from the District Court of Natrona County The Honorable
Daniel L. Forgey, Judge
of the Public Defender: Diane M. Lozano, State Public
Defender; Tina N. Olson, Chief Appellate Counsel. Argument by
Ms. Olson.Representing Appellant
K. Michael, Wyoming Attorney General; David L. Delicath,
Deputy Attorney General; Christyne M. Martens, Senior
Assistant Attorney General; Joshua C. Eames, Assistant
Attorney General. Argument by Mr. Eames.Representing
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury convicted Appellant, Clint Raymond Webb, of two counts
of aggravated assault and battery with a deadly weapon, one
count of felony property destruction, and one count of
attempted second degree murder. On appeal, Mr. Webb argues
his convictions should be reversed because the State did not
bring his case to trial in a speedy manner, two of his
convictions violated the Fifth Amendment to the United States
Constitution, and there were various errors that occurred
during his trial. We affirm.
Mr. Webb raises six issues in this appeal:
I. Was [Wyoming Rule of Criminal Procedure] 48 violated when
[Mr. Webb] was prosecuted for the same charges after
dismissal, when [he] had filed a demand for speedy trial?
II. Was [Mr. Webb] denied his constitutional right to a
III. Did the prosecutor commit misconduct in closing argument
when he mischaracterized the role of the defense expert
witness, Dr. Loftus?
IV. Was trial counsel ineffective for failing to offer an
V. Did plain error occur when the trial court gave an
inference of malice instruction?
VI. Should this Court reconsider its holding in Jones v.
State, 2016 WY 110');">2016 WY 110, [384 P.3d 260] (Wyo. 2016) as this
Court did not analyze the legislative history of Wyo. Stat.
Ann. §§ 6-2-502(a)(ii) and 6-2-104 and determine
that the legislature expressly intended the result reached in
On June 30, 2014, Julie Webb was driving her Nissan Murano in
Casper, Wyoming. As she was stopped at the intersection of
Walsh and Second Street, she saw her estranged husband, Mr.
Webb, in his Honda Ridgeline. Ms. Webb testified that as the
two passed each other in the intersection, Mr. Webb yelled a
profanity at her, but Ms. Webb ignored him and continued
driving. A couple of blocks later, when Ms. Webb approached
the intersection of 12th Street and Payne, she saw Mr. Webb
approach a nearby stop sign and then begin to drive directly
towards her car. Ms. Webb swerved in an attempt to avoid a
collision but was unsuccessful. Mr. Webb hit the Murano with
enough force that the airbags deployed and a number of car
parts scattered across the road. Mr. Webb fled the area, and
Ms. Webb exited her car and attempted to call 911.
Before Ms. Webb could connect with the 911 operator, she
heard "car engines revving up." When she looked up,
she saw the Honda Ridgeline turn the corner. She ran into a
nearby yard and Mr. Webb drove his vehicle quickly from the
roadway, onto a sidewalk, and toward Ms. Webb. Ms. Webb was
able to jump out of the Ridgeline's path and, with the
help of a Good Samaritan, sought refuge in the basement of
the Samaritan's home. Again, Mr. Webb fled the scene,
striking a parked vehicle in the process. After abandoning
the Ridgeline and taking his mother's car, Mr. Webb drove
to Las Vegas, Nevada, and turned himself into the authorities
three days later.
On July 1, 2014, the State charged Mr. Webb with one count of
aggravated assault and battery with a deadly weapon in
violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) and
(a)(iii) (LexisNexis 2013). On July 31, 2014, the State
dismissed the Information. The State filed a new Information
the same day and added an additional count of aggravated
assault and battery with a deadly weapon and one count of
felony property destruction. The case was bound over to the
district court, but on October 23, 2014, the State filed a
new Information that added a count of attempted second degree
murder, in violation of Wyo. Stat. Ann. §§
6-1-301(a)(i) and 6-2-104 (LexisNexis 2013).
[¶6] Before the charges alleged in the new Information
were bound over to the district court, Mr. Webb's counsel
requested that he receive a competency evaluation. The
circuit court granted the motion, and after an evaluation was
conducted at the Wyoming State Hospital, the circuit court
deemed Mr. Webb competent to proceed. The case was bound over
to the district court and proceeded to trial.
The week-long trial began on July 27, 2015, and the jury
found Mr. Webb guilty of all counts. The district court
sentenced him to serve concurrent terms of five to seven
years for each count of aggravated assault and battery with a
deadly weapon, a concurrent term of one to three years for
the felony property destruction, and a consecutive term of
thirty to forty-five years for the attempted second degree
Rule of Criminal Procedure 48
Mr. Webb contends the State violated his right to a speedy
trial under W.R.Cr.P. 48. We review speedy trial claims
de novo. Rhodes v. State, 2015 WY 60,
¶ 9, 348 P.3d 404, 407 (Wyo. 2015). The State originally
charged Mr. Webb with one count of aggravated assault and
battery with a deadly weapon on July 1, 2014. On July 31,
2014, the State dismissed the charge but filed a new
Information charging Mr. Webb with two counts of aggravated
assault and battery with a deadly weapon and one count of
felony property destruction. On August 15, 2014, Mr. Webb
filed a written demand for a speedy trial. On October 23,
2014, the State filed a new Information in an entirely new
docket number that contained the previous three charges and
added one count of attempted second degree murder. The State
then moved to dismiss the July 31 Information. Mr. Webb
argues that because he had filed a demand for a speedy trial
before the State dismissed the July 31 Information and filed
the October 23 Information, the State violated his speedy
trial right under Rule 48(b)(7).
The relevant portions of Rule 48 state:
48. Dismissal; speedy trial.
(a) By attorney for the state. - The attorney for
the state may, by leave of court, file a dismissal of an
indictment, information or citation, and the prosecution
shall thereupon terminate. Such a dismissal may not be filed
during the trial without the consent of the defendant.
(b) Speedy trial. -
(1) It is the responsibility of the court, counsel and the
defendant to insure that the defendant is timely tried.
(2) A criminal charge shall be brought to trial within 180
days following arraignment unless continued as provided in
. . . .
(5) Any criminal case not tried or continued as provided in
this rule shall be dismissed 180 days after arraignment. . .
(7) A dismissal for lack of speedy trial under this rule
shall not bar the state from again prosecuting the defendant
for the same offense unless the defendant made a written
demand for a speedy trial or can demonstrate prejudice from
A plain reading of Rule 48(b)(7) makes it clear that Mr.
Webb's speedy trial demand can affect the re-filing of
charges only if the previous charges were dismissed due to a
lack of speedy trial. W.R.Cr.P. 48(b)(7). That was not the
case here. The State chose to file a new Information that
included the second degree murder charge and then voluntarily
dismissed the Information that had been filed on July 31,
2014. The dismissal could not have been based on a speedy
trial violation because only ninety-two days had elapsed
between the filing of the July 31 Information and its
subsequent dismissal- approximately half of the 180 days
allowed under Rule 48(b)(2).
Mr. Webb relies on Hall v. State, 911 P.2d 1364
(Wyo. 1996), for his assertion that, so long as a defendant
has filed a demand for a speedy trial, the State is barred
from re-filing charges after the original charges are
dismissed for any reason. This is a gross misinterpretation
of Hall. In Hall, the district court
dismissed the original charge of concealing or disposing of
stolen property at the prosecution's request. The
prosecution then re-filed the charge, and the district court
later dismissed the charge because more than 120 days had
elapsed since Hall's arraignment. The State filed the charge a
third time and Hall was convicted. Id. at 1367. On
appeal, Hall argued the charge should have been dismissed
because almost two years had elapsed between the State's
first filing of the charge and Hall's trial. Id.
The Court explained that Rule 48 implies that the 120-day
period will begin anew when the State dismisses the original
charge and re-files. Id. Therefore, the only
arraignment relevant for the purposes of Rule 48 was the
arraignment that followed the third filing of the charge.
Significantly, the Court acknowledged that the third filing
was appropriate because Hall had not filed a written demand
for a speedy trial before the second dismissal of the charge,
which was due to a Rule 48 violation. Id. Thus,
Hall is readily distinguishable from this case, as
Mr. Webb's charges were never dismissed for a Rule 48
Mr. Webb also claims the State violated Rule 48 because it
acted in bad faith when it dismissed the July 31, 2014
Information. However, the basis of this argument is meager,
to say the least. Mr. Webb cites to the motion to dismiss he
filed in the district court, wherein his counsel apparently
quoted language from the State's motion to dismiss the
July 31 Information. Mr. Webb asserted that the State explained
the need for the new Information was because the "State
has filed a new case more accurately reflecting the charges
in this matter and adding an additional count." Mr. Webb
argues this is inconsistent with the prosecutor's verbal
assertion at the motion hearing when he explained he made the
decision to dismiss and re-file the Information after Mr.
Webb chose not to accept a plea agreement. We do not find
these assertions inconsistent with one another. While the
assertions are not identical, they are not in conflict.
Further, to the extent they arguably could be said to be
inconsistent, Mr. Webb has provided no authority that stands
for the conclusion that the statements demonstrate bad faith.
See Bordenkircher v. Hayes, 434 U.S. 357, 364-65, 98
S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978) (due process is not
offended when a state prosecutor carries out a threat to
indict the defendant on a more serious charge after the
defendant does not plead guilty to the original charge).
Because Mr. Webb has failed to present any evidence or
authority to persuade this Court that the State acted in bad
faith when it dismissed the July 31 Information, and because
Rule 48(b)(7) is not applicable, we conclude the State did
not violate Mr. Webb's speedy trial rights under Rule