Harvey v. State

Decision Date11 June 1992
Docket NumberNo. 90-113,90-113
Citation835 P.2d 1074
PartiesJetty Lee HARVEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Stuart S. Healy (argued), of Healy & Kinnaird, Sheridan, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Hackl, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Hugh Kenny (argued), Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

CARDINE, Justice.

Jetty Lee Harvey challenges his conviction for conspiracy to commit kidnapping. His prior convictions for kidnapping, which was the objective of the conspiracy, and sexual assault were reversed due to a speedy trial violation. Harvey v. State, 774 P.2d 87 (Wyo.1989) (Harvey I ). The issues Harvey presents in this appeal concern double jeopardy, speedy trial, and pretrial publicity questions, plus an issue concerning the use of Harvey's allocution statement at the sentencing after his first trial.

We affirm.

Harvey presents the following issues:

1. --Does the double jeopardy clause of the Fifth Amendment to the United States Constitution prohibit the State from prosecuting Appellant for conspiracy to commit kidnapping by relying upon evidence of his conduct which constitutes the substantive offense and served as the basis for the prior conviction of Appellant for kidnapping?

2. --Has the Appellant's right to a speedy trial been denied by reason of his second prosecution?

3. --Has the Appellant been deprived of his rights to a public trial by an impartial jury as guaranteed by the Sixth Amendment to the United States Constitution by having to defend himself against conspiracy charges to a jury of persons who were all aware of his prior conviction on the underlying substantive offenses from inflammatory pretrial publicity?

4. --Did the trial court commit reversible error by allowing statements made by the Appellant at the allocution portion of his sentencing hearing following his initial conviction to be used against him in the second prosecution in violation of Appellant's constitutional rights to silence and due process?

FACTUAL BACKGROUND

During the evening of January 5, 1986, Harvey was the passenger in the front seat of an extended-cab pickup truck driven by Everett Phillips in Rock Springs. See Phillips v. State, 835 P.2d 1062 (Wyo.1992) (Phillips II ). David Swazo sat in the back seat of the truck. The truck passed a woman walking along Elk Street. Phillips said he wanted to grab the woman. Harvey considered this a dare. Phillips turned the truck around, and Harvey asked the woman if she wanted a ride. The woman attempted to ignore him but, after the truck stopped, Harvey exited the truck and stood in front of her. Harvey told her she was going to have a ride and grabbed her as she tried to run past him. Harvey picked her up, and she felt herself being pulled into the truck. Inside the truck she was pulled into the back seat. The truck left the scene of the abduction.

Swazo, with the help of Harvey and Phillips, removed her clothes. Swazo kissed her and licked her breasts and vagina. Swazo put his fingers into her vagina and attempted to penetrate her vagina with his penis. Harvey and Phillips laughed, jeered and made lewd comments as Swazo assaulted her. The truck stopped, Phillips turned around in his seat, and he began to remove his pants. At that time, Harvey said "Oh shit. It's the cops."

The police were alerted to the abduction and assault by a pizza delivery man, Ron Lacey, who was sitting in his car counting tip money when he saw the abduction. Lacey followed the truck as it left the scene of the abduction, drove onto Interstate 80, exited the interstate and entered a trailer court. From there, Lacey went to a telephone and alerted law enforcement authorities using 911.

On January 9, 1986, Harvey was charged with kidnapping and sexual assault in the first degree or aiding and abetting those crimes. Harvey I, 774 P.2d at 90. A trial on those charges began on July 21, 1987, and Harvey was found guilty on those charges following a three-day trial. We reversed the conviction because of a speedy trial violation and directed the trial court to dismiss the indictment. 774 P.2d at 98. Our decision was issued on May 5, 1989. Id. at 87.

On July 7, 1989, a complaint charging Harvey with conspiracy to commit kidnapping and conspiracy to commit sexual assault was filed. On July 25, 1989, Harvey filed a petition for a writ of prohibition with this court. We denied the petition on September 18, 1989. State ex rel. Harvey v. County Court of Sweetwater County, 779 P.2d 291 (Wyo.1989). On September 27, 1989, the State dropped the conspiracy to commit kidnapping charge, apparently pursuant to plea bargain negotiations. The State refiled conspiracy to commit kidnapping charges again on November 7, 1989. An information charging Harvey with conspiracy to commit sexual assault was filed in district court on November 3, 1989. An information charging him with conspiracy to commit kidnapping was filed on November 21, 1989. On December 18, 1989, the district court issued an order certifying questions to the Wyoming Supreme Court. These questions centered on double jeopardy, speedy trial, and vindictive prosecution issues. We remanded the matter to district court with the questions unanswered on January 2, 1990.

Harvey moved for dismissal of the charges or a change of venue due to pretrial publicity on November 14, 1989. The court reserved the question until trial in an order filed November 29, 1989. On December 27, 1989, the court issued a pretrial order stating that it would attempt to seat a jury in Sweetwater County before considering moving the venue. Jury selection began on January 8, 1990, and concluded on January 11, 1990. Opening statements were given, and testimony began on January 12, 1990. On January 17, 1990 the jury found Harvey guilty on the conspiracy to commit kidnapping charge and not guilty on the conspiracy to commit sexual assault charge. On March 15, 1990, Harvey received a sentence of 12 to 15 years in the state penitentiary on the charge for which he was convicted.

DISCUSSION
1. Double Jeopardy

Harvey's double jeopardy claim mirrors that of the appellant in the companion case of Phillips II. In that case, we noted that in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), the United States Supreme Court held that:

[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

110 S.Ct. at 2087. Phillips II, 835 P.2d at 1067. However, a difference exists between the conduct needed to prove an offense and the evidence introduced to prove the conduct. Grady, 110 S.Ct. at 2093; Phillips II, 835 P.2d at 1067. Thus, in the later case of United States v. Felix, 503 U.S. 378, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), which involved a second trial on conspiracy charges, the United States Supreme Court, referring to the above quotation from Grady, recognized and then resolved the uncertainty and confusion created by Grady when it stated:

Taken out of context, and read literally, this language supports the defense of double jeopardy. But we decline to read the language so expansively, because of the context in which Grady arose and because of difficulties which have already arisen in its interpretation.

Felix, 112 S.Ct. at 1383-84. Then, quoting with approval from United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947), the Court stated:

In language applicable here, we pointedly stated that "the same overt acts charged in a conspiracy count may also be charged and proved as substantive offenses, for the agreement to do the act is distinct from the act itself." [331 U.S. at 542, 67 S.Ct. at 1399]; see also Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946) ("[T]he commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses ... [a]nd the plea of double jeopardy is no defense to a conviction for both offenses").

Felix, 112 S.Ct. at 1384. Conspiracy and the completed substantive offense are separate offenses. Iannelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). The proof of different conduct is necessary to convict a person of each offense.

A conspiracy is an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and an overt act or acts are performed to further the unlawful design. The overt acts need not be criminal in themselves.

Phillips II, 835 P.2d at 1067 (citations omitted). See also W.S. 6-1-303.

The conduct constituting the substantive crimes of first degree sexual assault and kidnapping is defined as follows:

(a) Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degree if:

(i) The actor causes submission of the victim through the actual application, reasonably calculated to cause submission of the victim, of physical force or forcible confinement.

W.S. 6-2-302; and

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal * * *.

W.S. 6-2-201.

As in Phillips II, the evidence from Harvey's kidnapping and sexual assault trial and his conspiracy trial overlapped. The overlapping evidence included testimony from the victim recounting the time she first encountered Harvey until her rescue. Notwithstanding evidence detailing the abduction and sexual assault, the evidence of the overt acts preceding this entails conduct that does not constitute the crimes of kidnapping or rape. Phillips telling Harvey to grab...

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