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Durkee v. State

Supreme Court of Wyoming

September 16, 2015

JASON CHRISTOPHER DURKEE, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff)

Page 1107

[Copyrighted Material Omitted]

Page 1108

Appeal from the District Court of Laramie County. The Honorable Thomas T.C. Campbell, Judge.

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program; A. Walker Steinhage, Student Director; Holli Welch, Student Intern. Argument by Ms. Welch.

Before BURKE, C.J., and KITE[*], DAVIS, and FOX, JJ, and KAUTZ, D.J.[**]


Page 1109

KAUTZ, Justice.

[¶1] Jason Christopher Durkee was convicted after a jury trial of driving while under the influence of methamphetamine and aggravated vehicular homicide based upon recklessness. He claims his constitutional right to a speedy trial was violated because 637 days passed between the initial charges and his trial. Applying the test from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we conclude the delay did not substantially impair his right to a fair trial. We, therefore, affirm Mr. Durkee's convictions.


[¶2] Mr. Durkee presents the following issue on appeal, which we rephrase as a question:

Was Mr. Durkee's constitutional right to a speedy trial violated in a case that took over 630 days between his initial arrest and the case going to trial?

The State's issue is similar, although phrased in greater detail.


[¶3] On February 21, 2012, Mr. Durkee was delivering food for a Chinese restaurant in Cheyenne, Wyoming. At approximately 2:30 p.m., he ran a red light and crashed his pickup into Linda Gookin's car. Mr. Durkee initially told law enforcement he ran the red light because he had a sneezing fit. Ms. Gookin was declared dead shortly after the collision, and Mr. Durkee provided a blood sample for toxicology testing. The Wyoming Department of Health tested Mr. Durkee's blood sample and found it was presumptively positive for amphetamine. The sample was then sent to a Colorado lab for specific methamphetamine testing, which was also positive.

[¶4] In May 2012, Detective John Pederson of the Cheyenne Police Department informed Mr. Durkee of the blood test results. Mr. Durkee admitted he smoked methamphetamine for two hours the night before the collision. He acknowledged he had not slept much, if any, that night, and he was " coming down" or " crashing" from the methamphetamine high at the time of the collision. During the interview, Mr. Durkee confessed he had lied about the sneezing fit and stated he was actually using the GPS on his cell phone to locate the delivery address when he ran the red light, although he later stated he was only holding the phone.

[¶5] On July 9, 2012, the Laramie County District Attorney's office charged Mr. Durkee with one count of driving while under the influence of methamphetamine (DUI) in violation of Wyo. Stat. Ann. § 31-5-233(b)(iii)(B) and (e) (LexisNexis 2015) and one count of aggravated homicide by vehicle--DUI, in violation of Wyo. Stat. Ann. § 6-2-106(b)(i) (LexisNexis 2015) or, in the alternative, one count of aggravated homicide

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by vehicle -- recklessness, in violation of § 6-2-106(b)(ii). The district court arraigned him on August 24, 2012, but due to a number of issues that will be discussed in detail below, he was not brought to trial.

[¶6] On June 5, 2013, Mr. Durkee filed a motion to dismiss for violation of his right to a trial within 180 days after arraignment under W.R.Cr.P. 48. He did not request the charges be dismissed with prejudice or assert he had been prejudiced by the delay. The State agreed the 180 day deadline under the rules of criminal procedure had expired on April 25, 2013, but requested the case be dismissed without prejudice so charges could be re-filed. The district court dismissed the case without prejudice on June 25, 2013. The State re-filed identical charges that same day.

[¶7] The district court arraigned Mr. Durkee on the new charges on August 30, 2013, and scheduled the trial to commence on November 12, 2013. Prior to that date, Mr. Durkee filed a motion to dismiss for violation of his constitutional right to a speedy trial and a motion to dismiss for " extreme prejudice." Mr. Durkee claimed he was prejudiced because his blood sample taken shortly after the collision had been destroyed by the lab on March 27, 2013, and, therefore, was not available for independent testing by his expert. The district court denied the motions, and Mr. Durkee immediately moved to continue the trial.

[¶8] Mr. Durkee's trial finally began on April 7, 2014. The trial proceedings took five days and included the testimony of numerous witnesses. The police officers testified as to the nature of the intersection, the crash, Ms. Gookin's injuries, and their interactions with Mr. Durkee. Detective Pederson recounted Mr. Durkee's admissions during the May 2012 interview. Eye witnesses stated that Mr. Durkee was speeding, ran the red light and was using his telephone just prior to the collision. The Wyoming and Colorado lab technicians testified his blood sample tested presumptively positive for amphetamine and methamphetamine. The State's expert toxicologist testified about the effects of methamphetamine on individuals and the ability to drive safely. The State's accident reconstructionist estimated Mr. Durkee's speed at the point of impact was 45 to 52 miles per hour in the 40 mile per hour zone. The reconstructionist also explained that drivers approaching the intersection had a clear view of the traffic light and Mr. Durkee had plenty of time to stop after the light turned yellow and then red. The defense accident reconstructionist estimated Mr. Durkee was traveling between 34 and 44 miles per hour. The reconstructionists agreed there was no evidence Mr. Durkee braked prior to the collision.

[¶9] The jury found Mr. Durkee guilty of DUI and aggravated homicide by vehicle based upon recklessness but acquitted him of aggravated homicide by vehicle based upon DUI. The district court sentenced him to serve nine to twelve years in prison on the homicide conviction and a concurrent term of 127 days on the DUI conviction. Mr. Durkee filed a timely notice of appeal.


[¶10] We review a criminal defendant's assertion that his constitutional right to a speedy trial was violated de novo. Berry v. State, 2004 WY 81, ¶ 17, 93 P.3d 222, 227-28 (Wyo. 2004), citing Walters v. State, 2004 WY 37, ¶ 9, 87 P.3d 793, 795 (Wyo. 2004).


[¶11] The Sixth Amendment to the United States Constitution states, in relevant part: " In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]" Art. 1, § 10 of the Wyoming Constitution also guarantees a speedy trial on criminal charges.[1] Claimed violations of the constitutional right to a speedy trial are evaluated under the test announced by the United States Supreme Court in Barker, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Cosco v. State, 503 P.2d 1403, 1405 (Wyo. 1972).

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The Barker test includes four factors: " 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his right; and 4) the prejudice to the defendant." Berry, ¶ 31, 93 P.3d at 230-31, citing Harvey v. State, 774 P.2d 87, 92 (Wyo. 1989). See also Ortiz v. State, 2014 WY 60, ¶ 39, 326 P.3d 883, 893 (Wyo. 2014). " No individual factor is dispositive; " rather, the factors are " considered together and balanced in relation to all relevant circumstances." Ortiz, ¶ 39, 326 P.3d at 893; Berry, ¶ 31, 93 P.3d at 231.

[¶12] The right to a timely inquiry into criminal charges is fundamental and the charging authority is required to provide a prompt trial. It is self-evident a criminal defendant has no duty to bring himself to trial. Harvey, 774 P.2d at 92, 96; Dickey v. Florida, 398 U.S. 30, 37-38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970). Thus, the burden is on the State to prove delays in bringing a defendant to trial were reasonable and necessary. Harvey, 774 P.2d at 95. " The ultimate question is 'whether the delay in bringing the accused to trial was unreasonable, that is, whether it substantially impaired the right of the accused to a fair trial.'" Berry, ¶ 31, 93 P.3d at 231, quoting Warner v. State, 2001 WY 67, ¶ 10, 28 P.3d 21, 26 (Wyo. 2001) (other citations omitted).

1. Length of Delay

[¶13] " No precise length of delay automatically constitutes a violation of the right to a speedy trial." Berry, ¶ 32, 93 P.3d at 231. Instead, the length of the delay is a watershed factor. If the delay is sufficiently lengthy, analysis of the other three factors is required.

Some delays are so protracted that they must be considered presumptively prejudicial and weighed heavily in favor of the defendant in the balancing inquiry with the other factors. However, other delays are not so long as to be presumptively prejudicial, but ...

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