Phillips v. State, 90-112

Decision Date11 June 1992
Docket NumberNo. 90-112,90-112
Citation835 P.2d 1062
PartiesEverett PHILLIPS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Mike Cornia, Asst. Public Defender, argued for appellant.

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


CARDINE, Justice.

Everett Phillips challenges his convictions for conspiracy to commit kidnapping and conspiracy to commit sexual assault. His convictions for kidnapping and sexual assault which were the objective of the conspiracies were reversed due to a speedy trial violation. Phillips v. State, 774 P.2d 118 (Wyo.1989) (Phillips I ). The issues Phillips presents in this appeal concern double jeopardy and speedy trial questions as well as issues pertaining to the conduct of the trial.

We affirm.

Phillips brings the following issues:


The Fifth Amendment's protection against double jeopardy is violated when a person who has been convicted of a substantive crime and acquitted of attempt to commit the substantive crime is later prosecuted for conspiracy to commit that same crime.


Defendant has been denied his right to speedy trial provided for by the United States and Wyoming Constitutions and this denial warrants dismissal of the charges against him.


The preindictment delay was unreasonable and prejudiced the petitioner.


The decision to prosecute the petitioner on the conspiracy charge was based entirely on this court's dismissal of the original charges and therefore constitutes vindictive prosecution which denied the petitioner his right to due process.


The trial court erred in admitting the photograph of David Swazo, because it was irrelevant and its introduction violated its own order.


It was reversible error for Officer Robb and Prosecutor Flynn to aver that the Appellant was guilty.


The prosecutor's statement to the jury that the defendant must explain coincidence shifted the burden of proof and requires reversal.


The State's failure to inform the defense that witness Lacey had reported other "incidents" and Lacey's perjury at trial denied Appellant his right to due process and violates the "Brady" Rule.


Systematic denial of petitioner's various rights culminated in the violation of petitioner's basic and inalienable rights to due process of law under the Wyoming and United States Constitutions.


In the evening of January 5, 1986, a woman walking home from a bar in Rock Springs, Wyoming was offered a ride from three men in an extended-cab pickup truck. The men were Phillips, Jetty Lee Harvey and David Swazo. The woman ignored them and continued walking. Phillips, the driver of the truck, told Harvey he wanted to grab the woman. Harvey considered this a dare. Phillips continued driving the truck down the street, turned around, came back, and pulled up beside the woman. Harvey exited the truck and told the woman she was going to have a ride. The woman tried to run past Harvey, but Harvey grabbed her by her arm and picked her up using a "bear hug." The woman was pulled into the truck.

A pizza delivery man, Ron Lacey, was counting his tips for the evening when he witnessed the abduction. Concerned, he followed the truck through Rock Springs, onto Interstate 80, and as it exited an off ramp from Interstate 80. The truck entered a trailer court, and Lacey dialed 911 to report the incident to authorities.

Inside the truck, the woman kicked and screamed. She realized the men planned to rape her after Phillips rubbed the inside of her leg. Swazo was sitting in the back seat of the truck and pulled the woman back there with him. As Phillips drove, Swazo removed the woman's clothes. Swazo then licked her breasts and her vagina and attempted to penetrate her. Phillips stopped the truck, said he wanted some, turned around in his seat and began to remove his pants. The police arrived as Phillips was removing his pants. The attack ended after police approached the vehicle.

Swazo admitted the incident, pled guilty, and was sentenced to 15 to 25 years in the penitentiary. Phillips was charged with kidnapping and first degree sexual assault on January 9, 1986. Phillips' trial began July 21, 1987 and, after three days of testimony, a jury found him guilty on both counts. Phillips I, 774 P.2d 118. We found the delay in bringing the case to trial denied Phillips his right to a speedy trial, reversed the conviction and dismissed the charges. Id. at 125. We issued our decision on May 5, 1989. Id. at 118.

On July 7, 1989, Phillips was charged with conspiracy to commit kidnapping and conspiracy to commit sexual assault relating to the January 5, 1986 incident. On August 2, 1989, Phillips petitioned this court for a writ of prohibition to stop the prosecution. We denied the petition on September 18, 1989. 779 P.2d 291. On December 13, 1989, the district court issued an order certifying questions to the Wyoming Supreme Court. The questions mirrored the issues raised on this appeal including double jeopardy, speedy trial and vindictive prosecution questions. We remanded the case to district court with the questions unanswered on January 2, 1990. Venue was moved from Sweetwater County to Uinta County on February 5, 1990.

Trial commenced on February 12, 1990. The State's witnesses included the delivery man who witnessed the abduction, the victim, police officers involved in the apprehension of Phillips and the investigation of the crime, and Jetty Lee Harvey, one of Phillips' co-conspirators. See Harvey v. State, 835 P.2d 1074 (1992). Phillips testified in his own behalf. On February 21, 1990, a jury found Phillips guilty on both counts. Phillips was sentenced to 20 to 30 years in the state penitentiary.

1. Double Jeopardy

The protection against being put in jeopardy more than once for the same offense is embodied in both the United States and Wyoming Constitutions. Article 1, § 11 of the Wyoming Constitution states:

No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.

Amendment V of the United States Constitution states in part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * *.

The double jeopardy protections of the United States Constitution apply to the states through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). The double jeopardy provisions of the Wyoming and United States Constitutions have been held to have the same meaning and are coextensive in application. Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977).

The double jeopardy clauses provide three related protections:

"It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense."

Id., quoting from United States v. Wilson, 420 U.S. 332, 342-43, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975). Phillips was convicted in his first prosecution. Thus, this case concerns whether it is a second prosecution for the same offense after conviction.

The United States Supreme Court confronted the parameters of this second type of protection in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In Grady, a vehicle driven by the respondent, Thomas Corbin, crossed a double yellow line on a highway and struck two approaching vehicles. A driver of one vehicle later died from her injuries. Corbin was charged with driving while intoxicated and failing to keep right of the median. He pleaded guilty to these charges. Two months later, a grand jury indicted Corbin on manslaughter charges for the death of one of the other drivers. 110 S.Ct. at 2089. The Court affirmed the New York Court of Appeals' prohibition of prosecuting the manslaughter charges because the conduct necessary to prove the offense, i.e., driving while under the influence and crossing the double yellow line, was the same conduct for which Corbin had previously pled guilty on the traffic charges. Id. at 2094.

The Court in Grady 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 (emphasis added). The Court went on to say that the critical inquiry in determining whether the government will prove conduct in the subsequent prosecution that constitutes an offense for which the defendant has already been prosecuted is what conduct the State will prove, not the evidence the State will use to prove it. Thus, the test is not an "actual evidence" or "same evidence" test. While the presentation of specific evidence in one trial does not forever prevent the government from introducing the same evidence in a subsequent proceeding, see Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), a state cannot avoid the Clause merely by altering in successive prosecutions the evidence offered to prove the same conduct. Grady, 110 S.Ct. at 2093....

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