Urbigkit v. State

• Decision Date: 07 May 2003
• Docket Number: No. 01-208.,01-208.
• Citation: 2003 WY 57,67 P.3d 1207
• Parties: Samuel Thomas URBIGKIT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

67 P.3d 1207

2003 WY 57

Samuel Thomas URBIGKIT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-208.

Supreme Court of Wyoming.

May 7, 2003.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Samuel Thomas Urbigkit appeals from his conviction on multiple counts of aggravated assault and attempted first-degree murder as well as one count each for being a felon in possession of a firearm, possession of methamphetamine with intent to deliver, conspiring to possess methamphetamine with intent to deliver, and possession of marijuana. Mr. Urbigkit alleges numerous points of error by the trial court, including the denial of his motion to suppress evidence seized on search warrants, denial of his right to a fair trial by being forced to wear shackles in the courtroom, denial of his motion for change of venue, interference in his attorney-client relationship, exclusion of a witness statement, instructing the jury that the prosecution did not have to prove all theories contained in the aggravated assault instructions, insufficiency of the evidence, double jeopardy violations, and cumulative error. We reverse four of the aggravated assault convictions on the grounds of insufficiency of the evidence to support both of the state's alternative theories. Finding no other error, we affirm the convictions on all remaining counts.

ISSUES

[¶ 2] Mr. Urbigkit presents the following issues for our review:

I. Did the trial court err in denying Appellant's motion to suppress evidence?

II. Did the trial court err in ordering Appellant to be shackled in the presence of the jury, and while testifying?

III. Did the trial court err in denying Appellant's motion to change venue?

IV. Did the failure to swear in the jury prior to the receipt of evidence and testimony constitute reversible error?

V. Was Appellant unable to adequately participate in his own defense due to the state interference into his attorney-client relationship?

VI. Did the trial court err in excluding the statement of Joleen Summers?

VII. Did fundamental error occur when the trial court instructed the jury that the state did not have to prove all theories contained in the aggravated assault charges?

VIII. Was there insufficient evidence to convict Appellant of the aggravated assault charges?

IX. Should the convictions for aggravated assault and attempted first degree murder merge for sentencing purposes; or, has Appellant's right to be free from double jeopardy been violated?

X. Did the trial court commit plain error and deny Appellant his constitutional right to a fair trial by failing to give all instructions to the jury before the closing argument began, in violation of W.R.Cr.P. 30 and W.S. § 7-11-201?

XI. Did the trial court exceed its statutory authority in imposing multiple and consecutive life sentences on Appellant?

XII. Does cumulative error warrant reversal of Appellant's convictions?

The state restates the issues as follows:

I. Did the district court err in denying Appellant's motion to suppress?

II. Was Appellant denied a fair trial or the opportunity to participate in his defense because of the security measures employed during trial?

III. Did the district court err in denying Appellant's motion for a change of venue?

IV. Did the district court commit reversible error in failing to swear in the jury prior to the receipt of testimony or in instructing the jury?

V. Did the district court err in excluding the statements of Joleen Summers?

VI. Was Appellant properly convicted on the six counts of aggravated assault?

VII. Did the district court properly sentence Appellant?

VIII. Was Appellant denied a fair trial due to the cumulative effect of the alleged trial errors?

FACTS

[¶ 3] On January 25, 2001, Casper police, who had a search warrant for John Logan's vehicle, saw the vehicle traveling on CY Avenue. They stopped it and found an ounce of methamphetamine during their search of the truck. Mr. Logan told the officers he purchased the methamphetamine from Mr. Urbigkit. Mr. Logan subsequently informed law enforcement officials he had purchased methamphetamine from Mr. Urbigkit several times at different locations, including Mr. Urbigkit's shop, and Mr. Urbigkit was always armed, had a number of weapons in his possession, and was violent and dangerous. Law enforcement investigated and conducted surveillance for several days before obtaining search warrants for Mr. Urbigkit's apartment, shop, vehicle, and person.

[¶ 4] On February 7, 2001, law enforcement attempted to execute the warrants at Mr. Urbigkit's shop. Among the law enforcement personnel involved that morning were Department of Criminal Investigation (DCI) Drug Task Force Agents Steve McFarland and Brad Wnuk, DCI Agent Lonnie TeBeest, Natrona County Sheriff's Department Deputies Jim Arnold and Gus Holbrook, Wyoming Highway Patrolman Rick Dye, and Officer Chuck Adkins of the Mills Police Department. As they arrived at the designated meeting place near Mr. Urbigkit's shop, Mr. Urbigkit came out of the building and got into his already running vehicle. They immediately moved in and positioned themselves at various locations around the premises in an attempt to prevent Mr. Urbigkit from leaving the area. As he attempted to maneuver around them and drive off the premises by way of various access roads, DCI Agent Tim Hill and Agents McFarland and TeBeest tried to block his path with their vehicles. Thinking Mr. Urbigkit would have to surrender his efforts to escape, Agent Wnuk, a passenger in Agent Hill's truck, got out of the truck and walked toward Mr. Urbigkit's vehicle. As Agent Wnuk approached, Mr. Urbigkit accelerated and made a hard turn to the right, causing the back end of his car to spin around toward Agent Hill's truck and Agent Wnuk, who attempted to leap out of the way. Agent Wnuk's hand was struck by the vehicle as it spun away, and his left knee was injured when he hit the ground. Mr. Urbigkit's car came nose to nose with Agent TeBeest's vehicle. Agent TeBeest got out, drew his gun, and pointed it at Mr. Urbigkit. Mr. Urbigkit again accelerated and drove straight toward Agent TeBeest, who jumped up on the hood in order to avoid being hit. He clung to the hood as Mr. Urbigkit continued to accelerate, now heading directly for Agent McFarland's vehicle. As Mr. Urbigkit turned and veered around Agent McFarland, Agent TeBeest let go and rolled off onto the ground. Mr. Urbigkit continued to accelerate, and Agent McFarland fired his gun at him. Agent Wnuk also fired two shots. Mr. Urbigkit drove through a barbed wire fence and into a field to the southwest of the shop area where his car became stuck. He got out of the car and ran across the field. Deputy Arnold and Deputy Holbrook arrived on the scene and, upon sighting Mr. Urbigkit, directed him to put up his hands and drop his weapon. Mr. Urbigkit pointed his gun at them and started firing. They sought cover and returned his fire. Mr. Urbigkit continued to fire at the deputies as he moved north across the field. By this time, Patrolman Dye and Officer Adkins were also at the scene. Patrolman Dye retrieved his rifle and returned Mr. Urbigkit's fire. He fired once and missed, and Mr. Urbigkit began shooting at him and the other officers. Patrolman Dye fired again, and Mr. Urbigkit went down. After a moment, he came up again and fired more shots. Patrolman Dye fired a third shot, and Mr. Urbigkit flopped down again. The officers heard three more shots from where Mr. Urbigkit had fallen and then saw his gun fly up in the air. Law enforcement approached Mr. Urbigkit, handcuffed him, and took him into custody.

[¶ 5] Later, law enforcement executed the warrants and found firearms, ammunition, marijuana, methamphetamine, and other drug paraphernalia. Mr. Urbigkit was charged with seven counts of aggravated assault, four counts of attempted first-degree murder, and one count each of felon in possession of a firearm, possession of a controlled substance (methamphetamine) with intent to deliver, conspiracy to possess with intent to deliver a controlled substance (methamphetamine), and felony possession of a controlled substance (marijuana). After a trial to a jury, Mr. Urbigkit was convicted on all but one count of aggravated assault. In a separate proceeding, Mr. Urbigkit was also found to be a habitual criminal. He was sentenced to terms of life for each conviction of aggravated assault and attempted first-degree murder, two to three years for being a felon in possession of a firearm, and eighteen to twenty years each for the convictions of possession of methamphetamine with intent to deliver, conspiracy to possess methamphetamine with intent to deliver, and felony possession of marijuana.

DISCUSSION

A. Suppression of Evidence Seized Pursuant to Search Warrant

[¶ 6] Prior to trial, Mr. Urbigkit filed a motion to suppress the evidence seized pursuant to the search warrants issued on February 6, 2001, contending the affidavits supporting the warrant requests were insufficient to establish probable cause because the information contained in them came from an unreliable source—Mr. Logan. Mr. Urbigkit contended Mr. Logan was unreliable because, while acting as a confidential informant after his arrest, he provided false information to law enforcement concerning where Mr. Urbigkit would most likely be found for purposes of carrying out a controlled buy. Specifically, Mr. Logan allowed law enforcement to believe Mr. Urbigkit was staying at his own apartment when he knew Mr. Urbigkit was at the apartment of his girlfriend,...