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Appeal from the District Court of Laramie County. The Honorable Thomas T.C. Campbell, Judge.
For Appellant: Office of the State Public Defender: Diane Lozano, Wyoming Public Defender; Tina N. Olson[*], Chief Appellate Counsel; and Elizabeth B. Lance of Woodhouse Roden Nethercott, LLC, Cheyenne, WY. Argument by Ms. Lance.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, FOX, and KAUTZ, JJ., and PERRY, D.J.
[¶1] Nathaniel Castellanos was arrested on August 23, 2011, and charged with two counts of first degree murder and one count of attempted first degree murder in connection with the shooting of three persons in his home. He was arraigned on October 3, 2011, and his jury trial began on February 18, 2014-910 days after his arrest and 869 days after his arraignment. The jury returned a guilty verdict on all three charges but declined to impose the death penalty. The district court thereafter sentenced Mr. Castellanos to three consecutive sentences of life without the possibility of parole.
[¶2] On appeal, Mr. Castellanos claims a violation of his right to a speedy trial under Wyoming Rule of Criminal Procedure 48 and the United States Constitution. He also claims ineffective assistance of counsel and error in the jury selection process. We affirm.
[¶3] Mr. Castellanos states the issues on appeal as follows:
I. Was Mr. Castellanos denied his right to a speedy trial in violation of both the Wyoming and United States Constitutions and W.R.Cr.P. 48?
II. Was Mr. Castellanos denied the effective assistance of counsel by his first appointed counsel?
III. Did the trial court abuse its discretion when it denied Mr. Castellanos' challenges for cause against two jurors?
I. Events Leading to the Arrest of Mr. Castellanos
[¶4] On August 23, 2011, Mr. Castellanos decided to take a few days leave from his employment to deal with the stress he was experiencing from a break-up with his fiancé that afternoon and from child custody disputes he was having with his ex-wife. That evening, he sent text messages to his friend Megan McIntosh inviting her for a beer and to play poker at Mingles Bar in Cheyenne, Wyoming. The two exchanged text messages in which Ms. McIntosh told Mr. Castellanos that she now had a boyfriend and probably could not make it to the bar in time for the poker game. Mr. Castellanos replied that she should bring her boyfriend and they could just have a drink.
[¶5] At around 8:00 to 8:30 that evening, Ms. McIntosh went to Mingles Bar with her boyfriend, Corey Walker, and her roommate, Amber McGuire. When they arrived at Mingles, they got their drinks and sat at a table. Ms. McIntosh then approached Mr. Castellanos at the bar where he was seated. She talked with him for a bit and then the two returned to the table, where Mr. Castellanos introduced himself to Mr. Walker and Ms. McGuire. After visiting for a while, the four decided to leave the bar and go to Mr. Castellanos' home.
[¶6] At Mr. Castellanos' home, the four sat on his patio and had drinks. At some point, Mr. Castellanos asked if any of them knew where they could get some marijuana, and Ms. McGuire said she knew of someone who might be able to sell them some. Ms. McGuire made arrangements to meet that person at King Soopers, and the four got in Mr. Walker's car. On the way to King Soopers, Ms. McGuire became concerned with the way Mr. Castellanos was acting because he kept asking about the person they were meeting and he wanted to personally meet him. Ms. McGuire was concerned that Mr. Castellanos might be an informant so she called off the meeting.
[¶7] The four returned to Mr. Castellanos' home, and Ms. McGuire, Ms. McIntosh, and Mr. Walker went upstairs into the dining room/kitchen area. Mr. Castellanos then came running up the stairs, entered the dining room/kitchen area, and shot Mr. Walker. Mr. Castellanos next turned to Ms. McIntosh and yelled, " You stupid lying bitch. How could you do this to me[?] Don't you love me?" Ms. McIntosh was crying and trying to tell Mr. Castellanos to call 911. She crouched down and held a hand over her head, and Mr. Castellanos shot her. Mr.
Castellanos then turned to Ms. McGuire, and she asked, " How could you do this to us?" Mr. Castellanos replied, " Because somebody's got to do it," and then he shot Ms. McGuire.
[¶8] At approximately 10:47 that evening, a neighbor of Mr. Castellanos called 911 because she had heard the shots fired in Mr. Castellanos' home. The neighbor reported that she heard one shot followed by screaming and then two more shots. Officer Matthew Colson of the Cheyenne Police Department was the first to respond to the reported shots and arrived at the scene at 10:51 p.m. He first drove slowly through the neighborhood with his headlights off and then parked and began to walk the neighborhood on foot. Officer James Eddy arrived at 10:58 p.m. while Officer Colson was walking the neighborhood.
[¶9] When Officer Eddy got out of his vehicle, both officers heard another gunshot from inside Mr. Castellanos' home. The officers approached the house, with Officer Colson staying in a position to maintain a line of sight with the front of the house, and Officer Eddy working his way to the back of the house. As Officer Eddy approached the back of the house, he could see Mr. Castellanos standing in front of the kitchen window behaving in what appeared to be a calm manner. Officer Eddy watched Mr. Castellanos for a moment and then illuminated his flashlight and made verbal contact with him. Officer Eddy ordered Mr. Castellanos to exit the house with his hands raised, and Mr. Castellanos complied. As Officer Eddy handcuffed Mr. Castellanos, Mr. Castellanos told him that the man who did the shooting had run out the front door. When Officer Eddy told him no one came out the front door, Mr. Castellanos told him the shooter must have run downstairs.
[¶10] When additional officers arrived, a search of Mr. Castellanos' entire residence was conducted. Officers found the three victims but no other persons were found in the home. Officers also found a wet handgun on the kitchen counter next to a wet paper towel with blood on it. Mr. Castellanos told the investigating detective that the handgun was his and that he had tried to clean the weapon and his own hands after wrestling the gun away from the shooter.
[¶11] Mr. Walker and Ms. McIntosh each suffered a single gunshot wound to the forehead and died from their injuries. Ms. McGuire suffered two gunshot wounds to the head and survived her injuries.
[¶12] Mr. Castellanos was taken into custody on August 23, 2011, and a warrant for his arrest was issued on August 26, 2011. On August 26, 2011, the State filed an information charging Mr. Castellanos with two counts of first degree murder and one count of attempted first degree murder. The proceedings following Mr. Castellanos' arrest were prolonged, and because Mr. Castellanos has asserted a violation of his right to a speedy trial, we must set forth those proceedings and their dates in some detail.
II. Proceedings Following the Arrest of Mr. Castellanos
A. Preliminary Hearing, Arraignment and State's Death Penalty Election
[¶13] On August 26, 2011, the circuit court issued a notice of setting that scheduled Mr. Castellanos' preliminary hearing for September 1, 2011. On August 31, 2011, Mr. Castellanos filed a Waiver of Speedy Preliminary Hearing and moved to continue the preliminary hearing. The preliminary hearing was continued to September 8, 2011, and following that hearing, Mr. Castellanos was bound over to the district court.
[¶14] On September 16, 2011, the district court, the Honorable Peter G. Arnold presiding, issued an order setting Mr. Castellanos' arraignment for September 26, 2011. On September 22, 2011, Mr. Castellanos requested a re-setting of the arraignment, and on that same date, the arraignment was continued to October 3, 2011. On October 3, 2011, the court held Mr. Castellanos' arraignment
hearing and accepted his plea of not guilty to all charges. During that hearing, after Mr. Castellanos had entered his plea, defense counsel asked the court to continue the arraignment to allow for the filing of any motions required to be filed before arraignment. The court commented that Mr. Castellanos' plea had already been entered and accepted but granted the request and continued the arraignment to October 10, 2011. The arraignment then concluded on October 10, 2011.
[¶15] On October 14, 2011, the district court entered an order setting October 31, 2011 as the State's deadline to elect whether to seek the death penalty. On October 25, 2011, Mr. Castellanos moved to extend that deadline to allow the defense an additional ninety days in which to submit information that might dissuade the State from seeking the death penalty. On October 26, 2011, the court held a hearing on the defense motion. During that hearing, the court asked whether defense counsel would concede that the delay caused by the extension would be attributable to the defendant and then ordered both parties to brief the question. At that point, defense counsel informed the court that Mr. Castellanos was not willing to waive his right to a speedy trial. On November 15, 2011, the parties filed a stipulated agreement regarding the State's deadline for making its death penalty election. The parties agreed that the defense would submit mitigating evidence to the State on or before December 23, 2011, and the State would announce its election on or before December 30, 2011. The parties further stipulated:
The parties also agreed that this extension was requested by the Defendant, and that it does not fall within any of the statutory exemptions for calculation of speedy trial, as set forth in W.R.Cr.P. 48(b)(3). The parties therefore agree that this extension shall not be exempted from the speedy trial calculation.
[¶16] On November 15, 2011, the district court entered an order setting the deadlines to which the parties stipulated and also providing:
IT IS FURTHER ORDERED that the extension of time granted herein is attributable to the Defendant, and does not fall within any of the statutory exemptions for calculation of speedy trial, as set forth in W.R.Cr.P. 48(b)(3). This extension shall therefore not be exempted from the speedy trial calculation.
[¶17] On December 27, 2011, the State filed its Notice of Intent to Seek Death Penalty. The State cited the following aggravating circumstances in support of its notice:
1. That the Defendant knowingly created a great risk of death to two or more people.
2. That the Defendant poses a substantial and continuing threat of future dangerousness or is likely to commit continued acts of criminal violence.
3. That the Defendant, prior to any penalty phase proceedings, will have been convicted of a felony involving the use or threat of violence to a person.
4. That the murder was especially atrocious or cruel, being unnecessarily tortuous [sic] to the victim, Megan McIntosh.
5. The murder was committed for the purpose of avoiding or preventing a lawful arrest.
B. First Continuance and Withdrawal of Defense Team One
[¶18] Mr. Castellanos' trial was originally set for March 20, 2012. On January 6, 2012, defense counsel filed a motion to continue the trial for a period of eighteen months.  In support of the motion to continue, defense counsel emphasized the heightened responsibility that attaches to defending a death penalty case and the additional time demanded
to adequately prepare a defense in such a case. Defense counsel further stated (citations omitted):
6. Discovery is ongoing, and the Defendant continues to receive materials from the State. These materials must be carefully analyzed and evaluated, not only by counsel, but by various expert witnesses. To-date the State has produced well over 1,500 pages of material, the most recent 500 pages being received on January 3.
7. Counsel for the Defendant are required under the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to receive specialized training in capital litigation. The appropriate seminars and programs are located throughout the United States, the first of which, " Capital Case Defense Seminar," is scheduled for February 17-20 in Monterey, California. Another crucial seminar, the NACDL " Capital Voir Dire Training Seminar," is slated for May 17-19 in Boulder, Colorado. A third is the " Bryan R. Shechmeister Death Penalty College" at Santa Clara University School of Law, July 21-26. Undersigned counsel are required as a part of their employment, in capital litigation, to attend these seminars.
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9. Undersigned counsel are still in the process of identifying and retaining certain expert witnesses, some of whom are not able to be identified and retained until the State reveals the nature and extent of the evidence it intends to introduce at trial. Upon information and belief, a substantial amount of the evidence in this case is forensic, which is currently undergoing scientific analysis by the Wyoming State Crime Laboratory. The results of such testing will dictate the type of experts required by the Defendant.
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11. Undersigned counsel have conferred at great length with the Defendant regarding the need for a continuance, and the desire that he sign a waiver of speedy trial to enable counsel to thoroughly prepare. To-date, however, the Defendant refuses to waive speedy trial, and insists on proceeding to trial on March 20, 2012.
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12. For the reasons stated above, undersigned counsel for the Defendant will not be prepared to try the case on March 20, 2012. Moreover, undersigned counsel will not be considered legally competent to effectively represent the Defendant in a capital case at that time. Should the Court elect not to continue this matter for the time requested, undersigned counsel will have no alternative but to seek withdrawal from representing the Defendant in this matter.
[¶19] Although the district court had ordered that pending motions would be considered at a motions hearing on January 18, 2012, the court emailed all counsel on January 10, 2012, and requested that the parties be present for a hearing that day regarding the defense motion to continue. The court informed counsel:
I think it is appropriate to have a hearing at which I receive information from Ms. Lozano [State Public Defender] about the availability of replacement counsel for [Mr. Rose] and [Mr. Guthrie]. The way I read the motion for a continuance, they do not currently feel professionally prepared to proceed with Mr. Castellanos's defense. I am uncomfortable conducting the hearing on the 18th without some information from the public defender's office as to the availability of counsel competent to replace Mr. Rose and Mr. Guthrie if that is the outcome of the motion to continue. By the same token, I am uncomfortable waiting another week to make that decision. I realize there are other motions pending which are critical to the proceeding, however, I believe it is important to get replacement counsel on board as soon as possible in the event I decline to grant the motion to continue.
[¶20] State Public Defender Diane Lozano did appear at the January 10, 2012 hearing. Ms. Lozano advised the court that the two public defenders whom she felt were most qualified to serve as lead counsel in a death penalty case would not be available until the middle to end of February 2012.
Ms. Lozano informed the court that she herself was qualified to try capital cases and to supervise this capital case, but that she could not serve as lead counsel because of the potential conflict should her appellate division need to make arguments concerning the effectiveness of trial counsel. Ms. Lozano further informed the court:
I would also add that when we first were appointed to this case, of course, it wasn't a capital case. I chose two attorneys who I know to be competent who provide high-quality legal representation in all manner of cases, but specifically, the more serious conflict cases specifically for Mr. Rose.
I will be honest with the Court and tell the Court that we began treating this as a potential capital case from the minute we were appointed to it, given the fact and circumstances we thought that it would be better to be cautious in that regard.
We have hired a mitigation specialist who has started some investigations. I have not talked to her in regard to this motion. My guess is that she would need six to nine more months to investigate mitigation, but that's probably between the Court and Ms. Herrera would be our mitigation specialist's name.
THE COURT: I assume she is an attorney.
MS. LOZANO: You know, she is an attorney. A lot of mitigation specialists are not, but she is also. And she's got a therapeutic background and a mitigation investigation background on top of the fact of investigation.
THE COURT: What's her name?
MS. LOZANO: Susan Herrera. She's based in New Orleans. And we can probably get you more information on her if we need to.
We also started looking for training immediately because although I felt that Mr. Guthrie and Mr. Rose were qualified to do this case, I knew I needed to get them training.
[¶21] The district court did not decide the defense motion to continue during the January 10th hearing and instead took the matter under advisement. In doing so, the court directed that Mr. Castellanos be appointed separate counsel to advise him on his speedy trial right and on the filing of objections to the requested continuance.
[¶22] The State objected to the defense motion to continue both during the January 10, 2012 hearing and in a written opposition filed on January 11, 2012. In its written opposition, the State particularly objected to a continuance of eighteen months and asked that if a continuance were granted, that it be a much shorter continuance and that the trial be scheduled by August 2012. In its written opposition, the State also took issue with the defense assertion that the continuance was necessary due to delays in receiving discovery from the State:
4. Forensic evidence testing issues were discussed and a time line of completed testing in January, 2012 was indicated. Defense counsel agreed such a time line was workable. It appears all forensic testing will be completed by that time.
5. Full discovery was provided by the State despite there being no demand filed by the Defendant. The last 500 pages listed by the Defendant in his motion consist largely of transcripts of interviews. The recordings of those interviews had been provided in the past.
[¶23] On January 17, 2012, the district court held a second hearing on the defense motion to continue. The attorney appointed to advise Mr. Castellanos on his speedy trial right was present and informed the court that Mr. Castellanos would not waive his right to a speedy trial and objected to the requested continuance. The court then ruled that it would grant the continuance on the court's own motion in the due administration of justice.
[¶24] On January 24, 2012, the district court issued its written Order Continuing Trial. The court explained its ruling and invited Mr. Castellanos to inform the court of any prejudice resulting from the continuance:
Rule 48(b)(4)(B) only allows a continuance on the Court's motion without a waiver of the right to a speedy trial if the Court finds a continuance is required in the " due administration of justice." * * * In this case, in order for the Defendant to
receive a fair trial, he must have competent counsel experienced in the defense of capital cases. Therefore, the due administration of justice requires a continuance in order that the Defendant's right to a fair trial may be preserved.
Rule 48(b)(4)(B) only allows a continuance on the Court's motion without a defendant's waiver of the right to speedy trial if the defendant " will not be substantially prejudiced" by the delay. The Wyoming Supreme Court has stated that when considering whether a Defendant has been prejudiced by a continuance, the " most serious" factor to consider is whether a defendant's defense will be impaired. Whitney v. State, 2004 WY 118, ¶ 54, 99 P.3d 457, 475 (Wyo. 2004). This is because " the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Id. Defendant's counsel has alleged that in order to adequately prepare for trial and competently represent the Defendant, a continuance is necessary. The Defendant may, with the advice of Mr. Serelson, file with the court any information regarding possible prejudice that this continuance may cause. However, at this point, the Court does not find that a continuance will prejudice the Defendant as anticipated by Rule 48(b)(4)(B).
[¶25] On February 21, 2012, the district court issued an order setting Mr. Castellanos' trial to begin on August 14, 2012. On February 24, 2012, Defense Team One moved to withdraw as counsel for Mr. Castellanos on the ground that counsel from the Public Defender's Office with prior capital case experience had been assigned as lead counsel for Mr. Castellanos. On February 27, 2012, the court held a hearing on Team One's motion to withdraw. One of Mr. Castellanos' new attorneys, Kerri Johnson, was present for that hearing and informed the court that she and Robert Oldham would be formally entering their appearance on behalf of Mr. Castellanos later that day. Ms. Johnson also informed the court that she could not be prepared to go to trial by the original mid-March trial date, but that she would be filing a speedy trial demand on behalf of Mr. Castellanos, and that the trial should not be continued past the August date without a speedy trial waiver.
[¶26] On February 27, 2012, Ms. Johnson and Mr. Oldham (Defense Team Two), formally entered their appearance for Mr. Castellanos and filed a demand for a speedy trial pursuant to W.R.Cr.P. 48. On March 2, 2012, Mr. Castellanos signed and filed his objection to the continuance of the March trial date. On March 8, the district court issued an order in response to Mr. Castellanos' objection. The court ruled:
In the Defendant's Objection, he alleges that it was inappropriate for his counsel at the time of the Order to allege that they needed more training and then move to withdraw.
The Defendant has failed to show that he will be " substantially prejudiced" by the continuance, as anticipated by Wyoming Rules of Criminal Procedure, Rule 48. Not only will he not be prejudiced by this delay, his former counsel conceded that they were not sufficiently professionally prepared to try the case on the date scheduled, that being March 20, 2012 and even more particularly since the Defendant's current counsel are professionally capable of representing the Defendant. The Court also notes that Ms. Johnson, one of the Defendant's current counsel advised the Court on the record that she could not be prepared to try the case in March, 2012. Lastly, the defendant's counsel participated with the State's attorney in selecting the date of August 14, 2012 for the trial.
C. Mental Health Proceedings and Second Continuance
[¶27] On July 30, 2012, Defense Team Two filed a motion to continue Mr. Castellanos' August 14, 2012 trial. As grounds for the motion, defense counsel asserted: 1) that the testimony of Amber McGuire, the surviving victim, had recently changed; and 2) the defense team's mitigation investigation was not yet complete and had been complicated by recent mental health evaluations which required further investigation into Mr. Castellanos' medical ...