Loomer v. State
| Decision Date | 08 February 1989 |
| Docket Number | No. 87-253,87-253 |
| Citation | 768 P.2d 1042 |
| Parties | David Forest LOOMER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender (argued), and Steven E. Weerts, Asst. Public Defender, for appellant.
Joseph B. Meyer, Atty. Gen., John Renneisen, Deputy Atty. Gen., and Karen A. Byrne, Sr. Asst. Atty. Gen. (argued), for appellee.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY, and GOLDEN, JJ.
Appellant David Loomer appeals his jury conviction of the charges of aggravated robbery for which he was sentenced to 20 to 25 years and kidnapping for which he was sentenced to 25 to 40 years. Appellant was also ordered to pay $50 to the Wyoming State Victim's Compensation Fund and $2500 to Converse County as "reimbursement of costs in this matter."
The issues, as presented by appellant for our determination, are:
We affirm, except as to costs.
On March 21, 1987, appellant purchased a .22 caliber semi-automatic pistol at a sporting goods store in Douglas, Wyoming. That evening he entered the Pump-n-Pak East store in Douglas, where a clerk, Kyla Bohlander, was working the night shift. He asked if the manager was there. She said no but that he would be back shortly. Appellant then produced the pistol and told her to get the money out the register. She complied, putting the money in a brown paper bag.
Appellant next told her to get her keys because she was taking him to Casper. As she reached for her keys, her hand covered with her coat, she pushed a button triggering a silent alarm. They went outside and entered the truck she had driven to work. Appellant directed Ms. Bohlander to drive out of town towards Casper. She told him to take the truck and leave her, but he told her to shut up and drive. They reached the interstate and headed for Casper.
Meanwhile, back in Douglas, police officers had responded to the alarm and had arrived just in time to see the truck leave. After checking out the store, they determined that a robbery had occurred and notified the dispatcher. The dispatcher, by radio, notified area law enforcement to pick up and hold the occupants of the truck. A highway patrolman saw the truck, followed it, identified it as matching the description given over the radio, and called for assistance.
Ms. Bohlander noticed the lights of the car following them. She testified that appellant apparently realized that they were being followed, that "he got real nervous" and told her to speed up. The highway patrolman following the truck had turned on his flashing lights when another patrolman arrived to assist. When the patrolman turned on his flashing lights, appellant rolled down the window, and the patrolman observed the paper bag being thrown out. Shortly thereafter, appellant ordered her to pull over and stop. A deputy sheriff, summoned by radio, searched the side of the road and found a brown paper bag containing a loaded .22 caliber semi-automatic pistol and $583 in loose cash. The gun was later identified as the one appellant used in the robbery, and the cash corresponded to the amount missing from the store.
At his arraignment, appellant pled not guilty, not guilty by reason of mental illness or deficiency, and not triable by reason of mental illness or deficiency. Appellant was committed to the Wyoming State Hospital pursuant to W.S. 7-11-303 and examined by Dr. F.W. Allport. As a result of motions by defense counsel, appellant was also examined by Dr. Brian Miracle and Dr. Arthur N. Merrell. A competency hearing was held on September 28, 1987. Appellant was found competent to stand trial. He was tried the next day and convicted of aggravated robbery in violation of W.S. 6-2-401(a)(ii), (c)(ii) and kidnapping in violation of W.S. 6-2-201(a)(ii), (b)(i), (d).
At the hearing to determine competency, the trial court placed the burden upon appellant to prove lack of competency. After hearing testimony from two psychiatrists, appellant's defense counsel, and appellant himself, the court found that appellant was competent to stand trial and stated that it would have reached the same decision on competency regardless of the allocation of the burden of proof.
Appellant argues that it was error to place the burden on the defense to prove incompetency and that the result would have been different had the burden of proof been placed with the State. W.S. 7-11-303 provides a detailed procedure to determine competency when there is reasonable cause to believe that defendant may be unfit to proceed due to mental illness or deficiency. A hearing is required when the opinion of the designated examiner as to competency to stand trial is contested. W.S. 7-11-303(f). The statute is silent concerning burden of proof on the issue of competency.
We have said that the question of competency to stand trial "is a threshold issue, necessary to be resolved to prevent a violation of due process through conviction of a person incompetent to stand trial." Hayes v. State, 599 P.2d 558, 563 (Wyo.1979); see W.S. 7-11-302. This position is consistent with that taken by the United States Supreme Court in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the Court said that mental competency to stand trial is an element of the due process right to a fair trial. When there is reasonable cause to believe an accused is unfit to proceed, this due process right is best protected by allocating the burden of proof to the party who is seeking to show that the accused is competent to stand trial. We hold, therefore, that in a W.S. 7-11-303(f) hearing arising from a contested opinion on competency, the burden of proof by a preponderance of the evidence rests on the party seeking to establish that the accused is competent.
Although the trial court erred in this case by placing the burden of proof with appellant, it was harmless error. In order to constitute a ground for reversal, an error must be prejudicial and affect the substantial rights of appellant. Matter of Jones, 702 P.2d 1299 (Wyo.1985). The burden is on appellant to establish an error as prejudicial. McCarthy v. Whitlock Const. and Supply, 715 P.2d 218 (Wyo.1986).
Appellant argues that placing the burden of proof on the State would have resulted in a finding that defendant was incompetent. The thrust of his argument is that the evidence raises an inference that he lacked capacity to cooperate with counsel due to mental illness or deficiency. Defense counsel testified that communication with appellant was difficult, and he was uncooperative. Defendant may not prevent his trial by refusing to communicate with his counsel. State v. Platt, 130 Ariz. 570, 637 P.2d 1073 (1981). A psychiatrist called by the defense testified that in his opinion appellant had a diminished capacity, but declined to say that appellant had a total lack of capacity. The psychiatrist called by the State testified that, while appellant may be mentally ill, his mental illness did not prevent him from cooperating with counsel.
The trial court specifically found the evidence such that it would have held the appellant competent to stand trial regardless of the allocation of the burden of proof. "Allocation of the burden of proof will be significant, in theory at least, only in the rare case when, assuming the evidence is weighed by the preponderance of evidence standard, the conflicting evidence is in equipoise in the mind of the fact finder." United States v. DiGilio, 538 F.2d 972, 988 (3rd Cir.1976). In light of the evidence supporting the court's decision and the court's finding that it would have found appellant competent had the burden been placed on the State, we find the error in allocation of the burden of proof to be harmless.
Appellant claims he was entitled to a lesser-included offense instruction. The kidnapping statute, W.S. 6-2-201, provides in pertinent part:
The crime of kidnapping is complete when subsections (a) and (b) of W.S. 6-2-201 have been accomplished. In this case, it is not contested that appellant was guilty of the crime of kidnapping.
Appellant argues that the trial court erred in refusing to instruct the jury on what he contends is a lesser-included offense set forth in subsection (c) of W.S. 6-2-201, which provides:
"(c) If the defendant voluntarily releases the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not more than twenty (20) years."
The test for a lesser-included offense is given in Balsley v. State, 668 P.2d 1324 (Wyo.1983), wherein we said:
"[A] crime described by statute may not be necessarily included within another statutory offense unless all of the elements within the claimed lesser offense are to be found in the greater, and unless the greater offense cannot be committed without also committing the putative lesser offense." 668 P.2d at 1329.
Subsection (c) does not create a lesser-included offense. It describes mitigating circumstances rather...
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