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Phillips v. State6/11/1992
Rehearing Denied July 8, 1992.
Everett Phillips challenges his convictions for conspiracy to commit kidnapping and conspiracy to commit sexual assault. His convictions for kidnapping and sexual assault which were the objective of the conspiracies were reversed due to a speedy trial violation. Phillips v. State, 774 P.2d 118 (Wyo. 1989) (Phillips I). The issues Phillips presents in this appeal concern double jeopardy and speedy trial questions as well as issues pertaining to the conduct of the trial.
We affirm.
Phillips brings the following issues:
ISSUE 1
The Fifth Amendment's protection against double jeopardy is violated when a person who has been convicted of a substantive crime and acquitted of attempt to commit the substantive crime is later prosecuted for conspiracy to commit that same crime.
ISSUE 2
Defendant has been denied his right to speedy trial provided for by the United States and Wyoming Constitutions and this denial warrants dismissal of the charges against him.
ISSUE 3
The preindictment delay was unreasonable and prejudiced the petitioner.
ISSUE 4
The decision to prosecute the petitioner on the conspiracy charge was based entirely on this court's dismissal of the original charges and therefore constitutes vindictive prosecution which denied the petitioner his right to due process.
ISSUE 5
The trial court erred in admitting the photograph of David Swazo, because it was irrelevant and its introduction violated its own order.
ISSUE 6
It was reversible error for Officer Robb and Prosecutor Flynn to aver that the Appellant was guilty.
ISSUE 7
The prosecutor's statement to the jury that the defendant must explain coincidence shifted the burden of proof and requires reversal.
ISSUE 8
The State's failure to inform the defense that witness Lacey had reported other "incidents" and Lacey's perjury at trial denied Appellant his right to due process and violates the "Brady" Rule.
ISSUE 9
Systematic denial of petitioner's various rights culminated in the violation of petitioner's basic and inalienable rights to due process of law under the Wyoming and United States Constitutions.
FACTUAL BACKGROUND
In the evening of January 5, 1986, a woman walking home from a bar in Rock Springs, Wyoming was offered a ride from three men in an extended-cab pickup truck. The men were Phillips, Jetty Lee Harvey and David Swazo. The woman ignored them and continued walking. Phillips, the driver of the truck, told Harvey he wanted to grab the woman. Harvey considered this a dare. Phillips continued driving the truck down the street, turned around, came back, and pulled up beside the woman. Harvey exited the truck and told the woman she was going to have a ride. The woman tried to run past Harvey, but Harvey grabbed her by her arm and picked her up using a "bear hug." The woman was pulled into the truck.
A pizza delivery man, Ron Lacey, was counting his tips for the evening when he witnessed the abduction. Concerned, he followed the truck through Rock Springs, onto Interstate 80, and as it exited an off ramp from Interstate 80. The truck entered a trailer court, and Lacey dialed 911 to report the incident to authorities.
Inside the truck, the woman kicked and screamed. She realized the men planned to rape her after Phillips rubbed the inside of her leg. Swazo was sitting in the back seat of the truck and pulled the woman bac
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