Clearwater v. State

• Decision Date: 14 April 2000
• Docket Number: No. 97-157.,97-157.
• Citation: 2 P.3d 548
• Parties: Robert T. CLEARWATER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2 P.3d 548

Robert T. CLEARWATER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-157.

Supreme Court of Wyoming.

April 14, 2000.

Representing Appellant: Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Walter Eggers, Assistant Public Defender.

Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Hugh Kenny, Senior Assistant Attorney General.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

THOMAS, Justice.

Robert T. Clearwater (Clearwater) asserts three claims of error in his appeal. First, he identifies error in the failure of the trial court to grant his request for a continuance after the prosecution amended the information to eliminate a victim. Second, he claims that his trial counsel was ineffective because he failed to examine a prosecution witness about her intoxication at the time of her testimony and because trial counsel failed to advise Clearwater of his right to testify and present a defense. Finally, Clearwater complains about comments by the prosecutor concerning Clearwater's exercise of his right to remain silent. Our examination of the record in light of the applicable principles of law discloses that none of the claims of error that Clearwater asserts can be sustained. The Judgment and Sentence entered in the trial court is affirmed.

In the Brief of the Appellant, filed on behalf of Clearwater, these issues are raised:

I. Whether the district court erred when it denied the appellant's request for a continuance following notice of the amended information which occurred moments before the start of the trial?

II. Whether the appellant's trial counsel was ineffective when he failed to investigate and call material witnesses to testify, failed to cross-examine the state's star witness about her intoxication at the time of her testimony, and failed to adequately advise the appellant of his right to testify and present a defense?

III. Whether the prosecution's comments on the appellant's silence require reversal of his conviction?

This statement of the issues is found in the Brief of Appellee, filed by the State of Wyoming:

I. Was the district court required, sua sponte, to delay the trial because, the State voluntarily limited the evidence it would rely upon to prove the aggravated assault?

II. Was the trial counsel's performance outside the wide range of professionally competent assistance?

III. Did either the prosecution or the defense elicit testimony or comment in any fashion on defendant's silence?

In April of 1996, Clearwater was released to house arrest from the Sheridan County jail, and he was placed in a work release program that required him to wear a security ankle bracelet. He was serving a sentence imposed because of a conviction for driving while under the influence. Clearwater was a long-time Sheridan resident and lawn landscaper, and he lived in a house that he rented from a friend. The rented house was the location specified when Clearwater was released on house arrest. The house was adjacent to the friend's home.

During the course of the rental arrangement, Clearwater began to develop a more personal relationship with his friend, and he visited her frequently. While he was released on house arrest, Clearwater was having difficulty meeting his financial obligations, and he thought he was probably going to have to turn himself back into custody. During this period of time, Clearwater became increasingly aware of illegal drug activity and drug transactions occurring in his friend's house. The people who were on the premises from time to time were transients. He was concerned about the security of his possessions in the rental property while he might be back in jail, and he decided to impress the serious nature of his concerns upon his friend and the victim named in the charge of aggravated assault and battery subsequently filed against him. On the morning of May 21, 1996, the victim was visiting Clearwater's friend when Clearwater telephoned to determine who was there. Within five minutes of learning of the presence of the victim, Clearwater, who had been drinking, went to his friend's house carrying a revolver. In the presence of his friend and the victim, Clearwater fired a bullet through an awning to establish that the gun was loaded. He then went into the house; sat between his friend and the victim; and proceeded to point the revolver at both himself and the victim. The victim testified that this episode lasted nearly twenty minutes, during which time Clearwater pointed the revolver at her several times and threatened to shoot her. After a period of twenty minutes, the victim managed to get Clearwater to calm down, and she talked him into letting her leave the house. After the victim departed, Clearwater's friend gave him something to hide the revolver in, and he returned home. Neither the friend nor the victim informed authorities about this incident at that time.

After Clearwater left, his friend and the victim went to a nearby lake with two other individuals, and they returned to the friend's home later that evening. Upon arriving home, the friend heard shots that Clearwater was firing from his revolver; became concerned about the safety of a neighbor's child; and telephoned the police. The police came to the alley behind the houses, and Clearwater's friend called him and suggested that he empty his revolver and calm down because the police were in the alley. Clearwater's response was that he hoped the police were aiming for his head, because he was aiming at theirs. His friend immediately advised the police of this conversation, and at that time she told the police about the earlier incident that morning.

The three officers who answered the call observed empty shell casings on the back porch and at the side of Clearwater's house. They could see Clearwater through a window, and two of the officers banged on the front door to get his attention. When he did not answer, they went around to the back of the house. From the back door, the two officers could see Clearwater watching television with a rifle on his lap and a revolver on the arm of the chair where he was sitting. One of the officers aimed his pistol at Clearwater, and told him not to move and to raise his hands above his head. Clearwater refused to comply with this command, keeping his hands only about two feet above the rifle and the revolver. The officer went past Clearwater; grabbed the barrel of the rifle; and pitched it onto a couch across the room. As soon as the officer had removed both weapons, Clearwater became aggressive; verbally abused the officer; slapped him in the head; and knocked his glasses off.

When Clearwater's hand went over the officer's head, the officer hit Clearwater in the chest, and he fell into a corner of the room. Another officer then sprayed pepper spray in Clearwater's face to subdue him, and the first officer handcuffed him. During this entire episode, Clearwater continued to curse the officers, and threatened them and their families. The officers washed out Clearwater's eyes, and took him out to the police car to transport him to the police station. Clearwater again became combative and uncooperative, cursing and threatening the officers.

Ultimately, Clearwater was charged with one count of felony aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (Lexis 1999), and two counts of misdemeanor interference with a police officer in violation of Wyo. Stat. Ann. § 6-5-204(a) and (b) (Lexis 1999). His trial was set for two days beginning on January 15, 1997. After the trial date was established and the witnesses had been subpoenaed, Clearwater contacted both his friend and the victim, asking them to change their stories to say that he was waving the revolver around rather than pointing it at the victim.

Two days before the trial was to start, the State filed an Amended Information which had the effect of deleting one of the counts of interference with a peace officer and deleting Clearwater's friend's name as a victim on the aggravated assault and battery charge. The prosecution sent a copy of the Amended Information to Clearwater's counsel, but Clearwater asserted that he never received it from his attorney, whom he fired the morning of the trial. Clearwater asserted that he should have been informed of the amendment prior to the first day of trial, but he did not request a continuance at that time.

When the trial judge learned that Clearwater had discharged his appointed counsel and wanted to represent himself, the trial judge permitted Clearwater to represent himself, but he also kept Clearwater's attorney there to answer procedural questions during the trial. Clearwater conducted his own voir dire of the jury, and exercised his peremptory challenges. The original appointed counsel then proceeded to act as Clearwater's attorney during the remainder of the trial. After both the defense and the prosecution had examined all the witnesses, the trial court advised Clearwater that he had a right to testify in his own defense as well as the right to remain silent. The trial court also advised him that before he made his decision, he should consult with his attorney. Clearwater elected not to testify. Ultimately, Clearwater was convicted on both of the counts charged, and he takes this appeal from those convictions.

We turn first to the claim that error occurred because the trial court denied Clearwater's request for a continuance following notice of the Amended Information. The record is contrary to Clearwater's assertion, and demonstrates that he failed to properly request a continuance when he learned that the prosecution had filed an Amended Information on January 13, 1997, two days prior to the trial. This colloquy occurred between the trial judge and...