Taylor v. State

• Decision Date: 12 January 2001
• Docket Number: No. 99-196.,99-196.
• Citation: 17 P.3d 715,2001 WY 13
• Parties: Larry TAYLOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

17 P.3d 715

2001 WY 13

Larry TAYLOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-196.

Supreme Court of Wyoming.

January 12, 2001.

Rehearing Denied March 12, 2001.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director, Kim Corey, Cynthia Salisbury and Kallie D. Woodward, Student Interns, of the Wyoming Defender Aid Program. Argument by Ms. Corey.

Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Mackenzie Hunt, Benjie Wimmer and Patrick Moran, Student Interns, of the Prosecution Assistance Program. Argument by Mr. Hunt.

Before LEHMAN, C.J., and THOMAS,¹ GOLDEN, HILL, and KITE, JJ.

GOLDEN, Justice.

[¶ 1] In this appeal, Appellant Larry Taylor appeals his conviction for receiving stolen property, alleging that a speedy trial violation under W.R.Cr.P. 48, a misleading jury instruction, and prosecutorial misconduct require reversing his conviction. We affirm.

ISSUES

[¶ 2] Taylor presents these issues for our review:

1. Was Mr. Larry Taylor denied his right to a speedy trial when the time between his arraignment and trial was 165 days; and was he denied effective assistance of counsel when his trial attorney failed to renew the motions previously filed by Mr. Taylor.

2. Did jury instruction 7 mislead the jury and shift the burden of proof from the State to the Defendant since the jury instruction relieved the State of proving beyond a reasonable doubt that Mr. Taylor knew the check was stolen.

3. Was jury prevented from impartially evaluating the evidence, and was Larry Taylor deprived of a fair trial, as a result of prosecutorial misconduct which included: improper cross-examination of Mr. Taylor wherein he was compelled to label a State's witness a liar; improper inquiry regarding the irrelevant issue of alleged methamphetamine use by Larry Taylor; inquiry into the details of a prior conviction which far exceeded the scope permitted by W.R.E. 609; and eliciting improper testimony from a police detective which invaded the Court's province of instructing the jury regarding the applicable law.

The State phrases the issues as:

I. Was Appellant denied his right to a speedy trial under Rule 48(b), Wyoming Rules of Criminal Procedure, or under the Constitutions of the United States or Wyoming; and was Appellant denied effective assistance of counsel because his attorney failed to renew Appellant's motions for a speedy trial?

II. Did jury instruction 7 mislead the jury, shift the burden of proof from the State to Appellant and relieve the State of proving beyond a reasonable doubt that Appellant knew the $7,000.00 check was stolen?

III. Was Appellant deprived of a fair trial due to alleged prosecutorial misconduct?

FACTS

[¶ 3] The Phipps Construction Company reported forged checks to its bank in May of 1998. An investigation revealed that thieves saw a box of checks delivered to Mrs. Phipps' home and had stolen them. One of the checks was issued to Taylor for $7,000 and endorsed and deposited by him. He later drew out $6,500 from his account. Taylor admitted that he received one of the checks but told investigators that he had received it after selling a high performance engine to an individual who claimed to work for Phipps. He denied that he knew it was stolen. Taylor's home was searched, and he was arrested for receiving stolen property. After being released on bond, Taylor attempted to retrieve some of his personal property that was being held for evidence. When denied, Taylor became angry and told a police officer that he only got a few hundred dollars out of this deal.

[¶ 4] Appellant was tried before a jury on February 1, 1999, for unlawfully and knowingly concealing, disposing, buying or receiving property he knew or had reasonable cause to believe was stolen and which had a value of $500 or more.² He testified that his earlier story about receiving the stolen check was a lie, stated that he suspected the check might not clear the bank, and had the bank confirm that the check would clear before depositing it, but still denied knowing that the check was stolen. At trial, he claimed that he had received the check for selling a white Camaro. He later changed his mind about the sale and returned $6,500 along with $500.00 that he had in his back pocket to the purchaser. He denied stating to the officer that he had only gotten a few hundred dollars out of the deal. The jury convicted Taylor.

DISCUSSION

Speedy Trial

[¶ 5] Taylor was arraigned on August 20, 1998, and tried on February 1, 1999, a difference of 165 days which he claims violates W.R.Cr.P. 48 and the federal and state constitutions.

We review a speedy trial claim to ensure that the mandates of W.R.Cr.P. 48 and constitutional guarantees have been met. Yung v. State, 906 P.2d 1028, 1032 (Wyo. 1995). We begin by calculating the time between defendant's arraignment and trial, excluding the time periods specified in W.R.Cr.P. 48(b)(3). Hogan v. State, 908 P.2d 925, 930 (Wyo.1995); McDermott v. State, 897 P.2d 1295, 1300 (Wyo.1995). Delays of fewer than 120 days are permissible. Hogan, 908 P.2d at 930; McDermott, 897 P.2d at 1300. If a delay has exceeded 120 days, we determine whether the defendant has made a written demand for a speedy trial or otherwise vigorously asserted his rights under W.R.Cr.P. 48. Kleinschmidt v. State, 913 P.2d 438, 439-40 (Wyo.1996); Hall v. State, 911 P.2d 1364, 1370 (Wyo.1996). If the defendant has not done so, [and the Rule does not provide relief] we apply the four-part constitutional test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), and adopted in Cosco v. State, 503 P.2d 1403, 1405 (Wyo.1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973), to ensure that the defendant's constitutional guarantee to a speedy trial has been satisfied.

Detheridge v. State, 963 P.2d 233, 235 (Wyo. 1998).

[¶ 6] For constitutional analysis, the speedy trial clock begins ticking upon arrest. Campbell v. State, 999 P.2d 649, 655 (Wyo.2000). Taylor was arrested on June 11, 1998, and tried on February 1, 1999, a difference of 236 days. Taylor does not present any constitutional arguments apparently because this time period is not presumptively prejudicial or significantly long and would not be found to violate his constitutional rights absent a showing of prejudice. McDaniel v. State, 945 P.2d 1186, 1188 (Wyo. 1997). Taylor presents no showing of prejudice. Osborne v. State, 806 P.2d 272, 277 (Wyo.1991) (holding 244 days is not presumptively prejudicial, but requiring further analysis).

[¶ 7] Taylor does argue that a violation of W.R.Cr.P. 48 requires dismissal. He twice asserted his speedy trial rights on his own motion to the district court but did not receive a ruling until a hearing on January 27, 1999, when his new attorney argued the motions and dismissal was denied. The record also shows, however, that the motions were filed after the defense and the State stipulated to a continuance for further plea negotiations, and after Taylor had requested different appointed counsel. After the continuance was granted, counsel withdrew, and new counsel was appointed. Taylor contends that the change in counsel did not cause any delay and that any delay caused by the stipulation cannot be attributed to him because the continuance was not granted in accordance with W.R.Cr.P. 48(b).

W.R.Cr.P. 48(b)

[¶ 8] A criminal defendant's right to a speedy trial is grounded in the constitutions of the United States and the State of Wyoming. In recognition that W.R.Cr.P. 48 provides criminal defendants a procedural mechanism to ensure the protection of this constitutional right, we have held that compliance with its terms is mandatory. Detheridge, 963 P.2d at 235. In pertinent part, W.R.Cr.P. 48 provides:

(b) Speedy trial.—

(1) It is the responsibility of the court, counsel and the defendant to insure that the defendant is timely tried.

(2) A criminal charge shall be brought to trial within 120 days following arraignment unless continued as provided in this rule.

(3) The following periods shall be excluded in computing the time for trial:

(A) All proceedings related to the mental illness or deficiency of the defendant;

(B) Proceedings on another charge;

(C) Delay granted by the court pursuant to paragraph (4) or (5);

(D) The time between the dismissal and the refiling of the same charge; and (E) Delay occasioned by defendant's change of counsel or application therefor.

(4) Continuances not to exceed six months from the date of arraignment may be granted by the trial court as follows:

(A) On motion of defendant supported by affidavit; or

(B) On motion of the attorney for the state or the court if:

(i) The defendant expressly consents;

(ii) The state's evidence is unavailable and the prosecution has exercised due diligence; or

(iii) Required in the due administration of justice and the defendant will not be substantially prejudiced; and

(C) If a continuance is proposed by the state or the court, the defendant shall be notified. If the defendant objects, the defendant must show in writing how the delay may prejudice the defense.

(5) Any request to continue a trial to a date more than six months from the date of arraignment must be directed to the court to which appeals from the trial would be taken and may be granted by that court in accordance with paragraph (4).

(6) Any criminal case not tried or continued as provided in this rule shall be dismissed 120 days after arraignment.

(7) If the defendant is unavailable for any proceeding at which the defendant's presence is required, the case may be continued for a reasonable time by the trial court but for no more than 120 days after the

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