Candelaria v. State

• Citation: 895 P.2d 434
• Decision Date: 05 May 1995
• Docket Number: No. 94-49,94-49
• Parties: Ruben Joseph CANDELARIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 434

895 P.2d 434

Ruben Joseph CANDELARIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-49.

Supreme Court of Wyoming.

May 5, 1995.

Leonard D. Munker, State Public Defender, and Deborah Cornia, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Attorney Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., and Mary Beth Wolff, Sr. Asst. Atty. Gen., for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

MACY, Justice.

Appellant Ruben Candelaria appeals from his conviction for two counts of homicide by vehicle.

We affirm.

Issues

Appellant presents five issues:

Issue I.

Did the trial court err when it failed to suppress the results of the second drug test performed on the Appellant?

Issue II.

Did the trial court err when it denied Appellant's theory of the defense instructions thus depriving Appellant of his constitutional right to due process?

Issue III.

Whether the Appellant's convictions must be reversed in accordance with this Court's decision in Bearpaw v. State, 803 P.2d 70 (Wyo.1990).

Issue IV.

Did the trial court err when it allowed a State's witness to testify in violation of a sequestration order?

Issue V.

Did the trial court abuse its discretion by sentencing the Appellant to the maximum term of two consecutive years?

Facts

During the evening of March 15, 1993, Appellant borrowed his cousin's car and drove around Cheyenne with several of his friends. Appellant had received his driver's license only four days earlier, and he had driven the car, which had a manual transmission, for the first time only three days before. Throughout the evening, Appellant dropped off some of the passengers and picked up others. Appellant and several of the passengers drank beer and smoked marijuana, and some of the passengers warned Appellant to pay attention to his driving and to watch the road. At around midnight, Appellant began driving fast and swerving at the mailboxes located along the side of the road. The passengers yelled at Appellant, and one of them again warned him to "quit driving crazy."

Appellant eventually lost control of the car south of Cheyenne on Wyoming Highway 223. The car left the pavement and traveled along the dirt shoulder. It returned to the pavement; swerved twice, leaving tire marks on the pavement; left the pavement a second time; and rolled down an embankment which was eighteen feet deep. All four occupants were ejected. Two passengers were killed while Appellant and the third passenger survived. None of the passengers was wearing a seat belt.

The prosecution filed an amended information which charged Appellant with two counts of aggravated homicide by vehicle as defined by WYO.STAT. § 6-2-106(b)(ii) (Supp.1994). After a four-day trial, the jury found Appellant guilty of homicide by vehicle pursuant to WYO.STAT. § 6-2-106(a) (Supp.1994). The district court sentenced Appellant to serve two consecutive terms of one year each in the county jail, ¹ and Appellant brought this appeal.

The Blood Test

Appellant contends that the district court violated W.R.E. 401, 402, and 403 when it failed to suppress the results of the second test made on the blood sample which had been taken from him at the hospital on the morning after the accident. Specifically, Appellant claims that the evidence was irrelevant and that the evidence prejudiced him unfairly and confused the jury. Appellant asserts that this error cannot be considered as being harmless.

"Questions of admissibility of evidence are within the sound discretion of the trial court, and its decisions will not be overturned absent a clear abuse of discretion." Furman v. Rural Electric Company, 869 P.2d 136, 140 (Wyo.1994). We recently summarized W.R.E. 401 and 402:

Evidence is relevant if it tends to make any fact of consequence more or less probable than it would be without that evidence. All relevant evidence is admissible, except as otherwise provided by statute, by [the Wyoming Rules of Evidence], or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible.

869 P.2d at 140 (citations omitted). See W.R.E. 401, 402. W.R.E. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

On the morning after the accident, a Wyoming highway patrolman obtained a sample of Appellant's blood. The Wyoming state health laboratory tested part of the sample for the presence of alcohol and sent another part of the sample to Analytitox, a Colorado laboratory, so that Analytitox could test the blood for the presence of metabolites of marijuana. The results of the test performed by Analytitox were negative because the amount of marijuana in the sample was below Analytitox's cutoff level. Approximately three and one-half months later, the prosecutor requested that a second test be made on the blood sample for the presence of metabolites of marijuana. Chemitox, another Colorado laboratory, performed the second test. Chemitox found a slightly greater amount of marijuana metabolites than Analytitox had found, and the results from the Chemitox test were consistent with the active use of marijuana. The defense counsel objected to the admission of the results of the second test as evidence, and the district court overruled the objection.

The evidence which showed that Appellant's blood contained traces of marijuana was relevant. The prosecution had presented evidence which indicated that the presence of marijuana in Appellant's blood could have impaired his driving ability. Evidence which demonstrated that Appellant's driving ability was impaired could lend support to the conclusion that Appellant was driving his vehicle in a reckless manner pursuant to § 6-2-106(b)(ii). ² See, e.g., Buckles v. State 830 P.2d 702, 706-07 (Wyo.1992) (evidence of cocaine metabolites would be relevant in an aggravated-vehicular-homicide prosecution).

The evidence did not unfairly prejudice Appellant or confuse the jury. Appellant's trial counsel effectively cross-examined Chemitox's owner, and he presented testimony from Analytitox's supervisor, who explained why the results of the first test were negative. In addition, the results of the second test merely confirmed the testimony from several eyewitnesses who had seen Appellant smoke marijuana on the night of the accident. We conclude that the district court did not abuse its discretion by allowing the prosecution to present the results of the second test which had been made on the blood sample.

Appellant alleges that the admission of the second test results offends the public's sense of fair play and placed the State at an unfair advantage since the prosecutor had made his request for the second test during a continuance which he sought as a result of witnesses not being available. Appellant does not present any pertinent authority in his brief for this claim. It is not our function to formulate a party's argument, and we consistently refuse to consider arguments which are not supported by cogent argument or pertinent authority. McNeiley v. Ayres Jewelry Co., 886 P.2d 595, 597 n. 2 (Wyo.1994).

Instructions

Appellant alleges that the district court committed reversible error when it refused to give two instructions to the jury which Appellant characterizes as being theory-of-the-defense instructions. Although the defense counsel presented the two proposed instructions in writing to the district court during the instruction conference, the record does not contain either of the proposed instructions. The transcript of the instruction conference, however, provides us with a description of the two instructions which is sufficient to permit us to address this issue.

A defendant has the right to have instructions on [his] theory of the case presented to the jury when the proposed instructions sufficiently inform the jury of [his] theory of defense and when competent evidence supports the law expressed in the requested instructions. The trial court may, however, properly refuse to give a requested instruction, even though it is correct, when other instructions have been given which sufficiently cover the principles which are being offered in the requested instruction.

Gilliam v. State, 890 P.2d 1104, 1108 (Wyo.1995) (citation omitted).

A. "Intervening Cause" Instruction

The first instruction proposed by the defense defined the term "intervening cause." The district court gave the following instruction to the jury:

INSTRUCTION NO. 4.1

The "proximate cause" of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequence or result of the wrongful act.

Negligence on the part of a victim is not a defense to criminal prosecution and does not excuse any criminal acts on the part of a defendant. The State is required to prove, beyond a reasonable doubt, that it was the criminal act on the defendant's part that was the proximate cause of the death of [the two passengers].

The actions of the victim may be considered whenever those actions have a bearing upon the alleged conduct of the defendant. The actions of the victim may be considered in deciding the question of whether the defendant's wrongful act was the proximate cause of the victim['s] death.

(Emphasis added.) Appellant concedes that this instruction was correct, but he claims that it was inadequate. He argues that the jury should have been instructed that the victims' negligence in failing to wear seat belts could be used as an intervening cause. We disagree.

Even if the proposed instruction correctly defined the term "intervening...