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Webb v. State

Supreme Court of Wyoming

September 15, 2017

CLINT RAYMOND WEBB, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Natrona County The Honorable Daniel L. Forgey, Judge

          Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.Representing Appellant

          Peter 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 Appellee:

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          KAUTZ, Justice.

         [¶1] 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.

         ISSUES

         [¶2] 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 speedy trial?
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 accident instruction?
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 Jones?

         FACTS

         [¶3] 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.

         [¶4] 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.

         [¶5] 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).[1] 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).[2]

          [¶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.

         [¶7] 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 murder.

         DISCUSSION

         Wyoming Rule of Criminal Procedure 48

         [¶8] 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).

         [¶9] The relevant portions of Rule 48 state:

         Rule 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 this rule.
. . . .
(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 the delay.

         [¶10] 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).

         [¶11] 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.[3] 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. at 1370.

         [¶12] 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 violation.

         [¶13] 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.[4] 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 48.[5]

         Constitutional Right ...


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