Vit v. State

• Decision Date: 05 January 1996
• Docket Number: No. 94-288,94-288
• Citation: 909 P.2d 953
• Parties: Michael Lee VIT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 953

909 P.2d 953

Michael Lee VIT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 94-288.

Supreme Court of Wyoming.

Jan. 5, 1996.

Dan Davis, Gillette, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General, Mary Beth Wolff, Senior Assistant Attorney General, Cheyenne, for Appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

THOMAS, Justice.

The major issue in this case related to the constitutionality of the Wyoming stalking statute, WYO.STAT. § 6-2-506 (Supp.1993). After the appeal was filed, the constitutionality of the Wyoming statute was resolved in Luplow v. State; Jennings v. Currier, 897 P.2d 463 (Wyo.1995). The remaining issues address trial errors including the admission of statements made by Michael Lee Vit (Vit) to a psychologist; the admissibility of other statements made by Vit; error in excluding testimony relating to statements made by Vit to a neighbor explaining Vit's mood on a particular occasion; the absence of a certification of familiarity by a different judge; and limitations upon voir dire examination of the jury panel. We discern no reversible error in any of the contentions made by Vit, and the judgment of the trial court and the separately-entered sentence are affirmed.

In the Appellant's Brief, the issues presented for review are recited as:

1. Is Wyoming's Stalking Statute unconstitutionally vague and overbroad?

2. Did the trial court err by denying the defendant's first motion in limine concerning the relevancy of statements made by the defendant to a psychologist revealing thoughts of violence?

3. Did the trial court err by denying the defendant's first motion in limine having to do with the privileged status of communications made to a psychologist during counseling?

4. Did the trial court err by denying the defendant's second motion in limine concerning the relevance of Kimi Manor's testimony concerning the defendant's speculative statement that he may have killed Jeanie Vincent had he not "found the lord?"

5. Did the trial court err when it did not allow the testimony of the neighbor of the victim that while the stalking incidents were allegedly going on, he gave the defendant a ride home early in the morning, and the defendant was in a very good mood because as the defendant explained to the man, he had just spent the night with his girl friend, and he thought he could patch things up, and other similar proposed evidentiary errors?

6. Did the new court err in not certifying familiarity with the case upon taking over the trial?

7. With regard to voir dire, may a party poll each juror for his answer to questions asked of the panel?

8. Do the above errors of the trial court, singly or together warrant reversal?

In the Brief of Appellee, this statement of the issues appears:

I. Whether W.S. §§ 6-2-506 et. seq. is unconstitutionally vague or overbroad?

II. Whether the procedure followed during voir dire was proper?

III. Whether the trial court properly ruled on evidentiary issues?

In accordance with our usual approach, we view the evidence in the light most favorable to the State. As is frequently true in stalking cases, a personal relationship existed between Vit and the victim. They dated from the middle of 1991 until May of 1993 and, during part of that time, the victim rented a room in her home to Vit. In May, because Vit's "moods kept getting worse," the victim decided to terminate the relationship. Not long after, Vit moved out of the victim's home, but he did not take the termination of the relationship well. On September 14, 1993, around 11:00 p.m., Vit went to the victim's home and pounded on the door. She went to her bedroom window, opened it, and asked him to leave. Vit told her he was not leaving unless she let him in and talked to him. The victim then called 911 for assistance. During the phone call, Vit drove his car closer to her house yelling that he would drive right through her house if she did not let him in. He broke the glass out of her bedroom window and left.

As a result of the September incident, Vit was charged with property destruction, trespassing, driving under the influence, driving under suspension, and eluding a police officer. He was released on bail, and one of the conditions of bail was that he have no contact with the victim. A few days later, he went to the victim's house with a card and some money he owed her. He apologized for the trouble he had caused and left. Several days later, he again went to the victim's residence and pushed her living room window out of the track, trying to effect entry. The victim's daughter called the police. About a week after that, Vit went to the victim's place of employment, seeking to talk to her. She told him he was not supposed to be there, and he left after asking her not to call the police.

Vit was sentenced to a term of 120 days in the county jail after he pleaded guilty to charges of criminal trespass and property destruction. All but sixty days of that sentence was suspended, and he was placed on probation for six months. One of the conditions of probation was that Vit not have any contact, direct or indirect, with the victim. Vit was released from the county jail about December 10, 1993.

Two days later, he went to the victim's residence, and she warned him he was not supposed to be there. He left but, about a week later, he came to the victim's residence with Christmas gifts for her and her daughter. He spoke briefly with the victim, delivered the gifts and left. He then called the victim on December 26, 1993. He apparently was feeling sorry for himself because he had a lousy Christmas, and he accused the victim of being at a bar with her new "blond boyfriend." That comment led the victim to believe Vit had been following her, and she told him to desist. That made Vit angry, and the conversation turned into an argument in which Vit began yelling and screaming at the victim. She hung up.

The next day, the victim tried to telephone her mother and found her phone was dead. Her son stopped by shortly after she made that discovery, and she told him about the phone. When her son checked the lines, he found they had been pulled out, and the junction box was missing. That caused immediate concern to the victim who assumed Vit had been the one who pulled out the telephone lines. She asked her son to go to her mother's home to contact the telephone company and have the phone fixed.

When the victim's son returned from that errand, an officer of the sheriff's department was arriving at the victim's house. Vit had called a friend the night before and advised the friend he had pulled out the victim's phone lines and was afraid of what he might do. He stayed that night with the friend and the friend's wife. When the friend dropped him off the next day, Vit was headed toward the victim's house, and the friend contacted the sheriff's office, concerned Vit might do something violent to the victim. The officer had come to the victim's home to communicate that information.

There was no contact by Vit on December 27 but, on December 28, he did appear and was lurking around the victim's house, peering in the windows. The victim and her son had ordered a pizza, and the delivery person saw Vit hiding behind the playhouse in the yard. The victim had seen a shadow just before and had asked her son to call the emergency phone number. She asked the pizza delivery person if he had seen anyone, and he said he had. He was aware that she was very frightened, but he left because he had left his car running. Sheriff's deputies responded to the emergency phone call from the victim's son, and Vit ran away. He was apprehended, arrested, and charged with felony stalking because he was in violation of his probation.

Vit was convicted, after a trial to a jury, and he was sentenced to a term of not less than fifteen, nor more than sixty, months in the state penitentiary with credit for 208 days previously served. Vit has appealed from that conviction and sentence.

In his brief, Vit initially contends that WYO.STAT. § 6-2-506 is unconstitutional because it is both vague and overbroad. That question was definitively resolved in Luplow, 897 P.2d 463. We discover that, subsequent to that decision, courts in other jurisdictions have continued to uphold such statutes. Appellate courts in Illinois, Michigan, Montana and Ohio have upheld the stalking statutes of those respective states. People v. Bailey; People v. Coyne, 167 Ill.2d 210, 212 Ill.Dec. 608, 657 N.E.2d 953 (Ill.1995); People v. Holt, 271 Ill.App.3d 1016, 208 Ill.Dec. 515, 649 N.E.2d 571 (1995); People v. White, 212 Mich.App. 298, 536 N.W.2d 876 (1995); State v. Martel, 902 P.2d 14 (Mont.1995); State v. Dario, No. C-940844, 1995 WL 553322 (Ohio Ct.App., Sept. 20, 1995). The appellate courts in Alabama and Florida have followed their previous cases ruling the stalking statutes in those states to be constitutional. Ivey v. State, No. CR-93-0659, 1995 WL 664637, --- So.2d ---- (Ala.Crim.App., Nov. 9, 1995); State v. Randall, No. CR-94-1058, 1995 WL 576993, --- So.2d ---- (Ala.Crim.App., Sept. 29, 1995); Williams v. State, 658 So.2d 665 (Fla.Ct.App.1995); State v. Gonzalez, 651 So.2d 185 (Fla.Ct.App.1995). The United States District Court for the District of Connecticut has refused to enjoin the enforcement of the Connecticut statute, noting the plaintiff failed to establish the likelihood of success in establishing that the Connecticut statute was either overbroad or void for vagueness. Champagne v. Gintick, 871 F.Supp. 1527 (D.Conn.1994). Vit's claim of unconstitutionality of the stalking statute is without merit.

Vit then contends he was prejudiced by erroneous evidentiary rulings by the trial judge. In his issues, those are identified as the inadmissibility of statements made by Vit to a mental health therapist...