Keene v. State

Decision Date07 June 1991
Docket NumberNo. 90-92,90-92
Citation812 P.2d 147
PartiesWilliam Dean KEENE, a/k/a Paul Keene, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Richard C. Slater, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Paul Rehurek and Karen A. Byrne, Sr. Asst. Attys. Gen., Thomas L. Lee, Asst. Atty. Gen., for appellee.

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

GOLDEN, Justice.

William Dean Keene appeals from his conviction on two counts of kidnapping and one count of aggravated robbery, and the enhancement of his sentence on the finding that he is a habitual criminal under W.S. 6-10-201 (June 1988 Repl.). We affirm the aggravated robbery conviction and the application of the habitual offender statute to Keene, but vacate the kidnapping convictions.

Keene presents four arguments and the state responds to each in turn. We use the state's restatement of the issues for the sake of brevity:

I. Was Appellant properly tried and convicted of kidnapping under W.S. 6-2-201 on the basis of removing the victims from their vicinity?

II. Do Appellant's two prior felonies satisfy the requirement of W.S. 6-10-201 that the prior offenses be separately brought and tried?

III. Was Appellant denied due process of law and a fair and impartial trial due to ineffective assistance of trial counsel?

IV. Were the identification procedures employed by the state unnecessarily suggestive and was Appellant denied a fair trial due to cumulative error?

FACTS

At approximately 1:30 p.m. on September 28, 1988, a lone gunman robbed Gibson's Pharmacy in Cheyenne, Wyoming. The robber, armed with what appeared to pharmacy employees to be an automatic handgun, went to the pharmacy counter in the back of the store and ordered the pharmacist, store owner Ken Urquhart, to fill a plastic bag with "C2s," narcotic drugs including amphetamines and barbiturates. Urquhart thought the man was joking until he cocked the gun and said, "I mean it." The robber then noticed two women, Misty Tucker and Lana Hendricks, working in a back office off the side of the pharmacy area. Pointing the gun, he ordered them out of the office and into the area behind the pharmacy counter with Urquhart. He prodded Hendricks in the back with the gun to hurry the women along. The robber filled a wastebasket liner with the drugs after Urquhart unlocked the drug cabinet.

The robber then walked to the front of the store. There he demanded money from the cashier, Sharon Urquhart. After seeing the gun and realizing that he was serious, she opened the register and told him to get the money himself. The robber took some of the cash from the drawer and left through the front entrance, heading south on foot.

As soon as the robber left the building, Misty Tucker called 911. The four pharmacy employees were separated by the first officer to arrive at the scene, and each was interviewed individually by the investigating detective. Misty Tucker had instantly identified the robber as a man who had been in the store two days earlier and had asked her then about performing a remodeling job Urquhart had been considering. Urquhart had talked to the man sometime earlier about the possible remodeling project, and a search of notes on a clipboard turned up the name "Paul King" and an address on a note Urquhart had made after that meeting.

The investigating detective showed the four witnesses a total of five photo line ups over a two and one-half month period following the robbery, each based on a different suspect developed by the investigation. The witnesses rejected the first four photo line-ups, but picked out Keene in the fifth one, which was shown to them on December 9, 1988. Misty Tucker and Ken Urquhart recognized photo # 5 (Keene) as the robber. Lana Hendricks and Sharon Urquhart identified either photo # 1 (because of the hair) or # 5 (Keene) as the robber, and Hendricks believed she could identify the robber in person.

Before the robbery, Keene had been living in Cheyenne after escaping from a Colorado honor farm, where he was serving consecutive sentences for robbery and violation of bail bond. He was using the name of his brother Paul, who had been killed several months earlier in a traffic accident. At the time of the robbery Keene was employed at Wyoming Handicapped Workers. At about noon on September 28, 1988, a co-worker dropped him off at his apartment near the pharmacy for the afternoon lunch break. Keene moved from his apartment after the robbery. He later called his former landlady to ask whether the police had questioned her. He called the police on October 1, 1988, to ask why they were looking for him, but would not come to the station to talk about the case or provide police with a photo. He was arrested in Oklahoma on August 27, 1989.

Keene was initially charged with one count of aggravated robbery in violation of W.S. 6-2-401(c)(ii) (June 1988 Repl.) and two counts of kidnapping in violation of W.S. 6-2-201(a)(ii) (June 1988 Repl.) An amended information retained these charges and also charged Keene with being a habitual criminal under W.S. 6-10-201, based on the two previous felony convictions in Colorado. He was tried by jury December 11 and 12, 1989, and found guilty on all charges; judgment and sentencing was March 2, 1990. This appeal followed.

KIDNAPPING

That portion of W.S. 6-2-201 germane to the issue raised by Keene reads:

(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, or if he unlawfully confines another person, with the intent to:

(ii) Facilitate commission of a felony.

Keene was convicted on two charges of kidnapping, based on his having moved the two women at gunpoint from the back office into the adjacent pharmacy area while committing the robbery. The state argued that this movement constituted removal "from the vicinity where [they were] at the time of the removal." Keene now argues that this language only applies when the victim is not initially located in the victim's residence or business because the plain and ordinary meaning of the terms "residence," "business" and "vicinity" makes them separate and distinct. He also contends that applying the "removal from the vicinity" language to facts such as these renders the "removal from a business" language inoperative a result that is contrary to our rules of statutory construction. Our review of W.S. 6-2-201 persuades us that Keene is correct.

To construe the kidnapping statute we look first to its language. Words are to be given their plain and ordinary meaning unless otherwise indicated. Green v. State, 784 P.2d 1360, 1365 (Wyo.1989). "Every word in a statute must be given meaning." Matter of Patch, 798 P.2d 839, 841 (Wyo.1990).

The word central to our analysis is "or." W.S. 6-2-201 separates a removal from a business from a removal from the vicinity (and removal from a residence) by use of the disjunctive "or."

Webster's defines "or" as a function word to indicate (1) an alternative between different or unlike things, states or actions; (2) choice between alternative things, states or courses. The word "or" is ordinarily used as a disjunctive generally corresponding to "either" as "either this or that." Where two clauses or phrases are expressed in the disjunctive, they are coordinate and either is applicable to any situation to which its terms relate. Generally, use of the disjunctive indicates alternatives and requires separate treatment of those alternatives, hence a clause following a disjunction is considered inapplicable to the subject matter of the preceding clause.

Matter of Adoption of Voss, 550 P.2d 481, 485 (Wyo.1976) (citations omitted) (emphasis added). See also Basin Electric Power Cooperative v. State Board of Control, 578 P.2d 557, 566 (Wyo.1978). In a nutshell, the use of "or" confirms the statutory alternatives are separate and distinct. Consequently, as used in W.S. 6-2-201, removal from the vicinity cannot refer to locational changes within a victim's residence or a business.

This result is reinforced by the consideration that we must read statutes so that no word or phrase is superfluous or inoperative. State of Wyoming ex rel. Worker's Compensation v. Mahoney, 798 P.2d 836, 838 (Wyo.1990); and Sanchez v. State, 751 P.2d 1300, 1305 (Wyo.1988). We can do this only if the alternatives in W.S. 6-2-201 are treated as exclusive. If vicinity is permitted to encompass areas within victims' residences or businesses, those terms would become superfluous, i.e., statutory excess baggage. We must presume the legislature assigned separate and distinct meanings to these terms, as the legislature cannot be presumed to intend futile things. Thomson v. Wyoming In-Stream Flow Committee, 651 P.2d 778, 787 (Wyo.1982).

Although, as is commonly the case in Wyoming, we are not blessed with the history of the development and passage of this statute, W.S. 6-2-201 is almost identical to the Model Penal Code kidnapping provision, and we have turned to the Model Penal Code commentaries in the past to consider the purpose of this particular statute and others we have been required to interpret. Loomer v. State, 768 P.2d 1042, 1046 (Wyo.1989). See also Ketcham v. State, 618 P.2d 1356, 1365 (Wyo.1980) (Rose, J., dissenting).

In the commentary to the section on kidnapping, the Model Penal Code states,

[a] potential danger which a rational penal code must avoid is that the definition of kidnapping will sweep within its scope conduct that is decidedly wrongful but that should be punished as some other crime. Thus, for example the robber who forces his victim from one room to another in order to find a cashbox or safe technically may commit kidnapping as well as robbery. This reasoning raises the possibility of cumulative penalties or higher sanctions for kidnapping even...

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