Bolen v. State
| Docket Number | S-23-0031,S-23-0154 |
| Decision Date | 02 May 2024 |
| Citation | 547 P.3d 961 |
| Parties | Solomon Preston BOLEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Converse County, The Honorable F. Scott Peasley, Judge
Representing Appellant: Office of State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Jeremy Meerkreebs, Assistant Appellate Counsel. Argument by Mr. Meerkreebs.
Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General. Argument by Ms. Jones.
Before FOX, C.J., and KAUTZ*, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Solomon Bolen was convicted of numerous offenses including attempted second-degree murder and aggravated assault and battery. On appeal, he claims the district court violated his due process rights when it did not instruct the jury on his not guilty by reason of mental illness or deficiency (NGMD plea, and his attorneys were ineffective when they did not seek those instructions. He further contends his convictions for attempted second-degree murder and aggravated assault and battery violated his right against double jeopardy. We affirm.
[¶2] Mr. Bolen raises three issues, which we rephrase as follows:
1. Did the district court violate Mr. Bolen’s right to due process when it did not instruct the jury on his NGMI defense?
2. Did Mr. Bolen receive ineffective assistance of counsel when his attorneys did not renew their request for NGMI instructions or a special verdict form?
3. Do Mr. Bolen’s convictions for attempted second-degree murder and aggravated assault and battery violate his right against double jeopardy?
[¶3] On October 5, 2021, Mr. Bolen set out from Sterling, Colorado with his girlfriend and their young son. They were headed to the home of Meredith and Lewis Stock in Douglas, Wyoming. Mr. Bolen had lived with the Stocks in 2016 and used to be in a relationship with Lewis Stock’s daughter, Laura Stock.
[¶4] The three stopped in Glendo, Wyoming to rest and arrived at the Stock home on the morning of October 6. Throughout the trip, Mr. Bolen had used methamphetamine, and when they arrived, he was upset and behaving in a hyperactive and erratic manner. He told Meredith Stock that Laura Stock was harassing him, and, although Ms. Stock could tell Mr. Bolen was upset, she did not understand why because his conversation was "all over the place."
[¶5] After his conversation with Ms. Stock, Mr. Bolen called 911, and Deputies Mark Dexter and Russell Smith of the Converse County Sheriff’s Department responded. Deputy Smith, who was the first to arrive, found Mr. Bolen upset because he thought his girlfriend and son were missing, though he then told Deputy Smith that he had found them. Mr. Bolen also wanted to report sex trafficking and prostitution he believed to be occurring in the Sterling area. Deputy Smith found Mr. Bolen’s story disjointed and erratic, but he told Mr. Bolen he would report his concerns to Colorado authorities.
[¶6] Deputy Dexter also spoke with Mr. Bolen, and Mr. Bolen repeated his report of prostitution in Colorado. He also told Deputy Dexter that people were breaking into his hotel room in Colorado and taking things, and he showed him a cell phone photo of a broken door jamb that Deputy Dexter felt was consistent with his claim. Deputy Dexter found Mr. Bolen to be agitated and speaking fast with his conversation all over the place. He also thought Mr. Bolen seemed paranoid and was likely under the influence of a controlled substance.
[¶7] When the deputies again informed Mr. Bolen that all they could do was forward his report to the appropriate Colorado authorities, he became agitated and asked them to leave. After the deputies left, Mr. Bolen took an older brown truck belonging to Mr. Stock and drove to the Stocks’ rental property. He entered the residence and removed firearms and a pair of binoculars belonging to the Stocks’ renter, Tracy Sanborn. From there, he drove to an adjacent property owned by Frank and Diane Prado.
[¶8] The Prados allow friends to hunt on their ranch, and on that morning there were three hunters from California on the property. Brothers Richard and John Cleary and their friend George Heger had stayed in a trailer on the property and were packing up their camp in preparation for their return home when Mr. Bolen approached the men on foot.
[¶9] After introducing himself and engaging in some casual conversation, Mr. Bolen asked the hunters who was inside the trailer, if someone was under the trailer, and if he could look inside the trailer. The men found these questions strange, and they told Mr. Bolen he was trespassing and needed to leave. Mr. Bolen stormed off and stated: "I don’t give a f*ck," and "It’s going to be getting federal here in about 10 minutes."
[¶10] The men heard a vehicle start up and saw Mr. Bolen in a brown truck speeding down the Prados’ driveway toward the main residence. They decided to follow him to make sure he was not doing anything wrong. John Cleary was driving, George Heger was in the front passenger seat, and Richard Cleary was in the back seat.
[¶11] When the hunters arrived at the Prados’ residence, they saw the brown truck parked in front of the house and the front door open about a foot. They parked adjacent to the front door, and almost immediately, Mr. Bolen came out the door, aiming one of Frank Prado’s rifles at them. They attempt- ed to leave, but as they drove around the circular driveway, Mr. Bolen fired at them. The bullet entered the front passenger door of the truck and passed through George Reger’s lower left leg, shattering his tibia and fibula and causing extensive soft tissue, arterial, and nerve damage. The bullet then passed through both of John Cleary’s lower legs before becoming embedded in the driver’s side door. Like Mr. Reger, John Cleary sustained serious injuries to his lower legs, including a shattered tibia and broken fibula on his right leg.
[¶12] John Cleary was able to drive a little further down the driveway, and the men took cover behind some hay bales. Mr. Bolen then left the Prado residence, drove across the Prado hay field, and returned to the Stock residence. When he arrived at the Stock residence, Mr. Bolen told his girlfriend: He also told Meredith Stock he shot someone. He stayed at the Stock residence for about ten minutes before leaving in a different green truck that belonged to Mr. Stock.
[¶13] George Reger managed to call 911 and reported two people had been shot by a "crazy black male" who had fled and was heading east. Responding deputies encountered Mr. Bolen as he was driving the green truck away from the Stocks’ property. After briefly attempting to elude the deputies, Mr. Bolen was arrested. While searching Mr. Bolen incident to his arrest, deputies found a yellow straw in his pants pocket that contained the residue of a substance later confirmed to be methamphetamine.
[¶14] Mr. Bolen was charged with 16 counts: three counts of attempted second-degree murder; three counts of aggravated assault and battery;1 two counts of aggravated burglary (of the Sanborn and Prado residences); one count of aggravated robbery (of the Prado residence); one count of property destruction (damage to personal property of Sanborn); two counts of property destruction and defacement (damage to Stock vehicle and Prado hay field); one count of fleeing or attempting to elude police officers; one misdemeanor count for possession of methamphetamine; one count of unauthorized use of a vehicle; and one count of driving while under the influence of a controlled substance.2
[¶15] Shortly after Mr. Bolen’s arraignment, defense counsel filed a motion for a competency evaluation pursuant to Wyo. Stat. Ann. § 7-11-303 (2023). Dr. Renee Wilkinson from the Wyoming State Hospital examined Mr. Bolen and recommended he be found competent to proceed. The district court held a hearing on the evaluation and found Mr. Bolen mentally fit to proceed.
[¶16] During that same hearing, Mr. Bolen indicated, based on findings in the competency evaluation, that he would like to change his plea from not guilty to concurrent pleas of not guilty and NGMI. The district court entered the pleas and ordered an NGMI evaluation pursuant to Wyo. Stat. Ann. § 7-11-304 (2023).
[¶17] After completing an NGMI evaluation, Dr. Wilkinson opined Mr. Bolen did not meet the statutory criteria for an NGMI defense. Dr. Wilkinson noted there was "significant evidence" Mr. Bolen was under the influence of methamphetamine and alcohol at the time of the crimes, and although he had an "altered state of mind" and was psychotic at that time, his condition was caused by self-induced intoxication, which is specifically excluded from the statutory definition of mental illness or deficiency.
[¶18] The district court held another hearing after receiving the NGMI evaluation, which Mr. Bolen refused to attend. Mr. Bolen’s attorneys indicated they did not intend to request a second evaluation, and the court directed them to talk to Mr. Bolen about whether he wanted to change his plea in light of the report.
[¶19] Approximately two months before trial, the parties submitted stipulated jury instructions, which included instructions relating to an NGMI defense. At the pretrial conference about a month before trial, the district court asked if there was still an NGMI defense in the case. Defense counsel indicated there was, and that the defense intended to call Dr. Wilkinson to testify.
[¶20] Mr. Bolen put on a defense case and called Dr. Wilkinson as a witness. She testified to symptoms Mr. Bolen was experiencing on October 6, 2021, including delusions and paranoia, but she opined his behaviors were consistent with methamphetamine use, and he did not meet the statutory requirements to...
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