Tarpey v. State
Decision Date | 06 February 2023 |
Docket Number | S-21-0234,S-22-0167 |
Citation | 2023 WY 14 |
Parties | CHRISTOPHER DAVID TARPEY, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Appeal from the District Court of Teton County The Honorable Marvin L. Tyler, Judge
Representing Appellant:
Devon Petersen of Fleener Petersen, LLC, Laramie, Wyoming. Argument by Mr. Petersen.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; and Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
[¶1] Following a jury trial, Christopher Tarpey was convicted of one count of first-degree sexual assault. On appeal he contends the district court violated his Sixth Amendment right to a public trial, the district court committed plain error when it admitted a recording of the victim's statement to the police, and he received ineffective assistance of counsel. We affirm.
[¶2] Mr. Tarpey raises three issues, which we rephrase as follows:
I. Did the district court violate Mr. Tarpey's Sixth Amendment right to a public trial?
II. Did the district court commit plain error by admitting the recording of the victim's statement to the police?
III. Did Mr. Tarpey receive ineffective assistance of counsel?
[¶3] On July 26, 2020, Sergeant Russ Ruschill of the Jackson Police Department received a call from BS who informed him Christopher Tarpey sexually assaulted her in the early morning hours of July 23, 2020. Sergeant Ruschill recorded his telephone interview of BS with his body camera. On December 10, 2020, the State charged Mr. Tarpey with one count of sexual assault in the first degree. He pled not guilty at his arraignment, which was conducted by videoconference with Mr. Tarpey's consent.
[¶4] The district court set Mr. Tarpey's trial for five days beginning on June 1, 2021. The district court's scheduling order informed the parties the trial would be conducted in compliance with its Covid-19 jury trial plan and it required the parties to file any objections to those protocols by March 26, 2021. Mr. Tarpey did not file any objections to those protocols. The scheduling order also required the parties to submit a stipulated exhibit list. The parties filed an exhibit list that indicated they stipulated to the admission of "select excerpts" of the recording of Sergeant Ruschill's phone interview with BS which was identified as Exhibit 1/MM. The exhibit list did not identify which excerpts the parties intended to play.
[¶5] The district court addressed its Covid-19 protocols at the pretrial conference held on May 7, 2021. The district court indicated it would be "taking every reasonable precaution" to protect the jurors, including socially distancing all the participants. The district court stated the courtroom could not accommodate more than three people at each counsel table, and any other people who wanted to attend the trial would have to do so by a video link. Mr. Tarpey did not object at that time. The district court issued an order following the pretrial conference, which incorporated the district court's pandemic jury trial plan and stated: "Counsel are directed to review that plan and raise any questions at any upcoming conferences." The order reiterated that due to the size of the courtroom, three people could sit at counsel tables, and "[a]ll other support staff, co-counsel, investigators, friends, family, Victim Services staff, etc. may attend by videoconference link."
[¶6] The district court held another pretrial hearing on May 25, 2021. At this hearing, the State asked the district court if it had decided how it would be broadcasting the trial to the public. The following discussion then took place:
[¶7] The district court conducted a final pretrial hearing on May 28, 2021. The district court indicated it made arrangements with the District Court Clerk to post a notice about the audio broadcast on the Clerk's website and at the front of the courthouse, so there would be "reasonable public access in that regard."
[¶8] The district court issued an order after the pretrial hearings. This order set forth the district court's reason for limiting public access to the trial and for using the audio broadcast rather than a video link:
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