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Allen v. State4/2/2002
In December 1999, a jury found appellant, Jay C. Allen, guilty of two counts of aggravated vehicular homicide in violation of Wyo. Stat. Ann. § 6-2-106(b) (LexisNexis 2001), and the district court sentenced appellant to serve 150 to 240 months in prison for each count, the sentences to run consecutively. Appellant appeals from that judgment and sentence, arguing that the district court erred in not suppressing evidence of appellant's blood-alcohol concentration, that appellant's defense counsel was ineffective in several respects, that the district court erred in not appointing a different attorney to represent appellant, that the evidence was insufficient to convict appellant of the charge relating to victim Mary Fink, that certain hearsay testimony should not have been permitted at trial, and that the district court should have declared a mistrial after appellant was cross-examined regarding a prior criminal conviction. We affirm.
ISSUES
[ ] Appellant phrases the issues on appeal as follows:
I. Did the trial court err in refusing to suppress the results of the blood alcohol test performed on appellant, as implied consent procedures were not followed, and the failure to follow such procedures violated appellant's Fourth Amendment rights?
II. Did the trial court err in refusing to appoint different counsel for appellant, resulting in a violation of appellant's Sixth Amendment right to counsel?
III. Did appellant receive ineffective assistance of counsel?
IV. Was the evidence insufficient to support a finding of guilty with regard to the charge of aggravated homicide by vehicle pertaining to Mary Fink?
V. Did the trial court err in not ordering a judgment of acquittal as to the charge of aggravated homicide by vehicle pertaining to Mary Fink?
VI. Did the trial court err in permitting hearsay testimony of Heather Johnson?
VII. Did the trial court abuse its discretion when it failed to declare a mistrial or properly instruct the jury after the prosecutor questioned appellant about a conviction more than ten years old?
The State of Wyoming, as appellee, phrases the issues in substantially the same manner.
FACTS
[ ] On April 14, 1999, just prior to 3:00 p.m., appellant was driving a 1979 station wagon that collided with a Ford Tempo driven by Mary Fink near the intersection of Wyoming Boulevard and McKinley Street in Natrona County. Appellant's brother, Frank Allen, the brother's girlfriend, Heather Johnson, and appellant's unrestrained three-year-old nephew were passengers in the station wagon. Mary Fink's husband, Albert Fink, was a passenger in the Ford Tempo.
[ ] Linda Evans, a certified nurse's aide, was one of the first passersby to stop and assist at the scene. Albert Fink was experiencing difficulty breathing and Mary Fink's foot hurt. Mary Fink told Linda Evans that the station wagon "had pulled in front of them and she couldn't stop" and at some point, appellant added, "I'm so sorry. I didn't see them." Linda Evans could smell a strong odor of alcohol on appellant's breath, appellant seemed to be "stumbling a little bit," his speech was "a little slurred," and he had bloodshot eyes. Tina Evans, Linda Evans' sixteen-year-old daughter, echoed her mother's observations of appellant and recalled Heather Johnson stating that she told appellant to "watch out for that car."
[ ] A fireman who responded to the collision spoke with appellant at the scene. He could "smell alcohol" on appellant, noticed that appellant's balance was impa ired (at one point appellant "started to stagger and fall against the car"), and observed several "bottles" (possibly Budweiser) in the st
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