Whitney v. State, No. 03-34.

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: VOIGT, Justice.
• Citation: 2004 WY 118,99 P.3d 457
• Parties: Harold Robert WHITNEY, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 21 October 2004
• Docket Number: No. 03-34.

99 P.3d 457
2004 WY 118

Harold Robert WHITNEY, Jr., Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff)

No. 03-34.

Supreme Court of Wyoming.

October 21, 2004.

99 P.3d 460

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

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Assistant Attorney General.

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

VOIGT, Justice.

[¶ 1] Harold Robert Whitney, Jr. (the appellant) appeals his convictions for aggravated homicide by vehicle, a felony, in violation of Wyo. Stat. Ann. § 6-2-106(b)(i) (LexisNexis 2003), and several misdemeanors. On appeal, the appellant contends that he was denied a speedy trial, the prosecution suppressed or failed to preserve exculpatory evidence, a crime scene photograph was improperly admitted into evidence, and the prosecutor committed misconduct during opening statement and closing argument. We affirm.

ISSUES

1. Whether the appellant was denied a speedy trial pursuant to W.R.Cr.P. 48(b) or the United States or Wyoming Constitutions?

2. Whether the prosecution suppressed or failed to preserve exculpatory evidence?

3. Whether a photograph of the deceased victim's body at the crime scene was improperly admitted into evidence?

4. Whether the prosecutor committed misconduct during opening statement and closing argument?

FACTS

[¶ 2] At about 2:00 a.m. on September 29, 2001, Officer Michael Vranish of the Evanston police department encountered a green

99 P.3d 461

Pontiac minivan (the minivan) at an intersection controlled by a flashing red stoplight. The minivan stopped once it had entered the intersection entirely, remained stopped in the intersection for at least ten seconds, proceeded through the intersection, drove well below the posted speed limit for a brief period of time, and failed to signal its turns. Officer Vranish, suspecting that the minivan's driver might be impaired, initiated a traffic stop shortly thereafter. Officer Vranish requested that the minivan's driver, who the officer identified at trial as the appellant, produce his driver's license, registration, and proof of insurance. The appellant produced a plastic "Hertz Car Sales" "club card entitling the holder to certain [VIP] benefits" bearing the name "Bobbie Decker."¹

[¶ 3] Officer Vranish testified that he smelled the odor of an alcoholic beverage on the appellant's breath, the appellant had bloodshot eyes, appeared "really tired," did not communicate or respond well, and was slow and deliberate in attempting to produce the requested documentation (which documentation he ultimately failed to produce). Officer Vranish returned to his patrol vehicle in order "to find out who [he] was dealing with" and did not consider the appellant to be a flight risk at that time.

[¶ 4] The minivan then suddenly pulled away from the scene of the traffic stop, failed to stop at a stop sign, and began to exceed the posted speed limit.² Officer Vranish pursued the minivan and from a point approximately six hundred feet behind the minivan, Officer Vranish saw "a cloud of dust" as the minivan lost control and traveled off the side of the road. The appellant exited the minivan, looked at Officer Vranish, ignored the officer's order to "get on the ground," and took off running. While Officer Vranish and another police officer subdued the appellant, Evanston police officer Chris Brackin walked to the front of the minivan, looked through a hole in the windshield, and saw a male body positioned with his head near the passenger seat and his lower body near the windshield opening. The body, later identified as Donald Walker (the victim), had no pulse. According to Officer Vranish, the entire pursuit lasted about a minute.

[¶ 5] Wyoming Highway Patrol Trooper Richard Lewis investigated the crime scene with the assistance of David Lankford, a Wyoming Highway Patrol Trooper at the time. Trooper Lewis determined that the minivan the appellant was driving during the pursuit jumped the curb on a curve in the roadway, struck the victim (who was walking on the sidewalk) 229 feet later, struck a light pole, impacted a traffic island, and came to rest in the roadway approximately 629 feet from the point it jumped the curb. The minivan struck the victim with such force that it "knocked" the victim "out of his shoes" and the victim's severed left foot came to rest against a fence about 270 feet from the point of impact. Trooper Lankford opined that the appellant's response to the curve in the roadway was "late. He started into the turn but it wasn't until after the turn had already started, so he was going straight and then started his turn too late, which caused him to go off the roadway and on to the sidewalk." According to Trooper Lankford, the minivan's minimum speed when it jumped the curb was seventy miles per hour and the average speed during the pursuit was seventy-five miles per hour.

[¶ 6] A blood sample was obtained from the appellant on September 29, 2001, which sample contained an alcohol content of .27%. Officer Vranish and Trooper Lewis testified that the appellant, who was from Elko, Nevada, stated that after he was unable to locate some friends in Evanston, he went out drinking at two establishments and was driving back into town when Officer Vranish stopped him.

[¶ 7] At trial, the appellant's defense focused on: (1) Officer Vranish's actions in returning to his patrol vehicle to attempt to identify the appellant instead of taking steps to control the appellant and/or the minivan

99 P.3d 462

and prevent the appellant from driving;³ and (2) the possibility that Officer Vranish, perhaps via a "pit maneuver,"⁴ forced the appellant off the road during the pursuit prior to the minivan striking and killing the victim.⁵ The appellant contended at trial that these actions amounted to extreme and outrageous conduct, and therefore proximately caused the victim's death

[¶ 8] The appellant was ultimately charged in an Amended Information with aggravated homicide by vehicle, a felony, in violation of Wyo. Stat. Ann. § 6-2-106(b)(i), and eluding, in violation of Wyo. Stat. Ann. § 31-5-225 (LexisNexis 2003), reckless driving, in violation of Wyo. Stat. Ann. § 31-5-229 (LexisNexis 2003), driving while under the influence, in violation of Wyo. Stat. Ann. § 31-5-233(b)(ii)(A) (LexisNexis 2001), two counts of interference with a peace officer, in violation of Wyo. Stat. Ann. § 6-5-204(a) (LexisNexis 2003), and driving while license suspended or revoked, in violation of Wyo. Stat. Ann. § 31-7-134(a) (LexisNexis 2003), all misdemeanors. On April 22, 2002, the State moved to dismiss the reckless driving charge without prejudice, which motion was granted. On October 11, 2002, a Uinta County jury found the appellant guilty of the remaining charges. The district court sentenced the appellant to imprisonment for eight to twelve years for aggravated homicide by vehicle, and also imposed sentence for several of the misdemeanor convictions.⁶ The appellant appeals from the district court's judgment and sentence.

DISCUSSION

SPEEDY TRIAL

[¶ 9] The appellant was arrested on September 29, 2001, and the public defender was appointed to represent him on October 1, 2001. On October 1, 2001, the prosecution filed an Information in the circuit court charging the appellant, followed by an Amended Information on October 17, 2001. A preliminary hearing was held on October 11, 2001, and the appellant was bound over to the district court for further proceedings. The appellant was arraigned in the district

99 P.3d 463

court on October 31, 2001, where he pled not guilty, and following several trial continuances, a jury trial was held October 8-11, 2002

[¶ 10] The appellant argues that he was denied a speedy trial under W.R.Cr.P. 48, Wyo. Const. art. 1, § 10, and the Sixth Amendment to the United States Constitution. "We review a speedy trial claim according to the mandates of W.R.Cr.P. 48(b) and, where necessary, the four-part constitutional test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)." Vlahos v. State, 2003 WY 103, ¶ 12, 75 P.3d 628, 632 (Wyo.2003). "W.R.Cr.P. 48 governs the time period between arraignment and trial; however, delays between the time of charge and the time of trial are subject to the Sixth Amendment to the United States Constitution." Walters v. State, 2004 WY 37, ¶ 9, 87 P.3d 793, 795 (Wyo.2004). We note that on appeal, the appellant does not contend that his trial counsel was ineffective at any time during the trial court proceedings.

Continuances of January 30, 2002, and April 3, 2002, Trial Dates

[¶ 11] In an order filed November 14, 2001, the district court set the case for a jury trial beginning January 30, 2002. Based on his preliminary discussions with the appellant in October 2001, and "on Mr. Whitney's demand," the appellant's trial counsel (trial counsel) developed a theory that Officer Vranish improperly focused on ascertaining the appellant's identity during the traffic stop, rather than on removing the appellant from the minivan or otherwise disabling the minivan. According to this theory, Officer Vranish's conduct was extreme and outrageous and therefore proximately caused the victim's death. Trial counsel informed the appellant that this was a "difficult" defense, but the appellant insisted on "pushing this defense on" trial counsel. In mid-December, trial counsel considered consulting an expert on driving while under the influence arrest procedures and contacted Robert LaPier. The two discussed Mr. LaPier's fees, and trial counsel submitted case materials to Mr. LaPier for his review.

[¶ 12] Trial counsel also stated that even before he was "assigned the case" (and certainly...