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Varo Ken v. the State of Wyoming

December 22, 2011


Appeal from the District Court of Uinta County The Honorable Dennis L. Sanderson, Judge

The opinion of the court was delivered by: Kite, Chief Justice.

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

KITE, C.J., delivers the opinion of the Court; GOLDEN, J., files a concurring in part and dissenting in part opinion, in which VOIGT, J., joins; VOIGT, J., files a concurring in part and dissenting in part opinion, in which GOLDEN, J., joins.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.

[¶1] A jury convicted Varo Ken of attempted first degree murder and aggravated assault. He appealed, asserting defense counsel provided ineffective assistance in several ways, including that he failed to file a timely motion for new trial. Mr. Ken also contended the evidence presented to the jury was insufficient to support his conviction for attempted first degree murder.*fn1

[¶2] After docketing Mr. Ken's appeal, we remanded the case to the district court for an evidentiary hearing on his claim that counsel was ineffective. On remand, the parties stipulated that defense counsel failed to timely file post-trial motions for acquittal and new trial. Following a hearing, the district court concluded Mr. Ken was prejudiced by counsel's failure to timely file a motion for new trial because, had counsel timely filed the motion, the court would have granted it on the ground that the attempted first degree murder conviction was contrary to the weight of the evidence and may have resulted in a miscarriage of justice.

[¶3] Upon the district court's entry of its findings of fact and conclusions of law, the case returned to this Court for consideration of the issues Mr. Ken presented in his appeal. Addressing his second issue first, we hold that sufficient evidence was presented to support the attempted first degree murder conviction; therefore, Mr. Ken was not entitled to a judgment of acquittal. Our holding on that issue leaves only the claim of ineffective assistance of counsel remaining. We hold that Mr. Ken has satisfied his burden to show ineffective assistance of counsel. Therefore, we reverse the attempted first degree murder conviction and remand the case for a new trial on that charge.


[¶4] Mr. Ken states the issues for this Court's determination as follows:

I. Whether the ineffective performance of trial counsel denied Ken his Sixth Amendment right to effective counsel.

II. Whether evidence presented at trial was sufficient to support convictions of attempted first degree murder and aggravated assault.

The State rephrases the same issues.


[¶5] On August 7, 2009, the Uinta County prosecutor filed an information charging Mr. Ken with attempted first degree murder in violation of Wyo. Stat. Ann. § 6-1-301(a) (LexisNexis 2011) and § 6-2-101(a) and (b) (LexisNexis 2011) and aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) and (b) (LexisNexis 2011). In the accompanying affidavit, Evanston police officer Douglas Matthews stated that on the evening of July 26, 2008, Rachel Garcia called 911 to report that a man had fired a gun at her, her five year old son and her fiance, Lance Menard, in the parking lot of an apartment complex in Evanston, Wyoming.*fn2 She provided dispatch with a description and the license plate number of the vehicle the suspect was driving when he left the scene. The vehicle was licensed in the state of Utah and dispatch notified authorities there to locate and stop it.

[¶6] Meanwhile, Officer Matthews spoke with Ms. Garcia and Mr. Menard. According to his affidavit, they reported that they had pulled into a parking space next to the suspect's vehicle. Words were exchanged and Mr. Menard made a derogatory comment to the suspect. As he, Ms. Garcia and the child approached the entrance to the apartment complex, Mr. Menard heard the suspect yelling. He turned and saw the suspect pointing a gun at him. According to Officer Matthews, Mr. Menard and Ms. Garcia reported that the suspect fired four shots at them, got into his vehicle and drove away.

[¶7] Approximately forty minutes later, a Utah State Trooper stopped a vehicle matching the description Ms. Garcia had provided and took the two occupants into custody. The driver was identified as Mr. Ken, the passenger as Anisa Chandavong. The trooper searched the vehicle and found a semi-automatic handgun.

[¶8] Officer Matthews interviewed Ms. Chandavong the following day. According to his affidavit, Ms. Chandavong told him that she and Mr. Ken were seated in the car in the parking lot when a truck pulled into the parking space next to them and some people got out. Ms. Chandavong said Mr. Ken got out of the car because he thought the man was yelling at him. She said she did not hear what was said or gunshots because she was wearing earphones. She also said she did not see a gun until Mr. Ken got back in the car.

[¶9] Officer Matthews also interviewed Mr. Ken. According to the officer's affidavit, Mr. Ken said he and his girlfriend were arguing in his vehicle in the parking lot when a pickup pulled into the space next to them and several people got out. He heard the man yell something and thought he was yelling at him. He got out of the car, the man yelled something derogatory, and Mr. Ken got his gun. He said that he fired a shot in the air and then walked toward the man. According to the affidavit, Mr. Ken told Officer Matthews that he pointed the gun directly at the man, heard Ms. Garcia scream that her child was in the line of fire, pointed the gun off to the right and fired again. Mr. Ken said he then pointed the gun back at Mr. Menard and fired. Later, Officer Matthews found two spent shell casings, one in front and the other behind where Mr. Ken's vehicle had been parked. He also found a bullet hole in the screen door of the main floor apartment to the right of the building entrance and another bullet hole in the face plate of the apartment deck above the main floor apartment. No other bullets or casings were found.

[¶10] The district court convened a jury trial on the charges against Mr. Ken. On the second day of trial, defense counsel informed the district court that the prosecutor had that morning provided a report indicating Mr. Menard had pleaded guilty to battery in 2008 after an incident in which he was reported to have picked a fight in a bar with another customer. At the point when defense counsel received the report, Mr. Menard had already testified. Defense counsel argued that Mr. Menard's prior involvement as the aggressor in an argument was relevant to Mr. Ken's self-defense claim and asked for the opportunity to call him back to the witness stand and question him about the incident. The district court indicated there should be a hearing or an offer of proof. The trial continued.

[¶11] At the close of the State's evidence, defense counsel moved for a judgment of acquittal on the attempted first degree murder charge, arguing there was insufficient evidence. The district court denied the motion, concluding the evidence that Mr. Ken retrieved a firearm, pointed it at Mr. Menard and fired, when viewed in the light most favorable to the State, created a reasonable inference that he intended to kill Mr. Menard. Defense counsel then made an offer of proof concerning the newly disclosed report. The district court reserved ruling on whether it would allow the defense to re-call Mr. Menard.

[¶12] The defense presented its case through the testimony of Ms. Chandavong. After her testimony, the defense rested. The court excused the jury and asked defense counsel if he had intended to rest without a ruling on whether he would be allowed to re-call Mr. Menard. Defense counsel responded that he had intended to rest because it was too late to investigate the incident which had led to the battery charge against Mr. Menard. The court advised the parties that it would allow the defense to re-call Mr. Menard. Counsel reiterated that the defense rested.

[¶13] On February 4, 2010, the jury returned a verdict of guilty on both counts. The district court discharged the jury and immediately sentenced Mr. Ken to life imprisonment without the possibility of parole on the attempted first degree murder conviction and a concurrent term of two to six years for the aggravated assault conviction. The district court entered a written judgment and sentence on February 23, 2010.

[ΒΆ14] On March 3, 2010, twenty-seven days after the jury rendered its verdict and Mr. Ken was sentenced, defense counsel filed a motion for judgment of acquittal and a new trial. The district court denied the motion, finding that it was not filed in accordance with W.R.Cr.P. 29(c), which requires motions for judgment of acquittal to be filed within ten days after a verdict is returned, or W.R.Cr.P. 33(b) requiring motions for new trial to be filed ...

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