Pickering v. State
| Citation | 2020 WY 66 |
| Decision Date | 29 May 2020 |
| Docket Number | S-19-0151,S-18-0222 |
| Parties | RANDY RAY PICKERING, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Fremont County
The Honorable Norman E. Young, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Professor Lauren McLane, Director; and Dana Blakeley, Student Intern, of the Defender Aid Clinic, University of Wyoming, College of Law. Argument by Mr. Blakeley.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Randy Ray Pickering appeals his convictions on three counts of second-degree attempted murder, thirteen counts of aggravated assault and battery, and one count of interference with a peace officer. He raises six issues on appeal arguing: (1) his rights to equal protection were denied when two potential jurors were peremptorily challenged based on race; (2) his constitutional right to an impartial jury was violated when the district court failed to conduct in-chambers questioning of jurors on their exposure to pretrial publicity about the case; (3) the district court abused its discretion when it denied his motion for continuance; (4) he received ineffective assistance of counsel based on failures to thoroughly investigate, call a bullet trajectory expert, and call a mental health expert; (5) there was insufficient evidence that he acted "maliciously" under the attempted second-degree murder charges or that he made an actual threat under the aggravated assault and battery charges; and (6) the cumulative effect of these errors warrants reversal. We affirm.
[¶2] The issues are:
[¶3] On March 22, 2017, the Riverton Police Department, with the assistance of the Fremont and Natrona County Sheriffs' Departments, arranged to arrest Mr. Pickering onseveral outstanding warrants. The plan was to wait outside Mr. Pickering's residence until his girlfriend left for work and then arrest Mr. Pickering. In anticipation, several teams of officers surrounded the residence. Mr. Pickering's girlfriend never left, and the officers devised another plan to get Mr. Pickering's girlfriend out of the house—phoning to say her father was in the hospital. This plan also failed. Officers then tried to negotiate with Mr. Pickering.
[¶4] Mr. Pickering, who was carrying a handgun, was outside when additional officers in armored vehicles arrived. He retreated to the porch. He held the gun to his head and over a prolonged period paced in and out of the residence, yelling at the officers to leave him alone, and warning that he would shoot himself. Sergeant Scott Komrs testified that Mr. Pickering "flag[ged] or point[ed]" the gun toward the officers as he was yelling.
[¶5] After many hours, the officers heard banging from inside the home. The officers were aware that a gun safe, containing two heavy magazine-fed rifles, was in the master bedroom. They believed Mr. Pickering was attempting to access that gun safe. The "Blue Team" (Sergeant Komrs, Officer Scott Christoffersen, and Detective Jacob Nation) was tasked with thwarting any such attempt. They planned to break the master bedroom window and use gas to force Mr. Pickering out of the room. Detective Nation broke the window, and immediately heard a rapid succession of gunshots coming toward the team from inside the house. The team retreated.
[¶6] Sergeant Komrs estimated that six to twelve rounds were fired. He testified that it sounded as if rounds were "cracking over [the Blue Team's] head[s]." As the team pulled back, Detective Nation indicated he had been hit by what he thought was a ricocheting bullet. Bullets struck near two other law enforcement teams stationed in the area.1
[¶7] After these and other shots were fired, law enforcement continued to try to negotiate Mr. Pickering's surrender. Officers ultimately set off large amounts of non-lethal gas in the house, causing Mr. Pickering and his girlfriend to exit the home. Mr. Pickering surrendered.
[¶8] Mr. Pickering was charged with three counts of attempted second-degree murder under Wyo. Stat. Ann. §§ 6-2-104 and 6-1-301(a)(i) (). He was charged with thirteen counts of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii) (). He was charged with one misdemeanor count of interference with a peace officer under Wyo. Stat. Ann. § 6-5-204(a). A jury convicted Mr. Pickering of all charges. He was sentenced to twenty to thirty years in prison on the attempted murder counts and eight to ten years on each of the aggravated assault and battery counts, with all sentences running concurrently. The six-month misdemeanor interference with a police officer sentence was deemed discharged by pretrial detention. Mr. Pickering appealed (Appeal No. S-18-0222).
[¶9] Mr. Pickering filed a W.R.A.P. 21 motion, seeking a new trial based on ineffective assistance of counsel. The district court denied the motion and Mr. Pickering appealed that denial (Appeal No. S-19-0151). We consolidated the appeals. Additional facts are discussed as they are relevant to our analysis.
[¶10] During jury selection, the State peremptorily challenged two jurors—Juror 447 and Juror 493—who may have been Hispanic. The defense objected arguing that under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct 1712, 90 L.Ed.2d 69 (1986), holding modified by Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), there was no basis for the strikes other than race. In support of its position, the defense argued that neither juror had spoken during voir dire and that these two jurors were the only minorities on a panel of thirty-one potential jurors. The district court found the defense had made prima facie showing that the State exercised the peremptory challenges based on race. The court then looked to the State to provide a non-discriminatory reason for these peremptory strikes. The State also argued that neither juror spoke during voir dire, but maintained that the failure to speak was a race-neutral basis for its strikes. The State noted that both jurors' questionnaires were "barebones" with "very little minimum information." The State did not question these jurors.
[¶11] After hearing argument, the district court stated:
Defense counsel responded, "I have nothing more at this time." The court inquired whether anyone had "[a]nything else for the record" and then moved to another issue. Both jurors remained stricken from the panel.
[¶12] Mr. Pickering argues that the district court erred when it denied his Batson challenge to the State's peremptory strikes of two alleged Hispanic jurors. The district court's findings were unclear, and we remanded the matter for additional findings and briefing. In its supplemental order, the district court found that Mr. Pickering had not proven purposeful discrimination and denied his Batson challenge. In his supplemental brief, Mr. Pickering reasserts his argument that the district court erroneously denied his Batson challenge and contends that a full remand is required.
[¶13] A district court's Batson determination on discriminatory intent will be overturned only if the determination was clearly erroneous. Roberts v. State, 2018 WY 23, ¶ 13, 411 P.3d 431, 437 (Wyo. 2018) (citing Mattern v. State, 2007 WY 24, ¶ 9, 151 P.3d 1116, 1122 (Wyo. 2007); Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991)). A clear error review of a Batson ruling must examine all circumstances bearing upon whether intentional discrimination motivated the challenges. Foster v. Chatman, 578 U.S. ___, ___, 136 S.Ct. 1737, 1748, 195 L.Ed.2d 1 (2016).
[¶14] The United States Supreme Court has recognized that discrimination in jury selection violates the defendant's and potential jurors' equal protection rights and is unconstitutional. Batson, 476 U.S. at 87, 106 S.Ct. at 1718; Foster, 578 U.S. at ___, 136 S.Ct. at 1747; Roberts, ¶ 12, 411 P.3d at 437. Batson and its progeny prohibit using peremptory challenges to excuse potential jurors based on race.2 Batson, 476...
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