Boucher v. State

• Decision Date: 04 January 2011
• Docket Number: No. S-10-0029.,S-10-0029.
• Citation: 2011 WY 2,245 P.3d 342
• Parties: Donald J. BOUCHER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

245 P.3d 342

2011 WY 2

Donald J. BOUCHER, Appellant (Defendant),

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

No. S-10-0029.

Supreme Court of Wyoming.

Jan. 4, 2011.

Representing Appellant: Diane M. Lozano, State Public Defender, and Tina N. Kerin Appellate Counsel, Wyoming Public Defender Program.Argument by Ms. Kerin.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General;D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General.Argument by Ms. Craig.

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

VOIGT, Justice.

[¶ 1]Donald J. Boucher(the appellant) was convicted of six counts of sexual assault on a minor.He appeals from the Judgment and Sentence in that case claiming that his right to a speedy trial was violated, that the prosecutor committed misconduct, and that the district court abused its discretion in admitting certain evidence.Finding no reversible errors, we will affirm.

ISSUES

[¶ 2] 1.Was the appellant's Sixth Amendment right to a speedy trial violated?

2.Did the prosecutor commit misconduct requiring a reversal of the appellant's conviction?

3.Did the district court abuse its discretion when it denied the appellant's motion for mistrial based upon the jury watching a redacted videotaped interview of the victim?

4.Did the district court abuse its discretion when it admitted "flight evidence"?

FACTS

[¶ 3]The appellant was originally charged on February 15, 2001, by Information in Docket No. 29-853 with ten counts of second-degree sexual assault, each in violation of Wyo. Stat. Ann. § 6-2-303(a)(v)(LexisNexis 2001).An arrest warrant was issued for the appellant on the same day.Those crimes were allegedly committed in Cheyenne, Wyoming, while the appellant was living with his sister.At some point prior to being arrested for the above charges, the appellant moved to Arizona.The appellant was arrested under the warrant, in Arizona, but not until March 1, 2008.The record is unclear as to the reason for the seven-year delay between the issuance of the arrest warrant and the arrest of the appellant.In any case, the appellant pled not guilty and his trial was originally set for June 2, 2008, but then rescheduled for September 8, 2008.

[¶ 4] On September 4, 2008, after questions were raised by the appellant's trial counsel as to the dates that the State claimed the crimes took place, the State filed a motion for continuance on the grounds that the State needed more time to investigate the exact dates of the alleged crimes.On September 4, 2008, the State requested permission to amend the Information to correct the dates, or to dismiss and re-file the charges, because the dates alleged in the Information were significantly incorrect.Not surprisingly, the defense opposed the State's request to be allowed to amend the Information or to dismiss the case without prejudice and re-file with the corrected dates.On September 18, 2008, the State filed a Motion for Dismissal, which motion was granted by the district court on September 22, 2008, dismissing the charges against the appellant without prejudice.

[¶ 5] On October 1, 2008, the appellant was charged by Information in Docket No. 30-066, with five counts of second-degree sexual assault, each in violation of Wyo. Stat. Ann. § 6-2-303(a)(v), and one count of third-degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-304(a)(iii)(LexisNexis 2001).The Information contained the corrected and more precise dates of the alleged crimes.The appellant pled not guilty and his trial was set for February 2, 2009, but was later rescheduled for April 6, 2009.

[¶ 6] On January 16, 2009, the appellant filed a Motion to Dismiss arguing that his right to a speedy trial, guaranteed to him by W.R.Cr.P. 48, the Wyoming Constitution, and the United States Constitution, had been violated.A hearing was held regarding the appellant's Motion to Dismiss, at which hearing the appellant's counsel argued that the delay from the time of the appellant's arrest until the time he was actually going to be brought to trial would violate his right to a speedy trial, and thus the charges against him should be dismissed.The district court determined that no speedy trial violation had occurred and denied the appellant's Motion to Dismiss.It is important to note that the appellant's trial counsel never raised the issueof the delay between the time the original Information was filed in 2001 and the time of his arrest in 2008.The speedy trial claim associated with the Motion to Dismiss was based solely on the time from arrest until trial.More will be said about this below.The appellant went to trial on April 6, 2009, and was convicted by a jury of all six counts against him.The appellant was sentenced to 30 to 60 years incarceration.This appeal followed.

DISCUSSION

Was the appellant's Sixth Amendment right to a speedy trial violated?

[¶ 7]The appellant argues that his right to a speedy trial was violated because 2,971 days passed from the time a warrant was issued for his arrest until the time of his trial.¹We have repeatedly stated that we review de novo the constitutional question whether an appellant was denied his right to a speedy trial.Humphrey v. State,2008 WY 67, ¶ 18, 185 P.3d 1236, 1243(Wyo.2008);Strandlien v. State,2007 WY 66, ¶ 5, 156 P.3d 986, 989-90(Wyo.2007);Berry v. State,2004 WY 81, ¶ 17, 93 P.3d 222, 227-28(Wyo.2004);Warner v. State,2001 WY 67, ¶ 9, 28 P.3d 21, 26(Wyo.2001).²Furthermore, "We review the district court's factual findings for clear error."Humphrey,2008 WY 67, ¶ 18, 185 P.3d at 1243.

[¶ 8]"The Sixth Amendment to the United States Constitution guarantees that the accused shall enjoy the right to a speedy and public trial."Warner,2001 WY 67, ¶ 10, 28 P.3d at 26.The right to a speedy trial is a fundamental right and is binding on the states through application of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.Barker v. Wingo,407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101(1972);Klopfer v. North Carolina,386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1(1967)."[T]he protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution."United States v. Marion,404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468(1971).Accordingly, the metaphorical clock for speedy trial purposes begins to tick at the time of arrest, information, or indictment, whichever occurs first.Humphrey,2008 WY 67, ¶ 21, 185 P.3d at 1244;Strandlien,2007 WY 66, ¶ 8, 156 P.3d at 990;Campbell v. State,999 P.2d 649, 655(Wyo.2000);Wehr v. State,841 P.2d 104, 112(Wyo.1992);Harvey v. State,774 P.2d 87, 94(Wyo.1989);see alsoDoggett v. United States,505 U.S. 647, 655, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520(1992);United States v. MacDonald,456 U.S. 1, 6, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696(1982);Marion,404 U.S. at 320-21, 92 S.Ct. at 463-64.

[¶ 9] To determine whether an accused has been denied his right to a speedy trial, we consider four factors: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his right; and 4) the prejudice to the defendant.Strandlien,2007 WY 66, ¶ 6, 156 P.3d at 990;Warner,2001 WY 67, ¶ 10, 28 P.3d at 26;see alsoBarker,407 U.S. at 530, 92 S.Ct. at 2192.None of these factors are dispositive, rather the factors " 'must be considered together with such other circumstances as may be relevant.' "Warner,2001 WY 67, ¶ 10, 28 P.3d at 26(quotingBarker,407 U.S. at 533, 92 S.Ct. at 2193).The ultimate " 'inquiry is whether the delay in bringing the accused to trial was unreasonable, that is, whether it substantially impaired the right of the accused to a fair trial.' "Warner,2001 WY 67, ¶ 10, 28 P.3d at 26(quotingWehr,841 P.2d at 112).When a speedy trial violation has occurred, the charges must be dismissed.Humphrey,2008 WY 67, ¶ 20, 185 P.3d at 1244.We will address each of the Barker factors below to determine the validity of the appellant's speedy trial claim.

Length of the Delay

[¶ 10] This first factor is a threshold factor which requires a calculation of the length of delay in bringing the appellant to trial.Strandlien,2007 WY 66, ¶ 7, 156 P.3d at 990.There is no precise length of delay that automatically constitutes a constitutional speedy trial violation.Berry,2004 WY 81, ¶ 32, 93 P.3d at 231."However, when the delay is so protracted as to be presumptively prejudicial, inquiry into the other factors is required."Id.As we noted above, the speedy trial clock begins to run at the time of arrest, information, or indictment, whichever occurs first.Seesupra¶ 8.Once the right to a speedy trial has attached, that right "continues until the defendant is convicted, acquitted or a formal entry is made on the record of his case that he is no longer under indictment."Berry,2004 WY 81, ¶ 32, 93 P.3d at 231(quoting [4 Wayne R.] LaFave, [Jerold H.] Israel[, & Nancy J.] King, [ ]Criminal Procedure§ 18.1(c), [at] 670-71 [ (2d ed. 1999) ] ).If the State dismisses charges, and then re-files, the original date of the arrest, information, or indictment is still the controlling date for calculation purposes; however, the interim period between dismissal of charges and re-filing is not counted as long as the defendant is neither under arrest nor formally charged.Id.;see alsoStrandlien,2007 WY 66, ¶ 8, n. 6, 156 P.3d at 990 n. 6.Moreover, " '[T]he periods of formal charge by a single sovereign for the same criminal act are tacked together even if the charges are different.' "Humphrey,2008 WY 67, ¶ 21, 185 P.3d at 1244(quotingStrandlien,2007 WY 66, ¶ 8, 156 P.3d at 990).

[¶ 11] In the current case, the record reflects that the original Information charging the appellant was filed on February...