McDermott v. State

• Decision Date: 09 March 1994
• Docket Number: No. 93-53,93-53
• Citation: 870 P.2d 339
• Parties: Michael Lincoln McDERMOTT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 339

870 P.2d 339

Michael Lincoln McDERMOTT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-53.

Supreme Court of Wyoming.

March 9, 1994.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; Deborah Cornia, Appellate Counsel, Cheyenne; and Donald L. Fuller, Casper, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen.; Barbara L. Boyer, Sr. Asst. Atty. Gen.; and Mary Beth Wolff, Asst. Atty. Gen., for appellee.

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

THOMAS, Justice.

Following his conviction on multiple charges arising out of a forcible kidnapping followed by heinous sexual assaults, Michael Lincoln McDermott (McDermott) presents as primary issues in this appeal an unlawful search and the doctrine of merger, as it relates to the crimes of sexual assault and aggravated kidnapping, and as it relates to the crimes of aggravated assault and first degree sexual assault. In addition, McDermott asserts error in the failure to rearraign him after the information was orally amended to charge aggravated kidnapping and, relying upon Walker v. State, 847 P.2d 542 (Wyo.1993), the failure to name the victim in the information. We hold no reversible error is present in this case, and the judgment and sentence of the trial court is affirmed.

In his Brief of Appellant, McDermott frames the issues in this way:

I. Whether the evidence obtained during the search of Appellant's vehicle should have been suppressed as it was obtained without a warrant, and does not fall within the "plain view" exception to the warrant requirement?

II. Whether the crime of sexual assault merges with the crime of aggravated kidnapping when the sexual assaults are the sole aggravating factor used to enhance the kidnapping charge?

III. Whether upon oral amendment to the information charging Appellant with a greater offense than that he was arraigned on mandates that Appellant receive a new arraignment on the amended information?

IV. Whether an incorrect jury instruction on the elements of aggravated kidnapping, absent objection, becomes the law of the case, and whether under the law of the case, the evidence is sufficient to support a conviction for aggravated kidnapping?

V. Whether the crime of aggravated assault merges with the crime of first degree sexual assault when the aggravated assault is used to elevate the sexual assault to first degree?

VI. Whether the criminal complaint, warrant, and information in this case were fatally defective from the time they were filed as they failed to list the name of the victim?

The State of Wyoming, restates the issues, reducing the number to two as follows:

I. Whether the search warrant was based on sufficient probable cause?

II. Whether the evidence, information and jury instructions sufficiently supported the seventeen separate charges for which appellant was convicted and sentenced?

McDermott's victim was a twenty-five year old female [hereinafter referred to as T] who worked as a cocktail waitress at the Wigwam Lounge in downtown Cheyenne. T normally worked from 5:00 P.M. until closing time, which was anywhere between 2:00 and 3:00 A.M., depending on how many customers were in the lounge on any given night. On March 19, 1992, T arrived at the lounge for her normal shift, and she parked her pickup truck directly south of the Wigwam Lounge in the city parking lot across Sixteenth Street. After cleaning up and closing the lounge, T left at approximately 2:20 or 2:25 A.M. on March 20, 1992, and went to her vehicle across Sixteenth Street. When she unlocked the door to her truck, T noticed a car turning into the parking lot. As T started to get into her truck, the car pulled up perpendicular to her truck, and a man (who turned out to be McDermott) got out and yelled at her. T got into the driver's seat of her truck and rolled down the window. McDermott, still standing by the open door of his car, then asked her the time.

T told McDermott that it was 2:30 A.M., rolled up her window, and started her truck. She got out of her vehicle to scrape the windshield, and she saw that McDermott had started to drive away. Subsequently, T observed McDermott behind her truck where he was hopping along the side of his car with the door open in an effort to stop it. At that juncture, T became apprehensive and started to get back in her truck. McDermott walked up to within three or four feet of her, produced a .22 caliber revolver from his pocket, which he pointed at her, and demanded that she get in his vehicle. At first, T refused, and McDermott then jammed the barrel of the revolver into her chest, threatening to shoot her if she didn't get in his car. He then grabbed her and started pulling her towards his car. She continued to struggle, and he hit her on the head with the gun. At that juncture, the cylinder fell out of the revolver, and T tried, but failed, to get the gun and cylinder away from McDermott. McDermott then turned off the ignition of T's truck, shut the driver's door, and pocketed her keys. He began dragging T back to his car. In a futile attempt to avoid getting in, T grabbed the back door handle. McDermott then repeatedly pounded her on the face. T was injured and bleeding when she acquiesced and got into McDermott's car.

McDermott then drove to a secluded area north of the Happy Jack Road and parked his car in front of a railing near a pond. It is uncontroverted T was kidnapped, subjected to two instances of aggravated assault, and forced to submit to fourteen sexual assaults. After the last of the sexual assaults, McDermott drove back to town. A number of police cars were in the parking lot next to T's pickup, and McDermott then released her a few blocks away from the parking lot. T was bleeding profusely as she got out of McDermott's car and walked back to the parking lot. T recounted her ordeal to the police officers gathered in the parking lot, describing McDermott and his car in detail. She then was taken to the hospital for treatment of her injuries and for the gathering of evidence related to the sexual assaults. After T was released from the hospital, at approximately 10:00 A.M. on March 20, she accompanied police officers to the site of the sexual assaults, and then gave a detailed statement to officers of the Laramie County Sheriff's Department.

T was able to describe her attacker as an Hispanic-looking male, approximately five feet, six inches to five feet, seven inches in height, with a fairly thin build, short dark hair, and brown eyes. She also described a round tattoo on her attacker's shoulder and a five-to-six inch scar on his abdomen. T said he had been wearing blue Wranglers, a red and white checked western shirt, and black tennis shoes. T also listed various items she had seen in the car that night including a WIC (Women, Infants and Children) folder on the dash, a piece of letterhead with "Wyoming Eagle" on it, a three-ring spiral notebook, and an empty pint chocolate milk carton.

By 4:30 P.M. on the same day, the Sheriff's Department had identified McDermott as a possible suspect. T had examined a photographic lineup and, even though she could not positively identify McDermott as the perpetrator, she recognized his eyes as the ones belonging to the individual who had attacked her. Later in the evening, T accompanied police officers in a "drive-by" to determine if she could recognize the car situated in the driveway at 4612 East 10th Street, where McDermott lived. T could not be positive that she was assaulted in that particular car, but she told the officers that "it could be."

At about 8:00 P.M., after they had taken T home, the same police officers decided to contact McDermott at the East 10th Street address. Two uniformed police officers went to the door to talk to McDermott, and a third officer walked by the car which was parked in the driveway. That officer observed a WIC folder and a three-ring binder lying on the dashboard. A fourth officer also observed the WIC folder in McDermott's car. At McDermott's request, the officers questioned him outside the house, near his car. McDermott said that he did own a knife, which was in the vehicle somewhere. When asked whether he had any identifying scars, marks, or tattoos, McDermott showed the officers the tattoo on his right shoulder and a five to six inch long scar running diagonally across his abdomen. At that time, the officers also noticed scratch marks on his right ribs.

In the meantime, McDermott's girlfriend, who was the owner of the East 10th Street house, agreed to answer questions inside her home. She pointed out to another officer the red plaid shirt, blue jeans, and black tennis shoes that McDermott had worn the night before, and these items were taken as evidence by one of the officers. The information obtained by the officers at that time confirmed what T already had told the officers about the knife, the clothing, specific items in the car, the abdominal scar, the tattoo, and possible scratch marks on her attacker.

The officers asked McDermott for permission to search his car, but he refused, stating he didn't want to be arrested for carrying a concealed weapon (the knife). McDermott also refused to accompany the police officers to the sheriff's department for additional questioning. At that time, the officers arrested McDermott, and search warrants for the house and the car subsequently were requested, obtained, and executed.

A criminal complaint was filed on March 22, 1992 in which McDermott was charged with two counts of aggravated assault, one count of kidnapping, and fourteen counts of first degree sexual assault. McDermott appeared in county court the next day, and the preliminary hearing was conducted on March 31, 1992. At that time, McDermott was bound over to the district court for trial. The information alleging the same seventeen crimes was filed in the district court on April 2, 1992. At...