:
establish that the witness is unavailable. Williams, 720 P.2d at 890.
[T]he State did not show that [the deputy] was obliged to leave the jurisdiction. Further, the State did not show that it tried to subpoena her or attempt to use reasonable means to procure her attendance at trial. The court arrived at its decision that she was unavailable out of respect for her vacation plans. This does not satisfy the requirement of unavailability. Because the prosecution failed to show a good faith effort to obtain [the deputy's] testimony at trial, the videotape deposition was improperly admitted into evidence.
Id. We have held that the "catch-all" exceptions under W.R.E. 803(24) and 804(b)(6) are to be used cautiously and only in exceptional cases.
In the case at bar, the State failed to demonstrate that it was unable to procure Patrolman Dye's attendance at the trial by process or by any other reasonable means. The deposition testimony was used out of consideration for Patrolman Dye's vacation plans. We agree with the Washington Court of Appeals that unavailability due to vacation plans does not satisfy the unavailability requirement. The trial court,...
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